Shri Avinash Kumar Ray vs Dr. Kumari Chhaya Ray
2021 Latest Caselaw 7755 MP

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                  The High Court of Madhya Pradesh
                      FIRST APPEAL NO.584 of 2021
   (SHRI AVINASH KUMAR RAY Vs. DR. KUMARI CHHAYA RAY AND OTHERS)
Jabalpur; Dated:24-11-2021.

      Shri Sankalp Kochar and Shri Sushil Kumar Tiwari, Advocates for
the appellant.

      None for respondent no. 1.

Shri Imtiaz Hussain, Advocate for respondents no. 2 & 3.

Heard on I.A. No. 7253/2021 filed on behalf of respondents no. 2 and 3 on the question of maintainability of this appeal.

Learned counsel for respondents no. 2 and 3 has raised preliminary objection regarding maintainability of the appeal and submitted that two suits were tried before the Trial Court, vide Civil Suit No. 40/14, which was filed by the appellant Avinash Kumar Rai (plaintiff) against Dr. Kumari Chhaya Rai, Shri Pradeep Chowksey and Smt. Pushpa Devi Chowksey (Defendants) and another Civil Suit No. 39/2014 was filed by the respondents namely Dr. Kumari Chhaya Rai, Shri Pradeep Chowksey and Smt. Pushpa Devi Chowksey (plaintiffs) against Avinash Kumar Rai (defendant). Both the suits were disposed of by a common judgment. Since, there were two suits tried together and one was dismissed and other was decreed and since the plaintiff in one case was defendant filed by Dr. Kumari Chaya Rai and others (Civil Suit No. 39 of 2014), in another case he was plaintiff and the respondents hereinabove i.e. Dr. Kumar Chaya Rai and others were defendants (Civil Suit No. 40/14), therefore, submitted that there are two decrees in the case. But the appellant Shri Avinash Kumar Rai has filed a common appeal against the impugned judgment and decree vide dated 02.08.2021, which is not permissible in law, in view of the expression "an appeal" and "every decree" in section 96 of C.P.C., which makes it clear that each decree should be the subject matter of an independent appeal and one appeal

against two decrees passed in different suits is not contemplated and this is also further strengthened by the proviso to order 41 rule 1 C.P.C. In support of his contention, learned counsel has placed Reliance on the judgment of Hon'ble the Apex Court in the case of Sri Gangai Vinayagar Temple and another Vs. Meenakshi Ammal and others (2015) 3 SCC 624 and Maiianna @ Appaiah Vs. Smt. Muni Nanjamma @ Nanjamma AIR 2001 Kar. 205, Maniram Saikia Vs. Hira Bordoloi and others AIR 1990 Gauhati 32 and In re R. Gundu Rao AIR 1960 Madras 57 and prayed that the instant first appeal is not maintainable and the same is liable to be dismissed in this ground alone.

In response learned counsel for the appellant has submitted that the appellant has filed the reply vide document no. 9782 dated 22.10.2021 and denied the contentions raised by the respondents and, in addition, in his reply, it is mentioned that though the two separate Civil Suits vide No. 40/14 parties being Shri Avinash Kumar Rai V/s Dr. Kumari Chaya Rai and others and another Civil Suit vide No. 39/14 parties being Dr. Kumari Chaya Rai & other V/s Avinash Kumar Rai were filed. But both the Civil Suit were filed arising out of same property, same cause of action in between same party, resulting which by order dated 06.07.2011, the Learned Trial Judge consolidated both the Civil Suits and the trial of the suits was not separated, both the cases have been decided by one impugned judgment dated 02.08.2021 and framed the impugned one decree dated 5.8.2021. Further stated that in para 1 of Memo of Appeal, the appellant has narrated the aforesaid fact. In para 3 of appeal stated that during pendency of both the civil suits, the disputed property was sold by defendant no.1 to defendants no.2 & 3 on 30.9.2010 vide registration dated 4.10.2010 and thus the said defendants no. 2 & 3 made party in his suit and suit of respondent defendant no.1 as plaintiffs no.2 & 3. Further, at the time of order dated 06.07.2011, when the Learned Trial Judge consolidated the hearing and proceeding of both the cases, no any kind of oral or written objection has been filed by

the respondents / defendants and the said order had attained the finality and in-fact, in the consolidated impugned judgment only one decree has been framed and passed, is quite evident from very beginning para 1 and operative para 63 of the impugned judgment and, no any other separate decree has been passed. The respondents have filed the application as to maintainability of the appeal without any cogent and legal basis and it goes to indicate that by filing this objection, the respondents' intention is to cause delay in hearing of stay application of the appellant filed under order 41 rule 5 R/w section 151 of C.P.C., so that the execution proceeding, started by the respondents could be completed as it is fixed for 26.11.2021.

In support of his contention, the learned counsel for the appellant submitted that the facts and situation of the judgments cited by the Learned Counsel for the respondents, are different and the same are not applicable in the present facts and circumstance of the instant appeal. Learned counsel has relied upon a judgment reported in 2020 (2) R.N. 306 (HIGH COURT) rendered in the case of Bhogiram and others V/s Sher Singh & others, inviting the attention of this court in para 26 of the said judgment and submitted that on going through the Memo of Appeal filed by the appellant before this court; it was a combined Memo of Appeal and in the prayer clause, the appellants had also sought declaration of his Title as prayed in the Civil Suit vide no. 40/2014. Thus, in fact, the dismissal of Civil Suit No. 40/14 is also challenged by the appellant with the prayer of dismissal of impugned judgment and decree. Even otherwise, the suit of the appellant and the counter suit of the respondents namely Dr. Kumari Chhaya and other was based on same property in between same party and same cause of action which may be only a bit different. Thus, the submission made by the counsel for the respondents is liable to be rejected.

Heard learned counsel for both the rival parties and perused the case law cited by both the parties and impugned judgment and decree.

On perusal of the impugned judgment and decree and the aforesaid submissions made by the respective counsels of the parties and after hearing them, this court finds that this is the First Appeal U/s 96 of C.P.C. against the impugned judgment and decree, passed by the Learned 19th District Judge, Jabalpur, in R.C.S.A. No. 40/14 & 39/14 parties being Avinash Kumar Rai (plaintiff) V/s Dr. Kumari Chhaya Rai and other (Defendants) and Dr. Kumari Chhaya Rai and other (plaintiff) V/s Avinash Kumar Rai (Defendant), respectively, thereby the plaint filed by the appellant vide no. 40/14 in respect of partial part of house No. 1411 (Old House No. 796) marked in red ink as [ka] [kha] [ga] [gha] [inga) and (cha) in the annexed map, the plaintiff Avinash Kumar Rai prayed for grant of decree of declaration that since the year 1966 in the disputed area of house the plaintiff is on possession, in which he made the Pakka Construction (House) and in that respect which permission is granted, the defendants have no right to alter it and disposed of the plaintiff and his family members from their peaceful possession from the disputed property i.e the residential house and further plaintiff Avinash Rai has prayed for decree of permanent injunction to restrain the defendants not to sale, transfer the disputed property to any one or cause any damage to the house. In the said Civil Suit the appellant/plaintiff also prayed for declaration of Sale Deed vide dated 30.09.2010(registered on 04.10.2010) executed in favour of defendant no. 2 & 3, void, in effective and not binding on the plaintiff. Further reveals from the impugned judgment that in the later stage on 25.6.2009, the defendants namely Dr. Kumari Chaya Rai and another have filed a Civil Suit vide no. 39/14 against the appellant/plaintiff in respect of the partial part of the same disputed house marked in their plaint in red ink and by way of said Civil Suit they prayed for decree of permanent injunction and the delivery of vacant possession of disputed house and decree of permanent injunction as well against the plaintiff, restraining him not to interfere the work of his removal by the

defendants namely Dr. Kumari Chhaya Rai and other(who are the plaintiffs in Civil Suit No. 39 of 14).

The Learned Court below has mentioned the admitted fact in para 4 of the impugned judgment that Shri Kirti Bhanu Rai father of plaintiff Avinash Rai and father of defendant no. 1 Dr. Kumar Chaya Rai was the original landlord of disputed house and other properties, who died on 14.09.1984. Thus it is crystal clear that the plaintiff Shri Avinash Kumar Rai (in civil suit no. 40/14) and Dr. Kumari Chaya Rai (in civil suit no. 39/14) are real brother and sister. At present, there is no need to mention the other admitted fact which can be seen from para 4 of impugned judgment, apart from that, this is also the fact that the defendant no. 1 had executed registered sale deed in favour of defendant no. 2 and 3, which had been questioned by the appellant as plaintiff in his Civil Suit.

On perusal of impugned judgment and decree, it goes to indicate that both the Civil Suit were filed arising out of same property, as much as same cause of action in between same party, resulting which by order dated 06.07.2011, the Learned Trial Judge consolidated both the Civil Suits and the trial of the suits was not separated, both the cases has been decided by one impugned judgment dated 02.08.2021 and in compliance of that framed one impugned decree dated 5.8.2021.Further reveals that in para 1 of Memo of Appeal, the appellant has narrated the aforesaid fact, apart from that, submitted that at the time of order dated 06.07.2011, when the Learned Trial Judge consolidated the hearing and proceeding of both the cases and not separated the trial of suits, no any kind of oral or written objection has been filed and hence the said order had attend the finality and in fact in the consolidated impugned judgment only one decree has been framed and passed, is quite evident from very beginning para 1 and operative para 63 of the impugned judgment and, there is no any other separate decree has been passed.

On perusal of the judgment of Hon'ble the Apex Court in the case of Sri Gangai Vinayagar Temple and another V/s Meenakshi Ammal and others (2015) 3 SCC 624, it reveals that in the said judgment the principal of res-judicata was applied because the multiple suits disposed of by one common judgment, but by separate decree and appeal was filed against one decree in one suit only. In the present case in hand, the Learned Trial Judge consolidated both the Civil Suits and the trial of the suits was not separated, both the cases has been decided by one impugned judgment dated 02.08.2021 and framed only one impugned decree dated 5.8.2021, apart from that, suit in respect of which decree passed, the appellant has filed the appeal and thus the said judgment is not helping to the respondents. Similarly in AIR 2001 Kar 205 Mallana @ Appaiah V/s Smt. Muni Nanjamma @ Nanjamma, AIR 1990 Gauhati 32 Maniram Saikia V/s Hira Bordoloi and others, the facts are different, in the first case AIR 2001 Kar 205 two cases were filed and a common judgment was passed with two separate decrees in two separate trial of suits. Herein the present case situation is entirely different as stated herein above and the principal of said judgment is not applicable. (see para 2 and 5 of the said judgment). In the Second Case AIR 1990 Gauhati 32, one appeal was filed against two decrees passed in two different suit based on different causes of action and it was held that the same is not contemplated, thus the fact of the said decision is distinguishable, because there was two different suits based on different cause of action and the appeal was filed against the judgment and decree passed in T.S. No. 15 of 1979 and the appeal was not filed against the judgment and decree passed in T.S. No, 14 of 1979, which makes it clear that there was two decrees arising out of two different suits based on different cause of action. But in the present case though there was two Civil Suits but were based in respect of same property in between the same party arising out of almost about same cause of action, decided by one judgment and one decree. Hence the contention of the Learned Counsel

for the respondent no. 2 & 3 based on the aforesaid decisions is not sustainable. Apart from that, in the judgment of Maniram Saika (Supra) the fact are not clear whether the Trial of suit was separated or not or consolidated as the present case in hand. Admittedly, in the present case, no separate decree has been passed and therefore the principal that "every decree should be subject matter of separate appeal" is no applicable in the present case and the instant First Appeal is maintainable.

In the conspectus of the aforesaid discussions, I.A. No. 7253 of 2021 filed by respondent no. 2 & 3, is hereby rejected and this court holds that the present First Appeal is maintainable.

Heard on I.A. No. 6571 of 2021 filed by the appellant under order 41 rule 5 R/w section 151 of C.P.C. for grant of stay.

The Learned Counsel for the appellant submitted that admittedly the appellant is in possession on the disputed property i.e. house in question vide no. 1411 (old house no. 796) and residing there. The Learned Court below has passed the judgment and decree to deliver the possession within two months to the respondents/defendant no. 2 & 3 also decreed that from 14.06.2009 to 25.06.2009 and thereafter from 25.06.2009 till the date of delivery of possession of partial part of disputed house, the plaintiff shall pay the mesne profit to the defendants at the rate of Rs. 100/- per day. Further submitted that during the pendency of Civil Suit, the temporary injunction was granted in favour of appellant/plaintiff Avinash Kumar Rai and the respondents were restrained not to interfere the possession of the appellant and they were restrained from alienating, transferring and changing the nature of suit property and contended that there is prima-facie case and the principal of balance of convenience and irreparable loss in favour of the appellant/plaintiff. The Learned Counsel for the appellant has invited the attention of this court in the documents filed with application for

taking the document on record vide no. 8071/2021 and prayed that the respondents have filed and started the execution proceeding vide no. EX-A 68/2021 and it is fixed for submitting the report on 26.11.2021 and submitted that if the operation, effect and execution of impugned executable judgment and decree is not stayed than the irreparable loss and injury will cause to the appellant and in the said event the instant appeal would become infructuous.

In support of aforesaid contention, the Learned Counsel for the appellant has relied the judgment of Apex Court in the case of Rajaram Prasad Gupta & another V/s Ram Chandra Prasad and others (2009 (1) MPWN 62) where-in it has been held that it is well settled that in cases where the subject of suit is residential premises and the judgment- debtor is residing in it, prayer for stay is ordinarily granted. Further looking to the nature and urgency of case, also relied the decision reported in AIR 1967 SC 1386 and invited the attention of this court in para 11 of the said decision. Further relied the order of Allahabad High Court in the case of Phusia vs Mohammad Tasaddug Hussain Khan (AIR 1952 all 684) vide para 4 and in view of the aforesaid submission prayed for grant of stay on execution of impugned judgment and decree which is executable.

The Learned Counsel for the respondent no. 2 & 3 submitted that in view of their preliminary objection on maintainability of appeal, the appellant has no prima-facie case to grant any interim relief and further submitted that the application filed by the appellant is liable to be rejected.

In view of the aforesaid discussions and the submission advanced by the learned counsel by the appellant and the reply submitted by the learned Counsel of respondents no. 2 & 3 and looking to the fact that the appellant is on possession and the interim protection was granted during the pendency of the hearing of Civil Suit and there is decree for

delivery of possession of residential house, the execution proceeding vide no. EX-A 68/2021 is pending and fixed for 26.11.2021 as stated by appellant, the effect and operation of the impugned judgment and decree dated 02.08.2021 and the execution proceeding vide no. EX-A 68/2021 shall remain stayed till final disposal of the appeal.

Accordingly, I.A. No. 6571 of 2021 is allowed and disposed of.

Heard on admission.

This appeal is admitted for final hearing.

Record of the court below be requisitioned and list thereafter for

final hearing in due course as per listing policy.

(ARUN KUMAR SHARMA) JUDGE

skt/-

SANTOSH KUMAR TIWARI 2021.11.29 14:48:25 +05'30'