Code of Civil Procedure, 1908 – ss.11, 96 and Or. XLI, r.22, Or.XLI, r.33 – Three separate suits were filed against the defendants including the State – First and second suit were in respect of land falling in Survey No.9 of 2013 of Khairatabad Village – Third suit was in respect of land falling in Survey Nos.49 and 50 in Rasoolpura Village – State contested on the ground that the land in all the three suits fell in Survey No.43 of Village Bholakpur, which is a Government Shikkam Talab – All the suits tried together – First two suits dismissed, however, the third suit was decreed against the State – State filed appeal against the decree in the third suit, which was objected on the ground that the findings recorded on Issue No.1 in the first and second suit have to be treated as decree and would operate as res judicata – High Court inter alia held that without filing cross-objections, the Govt. cannot challenge the findings of the trial court – On appeal, held: Present is a case where the decree is of dismissal of suit therefore, entirely in favour of the State and not executable – Decree of dismissal of the first and second suit has not attained finality and are under challenge by the plaintiffs and the defendants-State are entitled to dispute findings on Issue No.1 – All the issues are open for consideration before the First Appellate Court including the findings of fact on Issue No.1 – Defendants have right to dispute such findings by filing cross-objections u/Or. XLI, r. 22, as amended in the year 1976 or even in the exercise of the powers conferred on the Appellate Court u/Or. XLI, r. 33 – Further, s.11 and Explanation I would be applicable in subsequent proceedings between the same parties or between the parties under whom they or any of them claimed under the same title – But the findings in the first and second suit will not operate as res judicata as such findings are subject matter of challenge in the appeals filed by the plaintiffs in their respective suits – High Court failed to draw the distinction between the decree and a finding on an issue – It is the decree against which an appeal lies in terms of s.96 – DefendantsState could not file appeal against a decree which was of dismissal of suit simpliciter – Order of the High Court set aside. Words & expressions – “Decree”, “Judgment” – Meaning of – Discussed – Code of Civil Procedure, 1908 – ss.2(2), 2(9). Suits – Consolidation of – Plea of the respondents drawing distinction between an order of consolidation of suits and the order where common judgment is rendered in different suits – Held: Not tenable in law.
Allowing the appeals, the Court
HELD: 1.1 The findings recorded by the High Court are patently erroneous. The present is a case where the decree is of dismissal of suit therefore, entirely in favour of the State and not executable. [Paras 12, 19] [156-H; 160-D]
1.2 The decree in Civil Suit No. 274 of 1983 or 276 of 1983 (First Suit and Second Suit) has not attained finality and the same are still subject matter of appeal before the First Appellate Court wherein, the findings recorded by the trial court can be set aside while maintaining ultimate decree of dismissal of the suit. The decree of dismissal of the first and second suit has not attained finality which are under challenge by the plaintiffs and the defendants-State are entitled to dispute findings on Issue No.1 even without filing cross objections or in terms of Order XLI Rule 33 of the Code of Civil Procedure, 1908 that the decree of dismissal of suit on the grounds other than what weighed with the learned trial court. All the issues are open for consideration before the First Appellate Court. [Paras 26, 31] [166-F-G; 169-E-F]
1.3 Section 11 and Explanation I of the Code would be applicable in subsequent proceedings between the same parties or between the parties under whom they or any of them claimed under the same title. But the findings in the first and second suit will not operate as res judicata as such findings are subject matter of challenge in the appeals filed by the plaintiffs in their respective suits. All the three suits have been decided together and the three appeals pending against such judgment and decrees. Therefore, it cannot be said that the first and the second suit are the former suits as the decree passed therein has not attained finality. The findings recorded therein will not, therefore, operate as res judicata as the State is not obliged to challenge findings on Issue No.1 in the first and second suit even after the amendment of Order XLI Rule 22 of the Code. The High Court has failed to draw the distinction between the decree and a finding on an issue. It is the decree against which an appeal lies in terms of Section
96 of the Code. Decree in terms of Section 2(2) of the Code means formal expression of an adjudication conclusively determining the rights of the parties. The defendants-State could not file an appeal against a decree which was of dismissal of a suit simpliciter. The findings on Issue No.1 against the State could be challenged by way of cross-objections in terms of amended provisions of Order XLI, Rule 22 of the Code but such filing of cross-objections is not necessary to dispute the findings recorded on Issue No. 1 as the defendants have a right to support the ultimate decree passed by the trial court of dismissal of suit on grounds other than which weighed with the learned trial court. Even in terms of Order XLI Rule 33 of the Code, the Appellate Court has the jurisdiction to pass any order which ought to have been passed or made in proceedings before it. As per facts on record, Original Suit Nos. 274 of 1983 and 276 of 1983 have been dismissed. The plaintiffs are in appeal in both the suits before the First Appellate Court. Therefore, such decree including the finding on Issue No.
1 has not attained finality as the Appellate Court is seized of the entire controversy including the findings of fact on Issue No.1. The defendants have a right to dispute such findings by filing cross-objections under Order XLI, Rule 22 of the Code as amended in the year 1976 or even in the exercise of the powers conferred on the Appellate Court under Order XLI Rule 33 of the Code. [Paras 32, 36 and 37] [169-G-H; 170-A-B; 173-C-F]
1.4 The decree is of dismissal of the suit, whereas, the reasons for passing such decree is judgment as defined in Section 2(9) of the Code. In terms of Section 11 read with Explanation I, the issue in a former suit will operate as res judicata only if such issue is raised in a subsequent suit. Since, the issue of title has not attained finality, therefore, it is not a former suit to which there can be any application of Section 11. The order passed by the High Court in the first appeal filed by the State is set aside, as the findings on Issue Nos. 1 and 2 in the first and second suit do not operate as res judicata. [Paras 38, 39] [173-G-H; 174-A-B]
Ramesh Chandra v. Shiv Charan Dass AIR 1991 SC
264 : [1990] Suppl. SCR 97 ; S. Nazeer Ahmed v. State Bank of Mysore & Ors. (2007) 11 SCC 75 : [2007]
1 SCR 843 – relied on.
Badri Narayan Singh v. Kamdeo Prasad Singh & Anr. [1962] 3 SCR 759 ; Ashok Nagar Welfare Association & Anr. v. R. K. Sharma & Ors. (2002) 1 SCC 749 : [2001] 5 Suppl. SCR 662 ; Bhanu Kumar Jain
v. Archana Kumar and Another (2005) 1 SCC
787 : [2004] 6 Suppl. SCR 1104 – held inapplicable. Narhari & Ors. v. Shankar & Ors. AIR 1953 SC
419 : [1950] SCR 754 ; Ganga Bai v. Vijay Kumar & Ors. (1974) 2 SCC 393 : [1974] 3 SCR 882 ; Banarsi & Ors. v. Ram Phal (2003) 9 SCC 606 : [2003] 2 SCR
22 ; Hardevinder Singh v. Paramjit Singh & Ors. (2013)
9 SCC 261 : [2013] 1 SCR 903 ; Sri Gangai Vinayagar Temple & Anr. v. Meenakshi Ammal & Ors. (2015) 3 SCC 624 : [2014] 12 SCR 845 ; Chitivalasa Jute Mills v. Jaypee Rewa Cement (2004) 3 SCC 85 ; Sheodan Singh v. Daryao Kunwar (Smt.) [1966] 3 SCR 300 ; Lonankutty v. Thomman & Anr. (1976) 3 SCC
528 : [976] Suppl. SCR 74; Premier Tyres Limited v. Kerala State Road Transport Corporation (1993) Supp.
(2) SCC 146 ; Harbans Singh & Ors. v. Sant Hari Singh & Ors. (2009) 2 SCC 526 : [2009] 1 SCR 250 ; Nirmala Bala Ghose v. Balai Chand Ghose [1965] 3 SCR 550 ; Govindammal (D) by LRs & Ors. v. Vaidyanathan & Ors. (2018) 14 SCALE 198 – referred to.
As published in the Supreme Court Reports, Supreme Court of India. Text from the Indian Supreme Court Judgments open data set (Dattam Labs), CC BY 4.0.
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