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TMI Blog1966 (1) TMI 77X X X X Extracts X X X X X X X X Extracts X X X X ..... d his adopted son Ram Kishan and on the death of Harnam Singh and his adopted son, the appellant and his father became owners of the joint properties by survivorship; but the names of the widows of Harnam Singh and Ram Kishan were entered in revenue papers for their consolation, though they had no right or title to any part of the property in dispute. There were other allegations in the plaint with which we are however not concerned in the present appeals. Shortly afterwards the appellant's father filed another suit No. 42 of 1950 against the respondent and one other person claiming the price of the crops which stood on certain sir and khudkashat plots in two villages on the allegation that the respondent had cut and misappropriated the crops standing on these plots without having any right, title or interest therein. The respondent Smt. Daryao Kunwar contested both the suits. Her main defence was that there had been complete partition in the family as a result of which Harnam Singh and after him his adopted son Ram Kishan were the sole owners of their separated shares. After the death of Ram Kishan, the respondent inherited his entire property as his widow. Both these suits ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ecrees. Consequently he filed two first appeals in the High Court. Appeal No. 365 of 1951 was against the dismissal of suit No. 37 while appeal No. 366 of 1951 was against the dismissal of suit No. 42. The appellant's father also filed two appeals in the court of the District Judge against the judgments and decrees in the suit filed by the respondent, Smt. Daryao Kunwar. Appeal No. 452 of 1951 was against the decree in suit No. 77 while appeal No. 453 of 1951 was against the decree in suit No. 91. By an order of the High Court, the two appeals pending in the court of the District Judge were transferred to the High Court. Thereafter appeal No. 453 of 1951 arising out of suit No. 91 was dismissed by the High Court on October 9, 1953 as being time-barred while, appeal No. 452 of 1951 arising out of suit No. 77 was dismissed by the High Court on October 7, 1955 on the ground of failure of the appellant's father to apply for translation and printing of the record as required by the rules of the High Court. It may be mentioned that appeals Nos. 452 and 453 were-given different numbers on transfer to the High Court; but it is unnecessary to refer to those number for present purpos ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f Civil Procedure insofar as they are material for present purposes. They read thus : No Court shall try any suit or issue-in which the matter directly and substantially in issue has been directly and substantially in issue in a former suit between the same parties, or between parties under whom they or any of them claim, litigating under the same title, in a Court competent to try such subsequent suit or the suit in which such issue has been subsequently raised, and has been heard and finally decided by such Court. Explanation I-The expression 'former suit' shall denote a suit which has been decided prior to the suit in question whether or not it was instituted prior thereto. It is not necessary to refer to the other Explanations. A plain reading of s. 11 shows that to constitute a matter res judicata, the following conditions must be satisfied, namely- (i)The matter directly and substantially in issue in the subsequent suit or issue must be the same matter which was directly and substantially in issue in the former suit; (ii)The former suit must have been a suit between the same parties or between, parties under whom they or any of them claim; (iii)The p ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hat the respondent, Smt. Daryao Kunwar, succeeded to Ram Kishan on his death and was entitled to the separated share of Ram Kishan and the appellant and his father had no right to the property by survivorship. In the face of the judgment of the Additional Civil Judge which shows that there were five common issues in all the four suits, the appellant cannot be heard to say that these issues were not directly and substantially in issue in suits Nos. 77 and 91 also. Further this contention was not raised in the High Court and the appellant cannot be permitted to raise it for the first time in this Court. Besides the question whether these common issues were directly and substantially in issue in suits Nos. 77 and 91 can only be decided after a perusal of the pleadings of the parties. In the paper book as originally printed the pleadings at all.Later he filed copies of the plaints an application. Even now we have not got copies of the written statements and replications, if any of suits Nos. 77 and 91. the appellant did not include only with written-state In the circumstances we must accept from the fact that the judgment of the Additional Civil Judge shows that these five issues -w ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... re was only one suit, it was not necessary to file two separate appeals and the fact that one of the appeals was time-barred did not affect the maintainability of the other appeal and the question of res judicata did not at all arise. In the present case there were different suits from which different appeals had to be filed. The High Court's decision in the two appeals arising from suits Nos' 77 and 91 was undoubtedly earlier and therefore the condition that there should have been a decision in a former suit to give rise to res judicata in a subsequent suit was satisfied in the present case. The contention that there was no former suit in the present case must therefore fail. Re. (iv). This brings us to the main point that has been urged in these appeals, namely, that the High Court had not heard and finally decided the appeals arising out of suits Nos. 77 and 91. One of the appeals was dismissed on the ground that it was filed beyond the period of limitation while the other appeal was dismissed on the ground that the appellant therein had not taken steps to print the records. It is therefore urged that the two appeals arising out of suits Nos. 77 and 91 had not been ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 1. In these circumstances though the order of the High Court itself may not be on the merits, the decision of the High Court dismissing the appeals arising out of suits Nos. 77 and 91 was to uphold the decision on the merits as to issue of title and therefore it must be held that by dismissing the appeals arising out of suits Nos. 77 and 91 the High Court heard and finally decided the matter for it confirmed the judgment of the trial court on the issue of title arising between the parties and the decision of the trial court being on the merits the High Court's decision confirming that decision must also be deemed to be on the merits. To hold otherwise would make res judicata impossible in cases where the trial court decides the matter on merits but the appeal court dismisses the appeal on some preliminary ground thus confirming the decision of the trial court on the me- rits. It is well-settled that where a decree on the merits is appealed from, the decision of the trial court loses its character of finality and what was once res judicata again becomes res subjudice and it is the decree of the appeal court which will then be res judicata. But if the contention of the appellant ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... acts would show that that case has no application to the present case. In that case the finality of the judgment of the trial court in the former suit had been destroyed by the appeal taken therefrom and the appeal court decided that no decision ought to have been pronounced on the merits in the former suit constituted as it was. It was in those circumstances that the Privy Council held that the issue had not been beard and finally decided in the former suit. The facts in that, case therefore were very different from the facts in the present case, for the very decision of the appeal court showed that nothing had been decided in that case and the decree of the trial court on the merits was not confirmed. In the case before us though the decision of the High Court was on a preliminary point the decision, on the merits of the trial court was confirmed and that makes the decision of the High Court res judicata. The next case to which reference has been made is Ashgar Ali Khan v. Ganesh Das. L.R. (1917) 44 I.A. 213. In that case the appellant in pursuance of a deed of dissolution of partnership, executed a bond for the payment of some money to the respondent. He sued to set aside ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hagwat A.I.R.1933 Oudh 531.The reason given for the main proposition in this decision is that the court must look at the substance of the matter and not be guided by technical considerations. In view of what we have said above, we cannot agree with the view taken in, that case, and must hold that it was wrongly decided insofar as it holds that even where the appeal from one decree is dismissed, there will be no res judicata. The next case to which reference may be made is Obedur Rahman v. Darbari Lal A.I.R. 1927 Lah. 1.In that case there were five appeals before the High Court, three of which had abated. There was a common issue in all the five appeals, namely, whether a certain lease had expired or not and it was urged that in view of the abatement of the three other appeals, the decision of that issue had become res judicata. The contention was over-ruled by the observation that where there has been an appeal, the matter is no longer resjudicata but res sub judice and where an appeal is not finally heard and decided any matters therein cannot possibly be said to be res judicata . This view in our opinion is incorrect. We may in this connection refer to Syed Ahmad Ali Khan Ala ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ent of the parties and there were certain common issues. Appeal was taken from the decision in one suit and not from the decision in the other, and it was urged in the High Court that the decision in the other suit had become final. The High Court applied the principle that resjudicata could not apply in the same proceeding in which the decision was given and added that by a parity of reasoning it could not apply to suits which were consoli- dated. We may indicate that a contrary view has been taken in 10 Sup CI/66-7 31 2 Mrs. Gertrude Oates v. Mrs. Millicent D'Silva A.I.R. 1933 Pat. 78. and Zaharia v. Debia. I.L.R. (1911) 33 All. 51.We need not consider the correctness of these rival views as they raise the question as to whether one decision or the other can be said to be former where the two suits were decided by the same judgment on the same date. This question does not fall to be decided before us and we do not propose to express any opinion thereon. But the Nagpur decision is of no help to the appellant, for in the present case res judicata arises because of earlier decision of the High Court in appeals arising from suits Nos. 77 and 91. Panchanada Velan v. Vaithinath ..... X X X X Extracts X X X X X X X X Extracts X X X X
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