# Kumar Gupta v. Dr. S.K. Rajan and others

- **Citation:** High Court of Judicature at Allahabad #39678
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2000
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/kumar-gupta-v-dr-s-k-rajan-and-others-39678
- **Pages:** 4

## Text

22 INDIAN LAW REPORTS ALLAHABAD SERIES [2000
be exercised to strike off the defence. The
Court did not examine this aspects of the
matter. It is settled principal that the Court is
not bound to strike of the defence and the
discretion is to be exercised considering the
various aspects of the matter vide Sudhir
Kumar Gupta vs. Dr. S.K. Rajan and others,
1988 (1) A.R.C 545, Prem Nath vs Dr.
Chandra Prakash Saxena, 1999 (1) A.R.C
301 Ashok Kumar Baranwal and another vs.
Ist A.D.J. Gorakhpur and others, 1999 (2)
A.R.C. 465.

10. In view of the above the writ petition
is allowed. The impugned orders are hereby
quashed. The trial court shall decide the suit
taking into consideration the defence of the
petitioner. As the suit was filed in the year
1991, the hearing of the suit shall be
expedited and the same may be decided
possibly within six months.

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By the Court

1. In a suit claiming right over a property
by the plaintiff on the basis of the Will, the
defendant had claimed that he happens to be
owner of the property. Accordance an issue
was framed being issue no.4 as to whether the
defendant was the successor of one Baldeo
and was the owner of the property. The
learned trial court had found that the Will
produced by the plaintiff was forged one and
the plaintiff and his witness Mool Chandra
were guilty of giving false evidence
producing forged documents for which a
cost of Rs.2,000/- was imposed on the
plaintiff along with the direction for initiation
of the proceedings under Section 195, read
with Section 340 of the Code of Criminal
Procedure; while Mool Chandra was directed
to be proceeded against under Section
420/467/468/471 IPC; while a cost of Rs.
1,000/- was also imposed on the defendant on
account of giving false evidence.

2. The defendant preferred an appeal
challenging the said imposition of cost as well
as the finding with regard to issues no.4 and 8
respectively. The learned trial court reversed
the imposition of cost on the defendant on
account of giving false evidence while it had
also rejected the appeal with regard to the
finding on issue no.4 and 8. The learned
counsel for the appellant contends that there
having been a declaration of right of the
defendant to the extent that he was not the
successor of Baldeo Prasad and not the owner
of the property, he can maintain the Second
Appeal even though the decree with regard to
imposition of cost as against the defendant
was set aside.

3. Sections 96 and 1200 of the Code
provides for appeal from decree passed by a
court of original jurisdiction and on appeal by
a court subordinate to the High Court
respectively. Neither of these Sections permit
appeal against judgment. However, where
decree is not drawn within 15 days of the
judgement and decree, Order 20, Rule 6A
permits filing of appeal with a copy of the last
paragraph of the judgment, which by fiction is
treated as decree. Therefore, the appeal lies
from the decree and not from the judgment
although the word "decision" is used in subsection (1) of Section 96 of the Code.

4. The above view finds support in the
case of Jaga Dhish Vs. Jawahar Lal Bhargava
(AIR 1961 SC 832). There can be no appeal
against findings embodied in the judgment but
not in the decree. In Niamat Vs. Phadu (ILR
6, Cal. 319 (FB); Koylash Vs. Ram (.ILR 6
Cal. 206); Anusuyabai vs. Sakharam (6 ILR7
Bom 464); the above view was expressed.
The apex court in Ganga Bai Ns. Vijay kumar
(AIR 1974 SC 1126) had held that no appeal
can lie against a mere finding for the simple
reason that the Code does not provide for any
such appeal. In M. Latchayya. Vs. S.
Kotamma (AIR 1925 Mad 264) Tausukh Bai
Vs. Gopal mahto ( AIR 1929 Pat 586); Jugal
Kishore Vs. Sheonandan Singh (AIR 1973 pat
22) it has been laid down that mere adverse
finding against a party does not give a right of
appeal.

5. However, a different view was taken in
the case of Harachandra Das. Vs. Bholanath
Das (ILR 62 Cal.70) :; 39 CWN 567 );
Krishna Chandra Goldar Vs. Mahesh Chandra
Saha (9CWN 584 ); Ali Ahmad vs. Amarnath
(AIR 1951 Punjab 444); P.N Kesavan Vs.
Lakshmy (AIR 1968 Karnataka 154); Arjun
Singh Vs Tara Das Ghosh (AIR 1974 Pat 1
(FB). In those cases it was held that though
under the strict letters of the provision in the
24 INDIAN LAW REPORTS ALLAHABAD SERIES [2000
Code relating to right of appeal lies a party in
whose favour a decree has been passed
against a finding contained in the judgement,
he has a right to appeal against a finding
adverse to him provided that it would operates
as res judicata in a subsequent suit or
proceedings
However,
whether
this
proposition is based on grounds of Justice, as
has been taken in Arjun Vs. Taradas (Supra),-
is correct or not - was not determined finally
in Ganga bai Vs. Vijay Kumar (Supra) by the
apex court.

6. But The principal of res judicate can
not be applied in respect of adverse finding
out incorporated in the decree against a person
in whose favour the decree is passed because
he has no right or occasion to go in appeal..

7. In Banarasi Sah. Vs Bhagwanlal Sah (
AIR 1977 Pat 206 ), it was held that where a
decree is absolutely in favour of a party but
some issues are found against him, he has no
right of appeal against the decree and plea of
res judicata cannot be founded on adverse
decision against him because he had no
occasion to go in appeal.

8. In Midnopore Zamindari Company Ltd.
Vs. Naresh ranjan Roy (AIR 1922 PC 241);
Sri pal Vs. Swami Nath (AIR 1968 Alld.282);
Smt. Tarabai Mohata Vs. Union of India (AIR
1971 Cal 225); Mathura bai vs. Ram Krishna
Bhaskar Barve (AIR 1961 Bom 97); Sukhani
Vs. Sukhbasi (AIR 1967 Alld. 423), it was
reiterated that when a party succeeds in a suit
or appeal an adverse finding against him
cannot be the basis of a plea of res judicata,
for having succeeded he had no occasion to
prefer an appeal. In The Commissioner for
the port of Calcutta Vs. Bhairadinram Durga
Prasad (AIR 1961 Cal 39 (FB) it was held that
such a party has no right of appeal when a suit
is dismissed on a finding that the plaintiff had
no right to sue , an adverse finding against the
defendant is not res judicata as was held in
Markanda Mahapatra Vs. Varada Kameshwar
Rao Naidu (AIR 1949 Pat 197).
9. This principal will equally apply when
the appeal courts decree result into the
dismissal of the suit and there is nothing
adverse to the defendant in the decree though
some of the findings in the decision of
judgement be may be adverse to the
defendant.

10. It appears that an appeal is preferred
against a decree. There is no night of appeal
unless there is a decree against a party. The
suit was night of appeal unless there is a
decree against a party. The suit was dismissed
and no right was declared either of the
plaintiff or of the defendant Neither in the
decree it was declared that the defendant has
no right. The only negative point in the decree
was Imposition of cost against the defendant
which the appeal court had set aside. Thus in
appeal court's decree there was nothing
adverse to the defendant. The appeal court has
not modified the decree of the learned trial
court with regard to the other aspects
excepting reversing that part of the decree by
which cost was imposed on the defendant on
account of giving a false evidence. Thus
either in the decree of the appeal court or of
the decree of the learned trial court, there is
nothing against the defendant. So there is no
scope for the defendant. So there is no scope
for the defendant to be aggrieved by any part
of the decree after the appeal court had
reversed imposition of cost as against the
defendant. Therefore, there is no right of
appeal available to the defendant after the
appeal court's decree. So far the finding is
concerned that is with regard to arriving at
decision in the suit itself, which has not
culminated in any declaration of title.
Therefore, the finding though may be adverse,
it will not operate as res judicata as against the
defendant since he has neither any right to
appeal nor occasion to prefer any appeal.
Thus there cannot be any question of
preferring an appeal against a finding in
respect whereof plea of res judicata is not
applicable.
2ALL Param Hans Singh V. State of U.P. through Secretary 25
11. Therefore, after hearing Mr. S.L.
Singh learned counsel for the appellant and
perusing the order impugned, I do not find
that this appeal raises substantial question of
law for being admitted.

12. The appeal has no merit. It is
accordingly dismissed. No cost.
Appeal Dismissed.

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By the Court

1. This writ petition was heard along
with Civil Misc. Writ Petition Nos. 47781.
47785,47793,48529,48844,49015,49241, and
49242 of 1999.

2. Facts relevant for disposal of this writ
petition and other connected matters are that
an advertisement was published in daily
newspaper
dated
8.4.1997
notifying
a
selection for the posts of Excise Constables in
the Excise Department of the State of Uttar
Pradesh. A selection committee consisted of
four officers of the Excise Department
considered the cases of the applicants
including the petitioner taking their height
measurement as also measurement of chest
before and after expansion. Petitioner along
with several other candidates were found fit
and eligible and names of such selected
candidates were notified by order dated
28.8.1997. upon due compliance of further
requirements including medical certificate by
the Chief Medical Officer, appointment letters
were issued to the selected candidates
including the petitioner and thereupon the
petitioner joined on the post of excise
constable on 30.8.1997 and was continuously
working thereafter.

3. On 15.1.1998 the Deputy Excise
Commissioner, Kanpur Division, Kanpur
Nagar issued a communication that the
petitioner and several other Excise Constable
were required to be present at the office of the
Excise commissioner, U.P. for physical
examination on 20.1.1998. Petitioner duly