# [1966] 3 S.C.R. 300

- **Citation:** [1966] 3 S.C.R. 300
- **Court:** Supreme Court of India
- **Decided:** 1966-01-14
- **Bench:** P. B. Gajendragadkar, K. N. Wanchoo, Y. Ra~Swami, P. Satyanarayana Raju
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/1966-3-s-c-r-300-3705
- **Pages:** 14

## Headnote

Code of civil Procedure (Act 5 of 1908). s. I I-Appeals diomissed tU
time ba"ed, failure to print records-If res judicata in conMcted appeal6.
The appellant filed two suits in the Court of lhe Civil Judge, one for
declaration of his title to the suit property and lhc second for other reliefs.
While these suits were pending the respondent instituted two suits in the
Munsif"s court against the appellant claiming joint ownership to the sail
proP."rty and other n:lieh. The four suits were tried together by
the
Qvil Judge.
Some of the i>lues were common to all the suits and one
of tho common i>.iues rolating to the title of the parties were found in
favour of the respondeoL The Civil Judge dismi...oo the appellant's title
suit, decreed his other suit partly, and decreed the two suits of the rcsponden I. The appellant filed appeak against the decree in each suit. The
High Coull dismissed the two appeals arising out of tho respondent"• suits,
one as time barn:d, and the other for failure to apply for translation and
printing of the record.
As the 1ille of the respondent to the suit property
bad become final on account of such dismissal, the respondent prayed for
the dismissal o[ the other lwo appeals also, as the main question involved
therein, was the samo.
The High Court agreed that tho appeals were
barred by res iudicata and dismissed them. Against these orders of dis·
~. the appellant filed appeals to this Court, and con~dcd that (i)
the title to lhc property was not directly and >ubstantially in issue in the
respondent's suits; (ii) The
Munsifs Court could not try the titlo suit
filed by the appellant; (iii) it could not bo said that appeals arising out
of the respondent"< suits were Conner suits and "" such the dtcismn therein
would bo res ;udicata and (iv) the two appeals dismisscd--0no on the
ground of limitation, and lhe other on lhe gr011J1d of not printinii the
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reconls, could not be said to be heard and finally decided.
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HELD :
The appeals must be dismissed.
(il '!be contention that tho issue as to title was not directly and •ubs·
1an1ially in issue in the respondent's suits must be rejected.
The judg·
ment of the Civil Judge showed that this issue was raised in the respon·
dent's suits, that it was directly and substantially in issue in those suits
also, and did arise out of the pleading'< of the parties. [306 CJ
(ii) It is the court which decides the fonner suit whose jurisdiction to
try tho subsequent suit has to be considered, and not the court in which
the former suit may have been filed.
Though the n:spondent"s sulla may
line beeo iled in the Munsif's court, they wore ttanaferred to tho court
of the Civil Judge and were decided by him.
Therefore, the contention
that the Munsif before whom the n:spondeot's suits were filed, could not
try the subsequent title suit of the appell:int had no force. [306 El
(iii) The High Court's decision in tho two ap~ls arising from tho
JlOIPOndent's suits were undoubtedly earlier and tben:foro the condition
that there should have been a decision in a former suit 10 give rise to ru
;udic:ata in a subsequent suit was satisfied in the present case. [307 CJ
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SHEODAN SINGH v. DARYAO (Wanchoo, J.)
301
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Nahari v. Shanker, [1950) S.C.R. 754, distinguished.
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(iv) Where the trial coun has decided two suits having common issues
on the merits and there are two appeals therefrom and one of them is
ilismissed on some preliminary ground, like limitation or default in
printing. with tho result that the trial court's decision stands confirmed,
the decision or the appeal court will be res judicata and the appeal court
must be deemed to have heard and finally decided the matter. In such a
caoc the result of the decision of the appeal coun is to confirm the decision
of the trial court given on merits, and if that is so, the decision of
the appeal court will be res judicata whatever may be the reason to~ the
disrnisssl. It would be a different matter, how

## Text

SHEODAN SINGH
I'.
SMT. DARYAO KUNWAR
January 14, 1966
[P. B. GAJENDRAGADKAR, C. J., K. N. WANCHOO, Y. RA~SWAMI
AND P. SATYANARAYANA RAJU, JJ.)
Code of civil Procedure (Act 5 of 1908). s. I I-Appeals diomissed tU
time ba"ed, failure to print records-If res judicata in conMcted appeal6.
The appellant filed two suits in the Court of lhe Civil Judge, one for
declaration of his title to the suit property and lhc second for other reliefs.
While these suits were pending the respondent instituted two suits in the
Munsif"s court against the appellant claiming joint ownership to the sail
proP."rty and other n:lieh. The four suits were tried together by
the
Qvil Judge.
Some of the i>lues were common to all the suits and one
of tho common i>.iues rolating to the title of the parties were found in
favour of the respondeoL The Civil Judge dismi...oo the appellant's title
suit, decreed his other suit partly, and decreed the two suits of the rcsponden I. The appellant filed appeak against the decree in each suit. The
High Coull dismissed the two appeals arising out of tho respondent"• suits,
one as time barn:d, and the other for failure to apply for translation and
printing of the record.
As the 1ille of the respondent to the suit property
bad become final on account of such dismissal, the respondent prayed for
the dismissal o[ the other lwo appeals also, as the main question involved
therein, was the samo.
The High Court agreed that tho appeals were
barred by res iudicata and dismissed them. Against these orders of dis·
~. the appellant filed appeals to this Court, and con~dcd that (i)
the title to lhc property was not directly and >ubstantially in issue in the
respondent's suits; (ii) The
Munsifs Court could not try the titlo suit
filed by the appellant; (iii) it could not bo said that appeals arising out
of the respondent"< suits were Conner suits and "" such the dtcismn therein
would bo res ;udicata and (iv) the two appeals dismisscd--0no on the
ground of limitation, and lhe other on lhe gr011J1d of not printinii the
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reconls, could not be said to be heard and finally decided.
y
HELD :
The appeals must be dismissed.
(il '!be contention that tho issue as to title was not directly and •ubs·
1an1ially in issue in the respondent's suits must be rejected.
The judg·
ment of the Civil Judge showed that this issue was raised in the respon·
dent's suits, that it was directly and substantially in issue in those suits
also, and did arise out of the pleading'< of the parties. [306 CJ
(ii) It is the court which decides the fonner suit whose jurisdiction to
try tho subsequent suit has to be considered, and not the court in which
the former suit may have been filed.
Though the n:spondent"s sulla may
line beeo iled in the Munsif's court, they wore ttanaferred to tho court
of the Civil Judge and were decided by him.
Therefore, the contention
that the Munsif before whom the n:spondeot's suits were filed, could not
try the subsequent title suit of the appell:int had no force. [306 El
(iii) The High Court's decision in tho two ap~ls arising from tho
JlOIPOndent's suits were undoubtedly earlier and tben:foro the condition
that there should have been a decision in a former suit 10 give rise to ru
;udic:ata in a subsequent suit was satisfied in the present case. [307 CJ
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SHEODAN SINGH v. DARYAO (Wanchoo, J.)
301
A
Nahari v. Shanker, [1950) S.C.R. 754, distinguished.
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(iv) Where the trial coun has decided two suits having common issues
on the merits and there are two appeals therefrom and one of them is
ilismissed on some preliminary ground, like limitation or default in
printing. with tho result that the trial court's decision stands confirmed,
the decision or the appeal court will be res judicata and the appeal court
must be deemed to have heard and finally decided the matter. In such a
caoc the result of the decision of the appeal coun is to confirm the decision
of the trial court given on merits, and if that is so, the decision of
the appeal court will be res judicata whatever may be the reason to~ the
disrnisssl. It would be a different matter, however,
where the declSion
of the appeal court does not result in the confirmation of tho decision of
the trial court given on the merits, as for example, where the appeal
court hold that tho trial court had no
jurisdiction and dismisses
the
appeal, even though the trial court might have dismis.sed the suit on the
mecits. [308 D, G; 309 A]
Sha1tkar Sahai v. Bhagwat. Sahai, A.I.R. 1946 Oudh 33
and Obedur
Rahman v. Darbari Lal, A.l.R. 1927 Lah. I, overruled.
Caso law discussed.
OVIL APPELLATE JurusDICTJON : Civil Appeal Nos. 802 and
803 of 1963.
Appeals by special leave from the judgment and decree dated
November 30, 1962 of the Allahabad High Court in First Appeals
Nos. 365 and 366 of 1951.
M. V. Goswami and B. C. Misra, for the appellant.
Prayag Das and /. P. Goyal, for the respondent.
The Judgment of the Court was delivered by
Wanchoo. J. These are connected appeals by special leave
against the judgment of the High Court of Allahabad, and the only
question raised herein is one of res judicata. They will be dealt
with together. The appellant's father brought suit No. 37 of 1950
against the respondent, Smt. Daryao Kunwar, for a declaration that
he was the owner of the properties in suit and for possession in the
alternative. The appellant was also a party to the suit as a proforma
defendant. Since his father is dead, he has been substituted in his
place. The case put forward in the plaint was that Harnam Singh
was the uncle of the appellant's father.
Ram Kishan was the
adopted son of Harnam Singh, and the respondent is his widow.
The appellant and his father were living jointly with Harnam
Singh and 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.
302
SUPREME COURT
REPORTS
(1966] 3 S.C.R.
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 khudkaskat
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
R~m Kishan, the respondent inherited his entire property as his
widow.
Both these suits had been filed in the court of the C'ivil
Judge.
While these suits were pending, the respondent instituted two
suits of her own, Nos. 77 and 91of1950, against the appellant and
his father.
Suit No. 77 was for recovery of the price of her share of
the crop grown on certain sir and khudkashat plots which had been
cut and misappropriated by the appellant and his father. Suit No.
9lwas also for a similar relief in respect of the respondent's share
of crops grown on certain sir and khudkashat plots in another village which had also been cut and misappropriated by the appellant
and his father.
Her case was thatthe plots in question in both the
villages belonged to the parties jointly and the crop was jointly
sown by them and she was entitled to half of the said crops. Further
in suit No. 77 of 1950 she also claimed the relief of permanent
injunction restraining the appellant and his father from letting out
the said plots without her consent. These two suits were filed in
the court of the Munsif while suits filed by the appellant's father
had been instituted in the court of the Civil Judge. Subsequently
by an order of the District Judge, the two suits filed by the respondent were transferred to the court of the Civil Judge. Thereafter
all the four suits were consolidated and tried together by the Civil
Judge with the consent of the parties. All these suits were disposed
of by a common judgment but separate decrees were prepared in
each suit. In all these suits five issues were common. In addition there were other issues in each case respecting the particular
merits thereof. One of the common issues related to respective
rights of the parties to the suit properly. The finding of the Civil
Judge on this issue was that Smt. Daryao Kunwar was entitled to the
properties claimed hy the appellant's father in his suit No. 37 of
1950. The Civil Judge therefore dismissed that suit. Further in
view of the finding on the question of title in suit No. 37 of 1950,
. suit No. 91 of 1950 wns decreed in favour of the respondent. Further suit No. 42 by the appellant's father was on the same finding
decreed to the extent of half only; suit No. 77 of 1950 was decreed
also to the extent of half and a permanent injunction was granted
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SHEODAN SINGH v. DARYAO (Wanchoo, l.)
303
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in favour of the respondent Smt. Daryao Kunwar as prayed by
her in that suit.
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The appellant's father was aggrieved by these decrees.
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
purposes.
After appeals Nos. 452 and 453 had been dismissed, an application was made on behalf of the respondent, Smt. Daryao Kun war,
praying that first appeals Nos. 365 and 366 of 1951 be dismissed,
as the main question involved therein, namely, title of Smt. Daryao
Kunwar to the suit property, had become final on account of the
dismissal of the appeals arising out of suits Nos. 77 and 91of1950.
When this question came up for hearing before a learned Single
Judge, the following question, namely-"whether the appeal is
barred by section 11 of the Code of Civil Procedure or by the
general principles of res judicata as the appeals against the decisions in suits Nos. 77 and 91 of 1951 were rejected and dismissed
by this Court and those decisions have become final and binding
between the parties" was referred to a Full Bench for decision in
view of some conflict between two Division Benches of that court.
The Full Bench came to the conclusion that two matters were
directly and substantially in issue in all the four suits, namely-
(i) whether Harnam Singh and his adopted son Ram Kishan died
in a state of jointness with the appellant and his father, and (ii)
whether the property in suit was joint family property of Ram
Kishan and the appellant's father. The decision of the Civil Judge
on both these issues was against the appellant and his father and in
favour of Smt. Daryao Kunwar. The Full Bench held that though
there were· four appeals originally before the High Court, two of
them had been dismissed and the very same issues which arose in
304
SUPREME COURT REPORTS
(1966) 3 S.C.R.
first oppeals Nos. 365 and 366 had also arisen in those two appeals
which had been dismissed. The Full Bench found further that the
terms of s. 11 of the Code of Civil Procedure were fully appliCTJble
and therefore the two first appeals Nos. 365 and 366 were barred
by res j11dicata to the extent of the decision of the five issues which
were common in four connected appeals.
In the result the Full
Bench returned that answer to the question referred to it.
After this decision of the Full Bench, the matter went back to
the learned Single Judge for decision, who thereupon dismissed the
appeals as barred by s. 11 of the Code of Civil Procedure. The
appellant then obtained special leave from this court; and that is
how the matter has come up before us.
We may at the out set refer to the relevant provisions of s. 11
of the Code of 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.
lt is not necessary to refer to the other Explanations.
A plain reading of s. 11 shows that to constitute a matter res
j11dicata, 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 parties must have litigated under the same
title in the former suit;
(fr) The court which decided the former suit must be
a court competent to try the subsequent suit or the suit in
which such issue is subsequently raised; and
(v) The matter directly and substantially in issue in the
subsequent suit must have been heard and finally decided
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SHEODAN SINGH v. DARYAO (Warlchoo, I.)
305
by the Court in the first suit. Further Explanation I shows
that it is not the date on which the suit is filed that matters
but the date on which the suit is decided, so that even if a
suit was filed later, it will be a former suit if it has been
decided earlier. In order therefore that the decision in
the earlier two appeals dismissed by the High Court operates as res judicata it will have to be seen whether all the five
conditions mentioned above have been satisfied.
Four contentions have been urged on behalf of the appellant in this connection. They are-
(i) that title to property was not directly and substantially in issue in suits Nos. 77 and 91;
(ii) that the court of the Munsif could not try the title
suit No. 37 of 1950;
(iii) that it cannot be said that appeals arising out of
suits Nos. 77 and 91 were former suits and as such the
decision therein would be res judicata;
(iv) that it cannot be said that the two appeals from
suits Nos. 77 and 91 which were dismissed by the High
Court, one on the ground of limitation and the other on
the ground of not printing the records, were heard and
finally decided.
So it is contended that the conditions necessary for res judicata
to arise under s. 11 have not been satisfied and the High Court was
in error in holding that its dismissal of the two appeals arising from
suits Nos. 77 and 91
amounted to res judicata so far as appeals
Nos. 365 and 366 were concerned.
Re. (i).
The judgment of the Additional Civil Judge shows that there
were five issues common to all the four suits, and the main point
raised in these common issues was whether Harnam Singh and his
adopted son Ram Kishan were joint with the appellant ahd his
father and whether Ram Kishan died in a ·state of jointness with
them. This main question was decided against the appellant and
his father and it was held by the Additional Civil Judge that Harnam
Singh and Ram Kishan were separate from the appellant and his
father and that Ram Kishan did not die in a state of jointness with
them. On this view of the matter, the Additional Civil Judge
held that 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
306
SUPREME COURT
REPORTS
(1966] 3 S.C.R.
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
~ime 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 af!er a peru~al of the pleadings of the parties.
In the pai:cr book as ongmally printed, the appellant did not include
the plea.din~ at all. L1ter he filed copies of the plaints only with
an apphcatwn .. Ev.en now we have not got copies of written-state·
ments and rephcal!ons, if any, of suits Nos. 77 and 91. In the
circ~~tanccs. 'Ye must accept from the fact that the judgment of the
Additwnal Civil Judge shows that these five issues were raised
!n ~uits N.os. 77 and ~I, that they were directly and substantially
m issue m those smts also and did arise out of the pleadings
of the parties. We therefore reject the contention that issues as
to title were not directly and substantially in issue in suits
Nos. 77 and 91.
Rt. (ii).
There is no substance in the contention that the Munsif before
whom suits Nos. 77 and 91 were filed could not try the title suit No.
37 and therefore, there can be no question of res judicata, as the
title suit No. 37, assuming it to be a subsequent suit, could not be
tried by the Munsif's court which tried the former suit. It is true
that suits Nos. 77 and 91 were filed in the Munsif's court; but they
were transferred to the court of the Additional Civil Judge and in
actual fact were tried by the Additional Civil Judge. It is the court
which decides the former suit whose jurisdiction to try the subsequent
suit has to be considered and not the court in which the former
&uit may have been filed.
Therefore, though suits Nos. 77 and 91
may have been filed in the Munsif's court, they were transferred to
the court of the Additional Civil Judge and were decided by him.
There is no dispute that the court which decided the former suits,
namely suits Nos. 77 and 91 (assuming them to be former suits)
had jurisdiction to try the title suit No. 37. The contention that
the Munsif before whom suits Nos. 77 and 91 were filed, could not
try the subsequent suit No. 37 has therefore no force in the circumstances of the present litigation.
Re. (iii).
Then it is urged that all the four suits were consolidated and
decided on the same day by the same judgment and there can therefore be no question that suits Nos. 77 and 91 were former suits and
thi:s the decision as to title in those suits became res judicata. It
is not in dispute that the High Court's decision in t.he ai:ipcals aris!ng
from suits Nos. 77 and 91 was earlier.
Reliance m this connection
is placed on the decision of this Court in Nahari v. Shankar (1).
I. [1950] S.C.R. 754.
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SHEODAN SINGH v. DARYAO (Wanchoo, J.)
307
That case howe:ver has no application to the facts of the present
case because there the suit was only one which was followed by two
ap~als. The appeals were heard together and disposed of by the
same judgment though separate decrees were prep~red. An appe~l
was taken against one of the decrees.
In those cucumstances this
Court held that as there 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 hot 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 heard and finally decided by
the High Court, and so the condition that the former suit must
have been heard and finally decided was not satisfied in the present
case. Reliance in this connection is placed on the well-settled
principle that in order that a matter may be said to have been heard
and finally decided, the decision in the former suit must have been
on the merits. Where, for example, the former suit was dismissed
by the trial court for want of jurisdiction, or for default of plaintiff's
appearance, or on the ground of non-joinder of parties or misjoinder of parties or multifariousness, or on the ground that the
suit was badly framed, or on the ground of a technical mistake, or
for failure on the part of the plaintiff to produce probate or letters of
administration or succession certificate when the same is required
by law to entitle the plaintiff to a decree, or for failure to furnish
security for costs, or on the ground of improper valuation or for
failure to pay additional court fee on a plaint which was undervalued
or for want of cause of action or on the ground that it is premature
and the di~missal is confirmed in appeal (if any), the decision not
H.
being on the merits would not be res judicata in a subsequent suit.
But none of these considerations apply in the present case, for the
Additional Civil Judge decided all the four suits on the merits and
decided the issue as to title on merits against the appellant and his
father.
It is true that the High Court dismissed the appeals arising
308
SUPllEUB COUllT R.EPOll.TS
[1966] 3 s.c.a.
out of suits Nos. 77 and 91 either on the ground that it was barred
by limitation or on the ground that steps had not been taken for
printing the records. Even so the fact remains that the result of
the dismissal of the two appeals arising from suits Nos. 77 and 91
by the High Court on these grounds was that the decrees of the Additional Civil Judge who decided the issue as to title on merits stood
confirmed by the order of the High Court. In such a case, even
though the order of the High Court may it•elf not be on the merit
the result of the High Court's decision is to confirm the decision on
the issue of title which had been given on themcritshytheAdditional
Civil Judge and thus in effect the High Court confirmed the decree
of the trial court on the merits, whatever may he the reason for the
dismissal of the appeals arising from suits Nos. 77 and 91. 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 judicala 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 merits. 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 judicala again becomes res sub judice and it is
the decree of the appeal court which will then be res judicala. But
if the contention of the appellant were to be accepted and it is held
that if the appeal court dismisses the appeal on any preliminary
ground, like limitation or default in printing, thus confirming in 1010
the trial court's decision given on merits, the appeal court's decree
cannot be re.rjudicata, the result wouldbethateven though the deciiion of the trial court given on the merits is confirmed by the dismissal of the appeal on a preliminary ground there can never he res
judicata. We cannot therefore accc:pt the contention that ev~n
though the trial court may have decided the matter on the ments
there can be no res judicala if the appeal court dismisses the appeal
on a preliminary ground without going into the merits, even though
the result of the dismissal of the appeal by the appeal court 1s confirmation of the decision of the trial court given on the merits.
Aceeptance of such a proposition will mean that all that the losing
party has to do to destroy the effect of a decision given by t~e t~ial
court on the merits is to file an appeal and let that appeal be d1sm1sslld on some preliminary ground, with' the result that the ~ecision
given on the merits also becomes useless as between the parties. We
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SHEODAN SINGH v. DARYAO (Wartchoo, /.)
309
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are therefore of opinion that where a decision is given on the merits
by the trial court and the matter is taken in appeal and the appeal
is dismissed on some preliminary ground, like limitation or default
in printing, it must be held that such dismissal when it confirms
the decision of the trial court on the merits itself amounts to the
appeal being heard and finally decided on the merits whatever may
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be the ground for dismissal of the appeal.
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It now remains to refer to certain decisions which were cited
at the bar in this connection. The first decision on which reliance
is placed on behalf of the appellant is Sheosagar Singh v. Sitaram.(1)
In that case there was a suit for a declaration that the defendant was
not the son of a particular person. It appeared that in a former suit
between the same parties, the issue so raised had been decided against
the plaintiffs by the trial court. In appeal the only thing finally
decided was that in a suit constituted as the former suit was, no
decision ought to have been pronounced on the merits. In those
circumstances the Privy Council held that the issue had not been
heard and finally decided in the former suit. These facts 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 heard 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.(2) 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 the bond
on the ground of fraudulent misrepresentation as to the amount
due. The trial court and on appeal the District Judge held that the
alleged fraud was not established, and dismissed the suit. Upon a
further appeal to the Judicial Commissioner it was held without
entering into the merits, that the appellant could not avoid the
bond as he did not claim to avoid the deed. The final court of
appeal th us refused to determine the issue of fraud and dismissed
the suit on another ground. In a subsequent suit by the respondent
upon the bond, the appellant raised as a defence the same case of
(I) L.R. (1896) 24 I. A. SO.
(2) L.R. (1917) 44 I.A. 213.
310
SUPREME COURT REPORTS
[1966] 3 S.C.R.
fraud. It was held that the issue raised by the defence was not
res judicata since the matter had not been finally decided by the
final court of appeal. That case also has no application to the facts
of the present case, for in that case the final court of appeal did not
decide the question of fraud and dismissed the suit on another ground.
In such a case it is well-settled that there can be no res judicata
where the final appeal court confirms the decision of the courts
below on a different ground or on one out of several grounds and
docs not decide the other ground. The reason for this is that it
is the decision of the final court which is res judicata and if the final
court does not decide an issue it cannot be said that that issue has
been heard and finally decided. In the present case, however, the
result of the decision of the High Court in dismissing the appeals
arising from suits Nos. 77 and 91 is to confirm the judgment of the
trial court on all the issues which were common and thus it must
be held that the High Court's decision does amount to the appeals
being heard and finally decided.
Then strong reliance has been placed on behalf of the appellant
on Shankar Sahai v. Bhagwat Sahai(1). In that case it was held that
where two suits between the same parties involving common
issues were disposed of by one judgment but two decrees, and an
appeal was preferred against the decree in one but it wa~ either not
preferred in the other or was rejected as incompetent, the matter
decided by the latter decree did not become res judicata and it could
be reopened in appeal against the former. This case
certainly
supports the view urged on behalf of the appellant. This case also
over-ruled an earlier view of the Oudh Chief Court in Bhagauti Din
v. Bhagwat(Z). 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 cai.e,
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('). 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 res judicata
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
(I) A.J.R. t946 Oudh 33.
(2) A.1.R. 1933 Oudh 531.
(3) A.1.R. 19Z7 Lah. I.
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SHEODAN SINGH v. DAllYAO (Wanchoo, J.)
311
refer to Syed Ahmad Ali Khan Alai·i v. Hinga Lal(1) where it was
held that where the appeal was struck off as having abated, the
decision would operate as res judicata. If the view taken by the
Lahore High Court is correct, the result would be that there may be
inconsistent decisions on the same issue with respect to the point
involved in that case, namely, whether a certain lease had expired
or not and the very object of res judicata is to avoid inconsistent
decision. Where therefore the result of the dismissal or abatement of
an appeal is to confirm the decision of the trial court on the merits
such dismissal must amount to the appeal being heard and finally
decided and would operate as res judicata.
The next case to which reference has been made is Ghansham
Singh v. Bhola Singh(2). In that case there was a suit for sale on a
mortgage and the trial court gave a decree in favour of the plaintiff
but awarded no costs. The plaintiff appealed against the decree
insofar as it disallowed costs. The defendant also appealed as to
the amount of interest allowed to the plaintiff. Both the appeals
were heard together and decided by one judgment, and both the
appeals were allowed. The plaintiff appealed to the High Court
against the decree in the defendant's appeal below but did not appeal
against the decree which was in his favour with respect to costs. It
was held that the fact that the plaintiff had not appealed against
the decision in his appeal was no bar to the hearing of the appeal
against the decree passed in the defendant's appeal below. We do
not see how this case can help the appellant. The matters in the
two appeals were different, one relating to costs and the other relating to interest; the rest of the judgment of the trial court was not
disputed and had become final. In such a case there was no question of the plaintiff appealing from a decision in his own favour as to
costs and there could be no question of the decision as to costs being
res judicata in the matter of interest. The facts of that case were
therefore entirely different and do not help the appellant. It may
also be added that that was a case of one suit from which two
appeals had arisen and not of two suits.
The next case to which reference has been made is Manohar
Vinayak v. Laxman Anandrao('). In that case two suits were consolidated by consent 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 res judicata 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 consolidated. We may indicate that a contrary view has been taken in
(I) l.L.R. (1946) 21 Luck. 586.
(2) I.L.R. (1923) 45 All. 506.
l 0 Sup CI/66-7
(3) A.l.R. 1947 Naa. 248.
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REPORTS
[1966] 3 S.C.R.
Mrs. Gertrude Oates v. Mrs. Millicent D'Silva(') and Zaharia v.
Dtbia.(2) 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 Ve/an v. Vaithlnatha Sastria/(3) and Mst. Lachhmi v.
Bhulli(•) are similar to the Nagpur case and we need express no
opinion as to their correctness.
The next case to which reference has been made is Khetramohan
Baral v. Rasananda Misra(S). In thatcase six suits were heard together
mainly because an important common issue was involved even
though the parties were not the same and the properties in dispute
were also different. The decision in one of the suits was not challengA
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ed in appeal while appeals were taken from other suits. The High
Court held that in such circumstances the decision in one suit from
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which no appeal was taken would not be res judicata in other suits
from which appeals were taken. In these cases the parties and
properties were different and we do not think it necessary to express
any opinion about the correctness of this decision. The facts in
the present case are clearly different for the parties are the same and
the title to the properties in dispute also depended upon one common
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question relating to jointness or separation.
A consideration of the cases cited on behalf of the appellant
therefore shows that most of them are not exactly in point so far as
the facts of the present case are concerned. Our conclusion on the
question of res judicata raised in the present appeals is this.
(Where the trial court has decided two suits having common issues
on the merits and there are two appeals therefrom and one of them
is dismissed on some preliminary ground, like limitation or default
in printing, with the result that the trial court's decision stands
confirmed, the decision of the appeal court will be res judicata and
the appeal court must be deemed to have heard and finally decided
the matter. In such a case the result of the decision of the appeal
court is to confirm the decision of the trial court given on merits,
aRd if that is so, the decision of the appeal court will be res judicata
whatever may be the reason for the dismissal. It would be a
different matter, however, where the decision of the appeal court
does not result in the confirmation of the decision of the trial court
(I) A.I.R. 1933 Pat. 78.
(2) l.L.R. (1911) 33 AU. 51.
(3) 1.L.R. (1906) 29 Mad. 333.
(4) I.L.R. [1927] Lah. 384.
(5) A.l.R. 1962 Orissa 141.
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SHEODAN SINGH v. DARYAO (Wanchoo, J.)
313
given on the merits, as for example, where the appeal court holds
that the trial court had no jurisdiction and dismisses the appeal
even though the trial court might have dismissed the suit on the
merits.) In this view of the matter, the appeals must fail, for the
trial court had in the present case decided all the four suits on the
merits including the decision on the common issues as to title. The
reault of the dismissal on a preliminary ground of the two appeals
arising out of suits Nos. 77 and.91 was that the decision of the trial
court was confirmed with respect to the common issues as to title
by the High Court. In consequence the decision on those issues
became res judicata so far as appeals Nos. 365 and 366 are concerned
and s. 11 of the Code of Civil Procedure would bar the hearing of
those common issues over again. It is not in dispute that if the
decision on the common issues in suits Nos. 77 and 91 has become
res judicata, appeals Nos. 365 and 366 must fail.
We therefore dismiss the appeals with costs, one set of hearing
fee.
Appeals dimissed .