Managing Director, etc. Vs. . Ramachandra Naidu & Anr.
EmailAppeal: Civil Appeal No. 6063 of 1994
(Arising out of SLP (Civil) No. 15711 of 1989)
(Arising out of SLP (Civil) No. 15711 of 1989)
Petitioner: Managing Director, etc.
Respondent: . Ramachandra Naidu & Anr.
Apeal: Civil Appeal No. 6063 of 1994
(Arising out of SLP (Civil) No. 15711 of 1989)
(Arising out of SLP (Civil) No. 15711 of 1989)
Judges: M.N. VENKATACHALIAH CJI., & A.S. ANAND, J.
Date of Judgment: Sep 15, 1994
Head Note:
JURISPRUDENCE
Res Judicata
State appeal dismissed by High Court declining to condone the delay – Appeal filed by appellant held by High Court as not maintainable being barred by principle of res judicata – Dismissal of State appeal cannot operate as res judicata and bar the maintainability of the appellant’s appeal as per Narhari’s case – High Court could have given the benefit of section 5 of Limitation Act and condoned the delay in State appeal -Case remitted back for fresh disposal.
Held:
In our opinion, the view taken by the High Court is not sustainable and the reliance placed by it on Sheodan’s case (supra) is misplaced. In Sheodan’s case (supra) the facts were entirely different. (Paras 4 & 5)
We cannot, therefore, subscribe to the view of the High Court that the dismissal of State’s appeal, in the facts and circumstances of the case could operate as res judicata and bar the maintainability of the appeal filed by the appellant. (Para 6)
It is relevant to notice here that in Sheodan’s case (supra), the Bench considered the judgment in Narhari’s case (supra) and pointed out the distinguishing features in the two cases. (Para 8)
The law laid down in Narhari’s case (supra) squarely applies to the facts of the present case and the High Court, therefore, fell in error to hold that the appeal filed by the appellant was not maintainable being barred by res judicata. We are also of the opinion that since the Writ Appeal filed by the appellant, within time, had been admitted and was pending hearing, it would have been more appropriate for the High Court to give the benefit of Section 5 of the Limitation Act and condone the delay in filing the appeal by the State and heard both the appeals together on merits. However, since the State has not come in appeal, we may say nothing more regarding the same. (Paras 9 & 10)
Since, the High Court dismissed the appeal as not maintainable, without going into the merits of the case, we set it aside and remit the case back to the High Court for a fresh disposal of the appeal on merits in accordance with law. (Para 11)
Cases Reffered:
1. Sheodan Singh v. Daryao Kumar, AIR 1966 SC 1332. (Para 3)
2. Narhari and others v. Shanker and others, AIR 1953 SC 419. (Para 7)
2. Narhari and others v. Shanker and others, AIR 1953 SC 419. (Para 7)
JUDGEMENT:
DR. ANAND, J.:
1. Leave granted.
2. This appeal is directed against the judgment of the High Court of Madras dated 19.9.1989 dismissing appellant’s Writ Appeal No. 675/82.
3. The first respondent, a private transport operator in the State of Andhra Pradesh who at the material time was operating his stage carriage on the inter-state route Chittor (in Andhra Pradesh) to Salem (in Tamil Nadu), filed Writ Petition No. 4343 of 1980 in the High Court of Madras seeking quashing of the scheme of nationalisation approved under Section 68(d) of the Motor Vehicles Act, 1959 as published on G.O.Ms. No. 579 Home dated 7.4.1975 and for certain other reliefs. The learned Single Judge of the High Court allowed the Writ Petition holding inter alia that the entire scheme as approved, was inconsistent and not capable of implementation and that the writ petitioner (1st respondent herein) was entitled to have his renewal application considered on the said basis. The appellant who had been impleaded as the 3rd respondent in the Writ Petition, filed Writ Appeal No. 675/82 within the period of limitation. The State of Tamil Nadu, also a respondent in the Writ Petition, filed a separate Writ Appeal but beyond 150 days of the period of limitation, alongwith an application seeking condonation of delay in preferring the appeal. While notice was issued on the Writ Appeal filed by the appellant, in the Writ Appeal filed by the State notice was issued in the condone delay application. On 4.3.1986 a Division Bench of the High Court, declined to condone the delay and dismissed the appeal filed by the State. When the Writ Appeal filed by the appellant came up for hearing before the Division Bench, the same was dismissed on the sole ground that since the Writ Appeal filed by the State had already been dismissed by the Division Bench, the Writ Appeal filed by the appellant was barred by the principle of res judicata and was as such not maintainable. Reliance was placed by the Division Bench upon the judgment in Sheodan Singh v. Daryao Kumar (AIR 1966 (SC), 1332).
4. In our opinion, the view taken by the High Court is not sustainable and the reliance placed by it on Sheodan’s case (supra) is misplaced.
5. In Sheodan’s case (supra) the facts were entirely different. In that case the Trial Court had decided common issue relating to title which was a common issue in four different suits. Four separate decrees had been prepared. Two of the appeals, arising out of two suits, were dismissed on a preliminary ground with the result that the decree in those two suits became final. In the two appeals filed subsequently, the earlier order dismissing the two appeals was held to operate as res judicata and the two subsequent appeals were accordingly dismissed.
6. In the present case the factual and legal situation is entirely different. The State as well as the appellant were respondents in one and the same Writ Petition, against the decision of which they had filed separate appeals. The dismissal of the Writ Appeal filed by the State on the ground of delay not being condoned could not in law affect the maintainability of the Writ Appeal which had been filed by the appellant within time and was pending final hearing in the High Court. The order in the writ petition could have been challenged by one appeal only unlike in Sheodan Singh’s case where four appeals were required to be filed in law against the four decrees even though deciding the common issue relating to title. We cannot, therefore, subscribe to the view of the High Court that the dismissal of State’s appeal, in the facts and circumstances of the case could operate as res judicata and bar the maintainability of the appeal filed by the appellant.
7. In Narhari and others v. Shanker and others (AIR 1953 (SC), 419) on the suit of the plaintiff being decreed in the Trial Court, two separate appeals were taken by two set of defendants. The Appellate Court allowed both the appeals and dismissed the plaintiff’s suit by one judgment and ordered a copy of the judgment to be placed on the file of the connected appeal. The plaintiffs preferred two separate appeal. One of the appeal was held time barred and invoking the principle of res judicata the High Court dismissed the other appeal also. Reversing the decision of the High Court, this Court observed:
“The question of res judicata arises only when there are two suits. Even when there are two suits, it has been held that a decision given simultaneously cannot be decided in the former suits. When there is only one suit, the question of res judicata does not arise at all and in the present case, both the decrees are in the same case and based on the same judgment, and the matter decided concerns the entire suit. As such, there is no question of the application of the principle of res judicata. The same judgment cannot remain effective just because it was appealed against with a different number or a copy of it was attached to a different appeal. The two decrees in substance are one.”
8. It is relevant to notice here that in Sheodan’s case (supra), the Bench considered the judgment in Narhari’s case (supra) and pointed out the distinguishing features in the two cases. This Court referring to Narhari’s case (supra) observed:
“That case however has no application to the facts of the present case, because there the suit was only one which was followed by two appeals. The appeals were heard together and disposed of by the same judgment though separate decrees were prepared. An appeal was taken against one of the decrees. In those circumstances 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 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 in a former suit to give rise to res judicata in a subsequent suit was satisfied in the present case.”
(Emphasis supplied)
9. The law laid down in Narhari’s case (supra) squarely applies to the facts of the present case and the High Court, therefore, fell in error to hold that the appeal filed by the appellant was not maintainable being barred by res judicata.
10. We are also of the opinion that since the Writ Appeal filed by the appellant, within time, had been admitted and was pending hearing, it would have been more appropriate for the High Court to give the benefit of Section 5 of the Limitation Act and condone the delay in filing the appeal by the State and heard both the appeals together on merits. However, since the State has not come in appeal, we may say nothing more regarding the same.
11. Since, the High Court dismissed the appeal as not maintainable, without going into the merits of the case, we set it aside and remit the case back to the High Court for a fresh disposal of the appeal on merits in accordance with law. It shall be open to the parties to raise all such pleas as are available to them in law in respect of their respective claims before the High Court during the hearing of the appeals. We request the High Court to dispose of the Writ Appeal expeditiously and as far as possible within three months from the date of receipt of the copy of this order.
1. Leave granted.
2. This appeal is directed against the judgment of the High Court of Madras dated 19.9.1989 dismissing appellant’s Writ Appeal No. 675/82.
3. The first respondent, a private transport operator in the State of Andhra Pradesh who at the material time was operating his stage carriage on the inter-state route Chittor (in Andhra Pradesh) to Salem (in Tamil Nadu), filed Writ Petition No. 4343 of 1980 in the High Court of Madras seeking quashing of the scheme of nationalisation approved under Section 68(d) of the Motor Vehicles Act, 1959 as published on G.O.Ms. No. 579 Home dated 7.4.1975 and for certain other reliefs. The learned Single Judge of the High Court allowed the Writ Petition holding inter alia that the entire scheme as approved, was inconsistent and not capable of implementation and that the writ petitioner (1st respondent herein) was entitled to have his renewal application considered on the said basis. The appellant who had been impleaded as the 3rd respondent in the Writ Petition, filed Writ Appeal No. 675/82 within the period of limitation. The State of Tamil Nadu, also a respondent in the Writ Petition, filed a separate Writ Appeal but beyond 150 days of the period of limitation, alongwith an application seeking condonation of delay in preferring the appeal. While notice was issued on the Writ Appeal filed by the appellant, in the Writ Appeal filed by the State notice was issued in the condone delay application. On 4.3.1986 a Division Bench of the High Court, declined to condone the delay and dismissed the appeal filed by the State. When the Writ Appeal filed by the appellant came up for hearing before the Division Bench, the same was dismissed on the sole ground that since the Writ Appeal filed by the State had already been dismissed by the Division Bench, the Writ Appeal filed by the appellant was barred by the principle of res judicata and was as such not maintainable. Reliance was placed by the Division Bench upon the judgment in Sheodan Singh v. Daryao Kumar (AIR 1966 (SC), 1332).
4. In our opinion, the view taken by the High Court is not sustainable and the reliance placed by it on Sheodan’s case (supra) is misplaced.
5. In Sheodan’s case (supra) the facts were entirely different. In that case the Trial Court had decided common issue relating to title which was a common issue in four different suits. Four separate decrees had been prepared. Two of the appeals, arising out of two suits, were dismissed on a preliminary ground with the result that the decree in those two suits became final. In the two appeals filed subsequently, the earlier order dismissing the two appeals was held to operate as res judicata and the two subsequent appeals were accordingly dismissed.
6. In the present case the factual and legal situation is entirely different. The State as well as the appellant were respondents in one and the same Writ Petition, against the decision of which they had filed separate appeals. The dismissal of the Writ Appeal filed by the State on the ground of delay not being condoned could not in law affect the maintainability of the Writ Appeal which had been filed by the appellant within time and was pending final hearing in the High Court. The order in the writ petition could have been challenged by one appeal only unlike in Sheodan Singh’s case where four appeals were required to be filed in law against the four decrees even though deciding the common issue relating to title. We cannot, therefore, subscribe to the view of the High Court that the dismissal of State’s appeal, in the facts and circumstances of the case could operate as res judicata and bar the maintainability of the appeal filed by the appellant.
7. In Narhari and others v. Shanker and others (AIR 1953 (SC), 419) on the suit of the plaintiff being decreed in the Trial Court, two separate appeals were taken by two set of defendants. The Appellate Court allowed both the appeals and dismissed the plaintiff’s suit by one judgment and ordered a copy of the judgment to be placed on the file of the connected appeal. The plaintiffs preferred two separate appeal. One of the appeal was held time barred and invoking the principle of res judicata the High Court dismissed the other appeal also. Reversing the decision of the High Court, this Court observed:
“The question of res judicata arises only when there are two suits. Even when there are two suits, it has been held that a decision given simultaneously cannot be decided in the former suits. When there is only one suit, the question of res judicata does not arise at all and in the present case, both the decrees are in the same case and based on the same judgment, and the matter decided concerns the entire suit. As such, there is no question of the application of the principle of res judicata. The same judgment cannot remain effective just because it was appealed against with a different number or a copy of it was attached to a different appeal. The two decrees in substance are one.”
8. It is relevant to notice here that in Sheodan’s case (supra), the Bench considered the judgment in Narhari’s case (supra) and pointed out the distinguishing features in the two cases. This Court referring to Narhari’s case (supra) observed:
“That case however has no application to the facts of the present case, because there the suit was only one which was followed by two appeals. The appeals were heard together and disposed of by the same judgment though separate decrees were prepared. An appeal was taken against one of the decrees. In those circumstances 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 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 in a former suit to give rise to res judicata in a subsequent suit was satisfied in the present case.”
(Emphasis supplied)
9. The law laid down in Narhari’s case (supra) squarely applies to the facts of the present case and the High Court, therefore, fell in error to hold that the appeal filed by the appellant was not maintainable being barred by res judicata.
10. We are also of the opinion that since the Writ Appeal filed by the appellant, within time, had been admitted and was pending hearing, it would have been more appropriate for the High Court to give the benefit of Section 5 of the Limitation Act and condone the delay in filing the appeal by the State and heard both the appeals together on merits. However, since the State has not come in appeal, we may say nothing more regarding the same.
11. Since, the High Court dismissed the appeal as not maintainable, without going into the merits of the case, we set it aside and remit the case back to the High Court for a fresh disposal of the appeal on merits in accordance with law. It shall be open to the parties to raise all such pleas as are available to them in law in respect of their respective claims before the High Court during the hearing of the appeals. We request the High Court to dispose of the Writ Appeal expeditiously and as far as possible within three months from the date of receipt of the copy of this order.
