No Need To File Two Second Appeals When Order Challenged In Cross Appeal Before First Appellate Authority Arises From Single Suit: Allahabad HC

The Allahabad High Court has held that when different appeals are filed from a decree passed in a single suit, the decree of the suit determines the rights of the parties. It has been held that there is no necessity to file two separate second appeals in such cases only because there were two appeals against the decree.

Justice Kshitij Shailendra held that

“if a single suit gives rise to different first appeals, without there being any counter-claim or another consolidated suit, the decree drawn in the said single suit would conclusively determine rights of the parties and irrespective of two first appeals arising from the single judgment/ decree, necessity to file two separate second appeals would not arise.”

The Court clarified that the situation would be different if two suits were decided by a common judgment or if there was a counterclaim in the same suit. In such a case, the Court held that there would be two decrees drawn by the Court of first instance and if two first appeals were filed arising from such two decrees, there would necessarily be two appeals.

The Court further held that the amended provisions of Rule 1 of Order XLI CPC do not nullify the requirement of attaching a certified copy of the decree drawn by the first appellate court as per Rule 8 of Chapter IX of the High Court Rules, 1952.

Factual Background

Plaintiff-appellant filed a suit against the defendant-respondents seeking a permanent prohibitory injunction. The suit was decreed partly in favour of the plaintiff-appellant. However, both the plaintiff and the defendants filed appeals against the parts of their arguments that were not accepted. The said appeals were decided by a common judgment, wherein the case of the plaintiff-appellant was dismissed in its entirety. Accordingly, he filed a second appeal before the High Court.

In the present case, the Stamp Reporting Section had endorsed a report necessitating the requirement of filing separate second appeals for each civil appeal that was being contested.

Counsel for the appellant contended that in the present proceedings, it was neither necessary to file another appeal nor to attach a copy of a separate decree. It was stated that it was not even necessary to attach the decree of the first appellate court.

Further, it was submitted that till 1859, there had been no uniform codified law for procedures to be followed in Civil Courts. It was only thereafter that the Civil Procedure Code was introduced which was subsequently amended a number of times. It was stated that the object of the Code was to consolidate and amend laws relating to the procedure of the Court of civil jurisdiction. It was submitted that a procedural law was meant to be an aid of justice and not the converse.

Additionally, it was contended that a number of amendments were made, one of which included the word 'judgment' in place of “decree appealed from and (unless the Appellate Court dispenses therewith) of the judgement on which it is founded”.

The appellant submitted on the basis of Section 32 of the Amendment Act No. 46 of 1999 that since Order 41, Rule 1 CPC stood amended, there could be one appeal against separate judgements and decrees if two or more suits had been tried together and a common judgment had been delivered. Memo something-something

Further, it was their submission that with regard to the Amendment Act No. 46 of 1000, the second appeal was to be preferred against a judgment and that the High Court rules were in conflict with the Code. They contended that the provisions under the Allahabad High Court rules could not override the Code of Civil Procedure and thus the provisions contained in the High Court Rules, 1952 ceased to exist after 01.07.2002 by virtue of Section 32 of the Amendment Act No. 46 of 1999. State Amendment would cease to exist and it would be the Central law that would prevail.

Per Contra, counsel for respondents relied on the judgment of the Supreme Court in M/s Ramnath Exports Pvt. Ltd. v. Vinita Mehta and Anr. and Sri Gangai Vinayagar Temple And Anr. v. Meenakshi Ammal And Anr. to contended that in case of non-filing of separate appeals, the threat of res judicata should also be taken into consideration.

High Court Verdict

The Court clarified the applicability of the amended provision of Order 41 Rule 1 CPC that was incorporated by the Amendment Act, 1999. It was observed that when a suit was decided by the court of first instance at the district level unless the judgment was passed by the District Judge or Additional District Judge, the first appeal against the decree drawn would lie before the District Judge under Section 96 of the Code of Civil Procedure. Further, in that case, the memorandum of appeal was to be signed by the appellant or his pleader and was to be accompanied by a copy of the “judgment”.

The Court observed that by means of Order XLII Rule 1 CPC, the provisions of Order XLI CPC would apply to second appeals to an extent. It was held that since a second appeal was filed against the appellate decree by the first appellate court, even if the applicability of Rule 1 of Order XLI was examined in the context of Rule 1 of Order XLII, the requirement of attaching the decree either against the original or the appellate decree, would be governed by the Allahabad High Court Rules, 1952.

Taking note of the rules contained in Chapter IX in Part-II of the rules of Civil Jurisdiction, Justice Shailendra observed that though the amended Rule 1 of Order XLI CPC did not mandate attaching a copy of the decree appealed from, the same had not been amended in the High Court Rules, 1952, so far as it concerned the requirement of annexing documents.

However, the Court observed that as per sub-rule (c) of Rule 8, Chapter IX, when a second appeal was filed, a copy of the decree of the court of first instance need not be annexed and annexing the copy of the judgment of that court would suffice. Thus, it was held that the argument of the plaintiff-appellant based on Section 31 of the Amendment Act, 1999, did not hold weight. Additionally, in examining the applicability of Section 32 of the Act, 1999, the Court held that the provision had been misinterpreted by the appellant.

“The repeal clause contained under Section 32 of the Act of 1999 cannot be stretched to the extent of superseding or nullifying the High Court Rules, 1952 enacted under constitutional powers conferred by Article 225 of the Constitution of India,” held the Court.

The Court found that the judgment of the Kerala High Court in Khaleel Vs. Aranjikkal Jamal Muhammed relied upon by the appellant was also of no use to the appellant as it was given in the background of State Amendments made to the CPC. The Court, therein, never considered the question as to whether a separate appeal would lie from every decree or whether the requirement of annexing decrees could be dispensed with.

The Court held that as per sub-rule (2) of Rule 6-A of Order 8, counter-claims would amount to a cross-suit so as to enable the Court to give a final judgment in the same suit. Thus, as per sub-rule (4), a counter-claim would be treated as a plaint and would be governed by rules applicable to plaints.

In the present case, since the decrees drawn from both appeals had been challenged in their totality or to an extent, the Court held that there was no need for two separate appeals as there had been “a single suit and one trial, one finding and once decision.” Further, it was held that there was no threat of res judicata as claimed by the respondents. It was held that such questions only arose when there were two suits which was not the case in the present case.

“Since, in the instant case, consolidated judgment has been passed in two civil appeals arising from a single suit, the objection endorsed by the Reporting Section, as regards filing of two separate appeals, stands overruled and single second appeal, in the present case, is held to be maintainable, without there being necessity to file another second appeal from the same decree/judgment,” held the Court.

Accordingly, the Court directed the Stamp Reporting Section to adhere to the directions contained in the order.

Case Title: Ramnath Singh v. Parshuram Singh (Deceased) And 13 Others [SECOND APPEAL No. - 507 of 2024]

Counsel for Appellant: Pradeep Kumar Rai, Prajyot Rai

Counsel for Respondent: Harish Kumar Yadav

Click Here To Read/Download Order