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 BackgroundPlaintiff-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 VerdictThe 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...

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

Upasna Agrawal

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