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CPC | First And Second Appeal Arising Out Of Two Suits With Same Parties & Common Property In Dispute Can't Be Clubbed: Supreme Court
Sohini Chowdhury
25 April 2023 6:29 AM GMT
The Supreme Court has made it clear that a first appeal and a second appeal arising out of two proceedings cannot be clubbed and disposed of by a common judgment even though the parties are essentially the same and the property in dispute is common. It observed that considerations to be made in case of a first appeal under Section 96 of the Civil Procedure Code, 1908 (CPC) and that of a...
The Supreme Court has made it clear that a first appeal and a second appeal arising out of two proceedings cannot be clubbed and disposed of by a common judgment even though the parties are essentially the same and the property in dispute is common.
It observed that considerations to be made in case of a first appeal under Section 96 of the Civil Procedure Code, 1908 (CPC) and that of a second appeal under Section 100 CPC are entirely different. For instance, the re-appreciation of evidence would only arise while deciding the first appeal and not the second appeal.
A Bench comprising Justice AS Bopanna and Justice Hima Kohli remanded the first appeal and the second appeal arising out of two suits back to the Madras High Court which had disposed of both by a common judgment.
In 1996, a suit was filed for declaration and injunction based on the contention that the plaintiffs were the absolute owners of the property. The suit was dismissed by an order passed in 1998. A regular first appeal was filed against the order, which was disallowed in 1999. A second appeal was filed challenging the same.
In 2001, another suit was filed seeking partition and separate possession of properties, which included the property involved in the 1996 suit. The suit for partition was allowed. Subsequently, a regular first appeal was filed.
As the parties in both the proceedings were the same, the Madras High Court clubbed and considered the appeals. The Apex Court noted that in a normal circumstance the High Court would have been justified in considering the matters together in order to avoid contradicting decrees. However, in the present case one was a regular first appeal while the other was a second appeal. The considerations to be made in these two appeals are entirely different.
"At the outset, we note, that the judgment dated 30.07.2012 passed by the Madurai Bench of Madras High Court is a common judgment whereunder, the Second Appeal arising under Section 100 of the Civil Procedure Code, 1908 in S.A. No.994/1999 and the Regular First Appeal arising under Section 96 of the Civil Procedure Code, 1908 in A.S. No.26 of 2004 which warrant different scope of consideration, have been considered and disposed by the common judgment dated 30.07.2012," the order stated.
Refusing to decide the matter on merit at this stage, the Apex Court noted that the High Court ought to take into consideration the facts arising in the first appeal and decide the same, thereafter the second appeal would arise for an independent consideration. It made it abundantly clear that the two appeals being remanded to the High Court ought to be de-linked and considered independently.
Considering the nature of litigation and the time already spent in litigating, the Apex Court requested the High Court to first refer the matters to mediation. If medication fails, the High Court can go ahead and decide the matter as expeditiously as possible, it said.
Case Details:
Seethamal And Anr. v. Narayanasamy And Ors.| 2023 LiveLaw SC 342 | Civil Appeal No. 6300-6301 of 2016| 12th April, 2023| Justice AS Bopanna and Justice Hima Kohli
Advocates For the Appellant : Mr. Chidambaresh, Sr Adv assisted by R Nedumaran adv
Advocates For the Respondents: Adv. V.Prabhakar & Adv Pramit Saxena
