Substantive Right Accrued To A Litigant Should Not Be Defeated Citing Procedural Defects Capable Of Being Cured: Supreme Court

The Supreme Court observed that substantive right accrued to the litigant should not be defeated citing a procedural defect capable of being cured."It is a trite law that the procedural defect may fall within the purview of irregularity and capable of being cured, but it should not be allowed to defeat the substantive right accrued to the litigant without affording reasonable opportunity", the bench comprising Justices Indira Banerjee and JK Maheshwari observed.In this case, two suits (one filed in 1989 and the other in 1993) were tried together and disposed of (in 2008) by a common judgment though two separate decrees were drawn. The defendant approached the Uttarakhand High Court by filing appeal (in 2008) challenging both the decrees. He also preferred an application (CLMA) seeking permission to file a single appeal assailing the common judgment alongwith two separate decrees. The first appeal was admitted (in 2008) by High Court and by the same order, two weeks' time was granted to file objections on CLMA and further two weeks to file rejoinder. It was further directed to list the application after lapse of the said period. A decade later (in 2018), the High Court without passing any order on the said CLMA, at the time of hearing of the appeal, accepted the preliminary objection regarding maintainability of single first appeal without entering into the merits of the case. The Court said that the case is restricted to the question of applicability of principle of res judicata and, taking into consideration the material placed and the contentions raised by both the parties, the appeal was dismissed holding that one appeal is not maintainable and barred by res judicata.In appeal before the Apex court, the appellant contended that his application CLMA seeking permission to file joint appeal against common judgment and two decrees has not been decided by the impugned order, though at the time of admitting the appeal and issuing notice, objections were called. On the other hand, the respondent contended that since the day of notice in first appeal, objection has been raised for filing only one appeal and still the said defect was not rectified by the appellant.Perusing the impugned judgment, the bench observed that there is not even any observation therein that permission as sought to file one appeal cannot be granted. The record indicates that the CLMA filed by the appellant seeking permission to file one appeal was not decided. It is to observe, once at the time of admission of first appeal, despite having objection of maintainability it was admitted asking reply and rejoinder on CLMA, the High Court ought to have decided the said application. Thus, prior to deciding the preliminary objection, the High Court should have decided the said CLMA, either granting leave to file a single appeal or refusing to entertain one appeal against one judgment and two decrees passed in two suits after consolidation" The court observed that nonadjudication of the CLMA application, and upholding the preliminary objection of nonmaintainability of one appeal by High Court has caused serious prejudice to the appellant. While allowing the appeal, the bench observed:In our considered view also, the approach adopted by High Court is not correct, because on dismissal of the CLMA, the appellant might have had the opportunity to rectify the defect by way of filing separate appeal under Section 96 of CPC challenging the same judgment with separate decree passed in Civil Suit No.411 of 198The court thus remanded the matter to the High Court to decide the CLMA before deciding the preliminary objection of maintainability of one appeal.Case detailsRamnath Exports Pvt. Ltd. vs Vinita Mehta | 2022 LiveLaw (SC) 564 | CA 4639 OF 2022 | 5 July 2022Coram: Justices Indira Banerjee and JK MaheshwariHeadnotesCode of Civil Procedure, 1908 - The procedural defect may fall within the purview of irregularity and capable of being cured, but it should not be allowed to defeat the substantive right accrued to the litigant without affording reasonable opportunity. (Para 10)Code of Civil Procedure, 1908 ; Section 96 - An appeal is a continuation of the proceedings of the original court. Ordinarily, First appeal involves a rehearing on law as well as on fact as invoked by an aggrieved person. The first appeal is a valuable right of the appellant and therein all questions of fact and law are open for consideration by reappreciating the material and evidence. The first appellate court is required to address on all the issues and decide the appeal assigning valid reasons either in support or against by reappraisal - It must record its findings dealing all the issues, considering oral as well as ...

Substantive Right Accrued To A Litigant Should Not Be Defeated Citing Procedural Defects Capable Of Being Cured: Supreme Court

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Substantive Right Accrued To A Litigant Should Not Be Defeated Citing Procedural Defects Capable Of Being Cured: Supreme Court

Ashok KM

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