Does the rule that a plaintiff and a defendant with a counter-claim, whose suit and counter-claim are both dismissed, must file two separate appeals also apply where the same plaintiff files two independent suits that are consolidated and decided by a common judgment?

Paragraph 13At this stage, we may notice some situations which require filing of separate appeals by aggrieved parties, notwithstanding the adjudication of the proceedings by a common judgment. In a case where two different plaintiffs file separate suits against a common set of defendants and the proceedings are clubbed together, on dismissal of the suits by virtue of a common judgment, both plaintiffs would be required to independently challenge the adverse outcome rendered in their respective suits. Where in a suit, the defendant files a counter-claim and the suit as well as the counter- claim are dismissed, both parties would be required to file separate appeals raising a challenge to the dismissal of the suit and counter-claim, respectively. There could be various other situations requiring an aggrieved party to specifically challenge a common judgment and decree passed in the matter. However, in the present case, the plaintiff in both the suits is one and the same. Both his suits were dismissed by the trial Court by a common judgment. He did challenge the common judgment, though in a single appeal but after paying requisite court fees payable on separate appeals. He specifically prayed for setting aside the judgment and decree passed in both the suits. All necessary ingredients contemplated in Section 96 read with Order XLI Rule 1 of the Code were satisfied. The deficiency, if any, was the absence of a separate memorandum of appeal for each appeal. In other words, what could be challenged by filing two separate appeals was done by filing a composite appeal. The deficiency was more of ‘form’ and not of ‘substance’. This deficiency was curable and did not render the composite appeal not maintainable. In our view, the composite appeal preferred by the plaintiff was liable to be entertained on merits. If at all the High Court was of the view that a separate memorandum for each appeal was necessary for challenging the common judgment rendered in two suits filed by the same plaintiff, an opportunity to cure said deficiency ought to have been afforded to the plaintiff. The defect was not of such a nature so as to entail setting aside the judgment of the appellate Court without any adjudication on merits.

Paragraph 17Coming to the decisions as relied upon by the learned counsel for the parties, in Mallanna alias Appaiah (supra), A had filed a suit for eviction of B from the suit property. B in turn had filed a suit for specific performance of an agreement with regard to the same property against A. The trial of these suits was held separately. The trial Court, however, passed a common judgment after which decrees were drawn separately. B preferred an appeal against the common judgment and decree passed in the suit filed by A. That appeal was allowed. In second appeal filed by A, it was urged that B not having challenged the judgment and decree passed in the suit filed by B, the judgment of the trial Court could not have been interfered with. In that context, it was held that both parties having filed separate suits against each other, the trial of the suits was separate. The judgment and decree in those suits were different. It was only for convenience that a common judgment was passed by the trial Court. Since B did not challenge the judgment of the trial Court passed in his suit, the first appellate Court could not have interfered in the single appeal preferred by B challenging the judgment and decree passed in the suit filed by A. The aforesaid facts indicate that the plaintiff in one suit was the defendant in the other suit filed by the defendant. For this reason, no support of this decision can be taken by the respondents inasmuch as in the present case, both the suits were filed by one and the same plaintiff.

Paragraph 18In M/s S.A.L. Steel Limited (supra), suit was filed by A for recovery of money against B while B filed a counter-claim against A. While the suit filed by A was decreed, the counter-claim filed by B was dismissed. The question as to maintainability of a single appeal against the decree passed in the suit as well as the counter- claim was raised. Reliance was placed on the decision of the Himachal High Court in Ramesh Chand Vs. Om Raj and others[^15]. However, during the course of hearing, the prayer made in the counter-claim was not pressed by B. Hence, the question of maintainability was not decided by the High Court. In Sri Dinesh Poojary (supra), A had filed a suit for permanent injunction against B. In that suit, B filed a counter-claim. The suit filed by A was dismissed while the counter-claim filed by B was allowed. A filed an appeal challenging the dismissal of his suit but did not challenge the decree passed in the counter-claim. After referring to the decision in Ramesh Chand (supra), it was held that a single appeal in such circumstances was not maintainable. Again, this decision does not assist the respondents in view of the facts therein. It cannot be disputed that if in a suit, a counter- claim is also filed, the plaintiff, if aggrieved, by the dismissal of the suit and grant of counter-claim would be required to challenge that adjudication in two separate appeals.