Under Section 96 of the Code of Civil Procedure, 1908, is a composite appeal maintainable where the same plaintiff's two suits, clubbed together and tried by common evidence, were dismissed by a common judgment, and certified copies of both decrees along with court fees for both appeals were filed?

Paragraph 5Having given due consideration to the rival submissions, the relevant provisions of the Code and material factual aspects obtaining from the record, we are of the considered view that the composite appeal preferred for challenging the common judgment of the trial Court deciding two suits filed by the same plaintiff was rightly entertained on merits. The judgment of the first appellate Court could not have been set aside on the ground that two separate appeals had not been filed. In any event, the lacuna, if any, of not filing a separate memorandum of appeal was curable in nature and could not be held to be fatal as the composite appeal was accompanied by both decrees passed by the trial Court.

Paragraph 12The trial Court having clubbed both the suits, considered the common evidence led by the parties and thereafter by its common judgment dismissed both the suits. It specifically directed that copy of the common judgment be preserved in the second suit. The specific averments made by the plaintiff in the memorandum of appeal filed under Section 96 of the Code have been referred to hereinabove. The proviso to Order XLI Rule 1(1) of the Code empowers the appellate Court to dispense with the filing of more than one copy of the judgment of the trial Court whenever two or more suits are tried together and a common judgment is delivered. The object behind the said provision, as noticed in P.A. Oommen Vs. Moran Mar Baselius Marthoma[^10], is to avoid extra expenses where more cases than one are disposed of by a common judgment by empowering the appellate Court to dispense with the necessity of filing more than one copy of the judgment. Such request for dispensing with filing of an additional copy of the judgment of the trial Court was also made by the plaintiff. Significantly, the requisite court fees payable for challenging the common judgment and decrees in both suits was also paid by the plaintiff. The prayer made in the memorandum of appeal was clear seeking setting aside of the common judgment in both the suits. The composite appeal was filed along with certified copies of the common judgment and decrees passed in both suits. It can, thus, be seen that all necessary requisites for challenging the common judgment of the trial Court were satisfied by the unsuccessful plaintiff. The requirements of Order XLI Rule 1 (1) and (2) of the Code were fully complied with and the composite appeal as filed was complete in all respects. All statutory requirements were satisfied by the plaintiff while preferring an appeal under Section 96 of the Code.

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.