Where a first appellate Court entertains a composite appeal that ought to have been filed as two separate appeals with separate memoranda, and the right of appeal is a substantive right, what course should a court take before dismissing the appeal for that defect?

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 16Another aspect to be noted is that the High Court after holding that the composite appeal preferred by the plaintiff was not tenable, proceeded to allow both the second appeals and consequently, set aside the common judgment and decrees passed in both the suits. Resultantly, the plaintiff has been left remediless without there being any adjudication of either of his suits on merits. The deficiency in the composite appeal preferred by the plaintiff under Section 96 of the Code was more in its ‘form’ than ‘substance’. Hence, an opportunity ought to have been granted to the plaintiff to cure the deficiency which merely required presentation of an additional memorandum of appeal. This requirement is purely procedural in nature and the plaintiff cannot be made to suffer for such deficiency, if it could be called so. It must be borne in mind that the right of appeal is a substantive right of a party who cannot be deprived of the same merely for procedural defects. The attempt of Courts should always be to adjudicate the case on merits rather than to put an end to the proceedings for failure to comply with procedural requirements. ‘Form’ should not be permitted to prevail over ‘substance’. The rules of procedure enumerated in the Code are treated as the handmaid of justice and are not to be utilised as a sword to curtail the proceedings. On the question of granting an opportunity to a party to cure a procedural deficiency, we may refer to the observations made in paragraph 7 of the decision in Charan Singh Vs. Ram Saroop[^14] wherein it has been observed as under: