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Managing Director Vs. K. Ramachandra Naidu [1994] INSC 474 (15 September 1994)

Anand, A.S. (J) Anand, A.S. (J) Venkatachalliah, M.N.(Cj)

CITATION: 1995 AIR 316 1994 SCC (6) 339 JT 1994 (6) 166 1994 SCALE (4)148

ACT:

HEAD NOTE:

The Judgment of the Court was delivered by DR A.S. ANAND, J.- Leave granted.

+ From the Judgment and Order dated 19-9-1989 of the Madras High Court in W.A. No. 675 of 1982 340

2. This appeal is directed against the judgment of the High Court of Madras dated 19-9-1989 dismissing appellant's Writ Appeal No. 675 of 1982.

3. The first respondent, a private transport operator in the State of Andhra Pradesh who at the material time was operating his stage carriage on the inter-State route Chittoor (in Andhra Pradesh) to Salem (in Tamil Nadu), filed Writ Petition No. 4343 of 1980 in the High Court of Madras seeking quashing of the scheme of nationalisation approved under Section 68(d) of the Motor Vehicles Act, 1959 as published in GOMs No. 579 Home dated 7-4-1975 and for certain other reliefs. The learned Single Judge of the High Court allowed the writ petition holding inter alia that the entire scheme as approved, was inconsistent and not capable of implementation and that the writ petitioner (1st. respondent herein) was entitled to have his renewal application considered on the said basis. The appellant who had been impleaded as the 3rd respondent in the writ petition, filed Writ Appeal No. 675 of 1982 within the period of limitation. The State of Tamil Nadu, also a respondent in the writ petition, filed a separate writ appeal but beyond 150 days of the period of limitation, along with an application seeking condonation of delay in preferring the appeal. While notice was issued on the writ appeal filed by the appellant, in the writ appeal filed by the State notice was issued in the condone delay application. On 4-3-1986 a Division Bench of the High Court, declined to condone the delay and dismissed the appeal filed by the State. When the writ appeal filed by the appellant came up for hearing before the Division Bench, the same was dismissed on the sole ground that since the writ appeal filed by the State had already been dismissed by the Division Bench, the writ appeal filed by the appellant was barred by the principle of res judicata and was as such not maintainable. Reliance was placed by the Division Bench upon the judgment in Sheodan Singh v. Daryao Kunwar1.

4. In our opinion, the view taken by the High Court is not sustainable and the reliance placed by it on Sheodan case1 is misplaced.

5. In Sheodan case1 the facts were entirely different. In that case the trial court had decided common issue relating to title which was a common issue in four different suits.

Four separate decrees had been prepared. Two of the appeals, arising out of two suits, were dismissed on a preliminary ground with the result that the decrees in those two suits became final. In the two appeals filed subsequently, the earlier order dismissing the two appeals was held to operate as res judicata and the two subsequent appeals were accordingly dismissed.

6. In the present case the factual and legal situation is entirely different. The State as well as the appellant were respondents in one and the same writ petition, against the decision of which they had filed separate appeals. The dismissal of the writ appeal filed by the State on the ground of delay not being condoned could not in law affect the maintainability of the writ appeal 1 AIR 1966 SC 1332 : 1966 All LJ 578 : ILR (1966) 2 All 232 341 which had been filed by the appellant within time and was pending final hearing in the High Court. The order in the writ petition could have been challenged by one appeal only unlike in Sheodan Singh case1 where four appeals were required to be filed in law against the four decrees even though deciding the common issue relating to title. We cannot, therefore, subscribe to the view of the High Court that the dismissal of State's appeal, in the facts and circumstances of the case could operate as res judicata and bar the maintainability of the appeal filed by the appellant.

7. In Narhari v. Shanker2 on the suit of the plaintiff being decreed in the trial court, two separate appeals were taken by two set of defendants. The appellate court allowed both the appeals and dismissed the plaintiff's suit by one judgment and ordered a copy of the judgment to be placed on the file of the connected appeal. The plaintiffs preferred two separate appeals. One of the appeal was held time- barred and invoking the principle of res judicata the High Court dismissed the other appeal also. Reversing the decision of the High Court, this Court observed:

"The question of res judicata arises only when there are two suits. Even when there are two suits, it has been held that a decision given simultaneously cannot be a decision in the former suit. When there is only one suit, the question of res judicata does not arise at all and in the present case, both the decrees are in the same case and based on the same judgment, and the matter decided concerns the entire suit. As such, there is no question of the application of the principle of res judicata. The same judgment cannot remain effective just because it was appealed against with a different number or a copy of it was attached to a different appeal. The two decrees in substance are one."

8. It is relevant to notice here that in Sheodan case1, the Bench considered the judgment in Narhari case2 and pointed out the distinguishing features in the two cases.

This Court referring to Narhari case2 observed:

"That case however has no application to the facts of the present case because there the suit was only one which was followed by two appeals. The appeals were heard together and disposed of by the same judgment though separate decrees were prepared. An appeal was taken against one of the decrees. In those circumstances this Court held that as there was only one suit, it was not necessary to file two separate appeals and the fact that one of the appeals was time-barred did not affect the maintainability of the other appeal and the question of res judicata did not at all arise. In the present case there were different suits from which different appeals had to be filed. The High Court's decision in the two appeals arising from Suit Nos. 77 and 91 was undoubtedly earlier and therefore the condition that there should have been a decision in a former suit to give rise to res judicata in a subsequent suit was satisfied in the present case." (emphasis supplied) 2 AIR 1953 SC 419 : 1950 SCR 754 342 The law laid down in Narhari case2 squarely applies to the facts of the present case and the High Court, therefore, fell in error to hold that the appeal filed by the appellant was not maintainable being barred by res judicata.

9. We are also of the opinion that since the writ appeal filed by the appellant, within time, had been admitted and was pending hearing, it would have been more appropriate for the High Court to give the benefit of Section 5 of the Limitation Act and condone the delay in filing the appeal by the State and heard both the appeals together on merits.

However, since the State has not come up in appeal, we may say nothing more regarding the same.

10. Since, the High Court dismissed the appeal as not maintainable, without going into the merits of the case, we set it aside and remit the case back to the High Court for a fresh disposal of the appeal on merits in accordance with law. It shall be open to the parties to raise all such pleas as are available to them in law in respect of their respective claims before the High Court during the hearing of the appeals. We request the High Court to dispose of the writ appeal expeditiously and as far as possible within three months from the date of receipt of the copy of this order.

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