JUDGMENT
O.P. Garg. J.
1. This Second Appeal, which is the proto-type of the earlier Second Appeal No. 1163 of 1998, has come to be filed again by the same appellants and against the same impugned order dated 28.7.1998 passed by Sri Ramesh Chander Singh. IXth Additional District Judge. Varanast in Civil Appeal No. 435 of 1977, Smt. Laxmi Devi Gupta v. State of U. P. and others. The earlier Appeal No. 1163 of 1998 was dismissed by this Court as not maintainable. In the earlier Second Appeal No. 1163 of 1998, which was filed by the present appellants, a preliminary objection was taken on behalf of the contesting respondents that the Second Appeal is not maintainable without leave of the Court as the appellants were not parties either to Suit No. 169 of 1994 or to First Appeal No. 435 of 1997.
2. After hearing the learned counsel for the parties at some length, the appeal was dismissed on 8.8.1998 by this Court holding that it was not maintainable without leave of the Court as the appellants were strangers to the suit as well as First Appeal. For the sake of clarity and better appreciation of the legal question involved in the present Second Appeal, which is virtually the extension of the earlier appeal, which stands dismissed, it would be proper to extract relevant portion of the judgment dated 8th August, 1998 :
” ….. The appellants cannot file the Second Appeal without the leave of this Court. Sri Verma counsel for the appellants was repeatedly asked by this Court whether he is prepared to move a proper application for leave of this Court so that appropriate orders may be passed after hearing the other side also. Sri Verma maintained and reiterated that no application or prayer for leave to appeal is necessary to file the present Second Appeal.
I am of the firm view that the appellants cannot make the observations made in the Writ Petition No. 10436 of 1998 which was dismissed as the basis to file this Second Appeal without the leave of this Court. Since the appellants were neither party to the suit nor the first appeal, the present Second Appeal without the leave of this Court is not maintainable.
For the reasons stated above, the Second Appeal is dismissed as it is not maintainable.”
From the above observations, it would appear that the appellants were afforded an opportunity by this Court to file an application for leave of this Court but the learned counsel for the appellants who was confident enough in his stand, did not apply for the leave of the Court.
3. Now this Second Appeal has been filed with an application for leave of the Court. The filing of this Second Appeal has been vehemently opposed by the respondents and it was urged that it is nothing but a sheer abuse of process of Court on the part of the appellants. It was suggested that if the appellants were, in facts, aggrieved of the order dated 8.8.1998 passed in earlier Second Appeal No. 1163 of 1998, the appropriate remedy was to have approached the Hon’ble Supreme Court rather than taking this Court for a ride by filing the true replica of the earlier appeal, which stands dismissed as not maintainable.
4. Heard Sri R. N. Singh, learned counsel for the appellants and Dr. R. G. Padia, on behalf of the respondents at considerable length.
5. The facts of the case have been incorporated at some length in the Judgment of the earlier Second Appeal No, 1163 of 1998. It is not necessary to repeat all over again the facts which have given rise to the earlier and the present Second Appeals. This judgment, therefore, has to be read in conjunction with the decision in the earlier Second Appeal No. 1163 of 1998 so far as facts of the case are concerned.
6. At the threshold of his arguments, Sri R. N. Singh, learned counsel for the appellants frankly conceded that the appellants are not in a position to assail the decision of this Court dated 8.8.1998 dismissing the appeal as not maintainable as obviously the law in the light of the provisions contained in the Code of Civil Procedure as interpreted by the Apex Court is well embedded that a stranger to the suit cannot file an appeal without the leave of the Court. Sri Singh urged that he proceeds with the accepted position that the decision dated 8.8.1998 is unassailable and propounds correct legal position. He further urged that since the earlier Second Appeal was not considered on merits and was dismissed as being not maintainable, the appellants are not debarred to file another Second Appeal with the leave of the Court for which a proper application is now being made. It was also urged that no client can be allowed to suffer for the mistake of the counsel and since the counsel, who was engaged in the earlier Second Appeal was under the mistaken belief that the appeal was maintainable without leave of the Court, the defect in the earlier appeal may now be set right.
7. There can be no quarrel with the proposition of law that the Court, have never allowed the client to suffer for the misdemeanour or inaction of his counsel. In Rafiq and another v. Munshilal and another, AIR 1981 SC 1400, an appeal filed by the appellant was disposed of in absence of his counsel, so also his application for recall of order of dismissal was rejected by the High Court. The Supreme Court in appeal set aside both the orders of dismissal on the ground that a party who, as per the present adversary legal system, has selected his advocate, briefed him and paid his fee can remain supremely confident that his lawyer will look after his interest and such a innocent party who has done everything in his power and expected of him, should not suffer for the inaction, deliberate omission or misdemeanour of his counsel. The inaction or misdemeanour of his counsel may be on account of his absence when the case is taken up or in the form of a totally wrong and absured advice. But in other respects, a party is bound by the acts and statements made by the counsel within the limits of his authority. Therefore, a wide Sweeping and generalised statement of law that a party should not be allowed to suffer for the mistake, inaction and misdemeanour of his counsel came to be diluted and restricted. In Salil Dutta v. T. M. and M. C. Private Ltd., (1993) 2 SCC 185, the Apex Court took the view that the advocate is the agent of a party. His acts and statements made within the limits of authority given to him, are the acts and statements of the principal, i.e., the party who engaged him. Though in certain, situations, the Court may, in the interest of justice, set aside a dismissal order or an ex parte decree notwithstanding the negligence and/or misdemeanour of the advocate where it finds that the client was an innocent litigant but there is no such absolute rule that a party can disown its advocate at any time and seek relief. No such absolute immunity can be recognised. In the view of the Apex Court, such an absolute would make the working of the system extremely difficult. The observations made in Rafiq’s case (supra) must be understood in the facts and circumstances of that case and cannot be understood as an absolute pro-position. There was a positive shift from the observation made in Rafiq’s case (supra) and as has been held in Salil Dutta’s case (supra), no party has a right to ask for indulgence by putting the entire blame upon the advocate and trying to make it out as if it was totally unaware of the nature and significance of the proceedings.
8. In view of the above observations of the Supreme Court in Salil Dutta’s case, now let us examine whether it is a case of any deliberate mistake, inaction or misdemeanour on the part of the counsel for the appellants in the earlier Second Appeal No. 1163 of 1998. Sri G. N. Varma, learned counsel for the appellants did appear in the earlier appeal ; he argued on the question of maintainability of the appeal at a considerable length and cited a number of rulings, as well as the decision in Writ Petition No. 10436 of 1998 on the basis of which he made a confident argument that the appeal by the appellants, who admittedly were not a party to the suit, was maintainable without asking for the leave of the Court, Sri G. N. Varma made conscious assertions and reiterations in the earlier appeal. It was not a case of deliberate failure or inaction on his part. It is something different that he could not score the point and this Court, disagreeing with him, dismissed the appeal as not maintainable.
9. Sri R. N. Singh, learned counsel for the appellants placed reliance on two decisions in particular, namely. Smt. S. Kalawatt v. Durga Prasad and another, AIR 1975 SC 1272 and M/s. M. Ramnarain Put. Ltd. v. State Trading Corpn. of India Ltd., AIR 1983 SC 786, to fortify his contention that if the earlier appeal was technically not maintainable and has been dismissed without considering the merits of the case, there is no bar to file the appeal again by curing the defect on which the earlier appeal was dismissed.
10. I have thoroughly studied both these rulings and find that neither of them is applicable to the facts of the present case. In Smt. S. Kalatwati’s case (supra), the question of power of Apex Court under Article 133 of the Constitution of India, vis-a-vis Section 109 of the Code of Civil Procedure came to be considered. It was observed that the principle behind the majority of decisions is to the effect that where an appeal is dismissed on the preliminary ground that it was not competent or for non-prosecution or for any other. reason, the appeal is not entertained, the decision cannot be a ‘decision on appeal’ nor of affirmance within the meaning of Article 133(1)(a) and, therefore, a certificate granted by the High Court in such a case is competent. The order of dismissal of writ petition, in limine, was set aside and High Court was directed to dispose it of by a proper order. In M/s. M. Ramnarain’s case (supra), an appeal was filed against the direction for instalments in money suit without filing copy of decree. The appeal was immediately withdrawn just after its filing and subsequent appeal against the decree, on merits, was filed after a shortwhile. It was held that the appeal was not barred due to filing of earlier appeal, the same being an appeal against an ‘order’ and not against ‘decree’ or ‘Judgment’ within the meaning of clause 15 of Letters Patent. It was observed that the Second Appeal could not be said to be barred on the ground of earlier appeal being appeal against the decree in view of provisions of amended Order XX, Rule 11 (1) or on ground of violation of Order II, Rule 2, Code of Civil Procedure for non-joinder of causes of actions. The first appeal, must, it was observed, be considered to be not competent under the Code of Civil Procedure on the ground of being an appeal against an order only and under clause 15 of the Letters Patent on the ground that the order was not a ‘judgment’ within the meaning of clause 15. The Apex Court went on to observe that in the light of the above facts, the filing of an incompetent appeal on the mistaken advice of a lawyer could not be said to reflect and conduct on the part of the defendant-appellant as to deprive him of his right to file an appeal against the decree when the earlier appeal was withdrawn the very next day after the same had been filed at the stage of admission and the second appeal came to be filed Just a week after the withdrawal of the earlier appeal. There is a sea-difference in the facts of M. Ramnarain’s case (supra). In that case, no orders were passed by the Court on the incompetent appeal which was intended to be preferred against an ‘order’ while the appeal could be maintained against a ‘Judgment’ under clause 15 of Latters Patent. Lawyer himself had withdrawn the appeal without obtaining orders of the Court and filed another appeal. In the instant case. Second Appeal No. 1163 of 1998, on the earlier occasion was filed: detailed and elaborate submissions were made by learned counsel for both the parties with regard to its maintainability. For the reasons, aforesaid, the two decisions on which reliance has been placed by the learned counsel are of no help and assistance to the appellants.
11. A passing reference was also made to the decision of this Court in Mohd. Qamar Shah Khan v. Mohammad Salamat Ali Khan. AIR 1930 All 112 and Abdul Salam v. Dy. Director of Consolidation. 1982 ALJ 1402. Even these two cases are wide of the mark. In Mohd. Qamar’s case (supra), memorandum of appeal was presented in Court by an unauthorised person and, therefore, it was held that it was not an appeal at all in the eyes of law and Court may reject it for that obvious defect and, therefore, the subsequent appeal cannot be said to be a bar by principles of res judicata. In Abdut Salam’s case (supra), it was observed that any proceeding against deal person is void and non est in law and, therefore, non-entertain ing of revision as it was filed against that person could not preclude the petitioner from filing a fresh revision. In both these cases, it was held that the principle of res judicata is not attracted to bar the subsequent appeal or the revision. In one case, it was an appeal by a totally unauthorised person while in the other case, the revision was against a dead person. The analogy of these two decisions cannot be applied to the facts of the present case.
12. Dr. R. G. Padia, learned counsel for the respondents was very much critical of the approach adopted by the appellants. It was urged that the present second appeal is an instance of blatant abuse of process of law and that the principle of constructive res judicata would apply as the appellants in the earlier appeal have conciously -abandoned the advantage or the protection which law seeks to give them. Dr. Padia cited a number of decisions in which the principles of constructive res judicata ; voluntary and intentional relinquish men t; and abandonment of a right ; estoppel as well as doctrine of election have been propounded by the Apex Court to support his submission that the present Second Appeal after the rejection of the earlier Second Appeal by the body of the same appellants and against the same respondents to challenge the same order passed by the first appellate court cannot be entertained. I find that the submission of Dr. Padia is not without merit and has to be given due weight. It is not thought necessary to refer to the various decisions cited by Dr. Padia, as they pertain to the well-established and undisputable principles of law. However, a reference may be made to the celebrated decision of the Apex Court in State of Uttar Pradesh v. Nawab Hussain, AIR 1997 SC 1680. It was laid down that the principle of estoppel per res judicata is a rule of evidence and the doctrine is based on two theories ; (1) the finality and conclusiveness of judicial decisions for the final termination of disputes in the general interest of the community as a matter of public policy, and (2) the interest of the individual that he should be protected from multiplication of litigation. The doctrine of constructive res judicata serves not only a public but also a private purpose by obstructing the reopening of, matters which have once been adjudicated upon. It is thus not permissible to obtain a second judgment for the same civil relief on the same cause of action, for otherwise, the spirit of contentiousness may give rise to conflicting judgments of equal authority, lead to multiplicity of actions and bring the administration of Justice to disrepute. The Courts have, therefore, treated the second action as an abuse of its process and this is another and an equally necessary and efficacious aspect of the same principle, for it helps in raising the bar of res judicata by suitably construing the general principle of subduing a cantankerous litigant.
13. The doctrine which the Courts of law have recognised as a rule of judicial policy that a person will not be allowed to take inconsistent position to gain advantage through the agency of the Court. The appellants took a chance to file an appeal without the leave of the Court. There has been a judgment on the point after due consideration in the light of law applicable to the case. Therefore, the appellants took a chance but they failed. On being confronted with the order of dismissal of appeal, as not maintainable, they have now adopted a novel device to file another appeal with an application for leave of the Court. When once the appellants had elected to file appeal without leave of the Court and the fact that the appeal was maintainable without the leave was asserted and reiterated, now it does not lie in their mouth to assert that another Second Appeal can be entertained by granting the leave as the earlier decision came in the wake of the wrong notion entertained by their counsel. These two contradictory positions cannot be reconciled. If this Second Appeal is entertained, it would amount to putting premium on a party who had once asserted that the appeal was maintainable without the leave of the Court and obtained a judgment which turned out to be unfavourable to them and now they have come to beseech that the leave be granted to file another appeal. The legal position is clearly against the appellants. They cannot be allowed to file another appeal and if it is done, there would be no end to the matter. The appellants are, therefore, precluded to assert that it was on account of mistaken assertion of their counsel that the earlier appeal came to be dismissed.
14. The present Second Appeal cannot be entertained and is dismissed on the ground that earlier Second Appeal No. 1163 of 1998 filed by the present appellants against the same respondents and to challenge the same order passed in First Appeal has been dismissed as not maintainable on 8.8.1998.