PETITIONER: MANAGING DIRECTOR Vs. RESPONDENT: K. RAMACHANDRA NAIDU DATE OF JUDGMENT15/09/1994 BENCH: ANAND, A.S. (J) BENCH: 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: HEADNOTE: JUDGMENT:
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.
343