1. A learned single Judge of this Court has referred the following question for answer:
'Whether in the facts and circumstances of the present case the appeal is barred by res judicata'
2. Let us briefly state the facts. The plaintiffs as commission agents advanced Rs. 8,560/- to the defendants on 3-3-51 for obtaining a railway receipt of certain goods from the Punjab National Bank, Jodhpur. The plaintiffs also gave on 8-3-51 Rs. 836/14/9 by way of payment to a broker. The defendants' goods covered by the railway receipt when sold by the plaintiffs on behalf of the defendants fetched Rs. 6501/15/6 and after deduction of expenses a balance of Rs. 3077/10/3 remained due to the plaintiffs and claiming interest and cost of notice the plaintiffs instituted a suit against the defendants which eventually was transferred to the Civil Judge, Jodhpur, (being Suit No. 135/1955) for recovery of Rs. 3146/7/-. We shall call it Suit No. 135 hereinafter. The defendants instituted a counter suit for rendition of accounts against the plaintiffs which also travelled to the same court by transfer as Suit No. 186. These two suits were consolidated by the consent of the parties and common issues were raised. By a single judgment dated 30-7-58 the trial court decreed suit No. 135 for Rs. 3120/5/- and 'dismissed suit No. 136. The defendants presented two appeals in the Court of the District Judge, Jodhpur. The appeal arising out of suit No. 135 was numbered as Civil Appeal No. 237 of 1958 and against the decree in suit No. 136 as 219 of 1958. The learned District Judge heard these appeals together and by a common judgment dated 12-9-63 dismissed both the appeals. On behalf of the defendants an appeal was preferred in this Court against the decree of the District Judge No. 237 of 1958 arising out of suit No. 135 and preferred no appeal against appellate decree No. 219 of 1958 arising out of suit No. 136. On behalf of the plaintiff it was urged before the learned single Judge that the decree in appeal No. 219/58 operated as res judicata in the hearing of the appeal by this Court. The defendants, who are appellants before us, hotly contested the contention. The learned single Judge found that there was divergence of judicial opinion on the important question and an authoritative decision of the legal point involved would be helpful in resolving such controversies and thought it fit to refer the above mentioned question to us.
3. We have heard learned counsel for the parties and we shall refer to the authorities cited by them at appropriate places.
4. The question before us cannot be answered by reference to Section 11 of the Code of Civil Procedure for the simple reason that the suits Nos. 135 and 136 and appeals arising therefrom Nos. 237 and 219 respectively were decided by a common judgment. Both the suits and the appeals arising therefrom having been decided on the same dates by common judgments neither of the suits could be called a 'former suit' because in Explanation I of Section 11 the expression 'former suit' shall denote a suit which has been decided prior to the suit in question whether or not it was instituted prior thereto. The word 'suit' in Section 11 means proceedings in action in courts of the first instance as distinguished from proceedings in appellate court. However it has been held that general principles of res judicata may also apply to appellate proceedings. Therefore, the terms of Section 11 as such will not answer the question referred to us and it will have to be resolved by reference to general principles of the doctrine of res judicata. Accordingly it is not necessary to notice those cases cited before us which were decided on the terms of Section 11 of the Code of Civil Procedure. The essentials of the general principles of res judicata have been enunciated with unrivalled clarity in the case of Duchess of Kingston (2 Smith's leading cases, llth Edition, p. 731 (732)):
'From the variety of cases relative to judgment being given in evidence in civil suits these two deductions seem to follow as generally true; first that a judgment of a Court of concurrent jurisdiction, directly speaking on the point, is, as a plea, a bar, or as evidence, conclusive, between the same parties, upon the same matter, directly in question in another Court; secondly, that the judgment of a Court of exclusive jurisdiction, directly on the point, is, in like manner, conclusive upon the same matter, between the same parties coming incidentally in question in another Court, for a different purpose. But neither the judgment of a Court of concurrent or exclusive jurisdiction is evidence of any matter which came collaterally in question, though within their jurisdiction nor of any matter incidentally cognizable nor of any matter to be inferred by argument from the judgment.'
At this stage it will be profitable to notice the cases cited before us. Let us start with the cases decided by the Supreme Court on the subject. In Narhari v. Shanker, AIR 1953 SC 419 the plaintiff had a decree in his favour. Two appeals were taken by two sets 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 other connected appeal. Two decrees were prepared. The plaintiff preferred two appeals. One of the appeals was barred by time and on the principle of res judicata the High Court dismissed both the appeals. Their Lordships of the Supreme Court held that it was not necessary to file two separate appeals in the case. Accepting the observations of the learned Judges of the Lahore High Court in Mst. Lachhmi v. Mst. Bhuli, AIR 1927 Lah 289 (FB), their Lordships held that 'the determining factor is not the decree but the matter in controversy. As he puts it later in his judgment, the estoppel is not created by the decree but it can only be created by the judgment. 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.'
5. In Badri Narayan Singh v. Kamdeo Prasad Singh, AIR 1962 SC 338, C filed an election petition against A and B. A was found guilty of corrupt practices. A and B were not found to hold any office of profit. Appeal was preferred by A, being appeal No. 7 and appeal was preferred by C, being appeal No. 8. A's appeal No. 7 was dismissed. C's appeal No. 8 was allowed on the ground that A held office of profit. Separate decrees were passed. A appealed against the decree in appeal No. 8 by special appeal to the Supreme Court. Their Lordships held that the orders setting aside election in appeal No. 7 operated as res judicata. Their Lordships referred to Narbari's case, AIR 1953 SC 419 and distinguished it on the ground that it did not deal with the general principles of res judicata.
6. The next case is Sheodan Singh v. Daryao Kunwar, AIR 1966 SC 1332. Two suits were instituted. They had common issues. Suits decided on merits by trial Court. Two appeals were preferred. One was dismissed on the ground of limitation or default in presenting. The dismissal, their Lordships held, would operate as res judicata. The trial Court's decision was confirmed even though the dismissal was on the ground of limitation. Their Lordships, however, declined to decide the controversy between the two lines of decisions in Indian courts that were taking divergent views.
7. Coming to the case of diffrent High Courts now in Zaharia v. Debia, (1911) ILR 33 All 51 (FB) two suits were instituted by M and Z for pre-emption in respect of the same sale- There was one judgment and the copy of it was placed in the other suit but separate decrees were passed in each suit. M's suit was decreed and Z's suit was dismissed. Z appealed in his suit only. It was held that the decree operated as res judicata. Reference was made to Panchanada Velan v. Vaithinatha Sastrial, ILR 29 Mad 333 (FB), but their Lordships did not accept that case as laying down good law.
8. In Bhagauti Din v. Bhagwat, AIR 1933 Oudh 531 a case from Oudh Chief Court there was one judgment disposing of two appeals but two separate decrees were passed. Appeal against one decree was preferred. It was held that the decree not appealed against operated as res judicata. The Full Bench case of Zaharia v. Debia was followed.
9. In Mrs. Gertrude Oates v. Mrs. Millicent D'Silva, AIR 1933 Pat 78 their Lordships of the Patna High Court observed that the question was whether particular partnership bad come to an end. Two suits were instituted. There was one judgment but two decrees. One of them became final because the other party did not appeal. The learned Judges held that the issue decided operated as res judicata on general principles of the multiplicity of proceedings and end of litigation.
10. In Ramkishan Lal v. Maulvi Abu Abdullah Syed Hussain Imam, (1935) 156 Ind Gas 998 (Pat) the Patna High Court again considered a case where the question of title was decided in both the cases. Appeal was preferred only in one The learned Judges again held that because the appeal was not preferred it operated as res judicata.
11. In Raghunandan Singh v. Sm. Soubhagya Sundari Devi, AIR 1947 Pat 125 number of rent suits were filed in respect of different villages but all the suits were disposed of by a common judgment. C was impleaded as pro forma defendant in all the suits. C appealed only in one suit. The learned Judges held that it was barred by res judicata.
12. In Raghunandan Singh v. Sm. Soubhagya Sundari Devi, AIR 1948 Pat 191 the question of title was decided in two suits. Appeal was preferred only in one and the other remained unchallenged. Following Mrs. Gertrude's case, AIR 1933 Pat 78 and Ramkisban's case, (1935) 156 Ind Cas 998 (Pat) the learned Judges held that it was barred by res judicata.
13. The Orissa High Court in Sumi Debi v. Pranakrushna Panda, AIR 1956 Orissa 68 considered a case where two suits were tried together. They were disposed of by one judgment but two decrees were passed. Appeal was preferred in oue. It was held that it operated as res judicata. The case of Narhari was held to be not binding because it was not a judgment of the Supreme Court of India exercising its jurisdiction as such but the Supreme Court of erstwhile State of Hyderabad. It was further held that a judgment in England was equal to an Indian decree.
14. In Isup Ali v. Gour Chandra Deb, AIR 1923 Cal 496 there were cross suits. Appeal was only preferred in one. The unappealed decree operated as res judicata.
15. In Rohini Nandan Chaudhuri v. Jadunandan Chaudhari, AIR 1926 Cal 1022 the same view was taken.
16. The High Court of Madras has been, however, taking consistently the view that if more suits than one are decided by a common judgment unappealed decree does not operate as res judicata. The earliest case on the point is Panchanada Velan v. Vaithinatha Sastrial, (1906) ILR 29 Mad 333 (FB). Another Full Bench decision is Pappammal v. Meenammal, AIR 1943 Mad 139 (FB) where 3 suits were disposed of by a common judgment and 3 separate decrees were passed. The learned Judges held that it was immaterial whether they were cross suits or not. The unappealed decree did not operate as res judicata. The appellant wanted to get rid of only the adjudication against him.
17. In Kathoom Bivi Ammal v. Arulappa Nadar AIR 1970 Mad 76 there were cross-suits by parties in respect of the same subject-matter. They were disposed of by a common judgment and evidence was also adduced in one suit. A party appealed against the judgment in his own suit. Following the earlier decisions of the Madras High Court the learned Judges held that it did not operate as res judicata.
18. In Sarah Abraham v. Pyli Abraham, AIR 1959 Ker 75 the husband filed a petition for restitution of conjugal rights. Wife asked for judicial separation by a separate petition. The two petitions were tried together. Husband succeeded. The wife, who failed, appealed against her husband's success and not against her failure. The learned Judges held that it did not operate as res judicata because they were same proceedings and there was no former suit.
19. In Manohar Vinayak v. Laxman Anandrao Deshmukh, AIR 1947 Nag 248 two suits were instituted. There were common issues and they were consolidated by consent. Appeal was preferred against only one decree. It was held that the unappealed decree did not operate as res judicata in consideration of the appeal which was preferred. The reasons which persuaded the learned Judges were that the principles of res judicata could not apply in the same proceedings and by parity of reasoning they could not apply to consoli, dated proceedings because in substance there was one judgment though formally there were two judgments and two decrees. The learned Judges also held quoting Caspersz and the Full Bench decision of the Nagpur High Court in Sheoram v. Hiraman AIR 1929 Nag 229, that what operated as res judicata was a verdict and not decrees. The learned Judges held that the material test was the verdict and the existence of two decrees was wholly immaterial.
20. In AIR 1927 Lah 289 (FB) the learned Judges after elaborate discussion held that even if two decrees were framed the unappealed decree did not operate as res judicata.
21. In Umrao Singh v. Mst. Munni, AIR 1958 Punj 83 two suits were tried together. They were decided by a single judgment. Two decrees were prepared. Appeal was preferred only against one decree. It was held that the unappealed decree did not create an estoppel against the hearing. The essence of the rule was that the two proceedings should be so independent of one another that the trial of one could not be confused with that of another. The principle of res judicata is estoppel by verdict or estoppel by judgment and not by decree. This is the cardinal principle of the legal system of the civilized countries and the doctrine was not to be applied with technical consideration but to matters of substance.
22. We might notice two cases of the Rajasthan High Court although they do not render much assistance. In Sukhlal v. Deepchand, AIR 1954 Raj 58 a decree for recovery of Rs. 10,000/- was passed but no interest was allowed. Both the parties appealed to the High Court. Two identical decrees were passed in the same terms. The further appeal was taken to Ijlas-i-Khas only against one decree. The learned Judges held that it did not operate as res judicata. In Deeplal v. Parshwanath Digamber Jain Vidyalaya, AIR 1956 Raj 166 there were two cross-suits. One of the suits was decided on a preliminary issue. It was held that as it was not heard and finally decided it did not operate as res judicata.
23. The doctrine of res Judicata has been well known in almost all civilized organizations of jural society. The Hindu lawyers recognised the force of a final decision by a competent court as 'irrefragable truth'. Mitakshra Book II Chapter I, Section V, Verse 5 lays down a 'purva nyaya' as a complete answer. Macnaughten and Colebrooks translation of Katyayan Verse 101 also recognizes it. Under the Roman Law a defendant could successfully repel a plaintiff's suit on the plea of ex-ceptio res judicata'. They said, 'one suit and one decision was enough for any single dispute.'
'The true theory of' the conclusiveness of judgments is that the order and peace of society, the structure of our judiciary system, and the principles of our Government, are the true grounds why a judgment is conclusive'. (Herman on Estoppel, p. 9. quoted by Arthur Caspersz' Estoppels and the Substantive Law, Fourth Edition, page 411). The maxim that no one shall be vexed twice over the same matter has both weight of practical wisdom and sense of justice implied in it. The condition precedent, however, for the applicability of this maxim should be relatable to the substance of the judgment and not merely to the formal expression of an adjudication called decree in Sub-section (2) of Section 2 of the Code of Civil Procedure. In a number of decisions while applying the general principles of res judicata divergence of opinion has crept in because some of them have started treating the decrees creating res judicata.
When this divergence of opinion reached the Supreme Court in Sheodan Singh's case, AIR 1966 SC 1332 their Lordships did not decide the controversy. One o tile objects which the doctrine of res judicata aims to attain is to avoid multiplicity of proceedings and as has been observed by their Lordships of the Supreme Court the principles of res judicata nave not to be applied with any technical consideration. Hukamchand, Caspersz and other authors have rightly held that the doctrine of res judicata is a rule of procedure. It is well to remember what Lord Penzance observed in Henry J. B. Kendall v. Peter Hamilton (1879-4 A.C., 504), 'Procedure is but the machinery of law after all, the channel and means whereby law is administered and justice reached. It strangely departs from its proper office when in place of facilitating, it is permitted to obstruct and even extinguish, legal rights and is thus made to govern where it ought to subserve'. Right of appeal conferred by statute is a right to seek justice and its exercise should not be permitted to be obstructed by general principles of procedure unless they clearly apply to it. In the case before us the two suits were consolidated and common judgments were delivered both by the trial court as well as by the appellate court The same judgment was placed in both the suits because they bore different numbers. For the applicability of the general principle of res judicata it is the judgment that should be looked into. The judgment being one, it is under appeal. If the un-appealed decree was also appealed against it would have been presumably decided together with the appeal already before the Court. The judgment being identical another appeal would have merely multiplied the proceedings which the doctrine of res judicata in its general application aims to eliminate. The principles of res judicata, therefore, in our opinion should not apply in the circumstances of this case because it would merely multiply appeals without advancing the cause of justice.
24. We accordingly answer the question, referred to us, that in the circumstances of the case the appeal is not barred by res judicata. The costs of this reference will abide by the result.