1. In this second appeal a question of respondent judicata is raised in the following circumstances : There were two cross-suits between the same parties in the District Munsif Court, Tirunelveli. One was for injunction. The other was for possession. The injunction suit O. S. No. 629 of 1972 was filed by one Khaja Mohideen against three sons of a tailor called Khader Batcha. The suit for possession O. S. No. 413 of 1973, was filed, as a counterblast, by the sons of Khader Batcha against Khaja Mohideen. The subject matter of both the suits was a tailoring business run in the name of 'Star Tailoring Mart'. Khaja Mohideen claimed that this business exclusively belonged to him. Khader Batcha's son, on the contrary, said that Khaja Mohideen was only an erstwhile manager of the business. They claimed that they were the owners of the business by right of inheritance from their father. In his suit Khaja Mohideen asked that Khader Batcha's sons be restrained by a permanent injunction from interfering with his running of the Tailoring Mart. In the other suit, Khader Batcha's sons asked for a decree directing possession of the Tailoring Mart to them.
2. Both the suits were tried together by the learned District Munsif. Documents were marked in common oral evidence also was called in common. At the end of the joint trial, the District Munsif decreed the injunction suit of Khaja Mohideen and dismissed the other cross suit for possession.
3. The sons of Khader Batcha appealed. They preferred, though, only one appeal, A. S. 413 of 1974, which was an appeal against the decree in the injunction suit. They did not appeal against the decree dismissing their own suit for possession.
4. Before the Sub Court, Khaja Mohideen raised an objection that the appeal in the injunction suit, which was the one and only appeal between the parties, was barred by respondent judicata. It was contended, that the other decree passed by the District Munsif, which the appellants had not appealed against, would operate as bar to a decision in this appeal on merits. The learned Subordinate Judge, however, held that there was no red judicata since both the decrees had been passed by the trial court simultaneously under a common judgment after a joint trial. He then proceeded to entertain the appeal before him on the merits, and held, differing from the court's finding that Khaja Mohideen was not the owner of the tailoring mart.
5. In this second appeal, brought by Khaja Mohideen, Miss Sridevi, his learned counsel, pleaded the bar of respondent judicata. She said that the Sub Court's decision now has brought about a kind of situation which was the very thing that Section 11, C.P.C. meant to provide against. Learned counsel pointed out that with reference to one and the same subject-matter, namely, the ownership of the tailoring mart, there were now two conflicting decisions by two competent courts, one holding that Khaja Mohideen was entitled to run it and the other holding that he was not entitled. Learned counsel further submitted that although the decision in the two suits was simultaneous in the court of first instance, the decree which was not carried in appeal became final between the parties and, by the same token, it came to assume the position of a decree passed in a former suit within the meaning of the Explanation I to Section 11 of the Code.
6. Miss Sridevi cited, among other decisions, Koshal Pal v. Mohanlal : 2SCR827 . In that case a plea of respondent judicata was raised at the stage of ultimate appeal before the Supreme Court. The judgment under appeal in that case was a common judgment of the High Court by which two second appeals had been disposed of. There were, accordingly, two decrees. But the appellant before the Supreme Court had filed only one appeal against one of the two decrees of the High Court. In these events, the respondent before the Supreme Court raised the plea of respondent judicata. The Supreme Court upheld this objection and dismissed the appeal before them without going into the merits. In the course of their judgment, the Supreme Court marked a distinction between the position that obtained in the High Court where two second appeals were disposed of together by a common judgment and the position that later obtained in the Supreme Court where one decree alone of the High Court had been carried in further appeal. The learned Judges observed that there was no question of respondent judicata at the stage of the second appeals before the High Court, but the position became different in the Supreme Court. According to the learned Judges, the position was analogous to a case where a party to two decrees passed jointly by a trial court appealed against only one of them, leaving the other to become final. The learned Judges referred to an early decision of the Privy Council in Sheosagar Singh v. Sitaram Singh (1897) 24 Ind Ap. 50, in which it was observed :-
'If there had been no appeal in the first suit the decision of the Subordinate Judge would no doubt have given rise to the plea of respondent judicata.'
It seems to me that the Supreme Court judgment and the Privy Council's observation directly apply to the present case. It cannot be denied that the subject-matter of the two cross-suits in the present case was precisely the same, namely, the conduct of the business of the tailoring mart, although the reliefs claimed in the two suits were, understandably different, injunction being asked for in the one case and possession being asked for in the other. This difference, however, in the reliefs asked for, cannot make for any difference in the application of the rule of res judicata, since in both the suits the question that was directly and substantially in issue was the same. In these events, the learned Subordinate Judge ought to have held that an appeal against one of the decrees alone would be clearly barred under Section. 11 of the Code. He was not right in proceeding to dispose of the appeal on merits.
7. Learned counsel for the respondents sought to place reliance on a decision of this Court in Papammal v. Meenammal AIR 1943 Mad 139. I do not think it necessary to examine this decision considering that the principle laid down by the Supreme Court in Koshal Pal v. Mohanlal : 2SCR827 so totally and directly applies to this case.
8. In the result, this second appeal is allowed, the decree of the learned Subordinate Judge is set aside and that of the trial court restored. There will be no order as to costs.
9. Appeal allowed.