Non filing of an Appeal against a finding in a Decree passed in favour of Respondent is not hit by Res judicata under Section 11 of C.P.C.

In State of Andhra Pradesh & Ors Vs B Ranga Reddy (D) by LRs & Ors, 2019 SCC Online SC 1009, the Supreme Court of India has held that a Respondent may object to a finding in a Decree which is passed in its favour without filing an Appeal against the finding, or may file a Cross Objection to any issue which ought to have been in his favour, even if the Decree is wholly or in part in favour of the Respondent as Order XLI Rule 22 of C.P.C.

In this case, 3 Suits were filed against the Defendants including the State Government to seek title and possession over 3 different lands mentioned in the 3 Suits. The State defended by averring that the land in each case was falling in separate areas and not in the one claimed by the Plaintiff and therefore, Plaintiffs cannot stake ownership over the same. The Trial Court dismissed the first two Suits and stated that even the State could not prove its case. However, the third Suit was decreed in favour of the Plaintiff and the government was directed to surrender the land.

The State filed an Appeal against this third Suit before the Hon’ble High Court. In the said Appeal, the State submitted that it does not have to file separate Appeal against the Decree of dismissal in the two Suits in view of amendment in Order XLI Rule 22 & Rule 33 of C.P.C which enables an aggrieved person to file cross Objections and since it does not take away the right of the aggrieved to support the Decree of dismissal of the Suit in Appeal, the issues in the first two Suits are not final so as to operate as Res judicata against the Decree in the 3rd Suit which is subject matter of challenge in the existing Appeal.

Section 2 (9) of C.P.C defines a Judgement as a Statement given by the Judge on the grounds of the Decree or Order. Section 2 (2) of C.P.C defines a Decree as a formal expression of an adjudication which conclusively determines the rights of the parties. Section 96 of C.P.C states that an Appeal shall lie from every Decree.

Order XLI Rule 22 of C.P.C states that a Respondent may object to a Decree as if he has preferred a separate Appeal, or may file a Cross Objection to any issue which ought to have been in his favour, and not file an Appeal against such a Finding/ Decree, even if the Decree is wholly or in part, in favour of the Respondent. This provision was amended vide Central act No. 104 of 1976 and gave much more clarity.

The High Court however, erroneously stated that once a Decree is passed, it attains finality and cannot be disturbed by adjudicating the same questions in another Appeal and therefore the Civil Appeal was filed before Supreme Court of India.

In Banarsi & Ors Vs Ram Phal, (2003) 9 SCC 606, the Supreme Court held that it is permissible to file a Cross Objection against a finding in a Decree and that the respondent may defend himself without filing any Cross objection to the extent to which Decrees is in favour, however, if he proposes to attack any part of the Decree, he should ideally take Cross objections. The Court observed that there maybe 3 situations:

i.            The Decree is partly in favour of Appellant and partly in favour of Respondent:

ii.          The Decree is entirely in favour of the Respondent though an issue has been decided against the Respondent:

iii.         The Decree is entirely in favour of Respondent though there is a finding against the Respondent.

In (i) above, it is necessary for the Respondent to file an Appeal or Cross Objection against that part which is against him and is entitled to support that part which is in his favour without filing Cross Objections. In (ii) & (iii) above, it is not necessary to take Cross Objection against the finding, though he has a right to file Cross Objection to the finding.

Therefore, even if the Appeal is withdrawn or dismissed, with the amendment of 1976 in C.P.C, Cross Objections shall still be available to be adjudicated.

After considering various Judgements and the facts of the case, the Hon’ble Supreme Court held the following:

a.   High Court failed to draw distinction between the Decree and a finding on an Issue. The State (Appellant herein) could not file an Appeal against a Decree which was of a dismissal of a Suit Simpliciter.

b.  Findings on Issues in the 1st and 2nd Suit could be challenged by the State by way of Cross Objections in terms of Amended Order XLI Rule 22 of C.P.C in the 3rd Suit;

c.   Non filing of Cross Objections under Order XLI Rule 22 C.P.C is not necessary to dispute a finding recorded, as Defendants have a right to support the ultimate Decree passed by the Trial Court of dismissal of the Suits:

d.  Under Order XLI Rule 33 of C.P.C, Appellant Court has the Jurisdiction to pass any Order which ought to have been passed in the proceedings before it.

e.   In terms of Section 11 Read with Explanation I to C.P.C, the Issue in a former Suit will operate as res-judicata only if such issue is raised in a subsequent Suit. Since the issue of title has not attained finality in view of Order XLI Rule 22 & 33 of C.P.C, the 1st & 2nd Suits are not formal suits to which there can be any application of Section 11 of C.P.C.

f.    The Supreme Court therefore held that Decree of dismissal of the 1st and 2nd Suit has not attained finality which are under challenge by the Plaintiff and also by the State which is entitled to dispute findings on Issues even without filing cross objections in terms of Order XLI Rule 22 & 33 C.P.C. Non filing of Appeals in the 1st & 2nd Suit does not operate as Res judicate in view of Order XLI Rule 22 & 33 C.P.C.

The Respondent can also avoid payment of Court Fees by simply objecting to a finding in the Decree which is passed in its favour. The object sought to be achieved by these provisions and conferment of such power is to avoid inconsistency, inequity, inequality in the reliefs granted. The overriding consideration is achieving the ends of justice.