Case Note & Summary
The appeal arises from the judgment and decree dated 18.03.2000 passed by the trial court in Special Civil Suit No. 176 of 1991 and Regular Civil Suit No. 399 of 1990. The plaintiffs had filed the suits seeking specific performance of an agreement to sell dated 01.06.1989 executed by the defendants for land and for an injunction restraining the defendants from transferring the land. Both suits were tried together with common issues. The trial court partly allowed the special suit, declaring the plaintiffs entitled to refund of Rs.1,66,102 with interest, but dismissed the suit for specific performance, holding that the plaintiffs had committed breach of the agreement and were not ready and willing to perform. The suit for permanent injunction was dismissed with costs. The plaintiffs appealed only against the decree in the special civil suit, without challenging the injunction suit decree. At the hearing, the defendants raised preliminary objections. First, that the appeal is not maintainable because the failure to appeal the injunction suit decree means the findings therein have become final and operate as res judicata, rendering any reversal in the appeal inconsistent. Second, that the appeal has abated as plaintiff no. 2 died and all his legal heirs were not brought on record, and similarly deceased defendants' heirs were not joined. Reliance was placed on several Supreme Court decisions. The court heard the submissions and reserved judgment. The final decision is not mentioned in the available text.
Headnote
A) Civil Procedure - Res Judicata - Maintainability of appeal when companion suit decree not appealed - Section 11, Code of Civil Procedure, 1908 - In a common trial where two suits are tried together with common issues and evidence, failure to appeal one decree may cause the findings therein to become final and operate as res judicata in the other appeal, potentially barring the appeal; preliminary objection raised that the appeal is not maintainable (Paras 4-4.5).
B) Civil Procedure - Abatement - Effect of failure to bring all legal heirs on record - Order XXII Rule 3, Code of Civil Procedure, 1908 - Where a party dies, all legal representatives must be brought on record within the limitation period, else the appeal abates automatically; if abatement occurs as to one party and the decree is joint or indivisible, the entire appeal may abate; objection raised that not all legal heirs of plaintiff no.2 and defendants were joined (Paras 4.6-4.8).
Issue of Consideration
Whether the appeal is maintainable when the decree in the companion suit (Regular Civil Suit No. 399 of 1990) has not been appealed and the findings therein operate as res judicata; whether the appeal abates due to non-joinder of all legal heirs of deceased plaintiff no.2 and deceased defendants.
Law Points
- res judicata under section 11 CPC
- necessity of filing appeal against all decrees in common trial
- abatement under Order XXII Rule 3 for failure to bring all legal heirs on record
- proviso to Order XLI Rule 1 CPC
Case Details
2026 LawText (GUJ) (03) 563
R/FIRST APPEAL NO. 356 of 2000 With R/CROSS OBJECTION NO. 155 of 2005 In R/FIRST APPEAL NO. 356 of 2000
Sangeeta K. Vishen, Mool Chand Tyagi
Shikha D Panchal, Apurva R Kapadia, Mehul S Shah
Kokilaben Shaileshkumar Shah & Ors.
Kantilal Purshottamdas Patel (since deceased) & Ors.
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Nature of Litigation
Appeal against dismissal of suit for specific performance of agreement to sell
Remedy Sought
Appellants sought setting aside of judgment to extent suit was dismissed and grant of specific performance
Filing Reason
Trial court partly allowed suit for refund but dismissed claim for specific performance, holding plaintiffs breached contract; plaintiffs appeal
Previous Decisions
Special Civil Suit No. 176 of 1991 partly allowed, plaintiffs entitled to refund of Rs.1,66,102 with interest, but specific performance denied; Regular Civil Suit No. 399 of 1990 dismissed with costs
Issues
Whether the appeal is maintainable when the decree in the companion suit (Regular Civil Suit No. 399 of 1990) has not been appealed and the findings therein operate as res judicata
Whether the appeal abates due to non-joinder of all legal heirs of deceased plaintiff no.2 and deceased defendants
Submissions/Arguments
Mr. Mehul Shah argued that the appeal is not maintainable because the plaintiffs did not appeal the decree in Regular Civil Suit No. 399 of 1990, which had common findings, and those findings now operate as res judicata; he cited Sri Gangai Vinayagar Temple v. Meenakshi Ammal, Darayas Bamanshah Medhora, Ram Prakash, Premier Tyres, Lonankutty.
Mr. Shah further argued that the appeal abates because plaintiff no.2 died and all legal heirs (including two daughters) were not brought on record, and similarly deceased defendants' heirs were not joined; relied on Musammat Hifsa Khatoon, Balwant Singh, Goli Vijayalakshmi, Venigalla Koteshwaramma.
Judgment Excerpts
the plaintiffs have committed the breach of the agreement to sell and not the defendants
the plaintiffs have neither paid the remaining amount nor have they performed their part of the contract
the decree not assailed thereupon metamorphoses into the character of a “former suit”
Procedural History
The plaintiffs filed Regular Civil Suit No. 399 of 1990 seeking permanent injunction and later filed Special Civil Suit No. 176 of 1991 for specific performance of agreement to sell dated 01.06.1989. Both suits were tried together by the trial court. Common issues were framed. The trial court by judgment dated 18.03.2000 partly decreed Special Civil Suit No. 176 of 1991, directing refund of Rs.1,66,102 with interest, but refused specific performance and dismissed the suit for injunction. The plaintiffs then filed First Appeal No. 356 of 2000 challenging only the decree in Special Civil Suit No. 176 of 1991, along with Cross Objection No. 155 of 2005. During the hearing, preliminary objections regarding maintainability were raised on the grounds of res judicata and abatement.
Acts & Sections
- Code of Civil Procedure, 1908: Section 11, Section 96, Order XLI Rule 1, Order XXII Rule 3
