Is Second Appeal Maintainable If Appellants Have Not Challenged Judgment & Decree In Original Suit Before First Appellate Court ? Kerala HC Answers
|The Kerala High Court examined the issue on maintainability of Second Appeal if appellants have not challenged judgment & decree in Original Suit before First Appellate Court.
The High Court was hearing a Regular Second Appeal in a case about possession of temple land involving two Original Side Appellant suits disposed of by a common judgment.
The Single Judge Bench of Justice M.A. Abdul Hakhim said, “A party has no right to maintain an appeal against the judgment and decree in a suit which is disposed of by a common judgment along with other suits after disposal of appeal/s from the judgment/s and decree/s in the other suit/s disposed of as per the very same common judgment. Such subsequent appeals are (a) clear abuse of the process of the Court.”
The Court added, “If such subsequent appeals are allowed, it is against the principle of res judicata, and it would be against the very purpose for which the said principle evolved, namely, the finality of the proceedings.”
Advocate Shaji Thomas appeared for the appellants and Advocate A.T. Anil Kumar appeared for the respondents.
The principle of res judicata is contained in Section 11 of the Code of Civil Procedure, 1908 (CPC) and prescribes that once a matter has been heard and finally decided by a competent court, no party can reopen it in subsequent litigation. The purpose of Section 11 CPC, the Court said, is to attain the finality of judicial proceedings.
The question before the High Court was whether the Regular Second Appeal was maintainable in view of the fact that the appellants had filed a first appeal in one of the two suits with an application to condone delay challenging the judgment and decree in the Original Side Appeal, which had already been disposed of.
The Court held that the first appeal filed in one of the suits was itself not maintainable at this stage since the appeal in the second suit had attained finality. The filing of an appeal in the first suit was barred by the principle of res judicata on account of the judgment in the second suit, the Court said.
It is well settled, the Court said, that when two or more suits have been disposed of by a common judgment, but by separate decrees and where the decree in one suit has been challenged in appeal without challenging the decrees in the other suits, the principle of res judicata would be applicable.
With regard to the present case, it was held, “If the appellants were aggrieved by the common judgment passed by the Trial Court the appellant should have filed an Appeal challenging that part of the judgment which is against them before the First Appellate Court at least before the disposal of A.S. 68/2020 filed by the respondents 1 & 2 before the First Appellate Court.”
In other words, the appellants in the case, if they were aggrieved by the common judgment, should have filed an appeal against the part of the judgment they were aggrieved by before the First Appeal was disposed of in one of the two suits.
Cause Title: N.V Chandran V. Karikode Naduvilethadam Bhagavathi Mariamman Temple [2024:KER:76488]
Appearance:
Petitioners: Advocates Joy C. Paul, Bobby George, Eldhose Joy, Reejo Johnson, Noble George, Varghese K., Shaji Thomas, Jen Jaison
Respondents: Advocates A.T. Anil Kumar, V. Shylaja