1. The present appeal is directed against the judgment and decree dated 11.03.2022, passed by learned District Judge, Kangra, at Dharamshala, vide which the appeal filed by the appellant (plaintiff before the learned Trial Court) was dismissed as not maintainable. (Parties shall hereinafter be referred to in the similar manner in which they were arrayed before the learned Trial Court for convenience.)

2 Since the limited question is being decided; therefore, the facts as are necessary for the disposal of the present appeal are being considered.

3. Briefly stated, the facts giving rise to the present appeal are that the plaintiffs filed a civil suit before the learned Trial Court seeking a declaration that the suit land mentioned in the plaint is exclusively owned and possessed by the plaintiff. A consequential relief of permanent prohibitory injunction for restraining the defendants from interfering with the suit land was also sought. It was asserted that the suit land was partitioned vide mutation no. 411. The plaintiff is in exclusive possession of the same after partition. The defendants started interference with the possession of the plaintiff. They were requested not to do so but in vain. Hence, the suit was filed for relief as mentioned above.

4. The defendants filed a written statement denying the contents of the plaint. They asserted that their predecessor Rasila Ram was in possession as a tenant on payment of rent. He never relinquished or surrendered his possession as a tenant. The defendant succeeded to his estate. Rasila Ram became the owner after the commencement of the H.P.Tenancy & Land Reforms Act. The defendants were in possession of the suit land. It was prayed that the suit be dismissed.

5. The defendants filed a counter claim, seeking a declaration that their predecessor Rasila Ram had become owner on commencement of the H.P. Tenancy & Land Reforms Act. The revenue entries in favour of the plaintiff are wrong. A permanent prohibitory injunction restraining the plaintiff from interfering with the suit land was also sought.

6. The learned Trial Court framed the following issues on 14.11.2005 and 12.05.2014:-

"1 Whether the plaintiff is in exclusive ownership and possession of suit land, as alleged OPP

2 Whether the plaintiff is entitled for permanent prohibitory injunction and an alternative for mandatory injunction as prayed for OPP

2. Whether the plaintiff has no legally and enforceable cause of action and locus standi to file the suit as alleged OPD

3 Whether the suit is bad for non-joinder of necessary parties, as alleged OPD

4. Whether the plaintiff is estopped to file the suit as prayed for OPD

5. Whether the suit is not properly valued for the purpose of court fee and jurisdiction as alleged OPD

6. Whether Shri Rasila Ram was the tenant and he became as owner under the operation of HP Tenancy and Land Reforms, as alleged, if so its effect OPD

7A. Whether the defendants are entitled for grant of decree for permanent injunction restraining the plaintiff from causing interference in the enjoyment of the usufructs arising out of the suit land, by the defendants as owner or tenants OPD

7B. Whether the defendants are entitled for grant of mandatory injunction directing the plaintiff to get the erroneous revenue entries corrected qua the suit land OPD

7C. Whether the defendants are entitled for grant of decree for possession in the alternative, as prayed for OPD

7 Whether the counter claim is not properly valued for the purpose of court fee and jurisdiction, as alleged OPP

8 Whether the counter claim is not maintainable, as alleged

9. Relief."

7. The learned Trial Court held that the predecessor-in- interest of the plaintiff and other co-sharers were recorded as co- owners in a copy of the Jamabandi for the year 1959-60 (Ext. P- 5/A). The predecessor-in-interest of the defendants were shown to be the tenants in the jamabandi for the years 1965-66 (Ext. D-2).There was a change in the column of possession in the jamabandi for the year 1971-72 (Ext.P2). This change was without the order of the competent Court and later entries were to be ignored. The proper procedure was not followed at the time of the change in the entry. Rasila Ram was a tenant over the suit land, who became owner after the commencement of the H.P.Tenancy and Land Reforms Act. The defendant succeeded to his share as owner. Hence, the suit filed by the plaintiff was dismissed, whereas the counter claim was decreed. A declaration was granted to the defendants that Rasila Ram had become the owner and the revenue entries were wrong and illegal. A decree for a permanent prohibitory injunction restraining the plaintiff from interfering with the suit land was also issued.

8 Aggrieved from the judgment and decree passed by the learned Trial Court, the plaintiff filed an appeal, which was decided by the learned District Judge, Kangra. The learned First Appellate Court held that the counter claim is a suit and when the same is disposed of along with the main suit, two separate appeals are required to be filed. When one appeal is filed, the finding in the other will constitute res judicata and the appeal is liable to be dismissed on this ground alone.

9. Being aggrieved form the judgment and decree passed by the learned First Appellate Court, the present appeal has been filed asserting that the learned First Appellate court had wrongly held that a single appeal was not maintainable and the findings in counter claim would constitute res judicata. A single appeal was maintainable. The learned First Appellate Court misconstrued the law and erred in dismissing the appeal. Hence, it was prayed that the present appeal be allowed, the judgment and decree passed by the learned First Appellate Court be set aside.

10. The following substantial questions of law have been proposed with the memorandum of appeal.

"1. Whether the finding of the learned First Appellate Court, while rejecting the appeal to the effect that a single appeal is not maintainable where civil suit and counter claim are decided by a single judgment, is legally sustainable in the eyes of law

2. Whether a single appeal is maintainable against a single judgment passed in a civil suit and counter claim where a common and composite decree sheet is prepared by the Trial Court in respect of both civil suit and counter claim

3. Whether the findings of the courts below are a result of complete misreading of pleadings, evidence and the law as applicable to the facts of the case and particularly documents Ex. P1 to P5 and as such palpably erroneous and illegal and if so to what effect

4. Whether the First Appellate Court failed to frame proper points for determination and if so to what effect

5. Whether the learned First Appellate Court was justified in declining to decide point No. 2 without giving any finding on issues and evidence and if so to what effect"

11. I have heard Mr Ajay Kumar, learned Senior Advocate assisted by Mr. Rohit Advocate, for the appellant and Mr. V.S.Rathore, Advocate, for the respondents.

12. Mr. Ajay Kumar, learned Senior Counsel appearing on behalf of the appellant submitted that the learned First Appellate Court erred in holding that the single appeal was not maintainable and the findings recorded in the counter claim will constitute the resjudicata. Even if this view was correct, the plaintiff should have been given an opportunity to file an appeal. He relied upon the judgment of the Hon’ble Supreme Court in R Ramnath Exports (P) Ltd. v. Vinita Mehta, (2022) 7 SCC 678 [LQ/SC/2022/795 ;] ,in support of his submission.

13. Mr. V.S.Rathore, learned counsel appearing on behalf of the respondents submitted that the matter has been authoritatively decided by a Division Bench of this Court in Ramesh Chand vs. Om Raj & others, 2022 (3) Latest HLJ 1500=2022 SCC Online HP 2004 and there is no infirmity in the view taken by the learned Trial Court. There is no provision for granting any opportunity to the party to file a second appeal; therefore, he prayed that the appeal be dismissed.

14. I have given considerable thought to the rival submissions at the bar and have gone through the records carefully.

15. It is apparent from the judgment and decree of the learned Trial Court that the plea taken by the defendants that their predecessor was a tenant who had become owner after the commencement of the H.P. Tenancy & Land Reforms Act was accepted. The entries in favour of the plaintiff were held to be bad, as having been changed without following due process of law. The plaintiff was not held to be having any right title or interest over the suit land. These findings resulted in the decree of the counter claim and dismissal of the suit of the plaintiff. The plaintiff did not challenge the findings recorded by the learned Trial Court in the counterclaim, which means that these findings have attained finality. The learned First Appellate Court had rightly held that the appeal filed by the plaintiff would have been barred by the principle of res judicata.

16. In Satya Devi vs. Partap Singh AIR 2006 (HP) 75 [LQ/HimHC/2006/4] , two suits were consolidated and disposed of by a common judgment and decree. A single appeal was filed against the judgment and decree. It was held by this Court that in the absence of two appeals, the decree in the one suit would become final and the appeal in the second suit would be barred by the principle of resjudicata. It was observed:-

“6. As referred to above, there were two suits, one filed by Partap Singh and the other filed by Smt. Suhli Devi. Both the suits were consolidated and it was directed that the evidence recorded in the one suit shall be treated as the evidence recorded in the other suit. Thereafter, both the suits were decreed by a common judgement and decrees dated 16-12-1997. Aggrieved against the same, Smt. Satya Devi, who was the defendant in both the suits, had filed only one appeal before the District Judge. Along with the memorandum of appeal, a certified copy of the common judgement dated 16-12-1997 was filed along with the certified copy of one of the decrees i.e. the decree in Civil Suit No. 199 of 91/RBT 18/95 in the suit titled as Smt. Suhli Devi v. Milkhi Ram etc. The certified copy of the decree sheet in the other suit, bearing Civil Suit No. 305 of 1993/RBT 382/94 in the suit titled Partap Singh v. Smt. Suhli Devi etc. was not filed along with the memorandum of appeal. The said appeal was filed on 27-1-1998 i.e. prior to the coming into force of the Code of Civil Procedure (Amendment) Act, 1999, which came into force with effect from 1-7-2002. Thus, the Code of Civil Procedure, 1908, prior to its amendment in 1999 and 2002, was applicable at the relevant time, according to which the memorandum of appeal was required to be accompanied by a certified copy of the decree appealed from and unless the appellate Court dispenses with the same, also the certified copy of the judgement on which it was founded. In Jagat Dhish Bhargava v. Jawahar Lal Bhargava, AIR 1961 SC 832 [LQ/SC/1960/312] , the Hon'ble Supreme Court after considering the aforesaid provisions of Order 41, Rule 1, CPC had held as under (Para 5 of AIR) :

"Therefore there is no doubt that the requirement that the decree should be filed along with a memorandum of appeal is mandatory, and in the absence of the decree the filing of the appeal would be incomplete, defective and incompetent".

7. In view of the provisions of Order 41, Rule 1, CPC, as applicable at the relevant time and in view of the law laid down by the Hon'ble Supreme Court in the aforesaid authority, in my opinion, it would be clear that the appeal which was filed by Smt. Satya Devi before the District Judge, Hamirpur could be treated as an appeal only against the decree passed by the trial Court in the suit filed by Smt. Suhli Devi, since, only the copy of the decree passed by the trial Court in the suit filed by Smt. Suhli Devi was filed along with the common judgement and the memorandum of appeal and the copy of the decree passed by the trial Court in the other suit filed by Partap Singh was not filed along with the memorandum of appeal and the copy of the common judgement.

8. Once it is found that the appeal filed by Smt. Satya Devi before the District Judge was only against the decree passed by the trial Court in the suit filed by Smt. Suhli Devi against Milkhi Ram etc. and no appeal was filed against the decree passed by the trial Court in the other suit filed by Partap Singh against Smt. Suhli Devi etc., in my opinion, it would be clear that the decree passed by the trial Court in the civil suit Partap Singh v. Smt. Suhli Devi etc. had become final between the parties, since the decree passed in the suit filed by Partap Singh was not appealed against by Smt. Satya Devi and the appeal was filed only against the decree which was passed in the suit filed by Smt. Suhli Devi.

9. Once it is found that the decree passed by the trial Court in the civil suit filed by Partap Singh was not appealed against by Smt. Satya Devi and the said decree had become final between the parties, the next question that comes up for consideration is whether the present regular second appeal filed by Smt. Satya Devi against the judgements and decrees of the Courts below would be maintainable, especially when in this Court as well only one appeal has been filed, against the judgement and decree dated 26-5- 2004 passed by the District Judge, whereby the appeal filed by Smt. Satya Devi was dismissed. As referred to above, this appeal shall be treated as the appeal filed by Smt. Satya Devi against the decree passed in favour of Smt. Suhli Devi and not against the decree in the other suit filed by Partap Singh.

10. In Ram Parkash v. Smt. Charan Kaur, RSA No. 215 of 1987 decided on 18-9-1996, a similar point had arisen before this Court. In the said case, two suits were filed. One suit was filed by Arjan Singh against Ram Parkash, while the other suit was filed by Ram Parkash against Arjan Singh. The suit filed by Arjan Singh was dismissed by the trial Court, but the appeal filed by Arjan Singh was allowed by the first appellate Court and the suit filed by Arjan Singh was decreed. On the other hand, the suit filed by Ram Parkash had also been dismissed by the trial Court and the appeal filed by Ram Parkash was also dismissed by the first appellate Court. Ram Parkash challenged the judgement and decree of the first appellate Court, whereby the suit filed by Arjan Singh was decreed but Ram Parkash did not challenge the judgement and decree passed by the Courts below, whereby his suit was dismissed by the Courts below. While hearing arguments in the appeal filed by Ram Parkash it came up for consideration before this Court as to whether the said appeal filed by Ram Parkash was maintainable and whether the appeal was barred by principles of res judicata. After considering the law laid down by the Hon'ble Supreme Court, in the case Premier Tyres Limited v. Kerala State Road Transport Corporation, 1993 Supp (2) SSC 146: AIR 1993 SC 1202 [LQ/SC/1992/585] and other authorities on the subject, it was held by this Court as under:

"Thus, on the basis of the aforesaid factual as well as legal proposition, it can safely be said that where two connected suits have been tried together and the findings recorded in one of the suits have become final in the absence of an appeal, the appeal preferred against the findings recorded in the other suit would definitely be barred by the principles of res judicata. This is the ratio of the above-cited case law decided by the Apex Court of the country. Thus, there is absolutely no necessity to go into other aspects of the appeal, especially when on the factual side, as detailed above, the decree, not appealed against by the present appellant, passed by the first appellate Court, has become final between the parties, which has created a legal bar for the maintainability of the present appeal whereby the decree passed in the other suit has been assailed."

11. Aggrieved against the dismissal of the appeal by this Court, aforesaid Ram Parkash filed a Special Leave Petition before the Hon'ble Supreme Court. The Hon'ble Supreme Court vide detailed order dated 3-2-1997 dismissed the Special Leave Petition and upheld the aforesaid order passed by this Court. The order passed by the Hon'ble Supreme Court, while dismissing the Special Leave Petition, is reported as Ram Parkash v. Smt. Charan Kaur, AIR 1997 SC 3760 [LQ/SC/1997/179] . In the said authority, after reproducing the aforesaid concluding paragraph of the judgement passed by this Court, it was held by the Hon'ble Supreme Court that the High Court was right in concluding that the decree of dismissal of the suit against the petitioner would operate as res judicata under Section 11, CPC in the appeal against which the petitioner had filed the second appeal. A similar view was taken by the Hon'ble Supreme Court in AIR 1993 SC 1202 [LQ/SC/1992/585] (supra), holding that the finality of the finding recorded in the connected suit, due to non-filing of an appeal, precluded the Court from proceeding with the appeal in the other suit.

12. In view of the law laid down by the Hon'ble Supreme Court in the aforementioned authorities and keeping in view the facts and circumstances of the present case, in my opinion, the present appeal filed by Smt. Satya Devi is liable to be dismissed, since Smt. Satya Devi had filed only one appeal against the two decrees, whereby the suits filed by Partap Singh and Smt. Suhli Devi had been decreed by the trial Court and only one appeal was filed against the decree passed in the suit filed by Smt. Suhli Devi and in this manner, the decree passed in the suit filed by Partap Singh became final between the parties and the findings recorded therein would be res judicata in the appeal filed by Smt. Satya Devi against the decree in the suit filed by Smt. Suhli Devi.

17. In H.P. State Forest Corporation Through Its Divisional Manager Versus Kahan Singh And Others, 2017 (1) H.L.R. 36, a suit was partly allowed and a counter claim was dismissed. It was held that two decrees were passed, one in the suit and one in the counter claim. The aggrieved person is required to file two separate appeals in the absence of which the findings in one appeal will constitute res-judicata and the second appeal will not be maintainable. It was observed:-

“16. A three Judges Bench of Hon'ble Supreme Court in Ramagya Prasad Gupta and others v. Murli Prasad and others, AIR 1974 Supreme Court 1320 has held:-

"8. It is clear that where a suit has been tried and finally decided on the merits, if the defeated party wishes in another suit between the same parties relating to the same property to have the same questions re-agitated, he cannot be allowed to do so, because his cause of action has passed into a judgment, and the matter has become res judicata. Even where two appeals have been taken from the same judgment by two different parties to which all others are parties either as appellants or respondents and one of the appeals is dismissed either on merits or for any other reasons, it has been held by some of the High Courts, but we express no opinion thereon, that the other appeal has also to be dismissed, because it is barred by the principles of res judicata as otherwise there will be conflict in. the decrees. In the Lahore decision, there were two cross-suits about the same subjectmatter filed simultaneously between the same parties and two decrees were prepared. An appeal being filed in respect of one decree and not in respect of the other, the question was whether the non-filing of the appeal against that decree creates an estoppel against the hearing of the other appeal. In Narhari's case (supra) what this Court held was, where there has been on trial, one finding and one decision, there need not be two appeals even though two decrees may have been drawn up and consequently the fact that one of the appeals was time-barred does not bar the other appeal on the ground of res judicata. In this case, these questions need not be considered. Nor is it relevant to consider whether there is any conflict between the decision in this case and Sheodan Singh's case (supra). In Sheodan Singh's case, two suits were filed in the Court of the Civil Judge, one for a declaration of the title to the suit property and the second for other reliefs and consequently two other suits were filed by the respondents in the Munsif's court against the appellant claiming joint ownership to the suit property and other reliefs. The four suits were tried together by the Civil Judge. Some of the issues were common to all the suits and one of the common issues relating to the title of the parties was found in favour of the respondent. The Civil Judge dismissed the appellant's title suit, decreed his other suit partly, and decreed the two suits of the respondent. The appellant filed appeals against the decree in each suit. The High Court dismissed the two appeals arising out of the respondent's suits, one as time- barred, and the other for failure to apply for translation and printing of the record. As the title of the respondent to the suit property had become final on account of such dismissal, the respondent prayed for the dismissal of the other two appeals also, as the main question involved therein was the same. The High Court agreed that the appeals were barred by res judicata and dismissed them. Against these orders of dismissal, the appellant filed appeals to this Court and contended that - (1) title to the property was not directly and substantially in issue in the respondent's suits (2) the Munsif's Court could not try the title suit filed by the appellant; (3) it could not be said that appeals arising out of the respondent's suits were former suits as such the bar of res judicata will be inapplicable; and (4) the two appeals which were dismissed-one on the ground of limitations and the other on the ground of not printing the records, could not be said to be heard and finally decided. This Court held that the High Court was right in dismissing the appeals as being barred by res indicate inasmuch as the issue as to the title was raised in respondent's suits and it was directly and substantially in issue in those suits also and did arise out of the pleadings of the parties, and further the High Court's decision in the two appeals arising from the respondent's appeals were undoubtedly earlier and, therefore, the condition that there should have been a decision in a former suit to give rise to res judicata in a subsequent suit was satisfied in that case. The decision in Narhari's case (supra) was distinguished by this Court in that case so it could not be said that the decision was in any way in conflict with the decision in Narhari's case (supra). In appeals arising out of a subsequent suit and an earlier suit where there were common issues, common subjectmatter and common trial and the appeals arising out of the subsequent suit were dismissed, a question would arise as to whether the appeals from the earlier suit which were pending arc barred by res judicata A question may also arise where the subject-matter is the same and the issues are common in the two suits but some of the parties are different in one suit, whether the bar of res judicata would operate against the parties who are common. All these aspects need not be considered in these appeals because, in our view, the subjectmatter of Title Suit No. 68 of 1954 and that of Title Suit No. 94 of 1956 are entirely direct. Even if the issues are common in the two suits, and it has been admitted by the learned.Advocate for the appellants that some of the issues might be common to both the suits, issues Nos. 4, 9, 12, 13 and 14 at any rate survive, and consequently, the bar of res judicata would not apply."

17. A three Judges Bench of the Hon'ble Supreme Court in Premier Tyres Limited v. Kerala State Road Transport Corporation, AIR 1993 Supreme Court 1202 while dealing with a situation where suits are decreed by common judgment and appeal is filed against one judgment and decree whereas appeal is not filed in the connected case held that finality of finding recorded in the connected suit due to non-filing of appeal precludes the Court from proceeding with appeal in another suit. It was held by the Hon'ble Supreme Court that the effect of non-filing of appeal against a judgment or decree is that it becomes final and as this finality can be taken away only in accordance with the law, therefore, same consequences follow when a judgment or decree in a connected suit is not appealed from.

"18. In Ram Prakash v. Smt. Charan Kaur and another, AIR 1997 Supreme Court 3760, the Hon'ble Supreme Court has held:-

"2. It would be obvious that since the claims of the petitioner and the respondents have arisen from the same cause of action and the finding of the appellate Court that damages had occurred to the respondents due to misfeasance or malfeasance having been allowed to become final, the decree which is the subject matter of the special leave petition cannot be assailed. The self-same question was directly in issue and was the subject matter of both the suits. The same having been allowed to become final, it cannot be gone into since the same had attained finality, the petitioner having not filed any appeal against the appeal dismissing the suit. In view of this situation, the High Court was right in concluding that the decree of dismissal of the suit against the petitioner would operate as res judicata under Section 11 CPC in the appeal against which the petitioner has filed the second appeal."

19. In Sri GangaiVinayagar Temple and another v. Meenakshi Ammal and others (2015) 3 Supreme Court Cases 624, [LQ/SC/2014/1080] three Judges Bench of Hon'ble Supreme Court has held:-

"27. Procedural norms, technicalities and processual law evolve after years of empirical experience, and to ignore them or give them short shrift inevitably defeats justice. Where a common judgment has been delivered in cases in which consolidation orders have specifically been passed, we think it irresistible that the filing of a single appeal leads to the entire dispute 30 Page 31 becoming sub judice once again. Consolidation orders are passed by virtue of the bestowal of inherent powers on the Courts by Section 151 of the CPC, as clarified by this Court in Chitivalasa Jute Mills v. JaypeeRewa Cement (2004) 3 SCC 85 [LQ/SC/2004/157] . In the instance of suits in which common Issues have been framed and a common Trial has been conducted, the losing party must file appeals in respect of all adverse decrees founded even on partially adverse or contrary speaking judgments. While so opining we do not intend to whittle down the principle that appeals are not expected to be filed against every inconvenient or disagreeable or unpropitious or unfavourable finding or observation contained in a judgment, but that this can be done by way of cross-objections if the occasion arises. The decree not assailed thereupon metamorphoses into the character of a "former suit". If this is not to be so viewed, it would be possible to set at nought a decree passed in Suit A by only challenging the decree in Suit B. Law considers it anathema to allow a party to achieve a result indirectly when it has deliberately or negligently failed to directly initiate proceedings towards this purpose. Laws of procedure have picturesquely been referred to as handmaidens to justice, but this does not mean that they can be wantonly ignored because if so done, a miscarriage of justice inevitably and inexorably ensues. The statutory law and the processual law are two sides of the judicial drachma, each being the obverse of the other. In the case in hand, had the Tenant diligently filed an appeal against the decree at least in respect of OS No. 5 of 1978, the legal conundrum that has manifested itself and exhausted so much judicial time, would not have arisen at all."

20. In Rajni Rani and another v. Khairati Lal and others, (2015) 2 Supreme Court Cases 682 [LQ/SC/2014/1095] the Hon'ble Supreme Court has held that keeping in mind the conceptual meaning given to the counterclaim and the definitive character assigned to it, there can be no shadow of doubt that when the counterclaim filed by the defendants is adjudicated and dismissed, finality is attached to it as far as the controversy in respect of the claim put forth by the defendants is concerned. Hon'ble Apex Court further held that in that regard nothing survives as far as the said defendants are concerned and if the definition of a decree is appropriately understood it conveys that there has to be a formal expression of an adjudication as far as that court is concerned and the determination should conclusively put to rest the rights of the parties in that sphere. It was further held by the Hon'ble Supreme Court that a Court may draw up a formal decree or may not, but if by virtue of the order of the court, the rights have finally been adjudicated, irrefutably it would assume the status of a decree. It further held that where a counterclaim which is in the nature of cross-suit has been dismissed nothing else survives for the defendants who had filed the counterclaim and the order passed by the learned trial Judge has the status of a decree and the challenge to the same has to be made before the appropriate forum where an appeal could lay by paying the requisite fee.

21. A similar view has also been taken by a Coordinate Bench of this Court in Piar Chand and other v. Ranjeet Sigh and others, in RSA No. 293 of 2006 decided on 16.9.2016.

22. Reverting to the facts of this case admittedly learned trial court while partly allowing the suit for recovery filed by the plaintiff-Corporation, dismissed the counterclaim filed by the defendant vide which the defendant had prayed for a decree for recovery of Rs. 60,031/-. In other words, the learned trial court held that in lieu of the transaction the subject matter of the civil suit, whereas the plaintiff- Corporation was entitled to recovery from the defendant, however, the defendant was not entitled to any recovery from the plaintiff-Corporation. The defendant rather than filing two separate appeals, one against the decree which was passed in favour of the plaintiff corporation by the learned trial court in its civil suit and the second against the dismissal of his counterclaim, filed only one appeal before the learned appellate court. In my considered view, the defendant erred in doing so because the partial decreeing of the suit of the plaintiff-Corporation and dismissal of the counterclaim of the defendant were two distinct adjudications though made by way of the same judgment and decree by the learned trial court, both these adjudications assumed the status of a decree and they required to be challenged separately and filing only one appeal against both the said adjudications was not permissible in law. As I have already discussed above, it has been categorically held by the Hon'ble Supreme Court in such matters that a Court may draw a formal decree or not but if by virtue of the judgment of the Court, the rights have finally been adjudicated then the same would assume the status of a decree. As the adjudication on the suit filed by the plaintiff corporation and adjudication on the counterclaim filed by the defendant assumed the status of two distinct decrees, they were required to be challenged by way of separate appeals by paying the requisite Court fee on each of them. Defendant having failed to do so he could not have been granted the relief which was granted by the learned appellate court in one single appeal which was filed by the defendant against the decree passed in favour of the plaintiff-Corporation by the learned trial court as well as against the dismissal of his counterclaim. Learned appellate court failed to appreciate that in the absence of two appeals, one appeal so filed was not maintainable, as the findings returned on the plaint and counterclaim acted as res judicata vis-a-vis each other which necessitated the filing of two appeals. Learned appellate court also failed to appreciate that non-filing of two distinct and separate appeals amounted to having the same effect where no appeal was filed from a decree in a connected case and the effect of non-filing of appeal against judgment or decree that has become final. In other words, because only one appeal was filed, therefore, the finality of the finding recorded in the connected claim on account of non-filing of the appeal precluded the Court from proceeding with the appeal in the other connected claim.

23. To give an illustration, 'A' files a suit for recovery of Rs. 100/- against 'B' and 'B' also files a counterclaim for recovery of Rs. 50/- from plaintiff 'A'. Learned trial court partly decrees the suit of 'A" against defendant 'B' for recovery of Rs. 70/- but dismisses the counterclaim filed by the defendant. In such like circumstance defendant cannot assail the dismissal of his counterclaim as well as the partial decree of the suit of the plaintiff by one appeal. The defendant will have to file two separate appeals, one challenging the decree passed in favour of the plaintiff and the other challenging the dismissal of his counterclaim. However, if the plaintiff wants to assail the factum of his suit not being decreed in totality, he is not to file two appeals but he can file only one appeal against the partial allowing of his suit.

24. It is settled law that a counterclaim has the effect of a cross-suit and the Court can announce a final judgment both on the original claim and on the counterclaim. A counterclaim filed by the defendant has to be treated as a plaint and the effect of the counterclaim is that even if the suit of the plaintiff is stayed, discontinued, dismissed or withdrawn, a counterclaim can be decided independently on merits. In fact,a counterclaim has to be treated as a plaint and is governed by the Rules applicable to the plaint and similarly, the reply filed in answer to the counterclaim is to be treated as a written statement and is governed by Rules applicable to a written statement.

In view of the findings returned above, this appeal is allowed and the judgment and decree passed by the learned appellate court in Civil Appeal No. 59 of 2005 dated 30.11.2007 are set aside by holding that as the defendant had not filed two separate appeals against the judgment and decree passed by the learned trial court in favour of the plaintiff-Corporation and against the dismissal of his counterclaim which findings acted as res judicata vis-a-vis each other, single appeal so filed by defendants was not maintainable before the learned appellate court."

18. A similar view was taken by this Court in Mohan Singh Versus Inder Singh And Others 2017 (1) H.L.R. 368, wherein it was observed:-

“24. A careful perusal of the trial court record further suggests that the appellant-plaintiff refuted the aforesaid counterclaim of the respondent-defendants by way of replication as well as by filing separate written statements. However, the fact remains that the learned trial Court after framing issues, as have been reproduced above, dismissed the suit of the plaintiff and decreed the cross-objection having been filed by the respondent-defendants. The operative part of the judgment and decree passed by the learned trial Court clearly suggests that the learned trial Court dismissed the suit of the appellant-plaintiff for possession, whereas decreed the counterclaim of ownership and possession preferred on behalf of the respondent-defendants. A careful perusal of the decree sheet available on record suggests that the decree for possession was passed in favour of the respondentdefendants and against the appellant-plaintiff.

25. Careful perusal of the decree, as referred, herein above, suggests that it also stands mentioned, "in view of my findings on the aforesaid issues, the suit of the plaintiff fails and the same is, accordingly, dismissed, whereas, the counterclaim of the defendants is decreed and the defendants are declared to be the owners in possession of the suit property." A perusal of the aforesaid decree prepared by the learned trial Court while dismissing the suit and accepting the counterclaim of the defendants, clearly suggests that a proper decree was drawn as far as acceptance of the counterclaim filed by the defendants is concerned.

26. Appellant-plaintiff, being aggrieved with the aforesaid judgment and decree, approached the learned District Judge by way of an appeal under Section 96 CPC laying therein challenge to aforesaid judgment and decree passed by the learned trial Court. At this stage, it would be appropriate to reproduce the cause title/head note of appeal preferred by the appellant-plaintiff before the learned District Judge, which reads thus:-

"Civil appeal under section 96 CPC read with section 21 of the H.P. Courts Act against the judgment and decree

dated 30.11.2004 passed by the learned Civil Judge (Jr.Division), Chamba in Civil Suit no.2 of 1995, titled as Mohan Singh v. Inder Singh and others, with a prayer to setaside the same."

27. Careful perusal of aforesaid cause title as well as relief claimed in the appeal suggests that the appellant-plaintiff before the learned first appellate Court prayed that the appeal filed by him be accepted with costs and the judgment and decree dated 30.11.2014 passed by the learned trial Court be set aside, but there is no prayer, if any, for setting aside the judgment and decree passed by the learned trial Court, whereby counterclaim filed by the defendants-respondents have been decreed and they were declared owners in possession of the suit property.

28. Before adverting to the submissions having been made on behalf of the learned counsel representing both parties, it would be appropriate to refer to relevant provisions of law applicable in the present case i.e. Order 8, Rule 6A :

"6A. Counterclaim by the defendant.-

(1) A defendant in a suit may, in addition to his right of pleading a set off under rule 6, set up, by way of counterclaim against the claim of the plaintiff, any right or claim in respect of a cause of action accruing to the defendant against the plaintiff either before or after the filing of suit but before the defendant has delivered his defence or before the time limited for delivering his defence has expired, whether such counterclaim is in the nature of a claim for damages or not:

Provided that such counterclaim shall not exceed the pecuniary limits of the jurisdiction of the court.

(2) Such counterclaim shall have the same effect as a cross-suit so as to enable the court to pronounce a final judgment in the same suit, both on the original claim and on the counterclaim.

(3) The plaintiff shall be at liberty to file a written statement in answer to the counterclaim of the defendant within such period as may be fixed by the court.

(4) The counter claim shall be treated as a plaint and governed by the rules applicable to plaints."

29. Aforesaid provisions of law entitle a defendant in a suit to set up a counterclaim against the claim of the plaintiff in respect of a cause of action accruing to him against the plaintiff either before or after filing the suit, but definitely before the defendant files his defence or before the time stipulated for delivering the defence is expired. Needless to say, the aforesaid right of filing a counter claim is in addition to his right of pleading as set up in Rule 6. Further perusal of aforesaid provisions of law suggests that a counterclaim, if any, filed on behalf of the defendant would be treated as a plaint and the same would be governed by Rules applicable to the plaint. Similarly, counterclaims filed on behalf of the defendant would have the same effect as a cross-suit so as to enable the Court to pronounce a final judgment in the same suit, both on the original claim and the counterclaim.

30. Similarly, Rule 6A(3) enables the plaintiff to file a written statement, if any, to the counter claim filed by the defendant. Rule 6D specifically provides that in case the suit of the plaintiff is stayed, discontinued or dismissed, the counterclaim filed on behalf of the defendant would nevertheless be proceeded with.

31. Similarly, Rule 6E provides that if the plaintiff fails to file a reply to the counterclaim made by the defendant, the Court may pronounce judgment against the plaintiff in relation to the counter-claim made against him/her, or make such order in relation to the counter-claim as it deems fit. It would be relevant here to refer to Order 8, Rule 6F :

"6F. Relief to the defendant where counterclaim succeeds.- Where in any suit a set-off or counter-claim is established as a defence against the plaintiff's claim and any balance is found due to the plaintiff or the defendant, as the case may be, the Court may give judgment to the party entitled to such balance."

32. Perusal of aforesaid Order 8, Rule 6F clearly suggests that where in any suit a set-off or counter claim is established as a defence against the plaintiffs' claim and any balance is found due to the plaintiff or the defendant, the Court may give judgment to the party entitled to such balance. Further perusal of Order 8, Rule 6G suggests that no pleadings, if any, subsequent to the written statement filed by a defendant other than by way of defence to set up a claim can be presented except with the leave of Court.

33. Under Order 8, Rule 10 when any party fails to file a written statement as required under Rule 1 or Rule 9 within the stipulated time, the Court shall pronounce judgment against him, or make such order in relation to the suit as it thinks fit and on the pronouncement of such judgment a decree shall be drawn up.

34. Careful perusal of aforesaid provisions of law clearly suggests that the counterclaim, if any, preferred by the defendant in the suit is in nature of the cross suit and even if the suit is dismissed counterclaim would remain alive for adjudication. Since the counterclaim is in nature of cross suit, the defendant is required to pay the requisite court fee on the valuation of the counterclaim. It has been specifically provided in the aforesaid provisions that the plaintiff is obliged to file a written statement qua counterclaim and in case of default court can pronounce the judgment against the plaintiff in relation to the counterclaim put forth by the defendant as it has an independent status. As per Rule 6A(2), the Court is required to pronounce a final judgment in the same suit both on the original claim and also on the counter-claim.

35. In the present case, as clearly emerged from the judgment passed by the learned trial Court, the learned trial Court effectively determined the rights of the parties on the basis of the counterclaim as well as the written statement thereto filed by the respective parties and as such it attained the status of the decree. It would be profitable here to reproduce the definition of the term 'decree' as contained in Section 2(2) of CPC:-

"2.(2) "decree" means the formal expression of an adjudication which, so far as regards the Court expressing it, conclusively determines the rights of the parties with regard to all or any of the matters in controversy in the suit and may be either preliminary or final. It shall be deemed to include the rejection of a plaint and the determination of any question within [1][ * * *] Section 144, but shall not include -

(a) any adjudication from which an appeal lies as an appeal from an order, or

(b) any order of dismissal for default. Explanation- A decree is preliminary when further proceedings have to be taken before the suit can be completely disposed of. It is final when such adjudication completely disposes of the suit. It may be partly preliminary and partly final;"

36. Close scrutiny of the aforesaid definition of "decree" clearly suggests that there should be a formal expression of adjudication by the Court while determining the rights of the parties with regard to controversy in the suit, which would also include the rejection of the plaint. Similarly, the determination should be conclusive determination resulting in a formal expression of the adjudication. It is a settled principle that once the matter in controversy has received judicial determination, the suit results in a decree, either in favour of the plaintiff or in favour of the defendant.

37. In this regard, it would be appropriate to place reliance on the judgment of the Hon'ble Apex Court in Rajni Rani and Another v. Khairati Lal and Others, (2015)2 SCC 682 [LQ/SC/2012/806] , wherein the Court has held as under:-

"16. We have referred to the aforesaid decisions to highlight that there may be situations where an order can get the status of a decree. A Court may draw up a formal decree or may not, but if by virtue of the order of the Court, the rights have finally been adjudicated, irrefutably it would assume the status of a decree. As is evincible, in the case at hand, the counterclaim which is in the nature of a cross-suit has been dismissed. Nothing else survives for the defendants who had filed the counter-claim. Therefore, we have no hesitation in holding that the order passed by the learned trial Judge has the status of a decree and the challenge to the same has to be made before the appropriate forum where the appeal could lay by paying the requisite fee. It could not have been unsettled by the High Court in the exercise of the power under Article 227 of the Constitution of India. Ergo, the order passed by the High Court is indefensible."

38. After perusing the aforesaid judgment passed by the Hon'ble Apex Court, this Court need not elaborate further on the issue at hand because the Hon'ble Apex Court has categorically held that if by virtue of an order of the Court, rights have finally been adjudicated, it would assume the status of the decree. Hon'ble Apex Court has also stated that the Court may or may not draw a formal decree but if rights are finally adjudicated, it would assume the status of a decree. Learned Apex Court has further held that in such like situation order passed by the trial Judge has the status of a decree and a challenge to the same has to be made before the appropriate forum where an appeal could lay by paying the requisite fee.

39. Apart from the above, this Court viewed this matter from another angle also. Admittedly, the appellant- plaintiff claiming himself to be the owner of the suit land, as recorded in Jamabandi for the year 1970-71, filed a suit for declaration and a permanent prohibitory injunction restraining defendants No.1 and 2 from changing the nature of the suit land. The aforesaid claim having been set up by the plaintiff in the instant Civil Suit was dismissed; meaning thereby that he was not declared as owner of the suit land entitling him to seek possession of the same. Whereas, in the aforesaid suit having been filed by the plaintiff, the defendants filed a written statement-cum- counter claim seeking a declaration to the effect that they may be declared owners in possession of the suit property, which relief was extended by the trial Court by decreeing the counterclaim of the defendants declaring them to be the owners in possession of the suit property.

40. Since, as has been observed above, no challenge has been laid to the judgment and decree passed by the trial Court decreeing the counterclaim of the defendants, whereby they have been declared to be owners in possession of the suit property, composite appeal laying therein challenge to the judgment and decree passed by learned Civil Judge in Civil Suit No.2 of 1995 was not maintainable. Moreover, relief as claimed in the appeal having been filed by the appellant-plaintiff could not be extended to him without setting aside the judgment and decree passed in the counterclaim in favour of the defendants. Once defendants have been declared to be owners in possession of the suit property by the trial Court while decreeing their counterclaim, it is not understood how relief, as prayed for in a Civil suit having been filed by the plaintiff, can be extended without setting aside the judgment and decree passed in the counterclaim."

19. This question was also considered by a Division Bench of this Court in Ramesh Chand v. Om Raj, 2022 SCC OnLine HP 2094, and it was held that a person is required to file two separate appeals in case of judgment and decree in a suit and counter claim. It was observed:-

“40. The contention that the counter-claim cannot be tried as an independent suit for all purposes but is deemed to be an independent suit for the purposes as mentioned in the Code under Order 8 Rule 6a (2), (3) & (4) and for the purpose of limitation as per Section 3(2)(b) of the Limitation act, 1963, cannot be countenanced for reasons to be stated presently. We also cannot agree with the argument that if the counterclaim is to be treated as a separate suit, independent from the main suit, then it would amount to rewriting Order 8 Rule 6a (2), which mandates "a final judgment" and in "same suit". A further argument that treating the counterclaim as a separate suit would mean that there will be a "common judgment" as against the "final judgment" and that it will be common for "both the suits" as against the mandate of having it in the "same suit" per Order 8 Rule 6a (2) also does not convince us. The further submission that since the counterclaim can also be set up through amendment (Order 8 Rule 8 the Code) and by way of subsequent pleadings (Order 8 Rule 9 the Code), treating the counterclaim as an independent suit would mean that a suit may be filed by way of amendment or by way of subsequent proceedings, is also not founded on a sound interpretation. One of the consequences of the amendment in 1976 amendment in Order 8 by virtue of the insertion of Rule 6-D is that if in any case in which the defendant sets up a counterclaim the suit of the plaintiff is stayed, discontinued or dismissed, the counterclaim may nevertheless survive. Moreover, this signifies the independent character of the counter-claim. a reading of Order 20 Rule 19 (1) clearly shows that separate decrees are required to be prepared for set off as well as the counterclaim which shall state what amount is due to the plaintiff and what amount is due to the defendant, and shall be for the recovery of any sum which appears to be due to either party. Order 20 Rule 19 (2), inter alia, provides that any decree passed in a suit in which set off or counterclaim is claimed shall be subject to the same provisions in respect of an appeal to which it would have been subject if no set-off or counterclaim had been claimed.

41. The Supreme Court in the Laxmidas Dayabhai case supra examined the question whether there is anything in law which precludes treating the counterclaim as a plaint in a cross-suit and answered the same in the negative. The Supreme Court held that even though CPC prescribes the contents of a plaint and it might very well be that a counterclaim, which is to be treated as a cross-suit, might not conform to all these requirements but this by itself is not sufficient to deny to the Court the power and the jurisdiction to read and construe the pleadings in a reasonable manner. If, for instance, what is really a plaint in a cross-suit is made part of a Written Statement either by being made an annexure to it or as part and parcel thereof, though described as a counter-claim, there could be no legal objection to the Court treating the same as a plaint and granting such relief to the defendant as would have been open if the pleading had taken the form of a plaint. The unamended provisions of CPC prior to 1976 was that any respondent though he may not have filed an appeal from any part of the decree may still support the decree to the extent to which it is already in his favour, at the same time by laying challenge to a finding recorded in the impugned judgment against him. That, however, is not the position of law now after the 1976 amendment in CPC. after the 1976 amendment of Order 41 Rule 22, the insertion made in sub-rule (1) thereof makes it permissible to file a cross-objection against a finding. The difference is basically that a respondent may defend himself without taking recourse to file a cross-objection to the extent the decree stands in his favour. But if he intends to assail any part of the decree, it is obligatory on his part to file the cross-objection. Post-amendment, read in the light of the Explanation to Order 41 Rule 22(1) though it is still not necessary for the respondent to take any cross-objection laying challenge to any finding adverse to him as the decree is entirely in his favour, yet he may support the decree without cross-objection. It gives him the right to take cross-objection to a finding recorded against him either while answering an issue or while dealing with an issue. after the aforesaid amendment in CPC, if the appeal stands withdrawn or dismissed in default, the cross-objection taken to a finding by the respondent would still be adjudicated upon on merits which remedy was not available to the respondent under the unamended CPC, the Supreme Court held.

42. The principles deducible from the afore-discussed law can be summarized as follows:-

(i) When two suits are consolidated and tried together with common issues framed and common evidence led by the parties, resulting in a common judgment and decree, the same can be subjected to challenge by way of a single appeal at the instance of the aggrieved party;

(ii) Where a single appeal is filed questioning the judgment and decree passed in two suits, which were consolidated and decided by a common judgment, the decision of such single appeal, by a common judgment, reversing or modifying the claim in one suit out of the two, can be challenged by the aggrieved party also, in a single appeal.

(iii) When two suits though not consolidated but are decided by a common judgment, resulting in the preparation of two separate decrees, the aggrieved party would be required to challenge both of them by filing separate appeals;

(iv) When both the suit and the counterclaim are decreed by a common judgment, regardless of whether a separate decree has been prepared in the counterclaim, both would be required to be challenged by separate appeals;

(v) In a case where two separate appeals are required to be filed against the judgment of the suit and the counterclaim and if the appeal is filed only against one and not against the other, non-filing of appeal against such judgment and decree would attach finality thereto and would attract not only the principle of res-judicata but also waiver and estoppel

and the judgment and decree not appealed against would be taken to have been acquiesced to by the party not filing an appeal;

(vi) When however, two appeals are filed against a common judgment passed by the trial Court, both by the plaintiff and the defendant, and are disposed of by the first appellate Court by modifying/reversing/affirming the judgment of the trial Court, the aggrieved party, would be required to challenge both by two separate appeals, in absence of which, non-filing of appeal against one shall attract bar of the principles of res-judicata against another.

(vii) Where more than one appeal are required to be filed or are filed and one or more of them are dismissed for default, delay or any other similar reason, any such situation would attract res judicata and such dismissal would satisfy the requirement of the appeal being heard and finally decided on merits 'in a former suit' for the purpose of attracting principles of res judicata."

20. In view of the binding precedents of this Court, the appeal filed by the plaintiff against the dismissal of the suit without filing the appeal against the decree of the counter claim will not be maintainable being barred by the principle of res judicata. This question has been authoritatively decided by this Court and is not a substantial question of law in the present case.

21. It was submitted that the judgment was pronounced by this Court on 17th May 2022, whereas, the appeal was dismissed by the learned First Appellate Court on 11.03.2022. The law was not certain on that day and could not have been applied retrospectively. This submission is not acceptable. It was laid down by the Karnataka High Court in Brindavan Roller Flour Mills Private Limited Vs. Joint Commissioner of Commercial Taxes 1994 ILR (Kar.) 2196 (speaking through Hon'ble Mr Justice R.V. Raveendran J), that a judgment pronounced by Hon'ble Supreme Court declares the law and does not lay down a new law. Hence, it applies to all the pending litigations. This position was also recognized in Suresh Chandra Verma (Dr.) v. Chancellor, Nagpur University (1990) 4 SCC 55 [LQ/SC/1990/445] : 1991 SCC (L&S) 194 : (1991) 16 ATC 439,wherein it was observed:

“15. The second contention need not detain us long. It is based primarily on the provisions of Section 57(5) of the Act. The contention is that since the provisions of that section give power to the Chancellor to terminate the services of a teacher only if he is satisfied that the appointment ‘was not in accordance with the law at that time in force’ and since the law at that time in force viz. on 30-3-1985 when the appellants were appointed, was the law as laid down in Bhakre case [WP No. 1876 of 1984 decided on 7-12-1984 (Nag)] the termination of the appellants is beyond the powers of the Chancellor. The argument can only be described as naive. It is unnecessary to point out that when the court decides that the interpretation of a particular provision as given earlier was not legal, it in effect declares that the law as it stood from the beginning was as per its decision and that it was never the law otherwise. This being the case, since the Full Bench and now this Court has taken the view that the interpretation placed on the provisions of law by the Division Bench in Bhakre case [ WP No. 1876 of 1984 decided on 7-12-1984 (Nag)] was erroneous, it will have to be held that the appointments made by the University on 30-3- 1985 pursuant to the law laid down in Bhakre case [ WP No. 1876 of 1984 decided on 7-12-1984 (Nag)] were not according to law. Hence, the termination of the services of the appellants was in compliance with the provisions of Section 57(5) of the Act.”

22. This position was reiterated in M.A. Murthy v. State of Karnataka (2003) 7 SCC 517 [LQ/SC/2003/865] : 2003 SCC (L&S) 1076 and it was held:

“8. The learned counsel for the appellant submitted that the approach of the High Court is erroneous as the law declared by this Court is presumed to be the law at all times. Normally, the decision of this Court enunciating a principle of law is applicable to all cases irrespective of its stage of pendency because it is assumed that what is enunciated by the Supreme Court is, in fact, the law from inception.”

23. Similar is the judgment of this Court in Oriental Insurance Company vs. Mathu Ram 2019 ACJ 65 (HP), wherein it was held:

“23. It is more than settled that prospective declaration of law is a device innovated to avoid reopening of settled issues. However, there has to be no prospective over ruling unless it is so indicated in a particular judgment.

24. A Full Bench of the Punjab and Haryana High Court in Commissioner of Income Tax v. Smt. Aruna Luthra (2001) 252 ITR 76 opined that a declaration by the Court is-This was the law, this is the law. This is how the provisions have to be construed. The Court merely declares the law and earlier decision by the Court is “simply no law”. It shall be apposite to extract the relevant observations which read thus:—

“A Court decides a dispute between the parties. The cause can involve a decision on facts. It can also involve a decision on a point of law. Both may have a bearing on the ultimate result of the case. When a court interprets a provision, it decides as to what is the meaning and effect of the words used by the Legislature. It is a declaration regarding the statute. In other words, the judgment declares as to what the Legislature had said at the time of the promulgation of the law. The declaration is-This was the law. This is the law. This is how the provision shall be construed.

Julius Stone in Social Dimensions of Law and Justice (First Indian Reprint 1999) (Chapter XIV), while dealing with the subject of Judge and Administrator in Legal Ordering, observes as under:

“If, then, a main impulse underlying the stare decisis doctrine is that justice should respect reasonable reliance of affected parties based on the law as it seemed when they acted, this impulse still has force when reliance is frustrated by an overruling. Despite this, it has long been assumed that a newly emergent rule is to be applied not only to future facts, and to the necessarily past facts of the very case in which it emerges, but to all cases thereafter litigated, even if these involved conduct, which occurred before the establishment of the new rule. This has proceeded ostensibly on the conceptual basis, clearly formulated since Blackstone, that the new holding does not create, but merely declares law. So that any prior putative law under which the parties acted is to be regarded as simply not law”.

(emphasis supplied)

The above observations clearly support the principle that the court merely declares law. An earlier decision as declared by the court is “simply no law”.

24. In view of these precedents, Ramesh Chand (supra) was always the law and no new law was laid down by this Court.

25. In any case, the learned First Appellate Court had noticed various judgments starting form 1997 where a view was taken that two separate appeals are required to be filed against the dismissal of the suit and decree of the counter claim and one appeal would be barred by the principle of res judicata. Thus, the plaintiff has filed an appeal at his peril ignoring the settled position of law. Thus no advantage can be derived by the fact that the Division Bench of this Court had held on 17.05.2022in Ramesh Chand (supra) that a single appeal will not be maintainable.

26. Reliance was placed upon the judgment of the Supreme Court in Ramnath Exports (P) Ltd (supra) to contend that an opportunity should be granted to the plaintiff to file an appeal against the decree of the counter claim. This submission cannot be accepted. In Ram Nath (supra), the Hon’ble Supreme Court noticed the facts as under:-

“4. Being aggrieved by the common judgment, the appellant preferred First Appeal No. 50 of 2008 before the High Court challenging both the decrees. On filing the appeal, at the initial stage, the appellant also preferred an application being CLMA No. 4365 of 2008 (in short to be referred to as “CLMA”) and sought permission to file a single appeal assailing the common judgment dated 16-4- 2008 along with two separate decrees dated 30-4-2008. The first appeal was admitted by the High Court vide order dated 18-7-2008 [Ramnath Exports (P) Ltd. v. Vinita Mehta First Appeal No. 50 of 2008, order dated 18-7-2008 (Utt)] and by the same order, two weeks' time was granted to file objections on CLMA and further two weeks to file rejoinder. It was further directed to list the application after the lapse of the said period.

5. The High Court without passing any order on the said CLMA, at the time of hearing of the appeal, accepted the preliminary objection regarding the maintainability of a single first appeal without entering into the merits of the case. The Court said that the case is restricted to the question of applicability of the principle of res judicata and, taking into consideration the material placed and the contentions raised by both the parties, the appeal was dismissed holding that one appeal is not maintainable and barred by res judicata. In the impugned order [Ramnath Exports (P) Ltd. v. Vinita Mehta, 2018 SCC OnLineUtt 1048], the High Court has considered the Full Bench judgment of the Allahabad High Court in Zaharia v. Dibia[Zaharia v. Dibia, 1910 SCC OnLine All 137: ILR (1911) 33 All 51], and also Narhari v. Shankar[Narhari v. Shankar, 1950 SCC 668: AIR 1953 SC 419 [LQ/SC/1950/32] ], in which the Full Bench judgment of the Lahore High Court passed in Lachhmi v. Bhulli[Lachhmi v. Bhulli, 1927 SCC On LineLah 256: AIR 1927 Lah 289] was relied. The Court distinguished the Full Bench judgment of Lachhmi [Lachhmi v. Bhulli, 1927 SCC OnLineLah 256: AIR 1927 Lah 289] of the Lahore High Court and also the judgment of this Court in Narhari[Narhari v. Shankar, 1950 SCC 668: AIR 1953 SC 419 [LQ/SC/1950/32] ] and placing reliance upon the judgmentof Lonankutty v. Thomman[Lonankutty v. Thomman, (1976) 3 SCC 528] [LQ/SC/1976/182] , said that the case in hand is similar to Lonankutty [Lonankutty v. Thomman, (1976) 3 SCC 528] [LQ/SC/1976/182] which was dismissed on the ground of res judicata alone. The High Court further relied upon the judgment of this Court in Sri Gangai Vinayagar Temple v. MeenakshiAmmal[Sri Gangai Vinayagar Temple v. MeenakshiAmmal, (2015) 3 SCC 624 [LQ/SC/2014/1080] : (2015) 2 SCC (Civ) 350], wherein, this Court while dealing with the concept of res judicata discussed law on the point of applicability of res judicata and observed that losing party must file appeals in respect of all adverse decree founded even on partially adverse or contrary speaking judgments.”

27. It is apparent from the perusal of these facts that on the date of filing of the appeal, the appellant had filed a CLMA seeking permission to file a single appeal assailing the common judgment. The appeal was admitted. Time was granted to file an objection to the CLMA; however, the CLMA was not decided and the appeal was dismissed. The Hon’ble Supreme Court held that this was bad as the CLMA should have been decided so that in case of dismissal, the appellant could have the opportunity to file a separate appeal. It was held:-

“13. Thus, prior to deciding the preliminary objection, the High Court should have decided the said CLMA, either granting leave to file a single appeal or refusing to entertain one appeal against one judgment and two decrees passed in two suits after consolidation. In case, the High Court would have rejected the said CLMA, the appellant could have availed the opportunity to file separate appeals against the judgment and decree passed in Civil Suit No. 411 of 1989. Without deciding the CLMA and accepting the preliminary objections, dismissing the appeal as barred by res judicata, primarily appears contrary to the spirit of its own order dated 18-7-2008 [Ramnath Exports (P) Ltd. v. Vinita Mehta First Appeal No. 50 of 2008, order dated 18-7-2008 (Utt)].

14. In our considered view also, the approach adopted by the High Court is not correct, because on dismissal of the CLMA, the appellant might have had the opportunity to rectify the defect by way of filing a separate appeal under Section 96CPC challenging the same judgment with separate decree passed in Civil Suit No. 411 of 1989. Converse to it, if this Court proceeds to consider the merit of the contentions raised in the said CLMA and record the findings in the negative, it would effectively render the appellant remediless, therefore, we refrain ourselves from examining the merits of CLMA.”

28. Thus, the judgment was passed in the peculiar facts of the case where the CLMA remained unattended.

29. Hon’ble Mr. Justice R. V. Raveendaran explained in his article Precedents—Boon Or Bane(2015) 8 SCC J-1 that ratio decidendi of a decision constitutes binding precedent and not every observation contained in it. He wrote:

“The well-recognised definition of precedent is “an adjudged case or decision of a court, considered as furnishing an example or authority for an identical or similar case afterwards arising or a similar question of law”. Salmond defines a precedent as a judicial decision which contains in itself a legal authoritative element which is described as ratio decidendi. [Salmond's Jurisprudence (10th Edn.) 191.] The rule deducible from the application of law to the facts and circumstances of a case constitutes the ratio decidendi of the case. [Regional Manager v. Pawan Kumar Dubey, (1976) 3 SCC 334 [LQ/SC/1976/82] .] What the Judges expressly decided or what they must be considered to have decided by necessary implication by reference to the facts stated by the Judges themselves are what constitute precedents. [Gopal Upadhyaya v. Union of India, 1986 Supp SCC 501.]

Every decision of a court should ideally comprise three components : (a) findings of material facts, direct and inferential; (b) statements of the principles of law applicable to the legal issues or problems disclosed by the facts; and (c) judgment (the final decision) containing the conclusions and directions of the court, based on the combined effect of (a) and (b) above. [State of Orissa v. Mohd. Illiyas, (2006) 1 SCC 275 [LQ/SC/2005/1197] .] The concluding part of a decision, that is the ‘concrete decision’ containing the conclusions and directions of the court, should not be confused with the ratio decidendi (reasons for the decision). While the conclusions and directions in a decision, that is the concrete decision, alone bind the parties to the litigation, the abstract ratio decidendi of the decision as ascertained on a consideration of the judgment in relation to the subject-matter of the decision has the force of law and is binding on all subordinate courts and tribunals. [Halsbury's Laws of England, 4th Edn., Vol. 26, Para 573.] In other words, a decision is binding as a precedent, not because of its final conclusions or directions, but because of its ratio. Ratio decidendi refers to “the principle of law on which a decision is based” or the reason for the decision or the point in a case which determines what the decision should be. The legal principle which constitutes the “ratio” of a decision is the “precedent” for other cases.

PART III

Principles to be kept in view by those who apply Precedents

The basic principles to be kept in view by the courts/authorities who are required to follow precedents are:

(i) The “ratio” of the decision is the precedent. Neither factual findings nor directions issued by the Supreme Court under Article 142 are the precedents.

(ii) Obiter dicta in a decision is not a precedent.

(iii) Non-speaking orders are not precedents.

(iv) Precedents are not to be read as statutory provisions.

(v) Even small differences in facts may lead to a different conclusion.

(vi) Decisions rendered per incuriam are not to be followed.

(vii) Some precedents cease to be binding.

(viii) Divergent precedents should be dealt with in accordance with the settled principles relating to precedents.

Unfortunately, the above principles are repeatedly ignored, many a time even by the High Courts, thereby defeating the very object and efficacy of precedents.

(i) The “ratio” of the decision is the precedent

The first principle of precedents is that only a decision relating to or involving a question of law or interpretation of a legal principle can be said to have a ratio and used as a precedent. A decision or judgment rendered purely on the basis of the fact situation of a case, without involving the application of any legal principle or provision of law, cannot be considered as a precedent for deciding any other case involving a different set of facts. [Prakash Chandra Pathak v. State of U.P., AIR 1960 SC 195 [LQ/SC/1957/75] ; PGI of ME & Research v. Vinod Krishan Sharma, (2001) 2 SCC 59 and U.P. Brassware Corpn. Ltd. v. Uday Narain Pandey, (2006) 1 SCC 479 [LQ/SC/2005/1243 ;] .]

(iv) Decisions of a court are not to be read as statutory provisions

The next principle of precedents is that the contents of a decision of a court are not to be read as if they are provisions of a statute (or as Euclid's theorems, which are known for their precision). Judges interpret statutes, but their judgments are not to be construed or interpreted as statutes. A statutory provision is not made with reference to any particular case but is a pure principle in the abstract. The words, phrases and provisions of a statute are interpreted, if necessary, by embarking on discussions to explain the meaning. On the other hand, the contents of a judgment are built around the facts of that case and the legal position is also stated with reference to the factual background of the case.”

30. It was held in Punjab Land Development and Reclamation Corpn. Ltd. v. Presiding Officer, Labour Court, (1990) 3 SCC 682 [LQ/SC/1990/312] : 1991 SCC (L&S) 71 that a decision is an authority for what it actually decides and only the ratio decidendi is binding. It was observed:

"44. An analysis of judicial precedent, ratio decidendi and the ambit of earlier and later decisions is to be found in the House of Lords' decision in F.A. & A.B. Ltd. v. Lupton (Inspector of Taxes) [1972 AC 634 : (1971) 3 All ER 948], Lord Simon concerned with the decisions in Griffiths v. J.P. Harrison (Watford) Ltd. [1963 AC 1 : (1962) 1 All ER 909] and Finsbury Securities Ltd. v. Inland Revenue Commissioner [(1966) 1 WLR 1402 : (1966) 3 All ER 105] with their interrelationship and with the question whether Lupton's case [1972 AC 634 : (1971) 3 All ER 948] fell with-in the precedent established by the one or the other case, said: (AC p. 658)

“...what constitutes binding precedent is the ratio decidendi of a case, and this is almost always to be ascertained by an analysis of the material facts of the case—that is, generally, those facts which the tribunal whose decision is in question itself holds, expressly or implicitly, to be material.”

45. It has also been analysed: (AC pp. 658-59)

“A judicial decision will often be reached by a process of reasoning which can be reduced into a sort of complex syllogism, with the major premise consisting of a pre- existing rule of law (either statutory or judge-made) and with the minor premise consisting of the material facts of the case under immediate consideration. The conclusion is the decision of the case, which may or may not establish new law — in the vast majority of cases it will be merely the application of existing law to the facts judicially ascertained. Where the decision does constitute new law, this may or may not be expressly stated as a proposition of law: frequently the new law will appear only from subsequent comparison of, on the one hand, the material facts inherent in the major premise with, on the other, the material facts which constitute the minor premise. As a result of this comparison, it will often be apparent that a rule has been extended by an analogy expressed or implied.”

46. To consider the ratio decidendi of a case we have, therefore, to ascertain the principle on which the case was decided. Sir George Jessel in Osborne v. Rowlatt [(1880) 13 Ch D 774], remarked that (Ch D, p. 785) ‘the only thing in a Judge's decision binding as an authority upon a subsequent Judge is the principle upon which the case was decided’.

47. The ratio decidendi of a decision may be narrowed or widened by the judges before whom it is cited as a precedent. In the process, the ratio decidendi which the judges who decided the case would themselves have chosen may be even different from the one which has been approved by subsequent judges. This is because judges, while deciding a case will give their own reasons but may not distinguish their remarks in a rigid way between what they thought to be the ratio decidendi and what were their obiter dicta, that is, things said in passing having no binding force, though of some persuasive power. It is said that “a judicial decision is the abstraction of the principle from the facts and arguments of the case”. “A subsequent judge may extend it to a broader principle of wider application or narrow it down for a narrower application”. The submissions of Mr Venugopal that for the purpose of ratio decidendi, the question is not whether a subsequent bench of this Court thinks that it was necessary or unnecessary for the Constitution Bench, or the earlier bench to have dealt with the issue, but whether the Constitution Bench itself thought it necessary to interpret Section 2(oo) for arriving at the final decision has to be held to be untenable in this wide and rigid form.”

31. Similarly, it was held in Islamic Academy of Education v. State of Karnataka, (2003) 6 SCC 697 [LQ/SC/2003/785] : 2003 SCC OnLine SC 856 that a judgment cannot be read like a statute and only the ratio decidendi is binding. It was observed: Interpretation of a judgment

"139. A judgment, it is trite, is not to be read as a statute. The ratio decidendi of a judgment is its reasoning which can be deciphered only upon reading the same in its entirety. The ratio decidendi of a case or the principles and reasons on which it is based is distinct from the relief finally granted or the manner adopted for its disposal. (See Executive Engineer, Dhenkanal Minor Irrigation Division v. N.C. Budharaj [(2001) 2 SCC 721] [LQ/SC/2001/94] .) 140. In Padma Sundara Rao v. State of T.N. [(2002) 3 SCC 533] [LQ/SC/2002/350] it is stated : (SCC p. 540, paragraph 9)

“There is always peril in treating the words of a speech or judgment as though they are words in a legislative enactment, and it is to be remembered that judicial utterances are made in the setting of the facts of a particular case, said Lord Morris in Herrington v. British Railways Board [(1972) 2 WLR 537: 1972 AC 877 : (1972) 1 All ER 749 (HL)] (Sub nom British Railways Board v. Herrington). Circumstantial flexibility, one additional or different fact may make a world of difference between conclusions in two cases.”

(See also Haryana Financial Corpn. v. Jagdamba Oil Mills [(2002) 3 SCC 496] [LQ/SC/2002/133] .)

141. In General Electric Co. v. Renusagar Power Co. [(1987) 4 SCC 137] [LQ/SC/1987/570] it was held : (SCC p. 157, paragraph 20)

“As often enough pointed out by us, words and expressions used in a judgment are not to be construed in the same manner as statutes or as words and expressions defined in statutes. We do not have any doubt that when the words ‘adjudication of the merits of the controversy in the suit’ were used by this Court in State of U.P. v. Janki Saran Kailash Chandra [(1973) 2 SCC 96 [LQ/SC/1973/145] : AIR 1973 SC 2071 [LQ/SC/1973/145] : (1974) 1 SCR 31 [LQ/SC/1973/145] ] the words were not used to take in every adjudication which brought to an end the proceeding before the court in whatever manner but were meant to cover only such adjudication as touched upon the real dispute between the parties which gave rise to the action. Objections to adjudication of the disputes between the parties, on whatever ground, are in truth not aids to the progress of the suit but hurdles to such progress. Adjudication of such objections cannot be termed as adjudication of the merits of the controversy in the suit. As we said earlier, a broad view has to be taken of the principles involved and narrow and technical interpretation which tends to defeat the object of the legislation must be avoided.”

142 In Rajeswar Prasad Misra v. State of W.B. [AIR 1965 SC 1887 [LQ/SC/1965/167] : (1965) 2 Cri LJ 817] it was held:

“No doubt, the law declared by this Court binds courts in India but it should always be remembered that this Court does not enact.”

32. Similar view was taken in Arasmeta Captive Power Co. (P) Ltd. v. Lafarge India (P) Ltd., (2013) 15 SCC 414 [LQ/SC/2013/1373] : (2014) 5 SCC (Civ) 302: 2013 SCC OnLine SC 1094, wherein it was observed:

“31. At this juncture, we think it condign to refer to certain authorities which lay down the principle for understanding the ratio decidendi of a judgment. Such a deliberation, we are disposed to think, is necessary as we notice that contentions are raised that certain observations in some paragraphs in SBP [SBP & Co. v. Patel Engg. Ltd., (2005) 8 SCC 618] [LQ/SC/2005/1104] have been relied upon to build the edifice that latter judgments have not referred to them.

32. In Ambica Quarry Works v. State of Gujarat [(1987) 1 SCC 213] [LQ/SC/1986/518] it has been stated (SCC p. 221, para 18) that the ratio of any decision must be understood in the background of the facts of that case. Relying on Quinn v. Leathem [1901 AC 495 (HL)] it has been held that the case is only an authority for what it actually decides, and not what logically follows from it.

33. Lord Halsbury in Quinn [1901 AC 495 (HL)] has ruled thus : (AC p. 506)

“… there are two observations of a general character which I wish to make, and one is to repeat what I have very often said before, that every judgment must be read as applicable to the particular facts proved, or assumed to be proved, since the generality of the expressions which may be found there are not intended to be expositions of the whole law, but governed and qualified by the particular facts of the case in which such expressions are to be found. The other is that a case is only an authority for what it actually decides. I entirely deny that it can be quoted for a proposition that may seem to follow logically from it. Such a mode of reasoning assumes that the law is necessarily a logical code, whereas every lawyer must acknowledge that the law is not always logical at all.”

(emphasis supplied)

34. In Krishena Kumar v. Union of India [(1990) 4 SCC 207 [LQ/SC/1990/341] : 1991 SCC (L&S) 112 : (1990) 14 ATC 846] the Constitution Bench, while dealing with the concept of ratio decidendi, has referred to Caledonian Railway Co. v. Walker's Trustees [(1882) LR 7 AC 259 : (1881-85) All ER Rep 592: 46 LT 826 (HL)] and Quinn [1901 AC 495 (HL)] and the observations made by Sir Frederick Pollock and thereafter proceeded to state as follows : (Krishena Kumar case [(1990) 4 SCC 207 [LQ/SC/1990/341] : 1991 SCC (L&S) 112 : (1990) 14 ATC 846], SCC pp. 226-27, para 20)

“20. … The ratio decidendi is the underlying principle, namely, the general reasons or the general grounds upon which the decision is based on the test or abstract from the specific peculiarities of the particular case which gives rise to the decision. The ratio decidendi has to be ascertained by an analysis of the facts of the case and the process of reasoning involving the major premise consisting of a pre-existing rule of law, either statutory or Judge- made, and a minor premise consisting of the material facts of the case under immediate consideration. If it is not clear, it is not the duty of the court to spell it out with difficulty in order to be bound by it. In the words of Halsbury (4th Edn., Vol. 26, para 573):

‘The concrete decision alone is binding between the parties to it, but it is the abstract ratio decidendi, as ascertained on a consideration of the judgment in relation to the subjectmatter of the decision, which alone has the force of law and which when it is clear

… it is not part of a tribunal's duty to spell out with difficulty a ratio decidendi in order to be bound by it, and it is always dangerous to take one or two observations out of a long judgment and treat them as if they gave the ratio decidendi of the case. If more reasons than one are given by a tribunal for its judgment, all are taken as forming the ratio decidendi.’”

(emphasis supplied)

35. In State of Orissa v. Mohd. Illiyas [(2006) 1 SCC 275 [LQ/SC/2005/1197] : 2006 SCC (L&S) 122] it has been stated thus : (SCC p. 282, para 12)

“12. … According to the well-settled theory of precedents, every decision contains three basic postulates : (i) findings of material facts, direct and inferential. An inferential finding of facts is the inference which the Judge draws from the direct, or perceptible facts; (ii) statements of the principles of law applicable to the legal problems disclosed by the facts; and (iii) judgment based on the combined effect of the above. A decision is an authority for what it actually decides. What is of the essence in a decision is its ratio and not every observation found therein nor what logically flows from the various observations made in the judgment.”

36. In Islamic Academy of Education v. State of Karnataka [(2003) 6 SCC 697] [LQ/SC/2003/785] the Court has made the following observations : (SCC p. 719, para 2)

“15. … Observations of courts are neither to be read as Euclid's theorems nor as provisions of the statute and that too taken out of their context. [The] observations must be read in the context in which they appear to have been stated. … To interpret words, phrases and provisions of a statute, it may become necessary for Judges to embark into lengthy discussions but the discussion is meant to explain and not to define. Judges interpret statutes, they do not interpret judgments. They interpret words of statutes; their words are not to be interpreted as statutes.”

39. In Som Mittal v. State of Karnataka [(2008) 3 SCC 574 [LQ/SC/2008/430] : (2008) 2 SCC (Cri) 1 : (2008) 1 SCC (L&S) 910] it has been observed that : (SCC p. 581, para 9)

“9. … Judgments are not to be construed as statutes. Nor words or phrases in judgments are to be interpreted like provisions of a statute. Some words used in a judgment should be read and understood contextually and are not intended to be taken literally. Many a time a Judge uses a phrase or expression with the intention of emphasising a point or accentuating a principle or even by way of a flourish of writing style. Ratio decidendi of a judgment is not to be discerned from a stray word or phrase read in isolation.”

33. It was laid down by Gujarat High Court in Mohmad Ayub @ Babbu Sagirbhai Shaikh Versus Commissioner of Police, Ahmedabad 1994 (1) GLR 589 [LQ/GujHC/1993/405] that a decision is only an authority for what it decides. The essence of a decision is its ratio and not every observation found therein. It was observed:

“[3] In State of Orissa v. Sudhansu Sekhar Misra & Ors., AIR1968 SC 647, five learned Judges of the Apex Court spoke as follows :

"... A decision is only an authority for what it actually decides. What is of the essence in a decision is its ratio and note every observation found therein nor what logically follows from the various observations made in it. On this topic, this is what Earl of Halsbury LC said in Quinn v. Leathern, 1901 AC 495: 'Now before discussing the case of Alien y. flood, 1898 AC 1 and what was decided therein, there are two observations of a general character which I wish to make, and one is to repeat what I have very often said before, that every judgment must be read as applicable to the particular facts proved, or assumed to be proved, since the generality of the expressions which may be found there are not intended to be expositions of the whole law, but governed and qualified by the particular facts of the case in which such expressions are to be found. The other is that a case is only an authority for what it actually decides. I entirely deny that it can be quoted for a proposition that may seem to follow logically from it. Such amode of reasoning assumes that the law is necessarily a logical Code, whereas every lawyer must acknowledge that the law is not always logical at all.'

It is not a profitable task to extract a sentence here and there from a judgment and to build upon it."

In H. H. Maharajadhiraja Madhav Rao Jivaji Rao Scindia Bahadw & Ors. v. Union of India, AIR 1971 SC 530 [LQ/SC/1970/480 ;] , a case, decided by eleven Judges, the Apex Court took note of the fact that the Court was not called upon to decide a particular question as of law, and observed as follows :

" It is difficult to regard a word a clause or a sentence occurring in a judgment of this Court, divorced from its context, as containing a full exposition of the law on a question when the question did not even fall to be answered in that judgment."

In Municipal Committee, Amritsar v. Hazara Singh, AIR 1975 SC 1087 [LQ/SC/1975/92] , three Judges of the Apex Court opined that distortion of the passage in a judgment could not pass muster, and approved the following observations of the High Court of Kerala in State of Kerala v. Parameswaran Filial Vasudevan Nair, 1975 FAC 8 : (1975 Cri.LJ 97) :

"Judicial propriety, dignity and decorum demand that being the highest judicial tribunal in the country even obiter dictum of the Supreme Court should be accepted as binding. Declaration of law by that Court even if it be only by the way has to be respected. But all that does not mean that every statement contained in a judgment of that Court would be attracted by Art. 141. Statements on matters other than law have no binding force. Several decisions of the Supreme Court are on facts and the Court itself has pointed out in Gurcharan Singh v. State of Punjab, (1972 FAC 549) and Prakesh Chandra Palhak v. State of Uttar Pradesh (AIR 1960 SC 195 [LQ/SC/1957/75] ) that as on facts no two cases could be similar, its own decisions which were essentially on questions of fact could not be relied upon as precedents for the decision of other eases."

In Additional District Magistrate, Jabalpur v. Shivakant Shukla, AIR 1976 SC 1207 [LQ/SC/1976/199] , a case decided by five Judges, it was cautioned as follows :

"......Moreover, it must be remembered that when we are considering the observations of a high judicial authority like this Court, the greatest possible care must be taken to relate the observations of a judge to the precise issues before him and to confine such observations, even though expressed in broad terms, in the general compass of the question before him unless he makes it clear that he intended his remarks to have a wider ambit "

[4] Even observations on law, though not part of the ratio decidendi of law in the pronouncement, classified as obiter dicta emanating from the Apex Court, are binding on this Court and this Court cannot ignore them. An obiter dictum is an observation by the Court on a legal question, not factual, suggested by a case before it, but not arising in such a manner as to require a decision. In the Commissioner of Income-Tax, Hyderabad, Deccan v. M/s. Vazir Sultan & Sons, AIR 1959 SC 814 [LQ/SC/1959/33] , it was stated :

" The obiter dicta of this Court, however, are entitledto considerable weight and we on our part fully endorse the Same "

In Income-Tax Officer, Tuticorin y. T S. Devinatha Nadar, AIR 1968 SC 623 [LQ/SC/1967/306] , even an opinion of the Apex Court was held to merit the highest respect.

[5] In Municipal Committee, Amritsar v. Hazara Singh, AIR 1975 SC 1087 [LQ/SC/1975/92] , as already noted, the Apex Court approved the view of the Kerala High Court that "judicial propriety, dignity and decorum demand that being the highest judicial tribunal in the country, even obiter dictum of the Supreme Court should be accepted as binding Declaration of law by that Court even if it be only, by the way, has to be respected".

[6] Either way, as ratio decidendi or obiter dictum, it has got to be a proposition of law. But, if what has been expressed is only a discussion of factual aspects of the case and a pronouncement on the same, then, that cannot be cited as a precedent to govern decisions in other cases. In Prakash Chandra Pathak v. State of Uttar Pradesh, AIR 1960 SC 195 [LQ/SC/1957/75] , this is how the proposition was set down :

" ... It is enough to say that decisions even of the highest Court on questions which are essentially questions of fact, cannot be cited as precedents governing the decision of other cases which must rest in the ultimate analysis upon their particular facts "

As to what should be the right approach to the decisions of the Apex Court, the said Court, as already noticed, in Municipal Committee, Amritsar v. Hazara Singh, AIR 1975 SC 1087 [LQ/SC/1975/92] , approved as correct the view of the High Court of Kerala that statements on matters other than law have no binding force; several decisions of the Supreme Court are on facts; as on facts no two cases could be similar, its own decisions which were essentially on questions of fact cannot be relied upon as precedents for the decision of other cases. It has always been accepted by Courts as a well- settled theory that there are three ingredients in a decision as follows :

(i) Findings of material facts, direct and inferential;

(ii) Statement of the principles of law applicable to the legal problems disclosed by such facts;

AND

(iii) Judgment based on (i) and (ii).

In Qualcast (Wolverhampton) Ltd. v. Haynes, 1959 Appeal Cases 743, a solution on facts was not treated as a proposition of law. The ratio decidendi may be defined as a statement of law applied to the legal problems raised by the facts as found, upon which the decision is based.

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[29] Lord Halsbury (Halsbury's Laws of England, Fourth Edition, Vol. 26, para 573) describes the Ratio decidendi in the following manner:

"The use of precedent is an indispensable foundation upon which to decide what is the law and its application to individual cases; provides at least some degree of certainty upon which individuals can rely in the conduct of their affairs, as well as a basis for the orderly development of legal rules. The enunciation of the reason of principle upon which a question before a Court has been decided is alone binding as a precedent. This underlying principle is called the ratio decidendi, namely the general reasons given for the decision or the general grounds upon which it is based, detached or abstracted from the specific peculiarities of the particular case which gives rise to the decision. What constitutes binding precedent is the ratio decidendi, and this is almost always to be ascertained by an analysis of the material facts of the case, for a judicial decision is often reached by a process of reasoning involving a major premise consisting of a pre-existing rule of law, either statutory or Judge made, and a minor premise consisting of the material facts of the case under immediate consideration.

The concrete decision alone is binding between the parties to it, but it is the abstract ratio decidendi, as ascertained on consideration of the judgment in relation to the subjectmatter of the decision, which alone has the force of law and which, when it is clear what it was, is binding; but, if it is not clear, it is not part of a tribunal's duty to spell out with difficulty a ratio decidendi in order to be bound by it, and it is always dangerous to take one or two observations out of a long judgment and treat them as if they gave the ratio decidendi of the case. // more reasons than one are given by the tribunal for its judgment, all are taken as forming the ratio decidendi."

[30] Salmond ("Salmond on Jurisprudence" Twelfth Edition, page 174) after having considered the extent to which Courts are bound by previous decisions proceeds to examine what constitutes the decision in a case and what it is that is actually binding on later Courts.

Salmond puts it this wise:

"First, however, we must distinguish what a case decides generally and as against all the world from what it decides between the parties themselves. What it decides generally is the ratio decidendi or rule of law for which it is authority: what it decides between the parties includes far more than just this." (Underlining provided)

[31] Salmond talks of various methods of determining the ratio which have been advanced thus far and takes into consideration the "Reversal Test" of Professor Wambaugh suggesting that we should take the proposition of law put forward by the Judge, reverse or negate it, and then see if its reversal would have altered the actual decision. Salmond takes note of another test suggested by Dr Goodhart. According to it, the ratio is to be determined by ascertaining the facts treated as material by the Judge together with his decision on those facts.

[32] Rupert Cross (Precedent in English Law, Third Edition) deals with both the above-said tests, namely, the Wambaugh Test and Dr. Goodhart Test). On page 53 of his classical work, he deals with Wambaugh's Test rather elaborately and points out that Wambaugh had stated the test in the following words :

"First frame carefully the supposed proposition of law. Let him then insert in the proposition a word reversing its meaning. Let him then inquire "whether, if the Court had conceived this new proposition to be good, and had it in mind, the decision could have been the same If the answer be affirmative, then, however excellent the original proposition may be, the case is not a precedent for the proposition, but if the answer be negative the case is a precedent for the original proposition and possibly for other propositions also, in short, when a case turns only on one point the proposition or doctrine of the case, the reason for the decision, the ratio decidendi, must be a general rule without which the case must have been decided otherwise."

[33] Rupert Cross also makes a detailed reference to Dr. Goodhart's method of determining the ratio decidendi and says that, according to Dr. Goodhart, the ratio decidendi of a case is determined by ascertaining the facts treated as material by the Judge and it is the principle to be ascertained from the Judge's decision on the basis of those facts. The learned author points out that this method of determining the ratio decidendi has the great merit of paying more regard to the facts as seen by the Judge than is provided by the Wambaugh Test.

[34] Rupert Cross before dealing with Dr. Goodhart's method of determining the ratio decidendi takes note of the rule enunciated by Lord Halsbury in Quinn v. Leathern, 1901 AC 495 at page 506. In this decision, Lord Halsbury opines thus :

"A case is the only authority for what it actually decides. I entirely deny that it can be quoted for a proposition that may seem to flow logically from it."

[35] Turning to the case law in this country the reference firstly shall have to be made to the Supreme Court decision in Dalbir Singh & Ors. v. State of Punjab, AIR 1979 SC 1384 [LQ/SC/1979/283] , which says that the only thing in a Judge's decision, binding a party is the principle upon which the case is decided and for this reason, it is important to analyse a decision and isolate from it the ratio decidendi. A Full Bench decision in State of Bombay v. Chhaganlal Gangaram Lavar, AIR 1955 Bombay 1 (FB) being an F.B. decision says that, so long as the Supreme Court does not take a different view from the view taken by the Privy Council, the decisions of the Privy Council are still binding upon High Courts. Chief Justice Chagia while speaking for the Full Bench points out that, What is binding is not merely the point decided but an opinion expressed by the Privy Council which opinion is expressed after careful consideration of all the arguments and which is deliberately and advisedly given. In the same context a Full Bench decision rendered by Delhi High Court in Flying Officer S. Sundarajan v. Union of India & Ors., AIR 1970 Delhi 29, merits consideration as it gives a clear idea in respect of ratio by providing a negative formula and proceeds to say :

"Under Art. 141 of the Constitution, the law declared by the Supreme Court is binding on all the Courts and therefore, even the Principle enunciated by the Supreme Court including its obiter dicta when they are stated in clear terms, have a binding force. But when a question is neither raised nor discussed in a judgment rendered by the Supreme Court, no principle of a binding nature can be deduced from it by implication."

This when presented in a positive manner instead of negative, would show that when a question is raised, discussed and decided in a judgment rendered by the Supreme Court, the same shall be a principle of a binding nature. Turning to a rather recent Supreme Court decision in State of U. P. & Anr. v. Mis Synthetics & Chemicals Ltd. & Anr., JT 1991 (3) SC 268 [LQ/SC/1991/320] , which takes into consideration, the Supreme Court decisions in Municipal Corporation of Delhi v. Gurnam Kaur, (1989 (1) SCC 101) [LQ/SC/1988/456] and in Shama Rao v. State of Pondicherry, (AIR 1967 SC 1680) lays down that, any declaration or conclusion, arrived without application of mind or preceded without any reason cannot be deemed to be the declaration of Law or authority of a general nature binding as a precedent. This negative test when put in a positive manner, once again would go to show that a declaration or conclusion arrived at after application of mind and preceding on cogent reasoning, cannot be ignored. Speaking regarding precedents, this pronouncement says that the conclusion which are not preceded by reasoning or rationale cannot be deemed to be a law declared to have a binding effect as contemplated under Art. 141 of the Constitution of India. Once again putting this in positive language it would mean that the conclusions preceded by reasoning and rationale, shall be deemed to be the law declared, having a binding effect as contemplated under Art. 141 of the Constitution of India.

[36] The Supreme Court has made it clear that even if a question is answered by necessary implication by the Supreme Court, then also the answer cannot be ignored by referring to the decisions appealed against and holding that the real question that must be considered to have been answered was something else, and that, what the Judges expressly decided or what they must be considered to have decided by necessary implication would also constitute precedents. This view of the Supreme Court has been expressed unequivocally in Gopal Upadhyaya & Ors. v. Union of India & Ors., AIR 1987 SC 413 [LQ/SC/1986/500] . The concluding portion of the pronouncement may be extracted thus :

"When a question is answered expressly or by necessary implication by the Supreme Court the answer cannot be ignored by referring to the decision appealed against and holding that the real question that must be considered to have been answered was something else What the Judges expressly decided or what they must be considered to have decided by necessary implication by reference to the facts stated by the Judges themselves are what constitute precedents."

34. Similarly, the Hon’ble Supreme Court also held in State of Gujarat & Ors versus Utility Users Welfare Association & Ors 2018

(6) SCC 21 that the Court has to apply "The Inversion Test" to determine the ratioIt was observed:

[102] In order to determine this aspect, one of the well- established tests is "The Inversion Test" propounded inter alia by Eugene Wambaugh, a Professor at Harvard Law School, who published a classic textbook called "The Study of Cases"56 in the year 1892. This 56Eugene Wambaugh, The Study of Cases (Boston: Little, Brown, & Co., 1892) textbook propounded inter alia what is known as the "Wambaugh Test" or "The Inversion Test" as the means of judicial interpretation. "The Inversion Test" is used to identify the ratio decidendi in any judgment. The central idea, in the words of Professor Wambaugh, is as under:

"In order to make the test, let him first frame carefully the supposed proposition of law. Let him then insert in the proposition a word reversing its meaning. Let him then inquire whether, if the court had conceived this new proposition to be good, and had had it in mind, the decision could have been the same. If the answer be affirmative, then, however excellent the original proposition may be, the case is not a precedent for that proposition, but if the answer be negative the case is a precedent for the original proposition and possibly for other propositions also. (Eugene Wambaugh, The Study of Cases (Boston: Little, Brown, & Co., 1892) at pg. 17)"

[103] In order to test whether a particular proposition of law is to be treated as the ratio decidendi of the case, the proposition is to be inversed, i.e., removed from the text of the judgment as if it did not exist. If the conclusion of the case would still have been the same even without examining the proposition, then it cannot be regarded as the ratio decidendi of the case. This test has been followed to imply that the ratio decidendi is what is absolutely necessary for the decision of the case. "In order that an opinion may have the weight of a precedent", according to John Chipman Grey (Another distinguished jurist who served as a Professor of Law at The Harvard Law School), "it must be an opinion, the formation of which, is necessary for the decision of a particular case."

35. In the present case, the proposition of law is that “if any appeal is decided without deciding an application seeking leave to file one appeal, the decision of the appeal is bad without deciding the application”. If a Wambaugh test is applied and the proposition is reversed, the decision of the judgment will also be reversed. Hence, this proposition will be the ratio decidendi.

Even, if the test of Professor Goodhart is applied, the material facts are that an application seeking to leave file a single appeal was filed, which was not decided and the principle is that the decision of the appeal without deciding the application is bad. Therefore, the ratio decidendi derived from either of these methods does not lead to a conclusion that where a single appeal is filed, an opportunity has to be given to the applicant to file an appeal in the absence of which the decision is bad. Such facts never arose before the Hon’ble Supreme Court. Such a proposition does not flow from the decision and even if the same is reversed, it will not reverse the decision. Therefore, the judgment cannot be read to mean that the opportunity has to be given to the appellant to file the appeal where a common judgment is passed.

36. In the present appeal, the substantial question of law sought to be adjudicated has already been adjudicated and does not constitute a substantial question of law. It was laid down by Hon’ble Supreme Court in Santosh Hazari v. Purushottam Tiwari, (2001) 3 SCC 179 [LQ/SC/2001/352] : 2001 SCC OnLine SC 375 that in order to constitute a substantial question of law, it should not have been previously decided. It was observed at page 187:

37. Therefore, the present appeal does not involve any substantial question of law; hence the same is dismissed. The record of the case be remitted back to the learned Courts below. Pending miscellaneous applications, if any, also stand disposed of.