This Second Appeal is by the plaintiffs in O.S Nos. 223 and 230 of 1990, on the file of District Munsif's Court, Karaikal.

2. Both the above suits were jointly tried and a common judgment was pronounced by the District Munsif on 14.12.1992

3. O.S No. 223 of 1990 is a suit for permanent prohibitory injunction restraining the defendants from in any manner interfering with the peaceful possession and enjoyment of the suit property by them on the allegation that the property is situated in Resurvey No. 146/11, in T.R Pattanam. Resurvey No. 146/12 is a Temple tank belonging to the defendant - Temple and there is a live fence east to west Separating the properties, namely, the tank of the defendant-Temple, and the land of the plaintiff. The fence has been in existence for several decades and there are also several trees. The, property in question is being looked after by the second plaintiff and plaintiffs are in possession of the suit property as owners. It is their case that they purchased this property as per sale deed dated 12.11.1954 from one Govinda Pillai and his wife Govindammal. It is seen that their predecessors were also in possession of the said property, and it is their case that possession was with them for not less than 100 years. It is their further case that they used to cut and remove portia trees situated within the schedule property, as their mode of enjoyment. When some trees were cut prior to the institution of the suit, defendant-Temple claimed that those trees belonged to it and plaintiffs were threatened with criminal prosecution. In order to avoid a criminal Charge, first plaintiff was compelled to pay a sum of Rs. 3,000/- to the Special Officer of the Temple. According to the plaintiffs, such payment was made only due to threats, even though the trees absolutely belong to them. It is for these reasons, O.S 223 of 1990 was filed for injunction, and the subsequent suit O.S 230 of 1990 was filed for return of the amount which the first plaintiff paid under threats.

4. The Temple filed written statement and contested the claim of the plaintiffs. It is their case that the schedule property is a part of their property, and it is mostly a boundary separating the plaintiffs’ and defendants' property. It is also included with the survey number of the property belonging to the Temple, and the suit property is more or less like a bund for the protection of the tank.

5. The trial Court, after evaluating the entire evidence, passed a decree in favour of the plaintiffs in both the suits.

6. The matter was taken in appeal by the defendant in A.S No. 29 of 1993, on the file of Additional District Judge, Karaikal. The lower appellate Court reversed the finding of the Munsif and allowed the Appeal Against that; this Second Appeal is filed.

7. The following substantial questions of law have been formulated in the memorandum of Second Appeal: —

“(1) Has not the lower appellate Court committed an error of law in allowing the appeal when the Appellants have proved their title and possession in respect of the suit property through documentary evidence, viz., Exs. A-1 to A-3 and oral evidence? and

(2) Has not the lower appellate Court committed an error of law in relying upon the Advocate-Commissioner's report when it was not marked?”

8. Notice of motion, was ordered, and in response to that, respondent also entered appearance.

9. Heard learned counsel on both sides.

10. At the time of arguments, the main contention raised by the plaintiffs/appellants was that the suit is barred by res judicata, since the defendant preferred only one appeal, namely, A.S 29 of 1993 even though a common judgment was passed in both the suits. Even though there was only one appeal, the lower appellate Court has reversed the findings in both the suits, which is most improper and is also one without jurisdiction. It was also contended that filing a single Appeal before the lower appellate Court, against the common judgment, is an incurable defect, and the Appeal should not have been entertained.

11. Regarding facts, there is no serious argument on the part of the appellants, since they are based on evidence.

12. I will first consider the questions of law that are raised in the Memorandum of Appeal.

13. The trial Court has taken into consideration the evidence adduced in the case and also the Plan prepared by the Commissioner. On the basis of those documents, it came to the conclusion that the property really belonged to the Temple and it was included in the same Survey Number. The lower appellate Court also found that the plaintiffs ought to have filed the suit for declaration of the title and injunction, and a bare suit for injunction is not maintainable. It further came to the conclusion that the suit property, as described in the plaintiffs' documents, is a temple tank. So, naturally, plaintiffs cannot claim any right over the suit property. It further came to the conclusion that in respect of this portion of the suit property, the Temple was enjoying the same by leasing it out or by auctioning the trees. For that purpose, the lower appellate Court relied on Exs.B-12 to B.42 When the title itself is found to be with the Temple, plaintiffs will not be entitled to any relief, especially to the relief of injunction. I do not think there is any justification on my part in interfering with the findings of facts, in view of the restriction under Sec. 100, C.P.C

14. Probably the learned counsel for the appellants was also satisfied that on factual findings he may not be in a position to persuade this Court to enter a different finding. That was the reason why he insisted on the question regarding maintainability of the Appeal before the lower appellate Court. The argument is that when there are two suits jointly tried and decided by a common judgment, filing a single appeal is not proper, and the same is not maintainable.

15. The argument seems to be attractive at the first blush. But, on a further probe into the facts of the case, I find that the said argument is only to be rejected.

16. It is true that there are various decisions of this Court as well as that of the Honourable Supreme Court and also of various other High Courts that when a joint trial is made and common judgment is pronounced on common issues, the non-filing of an appeal against one connected suit and allowing the decision in that suit to go unchallenged, will constitute res judicata under Sec. 11, C.P.C In all the cases, in appeal against connected suits, the principle of res judicata is applied on the ground that the decision which has become final will be treated as final decision in the former suit. But I do not think the said principle can have any application here, since, in the Appeal that was filed before the lower appellate Court, the Temple has made it clear that it is filing the Appeal against both the suits, though it is in one Memorandum of Appeal. It has referred to both the suit numbers and has also produced copies of decrees in both the suits, and one copy of the common judgment. In the relief portion in that Appeal also, the appellant-Temple has prayed that the common judgment in both the suits may be set a side, and both the suits may be dismissed with costs. Court fee was also paid as if there were two appeals. In effect, though there was only one memorandum of appeal, the challenge is made against two decrees which went against the Temple. What is the effect of the said procedure is the only question that requires consideration.

17. The word ‘Appeal’ is not defined in the Civil Procedure Code. We have only certain decided cases, to interpret it.

18. In one of the landmark judgments, viz., Sita Ram v. State of U.P ((1979) 2 SCC 656), a Constitution Bench headed by V.R Krishna Iyer, J., has held thus (in para 41): —

“Going to the basics, an appeal “is the right of entering a superior court and invoking its aid and interposition to redress the error of the court below”.

… An appeal, strictly so called, is one “in which the question is, whether the order of the court from which the appeal is brought was right on the materials which that court had before it” (per Lord Davey, Ponnamma v. Arumogam). … A right of appeal, where it exists, is a matter of substance, and not of procedure (Colonial Sugar Refining Co. v. Irving and Newman v. Klausner). Thus, the right of appeal is paramount, the procedure for hearing canalises so that extravagant prolixity or abuse of process can be avoided and a fair workability provided. Amputation is not procedure while pruning may be.”

In para 42, their Lordships have further held thus: —

“Of course, procedure is within the Court's power but where it pares down prejudicially the very right, carving the kernel out, it violates the provision creating the right. Appeal is a remedial right and if the remedy is reduced to a husk by procedural excess, the right became a casualty. That cannot be.”

19. In AIR 1968 SC 488 (Lakshmiratan Engineering Works Ltd. v. Assistant Commissioner, (Judicial) I, Sales-tax, Kanpur Range, Kanpur), their Lordships declared the difference between ‘Appeal’ and Memorandum of Appeal’ thus: —

“…. The appeal is the judicial examination; the memorandum of appeal contains the grounds on which the judicial examination is invited. For purposes of limitation and for purpose of the rules of the Court it is required that a written Memorandum of Appeal shall he filed.……..”

20. While interpreting the procedural law, our High Court had occasion to consider the same in AIR 1949 Madras 742 = 62 L.W 316 (Sekuru Murahari Rao v. Kandula Bapayya). Mack, J. has said thus: —

“It is not necessary that every procedural order of a Court should be supported by a specific statutory provision, and when there is neither provision nor prohibition it has to be guided by ordinary principles of common sense, justice, equity and good conscience.”

(Emphasis)

21. In AIR 1955 SC 425 (Sangram Singh v. 1. Election Tribunal, Kotah), it was declared thus: —

“A Code of procedure must be regarded as such. It is procedure, something designed to facilitate justice and further its ends; not a penal enactment for punishment and penalties; not a thing designed to trip people up. Too technical a construction of sections that leaves no room for reasonable elasticity of interpretation should therefore be guarded against (provided always that justice is done to both sides) lest the very means designed for the furtherance of justice be used to frustrate it. Our laws of procedure are grounded on a principle of natural justice which requires that men should not be condemned unheard, that decisions should not be reached behind their backs, that proceedings that affect their lives and property should not continue in their absence and that they should not be precluded from participating in them. Of course, there must be exceptions and where they are clearly defined they must be given effect to. But taken by and large, and subject to that proviso, our laws of procedure should be construed, wherever that is reasonably possible, in the light of that principle.”

(Emphasis)

22. In AIR 1989 SC 2206 (Owners & Parties interested in M.V “Vali Pero” v. Fernandeo Lopez), in para 18 of the judgment, it was held thus: —

“Rules of procedure are not by themselves an end but the means to achieve the ends of justice. Rules of procedure are tools forged to achieve justice and are not hurdles to obstruct the pathway to justice. Construction of a rule of procedure which promotes justice and prevents its miscarriage by enabling the Court to do justice in myriad situations, all of which cannot be envisaged, acting within limits of the permissible construction, must be preferred to that which is rigid and negatives the causes of justice. The reason is obvious. Procedure is meant to subserve and not rule the cause of justice. Where the outcome and fairness of the procedure adopted is not doubted and the essentials of the prescribed procedure have been followed, there is no reason to discard the result simply because certain details which have not prejudicially affected the result have been inadvertently omitted in a particular case. In our view, this appears to be the pragmatic approach which needs to be adopted while construing a purely procedural provision. Otherwise, rules of procedure will become the mistress instead of remaining the handmaid of justice, contrary to the role attributed to it in our legal system.”

23. In AIR 1992 SC 1768 (C.B.I Special Investigation Cell-I, New Delhi v. Anupam J. Kulkarni), though it is a case under the Criminal Procedure Code, regarding the procedural law, paragraph 11 of that judgment (at page 1779) their Lordships have ruled that ‘the procedural law is meant to further the ends of justice and not frustrate the same. It is an accepted rule that an interpretation which furthers the ends of justice should be preferred’.

24. In AIR 1963 Kerala 73 (N.K Dharmadas v. S.T.A Tribunal), it was held thus: —

“An appeal is a complaint to a superior body of an injustice done or error committed by an inferior one with a view to its correcting or reversal. It is a creature of statute, not a constitutional or inherent right. But, where an Act confers a jurisdiction, it impliedly also grants the power of doing all such acts, or employing such means, as are essentially necessary to its execution.”

(Emphasis)

25. In AIR 1964 Rajasthan 140 (Thakar Lal v. Nathulal and others), a Division Bench of that High Court held thus: —

“The Code of Civil Procedure deals with procedural matters, that is, with matters relating to the machinery for the enforcement of substantive rights, as contra - distinguished from the substantive rights themselves. As to the latter rights, one must look elsewhere, that is, to the statute law or the general principles of law. Even in matters relating to procedure, it is recognised that all procedure should be accepted to be permissible unless it is prohibited by the Code of Procedure either expressly or by necessary implication.”

(Emphasis supplied)

26. In 1993 AIR SCW 3458 (Desh Bandhu Gupta v. N.L Anand), a similar view was taken while interpreting Order 21, Rules 54, 66 and 90, C.P.C

27. In the light of the principles enunciated in the decisions referred to above, let us consider how far the objection raised by the appellant could be sustained in this Second Appeal.

28. This objection was not raised before the lower appellate Court, even at the time when the appeal was heard. The principle of res judicata is a matter of procedure. It is not a case where the findings in both the suits are not challenged in the Appeal filed before the lower appellate Court. Aggrieved by the decisions in the common judgment, the Temple put forward all the grounds before the superior forum, stating that wrong decision has been arrived at, and the valuable property has been deprived. It is not a case where no appeal was filed. If at all there was any defect, it was only in filing one memorandum instead of two. Even if two appeals are preferred, a common judgment would have been pronounced by clubbing the same together. It is here we have to consider the scope of Or. 41, Rule 3, C.P.C, which deals with rejection or amendment of Memorandum (of Appeal), Sub-cl.(1) of Rule 3 says:

“Where the memorandum of appeal is not drawn up in the manner hereinbefore prescribed, it may be rejected, or be returned to the appellant for the purpose of being amended within a time to be fixed by the Court or be amended then and there.” Regarding the ‘Form of Appeal’, Or. 41, R. 1, C.P.C governs the case. It says that ‘every appeal shall be preferred in the form of a Memorandum signed by the appellant or his pleader and presented to the Court or to such officer as it appoints in this behalf. Regarding the contents of Memorandum, clause (2) of R. 1 says that ‘the memorandum shall set forth, concisely and under distinct heads the grounds of objection to the decree appealed from without any argument or narrative;..’. Rule 2 of Or. 41, C.P.C forbids the appellant from urging any ground of objection not set forth in the memorandum of appeal. Order 41, Rule 4, C.P.C is the procedure for filing appeal. Sec. 96, C.P.C deals with the right of appeal. While S. 96, C.P.C deals with the right to prefer appeal from every decree, Or. 41 of the Code deals with procedure for preferring the Appeals. It is not the contention of the appellants herein that there was no appeal by the Temple to the superior Court. Both the decrees were challenged in one Memorandum. The objection raised by learned counsel for appellants is, regarding the procedure adopted in preferring the appeal to the superior Court, i.e, there is only one memorandum instead of two. The defect is in regard to the form, which the appellate Court itself can waive or direct the appellant to cure the defect. So long as the lower appellate Court has not considered it as a defect and it has heard both parties to the appeal in detail, and rendered the judgment, it cannot be said substantial injustice has been done so as to warrant interference, in Second Appeal. It is also worthwhile in this connection, to note S. 99, C.P.C which says that ‘no decree shall be reversed or substantially varied, nor shall any case be remanded, in appeal on account of any misjoinder or non-joinder of parties or causes of action or any error, defect or irregularity in any proceedings in the suit, not affecting the merits of the case or the jurisdiction of the Court’. The same principle will have to be applied while considering the Second Appeal also. Merely because there is an irregularity in the procedure, i.e, instead of filing two memorandum of appeals, one memorandum was filed by the defendant-Temple, when there is no prejudice caused to the appellants herein (plaintiffs), and when it has not affected the merits of the case, it is not proper on the part of this Court to set aside the judgment of the lower appellate Court, on this technical point.

29. Learned counsel for the appellants submitted that from every decree, when an appeal is preferred, there should be two separate Appeals, as contemplated by the Civil Procedure Code. As I said earlier, this contention is correct. We have to consider only whether there was an appeal, and how far the procedure in preferring the appeal has been complied with. From the various grounds taken in the memorandum of appeal, and filing of copies of the decrees in both the suits, seeking the relief of setting aside the common judgment in both the suits, it cannot be said that there was no appeal against the common judgment. The defect committed is only in procedure, i.e, one memorandum of appeal was filed, instead of two. That will not be a ground to set aside the judgment of the lower appellate Court. It may also be mentioned that this question was also not raised in the substantial questions of law formulated in the Memorandum of Second Appeal. But, being a question of law, with the consent of learned counsel for the respondent, appellants were allowed to canvass this point also.

30. In the result, the Second Appeal is dismissed. No costs.

VCS