Himachal Pradesh State Electricity Board vs Pawan Kumar Negi

Vivek Singh Thakur, J

This appeal has been preferred by Himachal Pradesh State Electricity Board (herein after referred to as Board) against judgment and decree dated 26.5.2008 passed by District Judge Kinnaur at Rampur Bushahr in Civil Appeal No. 11 of 2007, titled as the Himachal Pradesh State Electricity Board Vs. Pawan Kumar Negi, whereby appeal preferred by present appellant against judgment and decree dated 19.4.2007 passed by Civil Judge (Senior Division), Kinnaur in Civil Suit No. 06-R/1 of 2004/56-1 of 2005/2004, titled as Pawan Kumar Negi Vs. The Himachal Pradesh State Electricity Board, has been affirmed by passing a common judgment and decree in two appeals, i.e. Civil Appeal No. 11 of 2007, titled as The Himachal Pradesh State Electricity Board Vs Pawan Kumar Negi and Civil Appeal No. 21 of 2007, titled as awan Kumar Negi Vs. The Himachal Pradesh State Electricity Board.

Suit of the plaintiff (Pawan Kumar Negi) for damages on account of death of sheep and goats due to fault and lapse on the part of Board in maintaining its transmission line, was partly decreed in following terms:-

“27. As per my findings on issues above suit of plaintiff, Shri Pawan Kumar, for damages is partly decreed and is held entitled to Rs.1,26,000/- at the rate of Rs.2,000/- per dead animal (63 sheep and goats). He is further entitled to interest at the rate of 6% pr annum from date of suit till the final payment is made. The suit is decreed against defendant No.1, H.P.S.E.B. only since the individual negligence of defendant No. 2 Assistant Engineer is not proved. The suit is decreed with proportionate costs against defendant No. 1 Decree sheet be prepared accordingly. File after its due completion be consigned to record room.”

Feeling aggrieved by the aforesaid judgment and decree, defendant-Board preferred Civil Appeal No. 11 of 2007. Cross-objections preferred by plaintiff for enhancement of damages were registered as Civil Appeal No. 21 of 2007, titled as Prem Chand Negi Vs. The Himachal Pradesh State Electricity Board.

Both appeals, i.e. Civil Appeal No. 11 of 2007 and Civil Appeal No. 21 of 2007 were decided together by passing a common judgment and decree, whereby appeal preferred by the Board as well as Cross Objection preferred by plaintiff were dismissed and common decree in Appeal No. 11 of 2007 and Cross Objection (Civil Appeal No. 21 of 2007) was drawn.

The Electricity Board has filed present appeal only against judgment and decree dated 26.5.2008 passed in Civil Appeal No. 11 of 2007. Neither Board nor plaintiff has preferred appeal against even dated judgment dated 26.5.2008 passed in Civil Appeal No. 21 of 2007. Judgment dated 26.5.2008 rendered in both appeals is common with common findings, which are inseparable. Decree in appeals is also common.

In this regard ration of law laid down by Division Bench of this High Court in Ramesh Chand Vs. Om Raj and others, reported in 2022 (2) Shim. LC 1145, shall be relevant, wherein it has been held as under:-

“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, 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 into 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 c unter claim are decreed by a common judgment, regardless f whether separate decree has been prepared in he coun er claim, both would be required to be challenged by sepa a e appeals;

(v) In a case whe e two separate appeals are required to be filed against j dgment of the suit and the counter claim and if appeal is filed only against one and not against the other, non filing f appeal against such judgment and decree would attach finality thereto and would attract not only the principle of resjudicata but also waiver and estoppal and the judgment and decree not appealed against would be taken to have been acquiesced to by the party not filing 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 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 appeals 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 appeal being heard and finally decided on merits “in a former suit” for the purpose of attracting principles of res judicata.”

Present case is squarely covered by para 42(iv) and (vi) of Ramesh Chand’s case.

Learned counsel for the Board has submitted that Board was not aggrieved by dismissal of Cross-Objection of plaintiff and, therefore, there was no occasion or reason or the Board to assail judgment and decree passed in Cross Appeal/Cr ss-objection No. 21 of 2007, dismissing the same and, the efo e, she submits that ratio of law laid down in Ramesh Chand’s case is not applicable in present case, particularly for the reas ns that in the said judgment and decree, it has been held that appeal has t be preferred by aggrieved person against both judgments and decrees, whereas Board was not aggrieved by dismissal of Cross-objection and, therefore, judgment in Ramesh Chand’s case is not applicable in present matter.

Plea of learned counsel for the Board is misconceived as in para 42 of Ramesh Chand’s judgment, referred supra, there is nowhere stated that appeal has to be preferred by the person aggrieved in both suits/appeals. The ratio of law laid down in the aforesaid case is that divergent verdict, with respect to common judgment passed in more than one suit or appeal, cannot coexist and in absence of assailing the impugned order/judgment and decree in all suits/appeals, there shall be two converse and contradictory judgments and decree in existence in one and the same circumstance.

At this stage, learned counsel for the Board by placing reliance on judgment passed by the Supreme Court in Charan Singh Vs. Ram Saroop SLP (C) D. No. 59467/2024, has submitted that appellant-Board shall be permitted to file separate memorandum of appeal assailing impugned judgment and decree in second Civil Appeal No. 21 of 2007 also in order to do substantial justice.

The facts in Charan Singh’s case are different and distinguishable and, therefore, this judgment is of no help to the appellants/plaintiffs in present matter.

In Charan Singh’s case the common judgment of the Trial Court had been challenged in a composite appeal, i.e. by filing one and the same appeal against judgment passed in both appeals. In present case t ere is no composite appeal preferred by the appellant/plaintiff, but appeal has been preferred only against judgment and decree passed in one appeal. For filing composite appeal, it was observed by the Apex Court in Charan Singh’s case that as the composite appeal was filed well within the period of limitation and, therefore, except for the fact that a separate memorandum of appeal was not filed, no other defect, far less serious defect, was shown to exist and, therefore, even if separate memorandum of appeal was allowed to be filed at the stage of arguments, the second appeal would have been then within a period of limitation. In present case, no appeal has been preferred against the judgment and decree passed in the year 2008. We are in 2025 Therefore, for expiry of limitation in assailing the judgment and decree dated 26.5.2008 passed in another Civil Appeal No. 21 of 2007, appeal shall be time barred.

Learned counsel for the Board has also drawn attention of the Court to para 27 of judgment passed by a co-ordinate Bench in Kamal Raj & Another Vs. Mehar Chand (deceased) through his Legal representatives, reported in 2023 (Suppl.) Him L.R. (HC) 2496.

I failed to understand that how and in what manner the observations made in para 22 of the judgment in Kamal Raj’s case are attracted in present matter. The observations of the Co-ordinate Bench in para 22 are based on judgment of the Apex Court in State of Andhra Pradesh and others Vs. B. Ranga Reddy (dead) by legal representatives, reported in (2020) 15 SCC 681. In the said case, three suits were consolidated, but separate decrees were passed by the Trial Court. In first two decrees, suit of plaintiff was dismissed and dismissal was assailed by the plaintiff by filing appeals, which were pending. Third suit was decreed in favour of the plaintiff, against which one of defendants (State) filed appeal and plea was taken that for not filing appeals by the State challenging the common judgments passed in two other suits decided together, the principle of res judicata will be applicable and thus appeal preferred by the State was not maintainable. In this judgment, it was held by the Supreme Court that decree passed in first two suits was under challenge in appeals and, therefore, it had not attained finality and thus there was no former suit to which there could be any application of Section 11 of the Code of Civil Procedure. The given facts and circumstances of aforesaid case are entirely different to the present case.

In present case no appeal is pending or preferred against the common judgment and dec ee passed by the First Appellate Court in Cross-objection/Appeal No. 21 of 2007, but challenge has been laid only to the judgment and decree passed in Civil Appeal No. 11 of 2007.

In case, present appeal is entertained and allowed, then common judgment and decree dated 26.5.2008 shall stand set aside in Civil Appeal No. 11 of 2007, but the same judgment and decree with common findings rendered by the First Appellate Court shall remain in existence in Civil Appeal No. 21 of 2007.

There is common decree in present case. Common decree cannot be bifurcated in two decrees. The decree is either to sustain or to be set aside. It cannot be permitted that common judgment and decree is valid for purpose of one appeal, but the same is set aside in other connected appeal, decided by common findings and common judgment.

Learned counsel for the Board has submitted that dismissal of Cross-objection was to be assailed by the plaintiff, but plaintiff has not assailed the same and, therefore, for that Board should not be made to suffer, particularly when Board was not aggrieved by the judgment passed in Civil Appeal No. 21 of 2007.

Once two appeals have been decided with common judgment and decree by rendering inseparable indings, the appeals should have been preferred against judgment and decree passed in both appeals by clearly stating in memorandum of appeal that these appeals were being preferred assailing the impugned common judgment and decree to the extent which was against the appellant/Board. There was no need to file an appeal by the Board for and on behalf of plaintiff, who did not prefer appeal against the dismissal of Cross-objection. But for setting aside common judgment and decree passed by the First Appellate Court in two appeals, so far as it was against the Board, two separate appeals a ainst the said common judgment and decree were to be preferred.

In view of aforesaid observations, I am of the opinion that present appeal in absence of laying challenge to common judgment and decree passed in connected appeal/cross-objection preferred by the plaintiff, is not maintainable and accordingly dismissed.

The appeal is disposed of in aforesaid terms alongwith pending applications.