Narinder Kumar & ors. Vs. Rikhi Ram (since deceased), through LRs a/w connected matter. CMP(M) No. 710 of 2024 Reserved on: 7.7.2026 17.7.2026 Present: Mr Vivek Sharma, Advocate, for the appellants. Mr. M.L. Sharma, Advocate, for respondents No.1(a), 1(c), 3(a) to 3(c), 4, 5, 7(a) to 7(e). The applicants have filed the present application for condonation of the delay in filing the appeal. It has been asserted that plaintiffs Narinder Kumar and Rajinder Kumar had filed a civil suit titled Narinder Kumar Vs. Chet Ram. The defendant Chet Ram and another filed a counterclaim in the civil suit. The plaintiff's suit and counterclaim were dismissed. Two appeals were decided by a single judgment and decree. The appellant filed one appeal, RSA No. 471 of 2005, titled Narinder Kumar Vs. Rikhi Ram. The appeal came up for hearing on 10.08.2023, when an objection was raised that a single appeal is not maintainable in view of the judgment of this Court in Ramesh Chand Vs Om Raj (2022) SCC OnLine HP 2094. A single appeal was being preferred when two appeals were being decided by one judgment before the decision of the Court in Ramesh Chand (supra). However, two appeals are now required to be filed after the judgment of this Court. Therefore, it has become necessary to file another appeal. There is a delay in filing the appeal, which has occurred because of the bona fide error caused by the previous practice. Hence the application. 2. The application is opposed by filing a reply denying the contents of the application. It was asserted that the appeal was sought to be filed after a delay of about 18 years. There is no explanation for the delay. This Court had not settled the law for the first time as has been pleaded in the application. The Hon'ble Division Bench had noticed various judgments of the Hon'ble Supreme Court and this Court, wherein it was held that two appeals are required to be filed in case of disposal of two appeals by a common judgment. There is no reason for condonation of the delay. Hence, it was prayed that the application be dismissed. 3. A rejoinder denying the contents of the reply and affirming those of the application was filed. 4. I have heard Mr Vivek Sharma, learned counsel for the applicants and Mr M.L. Sharma, learned counsel for respondent No.1(a), 1(c), 3(a) to 3(c), 4, 5, 7(a) to 7(e). 5. Mr Vivek Sharma, learned counsel for the applicants, submitted that a single appeal was filed as per the previous practice. However, a Division Bench of this Court held in Ramesh Chand Vs Om Raj (2022) SCC OnLine HP 2094 that two appeals are required to be filed in case of disposal of two appeals by a single judgment. The party cannot be penalised for relying upon an existing practice and following one line of the cases. Even otherwise, this Court has held in Jagdish Singh Vs. Prem Singh 2026:HHC:14478 that the appeal cannot be dismissed on the technical ground that two appeals have not been filed, and an opportunity has to be given to the party to rectify the defect. Hence, he prayed that the present application be allowed and the delay in filing the appeal be condoned. 6. Mr. M.L. Sharma, learned counsel for the respondents No.1(a), 1(c), 3(a) to 3(c), 4, 5, 7(a) to 7(e) submitted that this Court had noticed in Ramesh Chand (supra) a long line of cases wherein it was held that two appeals are required to be filed in case of disposal of two appeals by a common judgment. The appellants/applicants cannot take advantage of the fact that the law was clarified by the Division Bench. The law was already clear and was settled by the judgments of the Hon'ble Supreme Court. There is no reason for condoning the delay. Hence, he prayed that the present appeal be dismissed. He relied upon the judgment of the Hon'ble Supreme Court in Ajit Singh Thakur Singh and another v. State of Gujarat 1981 SCC 495 in support of his submission. 7. I have given considerable thought to the submissions made at the bar and have gone through the records carefully. 8. A Single Judge of this Court referred the question whether a common judgment questioning the correctness of a judgment and decree passed in a civil suit and counterclaim is maintainable. A conflict of opinion was noticed between the various judgments of this Court in the reference order. The Hon’ble Division Bench held that a person is required to file two separate appeals in case of a judgment and decree in a suit and counterclaim. It was observed: - “42. The principles deducible from the afore- discussed law can be summarised 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 also be challenged by the aggrieved party also, in a single appeal. (iii) When two suits, though not consolidated, 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. 9. Thus, there was a conflict of opinion between the various Benches regarding the maintainability of the single appeal, and that is why the matter was referred to the larger bench. If the appellant had relied upon one set of judgments for filing a single appeal, it cannot be faulted for doing so. 10. Even otherwise, the Hon'ble Supreme Court held in Charan Singh vs Ram Swaroop, Civil Appeal No. 1585 of 2025, decided on 03.02.2025, that an appeal cannot be dismissed on the ground that one appeal was not maintainable and two appeals should have been filed. The Court should alert the appellant by making him aware of the requirement of law and giving him the liberty to file a separate memorandum of appeal. It was observed: - “7. In our considered view, reliance was rightly placed by the first appellate court on precedents to hold that a composite appeal was not maintainable in law, but, at the same time, the first appellate court ought to have borne in mind that courts exist for rendering justice, albeit in accordance with law. Once the first appellate court found, correctly, that challenge to the common judgment of the trial court dated 16th March, 2021 had been laid in a composite appeal but law requires to file two appeals with separate memoranda of appeal, which had not been filed by the appellant, the court ought to have at least alerted the appellant by making him aware of the requirement of law and giving him the liberty to file a separate memorandum of appeal. In fact, in terms of Order XLI Rule 1 of the CPC, the appellate court has the power to even dispense with the requirement of law of filing a copy of the impugned judgment twice over if it is part of the memorandum of appeal already filed. In any event, the defect was not such that it was incurable. The composite appeal was filed well within the period of limitation and, except for the fact that a separate memorandum of appeal was not filed, no other defect, far less serious defect, was shown to exist. If even after being alerted, the appellant had failed to file a separate memorandum, the first appellate court would have been perfectly justified in dismissing the appeal. It is not shown to us that any such endeavour was made.” 11. It was further held that the High Court should have set right the wrong by its interdiction and technicality of this nature should not have been allowed to prevail over the substantive justice. It was observed: “8. The first appellate court having failed to alert the appellant, we would have expected the High Court to intervene to set right the wrong by its interdiction. Technicality of a nature such as this should not have been allowed to prevail over substantive justice. The appellant had filed two second appeals before the High Court, meaning thereby that he had been properly advised, while such advice might have been missing in the district of which the parties are residents. Unfortunately, the High Court did not address the point from the proper perspective either. While spurning the objection of learned counsel for the respondents, who has vehemently argued that there is no occasion to interfere since the appellant did not adhere to the law, we find good reason and ground to interfere.” 12. This judgment was followed by a Coordinate Bench of this Court in Des Raj Vs. Vinod Kumar 2026 HHC 5450 and by this Court in Jagdish Singh (supra). 13. Therefore, there is a force in the submission of learned counsel for the appellant that even if the appellant was negligent in not filing two appeals, he is entitled to a notice that he is required to file two appeals as per the judgment of the Hon'ble Supreme Court, and such an appeal cannot be taken to be barred by limitation. Therefore, an appeal filed by the applicant/appellant after the judgment of the Hon'ble Division Bench of this Court cannot be dismissed on the ground that it is barred because doing so would be acting contrary to the directions of the Hon'ble Supreme Court, which requires that an opportunity has to be afforded before dismissing the appeal. 14. The submission that the applicant should have been aware of the fact that two appeals were required to be filed will not help the respondents because even if it is so, they are entitled to a notice as per the judgment of the Hon'ble Supreme Court. Thus, their application for condonation of delay in filing the second appeal cannot be dismissed on the ground that they had not filed two appeals. 15. Consequently, the present application is allowed, and the delay in filing the appeal is ordered to be condoned. The present application stands disposed of. RSA (Filing) No. 24521 of 2023 16. The delay in filing the appeal has been ordered to be condoned vide separate order passed in CMP(M) No. 710 of 2024, and the appeal be registered. 17. A copy of the appeal be supplied to the learned counsel for the respondents, and the appeal be listed for hearing before the appropriate bench having roster. (Rakesh Kainthla) Judge 17th July, 2026 (Chander)