( 2025:HHC:8372 ) IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA. RSA No.515 of 2017 Decided on: 28th March, 2025 Nirmal Thakur .......Appellant versus Suraj Negi and another ...Respondents Coram The Hon’ble Mr. Justice Tarlok Singh Chauhan, Judge. Whether approved for reporting?1 For the appellant: Ms. Drishti Sirswal, Advocate vice Mr.Tek Chand Sharma, Advocate. For the respondents: Mr. Vivek Sharma, Advocate for respondent No.1. Mr. Navlesh Verma, Addl. A.G for respondent No.2. Tarlok Singh Chauhan, Judge (Oral) The plaintiff/appellant filed a suit for permanent prohibitory and mandatory injunction and the defendant/respondent filed a counter-claim before the learned trial Court. The learned trial Court decreed the suit of the plaintiff and dismissed the counter-claim filed by the defendant/respondent. 2. The defendant/respondent preferred a single appeal assailing therein not only the judgment and decree passed by the learned trial Court, whereby the suit of the 1 Whether the reporters of Local Papers may be allowed to see the judgment? Yes. 2 ( 2025:HHC:8372 ) plaintiff/appellant had been partly decreed, but also assailed the dismissal of the counter-claim. 3. The learned First Appellate Court vide its judgment and decree dated 06.04.2017 dismissed the appeal, constraining the defendant/respondent to file the instant appeal. 5. Since the defendant/respondent filed only a single appeal assailing the decree passed in the suit as also the part rejection of the counter-claim, therefore, a pure question of law has arisen herein as to whether a single appeal at the instance of defendant/respondent was maintainable before the First Appellate Court or not? 6. The question has been duly answered by a Division Bench of this Court upon reference made by this Court in the instant appeal itself, wherein, after taking into consideration the law in its entirety, the principles have been culled out in para 42 of the judgment, which reads 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 3 ( 2025:HHC:8372 ) 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 counter claim are decreed by a common judgment, regardless of whether separate decree has been prepared in the counter claim, both would be required to be challenged by separate appeals; (v) In a case where two separate appeals are required to be filed against judgment of the suit and the counter claim and if 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 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. 4 ( 2025:HHC:8372 ) (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.” 7. The issue in question is squarely covered by the principles as laid down in para 42 (iv) (supra). Since the defendant/respondent was required to file two separate appeals before the learned First Appellate Court and having failed to do so, the appeal was not legally constituted and maintainable, therefore, could not have been decreed. 8. Consequently, I find the instant appeal to be not maintainable and the same is dismissed. Accordingly, the judgment and decree passed by the learned trial Court is affirmed. Pending applications, if any, also stand disposed of. March 28, 2025 ( Tarlok Singh Chauhan ) (naveen) Judge