( 2025:HHC:18424 ) IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA Regular Second Appeal No.556 of 2019 Date of decision: 16th June, 2025 Indian Institute of Advanced Study …Appellant Versus S.K. Sood …Respondent Coram The Hon’ble Mr. Justice Vivek Singh Thakur, Judge. Whether approved for reporting? For the Appellant: Mr. Paresh Sharma and Mr. Alok Ranjan, Advocates. For the Respondent: Respondent is present in person. Vivek Singh Thakur, Judge This appeal has been preferred against judgment and decree dated 18.01.2019 passed by the District Judge, Shimla in Civil Appeal No. 39-S/13 of 2009, titled Indian Institute of Advanced Studies vs. S.K. Sood, whereby appeal preferred by appellant against judgment and decree dated 30.05.2009 passed by the Civil Judge (Senior Division), Shimla in Civil Suit RBT No. 33-1 of 2009/02 titled Indian Institute of Advanced Study vs. S.K. Sood, assailed in part, has been dismissed. 2 Appellant had filed above referred suit for recovery of use and occupation charges/damages from the respondent for a sum of Rs.5,48,022.90 Ps. The said suit was partly decreed for a sum of ( 2025:HHC:18424 ) Rs.76,146/- with interest at the rate of 12% per annum w.e.f. 19.9.1995 till recovery of whole decreetal amount. 3 The aforesaid judgment and decree was assailed by plaintiff/appellant by filing Civil Appeal No. 39-S/13 of 2009, tilted Indian Institute of Advanced Studies vs. S.K. Sood, claiming entitlement of recovery by plaintiff/appellant from the respondent/defendant for whole amount, as prayed in plaint. 4 The respondent/defendant had also assailed the judgment and decree passed by the Trial Court by filing Civil Appeal No. 38-S/13 of 2009 titled S.K. Sood vs Indian Institute of Advanced Studies on the ground that the decree was wrongly awarded from the date of retirement on 18.09.1995 instead of four months after this date i.e. w.e.f. 18.01.1996 and further that it was wrongly held that the defendant is required to pay damages @ Rs.1136/- per month instead of Rs.340/-. 5 The District Judge had allowed the appeal filed by respondent/defendant i.e. Civil Appeal No. 38-S/13 of 2009 partly and dismissed the Civil Appeal No. 39-S/13 of 2009 filed by plaintiff, by passing a common judgment and decree that plaintiff is entitled to recover the damages four times of the standard rent i.e. Rs.129/- per month inclusive of other charges w.e.f. 20.8.1999 to 21.4.2001 with simple interest @ 6% per annum after adjustment and remaining amount be refunded back to the defendant with simple interest at the rate of 6% 2 ( 2025:HHC:18424 ) per annum from the date when excess amount has been adjusted from the pension/arrears of the defendant. Whereas in aforesaid terms, appeal preferred by the appellant/plaintiff was dismissed. 6 No further appeal has been preferred by respondent/defendant against judgment and decree passed by the District Judge. Whereas, the appellant/plaintiff had filed present appeal against judgment and decree dated 18.1.2019 passed in Civil Appeal No. 39-S/13 of 2009. 7 The judgment and decree passed in Civil Appeal Nos. 38- S/13 of 2009 and 39-S/13 of 2009 is common. Appeals have been decided by returning the finding on the basis of common pleadings and common evidence on record. The findings returned by the District Judge are inseparable and cannot be segregated between the findings of two appeals i.e. Civil Appeal Nos. 38-S/13 of 2009 and 39-S/13 of 2009. 8 In case, present appeal is allowed then findings returned for dismissing the appeal preferred by plaintiff shall be reversed. However, by same findings appeal, preferred by respondent/defendant, has been allowed against the claim of plaintiff . Whereas the said judgment and decree passed in appeal preferred by respondent/defendant has not been assailed by present appellant. In absence of challenge laid to judgment and decree passed in appeal preferred by respondent/defendant findings in the said Civil Appeal No. 38-S/13 of 3 ( 2025:HHC:18424 ) 2009, have attained finality, which cannot be modified or reversed in this appeal for want of filing appeal against the judgment and decree passed in Civil Appeal No. 38-S/13 of 2009. 9 In aforesaid circumstances, the findings returned by Division Bench of this High Court in Ramesh Chand vs. Om Raj and others reported in 2022(2) Shim.LC 1145 are attracted and present matter is squarely covered by the principles culled out by the Division Bench in para 42 of the aforesaid 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 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; 4 ( 2025:HHC:18424 ) (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 res-judicata 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.” 5 ( 2025:HHC:18424 ) 10 Present case is squarely covered by principles laid down in para 42(vi) referred supra. 11 In view of above, present appeal is barred by principle of res-judicata and accordingly, appeal is dismissed. Pending miscellaneous application(s), if any, also stand disposed of. (Vivek Singh Thakur), Judge. 16th June, 2025(MS) 6