2026:HHC:14478 IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA RSA No. 405 of 2008 Reserved on: 20.03.2026 Date of Decision: 05.05.2026 Jagdish Singh (deceased) through LRs ...Appellants Versus Prem Singh & Ors ...Respondents Coram Hon’ble Mr Justice Rakesh Kainthla, Judge. Whether approved for reporting?1 No For the Appellant : Mr Bhupinder Gupta, Senior Advocate, with Mr Janesh Gupta, Advocate, for the appellants. For the Respondents : Mr Vinod Gupta, Advocate, for the respondents. Rakesh Kainthla, Judge The present appeal is directed against the judgment and decree dated 04.06.2008 passed by learned Additional District Judge Ghumarwin, District Bilaspur, H.P. (learned Appellate Court) vide which the judgment and decree passed by 1 Whether reporters of Local Papers may be allowed to see the judgment? Yes. 2 2026:HHC:14478 learned Civil Judge (Jr. Division), Ghumarwin, District Bilaspur, H.P. (learned Trial Court) were upheld. (Parties shall hereinafter be referred to in the same manner as they were arrayed before the learned Trial Court for convenience. 2. Briefly stated, the facts giving rise to the present appeal are that the plaintiff filed a civil suit before the learned Trial Court seeking a declaration that he is the owner in possession of the land comprised in Khata Khatauni No. 1/1, Khasra Nos. 95, 113 and 117, measuring 1-4 bighas situated in village Ghumani, Pargana Tiun, Tehsil Ghumarwin, District Bilaspur, H.P. (hereinafter referred to as the suit land), and the mutation dated 27.02.1989 is wrong and illegal. A permanent prohibitory injunction for restraining the defendants from interfering with the plaintiff’s possession was also sought. A relief of mandatory possession was also sought in case the defendants succeeded in dispossessing the plaintiff from the suit land during the pendency of the suit. It was asserted that the plaintiff is the owner in possession of the suit land. He never inducted the defendants or their predecessor as tenants of the suit land. However, they are recorded as tenants in the revenue record. These entries are wrong and do not bind the plaintiff. 3 2026:HHC:14478 The father of the defendants, late Sh. Nand Lal had applied for the conferment of the proprietary right. The application was rejected on 25.05.1988. Nand Lal had made a statement before the learned AC 2nd Grade Ghumarwin that he was not paying any rent to the plaintiff. The defendant's father got a mutation attested in his favour on 27.02.1989, in which he was declared the owner in possession of the suit land. This mutation is wrong, illegal, and not binding on the plaintiff. The defendants started interfering with the plaintiff’s possession on the basis of the revenue record. Hence, the suit was filed for seeking the relief mentioned above. 3. The suit was opposed by filing a written statement taking preliminary objections regarding lack of maintainability and cause of action, the suit being bad for non-joinder of necessary parties, the suit having not been properly valued for court fees and jurisdiction, and the plaintiff being estopped to file the suit by his act and conduct. The contents of the plaint were denied on the merits. It was asserted that the father of the defendants had encroached upon the suit land on 10.11.1947 and sowed a wheat crop on the suit land. He remained in continuous, open and peaceful possession of the suit land till his death. The 4 2026:HHC:14478 defendants continued to be in possession after the death of their father. Their possession is continuous, open and peaceful, and they have become the owners by way of adverse possession. The name of the father of the defendants was recorded as a tenant in the copy of the missal haqiyat for the year 1957-58, which was prepared after due enquiry in the consolidation proceedings. Nand Lal had not made any statement, even though it was correct that he or the defendants had not paid any rent to the plaintiff or any other person. Hence, it was prayed that the suit be dismissed. 4. The defendants also filed a counterclaim asserting their adverse possession and seeking a declaration that they had become the owners by virtue of adverse possession of the suit land. 5. A replication denying the contents of the written statement and affirming those of the plaint was filed. The contents of the counterclaim were also denied, and it was prayed that the counterclaim be dismissed. 6. The following issues were framed by the learned Trial Court on 10.04.2002 and 05.01.2004: 5 2026:HHC:14478 1. Whether the plaintiff is entitled to the relief of declaration as prayed for? OPP. 2. Whether the plaintiff is entitled to the relief of permanent injunction, as prayed? OPP. 3. Whether the plaintiff is also entitled to the relief of possession in alternative as prayed for? OPP. 4. Whether the defendants are owners in possession of the suit land by virtue of adverse possession as prayed for? OPD. 5. Whether suit is not maintainable? OPD. 6. Whether the suit is bad for want of necessary parties? OPD. 7. Whether the plaintiff has no cause of action? OPD. 8. Whether suit is not properly valued for the purpose of the court fee and jurisdiction? OPD. 9. Whether the plaintiff is estopped to file the present suit by his act and conduct? OPD. 9-A Whether the predecessor-in-interest of the defendants were tenants in the suit land as alleged? OPD. 9-B Whether the Court has no jurisdiction? 10. Relief. 7. The parties were called upon to produce the evidence, and the plaintiff examined himself (PW1), Sant Ram (PW2), and Ajadi Singh (PW3). The defendants examined defendant No.1 Jagdish (DW1), Nand Lal (DW2) and Sarwan Kumar (DW3). 8. Learned Trial Court decreed the suit of the plaintiff vide judgment and decree dated 27.02.2003. The matter was carried in appeal, and learned District Judge, Bilaspur allowed an 6 2026:HHC:14478 application for amendment and remanded the matter to the learned Trial Court. 9. Learned Trial Court framed the issue No. 9A and 9B noticed above after the remand. Plaintiff Lekh Ram examined himself (RPW1). Defendant No.1 Jagdish examined himself (RDW-1), Nand Lal (RDW-2), and Durga Singh (DW4). 10. Learned Trial Court held that the pleas taken by the defendants that they had become the owners by way of adverse possession or their predecessor was a tenant of the suit land, were not proved. The plaintiff was the owner in possession of the suit land, and the defendants were interfering with his possession without any right. Hence, the learned Trial Court answered issues Nos 1 and 2 in the affirmative, the rest of the issues in the negative, decreed the plaintiff’s suit and dismissed the defendant’s counterclaim. 11. Being aggrieved by the judgment and decree passed by the learned Trial Court, the defendants filed a composite appeal before the learned Additional District Judge, Ghumarwin, District Bilaspur, H.P. (learned Appellate Court). The learned Appellate Court concurred with the finding recorded by the 7 2026:HHC:14478 learned Trial Court that the pleas taken by the defendants regarding the tenancy and adverse possession were mutually contradictory, and the defendants had not proved these pleas. The plaintiff was proved to be the owner in possession of the suit land, and the claim made by the defendants regarding their ownership amounted to sufficient interference with the plaintiff’s ownership and possession. Learned Trial Court had rightly decreed the suit and dismissed the counterclaim. Hence, the appeal was dismissed. 12. Being aggrieved by the judgment and decree passed by the learned Trial Court, the defendants have filed the present appeal, which was admitted on the following substantial questions of law: 2, 3 and 4 vide order dated 20.06.2012: 1. Whether both the Courts below have committed grave error of law and jurisdiction in entertaining the suit filed by the plaintiff-respondent, which was hopelessly barred by limitation? 2. Whether both the Courts below have misread and misconstrued the entries existing in the revenue record showing the possession of predecessor-in-interest of defendant-appellant as tenant on payment of rent equivalent to land revenue, by recording the findings negating the status of Shri Nand Lal to be tenant over the suit land, especially when the proprietary rights in accordance with law were already conferred? 8 2026:HHC:14478 3. Whether both the Courts below have misread and misunderstood the amended pleadings, regarding the claim of adverse possession made by defendant-appellant in the alternative? Are not the findings recorded by both the Courts below that the plea of tenancy and adverse possession are mutually destructive and contradictory; have not both the courts below ignored the rule of pleadings, which entitled the defendant to raise even the contradictory plea in the alternative? 13. I have heard Mr Bhupinder Gupta, Sr. Advocate, assisted by Mr Janesh Gupta, learned counsel for the appellants/defendants and Mr Vinod Kumar Gupta, learned counsel for the respondent/plaintiff. 14. Mr Vinod Kumar Gupta, learned counsel for the respondent/plaintiff, raised a preliminary objection during the hearing of the appeal that the appeal is not maintainable because a composite appeal was filed before the learned Appellate Court against the decree of the suit and dismissal of the counterclaim. The defendants were required to file two appeals: one against the decree of the suit and one against the dismissal of their counterclaim. A composite appeal could not have been entertained by the learned Appellate Court, and the judgment and decree passed by the learned Appellate Court are non est. Therefore, the present appeal is also not maintainable. He prayed that the appeal be dismissed on this short question of 9 2026:HHC:14478 law. He relied upon the judgment of HPSEB versus Raj Kumar 2024:HHC:5678 in support of his submission. 15. Mr Bhupinder Gupta, learned Senior counsel for the appellants/defendants, conceded that a composite appeal was not maintainable against the judgment and decree, decreeing the suit and dismissing the counter claim, and separate appeals should have been filed. However, he submitted that this was a technical defect and should have been brought to the notice of the appellants by the learned Appellate Court. Learned Appellate Court had not done so, and the appeal cannot be held to be not maintainable without affording such an opportunity to the appellants/defendants. He relied upon the judgments of the Hon’ble Supreme Court in Charan Singh vs. Ram Saroop Civil Appeal No. 1585 of 2025, decided on 03.02.2025, and the judgment of this Court in Desh Raj & Anr. vs. Vinod Kumar & Anr. 2026:HHC:5450 in support of his submission. 16. I have given a considerable thought to the submissions made at the bar and have gone through the records carefully. 10 2026:HHC:14478 Is the present appeal maintainable ? 17. The plaintiff claimed that he is the owner in possession of the suit land, whereas the defendants claimed that their predecessor had forcibly occupied the suit land and became the owner in possession by way of adverse possession. They also claimed in the alternative that their predecessor was a tenant of the suit land. The Learned Trial Court held that the claim of the defendants regarding their adverse possession or their predecessor being the tenant was not proved, and dismissed their counterclaim. The Learned Trial Court also held that the plaintiff is the owner in possession of the suit land, and the claim made by the defendants regarding their ownership and possession amounted to sufficient interference. Hence, it decreed the plaintiff’s suit and dismissed the counterclaim. Therefore, it is apparent that the learned Trial Court has passed two decrees: one decreeing the suit and the other dismissing the counterclaim. 18. In Satya Devi vs. Partap Singh, AIR 2006 (HP) 75, two suits were consolidated and disposed of by a common judgment and decree. A single appeal was filed against the judgment and 11 2026:HHC:14478 decree. It was held by this Court that in the absence of two appeals, the decree in the one suit would become final and the appeal in the second suit would be barred by the principle of res judicata. It was observed: - “6. As referred to above, there were two suits, one filed by Partap Singh and the other filed by Smt. Suhli Devi. Both suits were consolidated, and it was directed that the evidence recorded in one suit shall be treated as the evidence recorded in the other suit. Thereafter, both the suits were decreed by a common judgement and decrees dated 16-12-1997. Aggrieved against the same, Smt. Satya Devi, who was the defendant in both the suits, had filed only one appeal before the District Judge. Along with the memorandum of appeal, a certified copy of the common judgement dated 16-12-1997 was filed along with the certified copy of one of the decrees, i.e. the decree in Civil Suit No. 199 of 91/RBT 18/95 in the suit titled as Smt. Suhli Devi v. Milkhi Ram etc. The certified copy of the decree sheet in the other suit, bearing Civil Suit No. 305 of 1993/RBT 382/94 in the suit titled Partap Singh v. Smt. Suhli Devi, etc., was not filed along with the memorandum of appeal. The said appeal was filed on 27- 1-1998, i.e. prior to the coming into force of the Code of Civil Procedure (Amendment) Act, 1999, which came into force with effect from 1-7-2002. Thus, the Code of Civil Procedure, 1908, prior to its amendment in 1999 and 2002, was applicable at the relevant time, according to which the memorandum of appeal was required to be accompanied by a certified copy of the decree appealed from and unless the appellate Court dispenses with the same, also the certified copy of the judgment on which it was founded. In Jagat Dhish Bhargava v. Jawahar Lal Bhargava, AIR 1961 SC 832, the Hon'ble Supreme Court, after considering the aforesaid provisions of Order 41, Rule 1, CPC, had held as under (Para 5 of AIR) : 12 2026:HHC:14478 "Therefore, there is no doubt that the requirement that the decree should be filed along with a memorandum of appeal is mandatory, and in the absence of the decree, the filing of the appeal would be incomplete, defective and incompetent" 7. In view of the provisions of Order 41, Rule 1, CPC, as applicable at the relevant time and in view of the law laid down by the Hon'ble Supreme Court in the aforesaid authority, in my opinion, it would be clear that the appeal which was filed by Smt. Satya Devi, before the District Judge, Hamirpur, could be treated as an appeal only against the decree passed by the trial Court in the suit filed by Smt. Suhli Devi, since only the copy of the decree passed by the trial Court in the suit filed by Smt. Suhli Devi was filed along with the common judgement, and the memorandum of appeal, and the copy of the decree passed by the trial Court in the other suit filed by Partap Singh was not filed along with the memorandum of appeal and the copy of the common judgement. 8. Once it is found that the appeal filed by Smt. Satya Devi, before the District Judge, was only against the decree passed by the trial Court in the suit filed by Smt. Suhli Devi against Milkhi Ram, etc., and no appeal was filed against the decree passed by the trial Court in the other suit filed by Partap Singh against Smt. Suhli Devi, etc., in my opinion, it would be clear that the decree passed by the trial Court in the civil suit Partap Singh v. Smt. Suhli Devi, etc. had become final between the parties, since the decree passed in the suit filed by Partap Singh was not appealed against by Smt. Satya Devi and the appeal was filed only against the decree which was passed in the suit filed by Smt. Suhli Devi. 9. Once it is found that the decree passed by the trial Court in the civil suit filed by Partap Singh was not appealed against by Smt. Satya Devi and the said decree had become final between the parties, the next question that comes up for consideration is whether the present regular second appeal filed by Smt. Satya Devi against the 13 2026:HHC:14478 judgments and decrees of the Courts below would be maintainable, especially when in this Court as well, only one appeal has been filed, against the judgment and decree dated 26-5-2004 passed by the District Judge, whereby the appeal filed by Smt. Satya Devi was dismissed. As referred to above, this appeal shall be treated as the appeal filed by Smt. Satya Devi against the decree passed in favour of Smt. Suhli Devi is not against the decree in the other suit filed by Partap Singh. 10. In Ram Parkash v. Smt. Charan Kaur, RSA No. 215 of 1987 decided on 18-9-1996, a similar point had arisen before this Court. In the said case, two suits were filed. One suit was filed by Arjan Singh against Ram Parkash, while the other suit was filed by Ram Parkash against Arjan Singh. The suit filed by Arjan Singh was dismissed by the trial Court, but the appeal filed by Arjan Singh was allowed by the first appellate court, and the suit filed by Arjan Singh was decreed. On the other hand, the suit filed by Ram Parkash had also been dismissed by the trial court, and the appeal filed by Ram Parkash was also dismissed by the first appellate Court. Ram Parkash challenged the judgment and decree of the first appellate Court, whereby the suit filed by Arjan Singh was decreed, but Ram Parkash did not challenge the judgment and decree passed by the Courts below, whereby his suit was dismissed by the Courts below. While hearing arguments in the appeal filed by Ram Parkash, it came up for consideration before this Court as to whether the said appeal filed by Ram Parkash was maintainable and whether the appeal was barred by principles of res judicata. After considering the law laid down by the Hon'ble Supreme Court, in the case Premier Tyres Limited v. Kerala State Road Transport Corporation, 1993 Supp (2) SSC 146: AIR 1993 SC 1202, and other authorities on the subject, it was held by this Court as under: "Thus, on the basis of the aforesaid factual as well as legal proposition, it can safely be said that where two connected suits have been tried together and the findings 14 2026:HHC:14478 recorded in one of the suits have become final in the absence of an appeal, the appeal preferred against the findings recorded in the other suit would definitely be barred by the principles of res judicata. This is the ratio of the above-cited case law decided by the Apex Court of the country. Thus, there is absolutely no necessity to go into other aspects of the appeal, especially when on the factual side, as detailed above, the decree, not appealed against by the present appellant, passed by the first appellate Court, has become final between the parties, which has created a legal bar for the maintainability of the present appeal whereby the decree passed in the other suit has been assailed." 11. Aggrieved against the dismissal of the appeal by this Court, aforesaid Ram Parkash filed a Special Leave Petition before the Hon'ble Supreme Court. The Hon'ble Supreme Court vide detailed order dated 3-2-1997 dismissed the Special Leave Petition and upheld the aforesaid order passed by this Court. The order passed by the Hon'ble Supreme Court, while dismissing the Special Leave Petition, is reported as Ram Parkash v. Smt. Charan Kaur, AIR 1997 SC 3760. In the said authority, after reproducing the aforesaid concluding paragraph of the judgment passed by this Court, it was held by the Hon'ble Supreme Court that the High Court was right in concluding that the decree of dismissal of the suit against the petitioner would operate as res judicata under Section 11, CPC in the appeal against which the petitioner had filed the second appeal. A similar view was taken by the Hon'ble Supreme Court in AIR 1993 SC 1202 (supra), holding that the finality of the finding recorded in the connected suit, due to non-filing of an appeal, precluded the Court from proceeding with the appeal in the other suit. 12. In view of the law laid down by the Hon'ble Supreme Court in the aforementioned authorities and keeping in view the facts and circumstances of the present case, in my opinion, the present appeal filed by Smt. Satya Devi is 15 2026:HHC:14478 liable to be dismissed, since Smt. Satya Devi had filed only one appeal against the two decrees, whereby the suits filed by Partap Singh and Smt. Suhli Devi had been decreed by the trial Court, and only one appeal was filed against the decree passed in the suit filed by Smt. Suhli Devi, and in this manner, the decree passed in the suit filed by Partap Singh became final between the parties, and the findings recorded therein would be res judicata in the appeal filed by Smt. Satya Devi against the decree in the suit filed by Smt. Suhli Devi. 19. In H.P. State Forest Corporation Through Its Divisional Manager Versus Kahan Singh and Others, 2017 (1) H.L.R. 36, a suit was partly allowed, and a counterclaim was dismissed. It was held that two decrees were passed: one in the suit and one in the counterclaim. The aggrieved person is required to file two separate appeals, in the absence of which the findings in one appeal will constitute res judicata and the second appeal will not be maintainable. It was observed: - “16. A three-Judge Bench of Hon'ble Supreme Court in Ramagya Prasad Gupta and others v. MurliPrasad and others, AIR 1974 Supreme Court 1320 has held:- "8. It is clear that where a suit has been tried and finally decided on the merits, if the defeated party wishes in another suit between the same parties relating to the same property to have the same questions re-agitated, he cannot be allowed to do so, because his cause of action has passed into a judgment, and the matter has become res judicata. Even where two appeals have been taken from the same judgment by two different parties to which all others are parties either as appellants or respondents and one of the appeals is dismissed either on merits or for 16 2026:HHC:14478 any other reasons, it has been held by some of the High Courts, but we express no opinion thereon, that the other appeal has also to be dismissed, because it is barred by the principles of res judicata as otherwise there will be conflict in. the decrees. In the Lahore decision, there were two cross-suits about the same subject matter filed simultaneously between the same parties, and two decrees were prepared. An appeal being filed in respect of one decree and not in respect of the other, the question was whether the non-filing of the appeal against that decree creates an estoppel against the hearing of the other appeal. In Narhari's case (supra), what this Court held was that, where there has been on trial one finding and one decision, there need not be two appeals even though two decrees may have been drawn up, and consequently, the fact that one of the appeals was time- barred does not bar the other appeal on the ground of res judicata. In this case, these questions need not be considered. Nor is it relevant to consider whether there is any conflict between the decision in this case and Sheodan Singh's case (supra). In Sheodan Singh's case, two suits were filed in the Court of the Civil Judge, one for a declaration of the title to the suit property and the second for other reliefs and consequently, two other suits were filed by the respondents in the Munsif's court against the appellant, claiming joint ownership of the suit property and other reliefs. The four suits were tried together by the Civil Judge. Some of the issues were common to all the suits, and one of the common issues relating to the title of the parties was found in favour of the respondent. The Civil Judge dismissed the appellant's title suit, decreed his other suit partly, and decreed the two suits of the respondent. The appellant filed appeals against the decree in each suit. The High Court dismissed the two appeals arising out of the respondent's suits, one as time-barred, and the other for failure to apply for translation and printing of the record. As the title of the respondent to the suit property had become final on account of such dismissal, the respondent prayed for the dismissal of the 17 2026:HHC:14478 other two appeals also, as the main question involved therein was the same. The High Court agreed that the appeals were barred by res judicata and dismissed them. Against these orders of dismissal, the appellant filed appeals to this Court and contended that - (1) title to the property was not directly and substantially in issue in the respondent's suits (2) the Munsif's Court could not try the title suit filed by the appellant; (3) it could not be said that appeals arising out of the respondent's suits were former suits as such the bar of res judicata will be inapplicable; and (4) the two appeals which were dismissed-one on the ground of limitations and the other on the ground of not printing the records, could not be said to be heard and finally decided. This Court held that the High Court was right in dismissing the appeals as being barred by res indicate inasmuch as the issue as to the title was raised in respondent's suits and it was directly and substantially in issue in those suits also and did arise out of the pleadings of the parties, and further the High Court's decision in the two appeals arising from the respondent's appeals were undoubtedly earlier and, therefore, the condition that there should have been a decision in a former suit to give rise to res judicata in a subsequent suit was satisfied in that case. The decision in Narhari's case (supra) was distinguished by this Court in that case, so it could not be said that the decision was in any way in conflict with the decision in Narhari's case (supra). In appeals arising out of a subsequent suit and an earlier suit where there were common issues, common subject matter and common trial and the appeals arising out of the subsequent suit were dismissed, a question would arise as to whether the appeals from the earlier suit which were pending arc barred by res judicata A question may also arise where the subject-matter is the same and the issues are common in the two suits but some of the parties are different in one suit, whether the bar of res judicata would operate against the parties who are common. All these aspects need not be considered in these appeals because, in our view, the subject matter of 18 2026:HHC:14478 Title Suit No. 68 of 1954 and that of Title Suit No. 94 of 1956 are entirely direct. Even if the issues are common in the two suits, it has been admitted by the learned.Advocate for the appellants that some of the issues might be common to both the suits, issues Nos. 4, 9, 12, 13 and 14 at any rate survive, and consequently, the bar of res judicata would not apply." 17. A three Judges Bench of the Hon'ble Supreme Court in Premier Tyres Limited v. Kerala State Road Transport Corporation, AIR 1993 Supreme Court 1202 while dealing with a situation where suits are decreed by common judgment and appeal is filed against one judgment and decree whereas appeal is not filed in the connected case held that finality of finding recorded in the connected suit due to non-filing of appeal precludes the Court from proceeding with appeal in another suit. It was held by the Hon'ble Supreme Court that the effect of non-filing of an appeal against a judgment or decree is that it becomes final, and as this finality can be taken away only in accordance with the law, the same consequences follow when a judgment or decree in a connected suit is not appealed from. 18. In Ram Prakash v. Smt. Charan Kaur and another, AIR 1997 Supreme Court 3760, the Hon'ble Supreme Court has held:- "2. It would be obvious that since the claims of the petitioner and the respondents have arisen from the same cause of action and the finding of the appellate Court that damages had occurred to the respondents due to misfeasance or malfeasance having been allowed to become final, the decree which is the subject matter of the special leave petition cannot be assailed. The self-same question was directly in issue and was the subject matter of both the suits. The same having been allowed to become final, it cannot be gone into since the same had attained finality, the petitioner having not filed any appeal against the appeal dismissing the suit. 19 2026:HHC:14478 In view of this situation, the High Court was right in concluding that the decree of dismissal of the suit against the petitioner would operate as res judicata under Section 11 CPC in the appeal against which the petitioner has filed the second appeal." 19. In Sri Gangai Vinayagar Temple and another v. Meenakshi Ammal and others (2015) 3 Supreme Court Cases 624, three Judges Bench of the Hon'ble Supreme Court has held:- "27. Procedural norms, technicalities and processual law evolve after years of empirical experience, and to ignore them or give them short shrift inevitably defeats justice. Where a common judgment has been delivered in cases in which consolidation orders have specifically been passed, we think it irresistible that the filing of a single appeal leads to the entire dispute 30 Page 31 becoming sub judice once again. Consolidation orders are passed by virtue of the bestowal of inherent powers on the Courts by Section 151 of the CPC, as clarified by this Court in Chitivalasa Jute Mills v. Jaypee Rewa Cement (2004) 3 SCC 85. In the instance of suits in which common Issues have been framed and a common Trial has been conducted, the losing party must file appeals in respect of all adverse decrees founded even on partially adverse or contrary speaking judgments. While so opining we do not intend to whittle down the principle that appeals are not expected to be filed against every inconvenient or disagreeable or unpropitious or unfavourable finding or observation contained in a judgment, but that this can be done by way of cross-objections if the occasion arises. The decree not assailed thereupon metamorphoses into the character of a "former suit". If this is not to be so viewed, it would be possible to set at nought a decree passed in Suit A by only challenging the decree in Suit B. Law 20 2026:HHC:14478 considers it anathema to allow a party to achieve a result indirectly when it has deliberately or negligently failed to directly initiate proceedings towards this purpose. Laws of procedure have picturesquely been referred to as handmaidens to justice, but this does not mean that they can be wantonly ignored because, if so done, a miscarriage of justice inevitably and inexorably ensues. The statutory law and the procedural law are two sides of the judicial drachma, each being the obverse of the other. In the case in hand, had the Tenant diligently filed an appeal against the decree at least in respect of OS No. 5 of 1978, the legal conundrum that has manifested itself and exhausted so much judicial time would not have arisen at all." 20. In Rajni Rani and another v. Khairati Lal and others, (2015) 2 Supreme Court Cases 682 the Hon'ble Supreme Court has held that keeping in mind the conceptual meaning given to the counterclaim and the definitive character assigned to it, there can be no shadow of doubt that when the counterclaim filed by the defendants is adjudicated and dismissed, finality is attached to it as far as the controversy in respect of the claim put forth by the defendants is concerned. Hon'ble Apex Court further held that in that regard nothing survives as far as the said defendants are concerned, and if the definition of a decree is appropriately understood, it conveys that there has to be a formal expression of an adjudication as far as that court is concerned, and the determination should conclusively put to rest the rights of the parties in that sphere. It was further held by the Hon'ble Supreme Court that a Court may draw up a formal decree or may not, but if by virtue of the order of the court, the rights have finally been adjudicated, it would, irrefutably, assume the status of a decree. It further held that where a counterclaim, which is in the nature of a cross-suit, has been dismissed, nothing else survives for the defendants who had filed the counterclaim, and the order passed by 21 2026:HHC:14478 the learned trial Judge has the status of a decree, and the challenge to the same has to be made before the appropriate forum where an appeal could lie by paying the requisite fee. 21. A similar view has also been taken by a Coordinate Bench of this Court in Piar Chand and others v. Ranjeet Sigh and others, in RSA No. 293 of 2006, decided on 16.9.2016. 22. Reverting to the facts of this case, the admittedly learned trial court, while partly allowing the suit for recovery filed by the plaintiff-Corporation, dismissed the counterclaim filed by the defendant, vide which the defendant had prayed for a decree for recovery of Rs. 60,031/-. In other words, the learned trial court held that in lieu of the transaction, the subject matter of the civil suit, whereas the plaintiff-Corporation was entitled to recovery from the defendant; however, the defendant was not entitled to any recovery from the plaintiff- Corporation. The defendant, rather than filing two separate appeals, one against the decree which was passed in favour of the plaintiff corporation by the learned trial court in its civil suit and the second against the dismissal of his counterclaim, filed only one appeal before the learned appellate court. In my considered view, the defendant erred in doing so because the partial decreeing of the suit of the plaintiff-Corporation and dismissal of the counterclaim of the defendant were two distinct adjudications though made by way of the same judgment and decree by the learned trial court, both these adjudications assumed the status of a decree and they required to be challenged separately and filing only one appeal against both the said adjudications was not permissible in law. As I have already discussed above, it has been categorically held by the Hon'ble Supreme Court in such matters that a Court may draw a formal decree or not, but if by virtue of the judgment of the Court, the rights have finally been adjudicated, then the same would assume the status of a decree. As the adjudication on the 22 2026:HHC:14478 suit filed by the plaintiff corporation and the adjudication on the counterclaim filed by the defendant assumed the status of two distinct decrees, they were required to be challenged by way of separate appeals by paying the requisite Court fee on each of them. Defendant having failed to do so, he could not have been granted the relief which was granted by the learned appellate court in one single appeal, which was filed by the defendant against the decree passed in favour of the plaintiff-Corporation by the learned trial court, as well as against the dismissal of his counterclaim. Learned appellate court failed to appreciate that in the absence of two appeals, one appeal so filed was not maintainable, as the findings returned on the plaint and counterclaim acted as res judicata vis-a- vis each other, which necessitated the filing of two appeals. The learned appellate court also failed to appreciate that non-filing of two distinct and separate appeals amounted to having the same effect, where no appeal was filed from a decree in a connected case, and the effect of non-filing of an appeal against a judgment or decree that has become final. In other words, because only one appeal was filed, therefore, the finality of the finding recorded in the connected claim on account of non-filing of the appeal precluded the Court from proceeding with the appeal in the other connected claim. 23. To give an illustration, 'A' files a suit for recovery of Rs. 100/- against 'B' and 'B' also files a counterclaim for recovery of Rs. 50/- from plaintiff 'A'. Learned trial court partly decrees the suit of 'A' against defendant 'B' for recovery of Rs. 70/- but dismisses the counterclaim filed by the defendant. In such like circumstance defendant cannot assail the dismissal of his counterclaim as well as the partial decree of the suit of the plaintiff by one appeal. The defendant will have to file two separate appeals, one challenging the decree passed in favour of the plaintiff and the other challenging the dismissal of his counterclaim. However, if the plaintiff wants to assail the factum of his suit not being decreed in totality, he is not 23 2026:HHC:14478 to file two appeals, but he can file only one appeal against the partial allowing of his suit. 24. It is settled law that a counterclaim has the effect of a cross-suit, and the Court can announce a final judgment both on the original claim and on the counterclaim. A counterclaim filed by the defendant has to be treated as a plaint, and the effect of the counterclaim is that even if the suit of the plaintiff is stayed, discontinued, dismissed or withdrawn, a counterclaim can be decided independently on merits. In fact, a counterclaim has to be treated as a plaint and is governed by the Rules applicable to the plaint, and similarly, the reply filed in answer to the counterclaim is to be treated as a written statement and is governed by the Rules applicable to a written statement. In view of the findings returned above, this appeal is allowed and the judgment and decree passed by the learned appellate court in Civil Appeal No. 59 of 2005 dated 30.11.2007 are set aside by holding that as the defendant had not filed two separate appeals against the judgment and decree passed by the learned trial court in favour of the plaintiff-Corporation and against the dismissal of his counterclaim which findings acted as res judicata vis-a-vis each other, single appeal so filed by defendants was not maintainable before the learned appellate court. 20. A similar view was taken by this Court in Mohan Singh Versus Inder Singh and Others 2017 (1) H.L.R. 368, and it was held: - “24. A careful perusal of the trial court record further suggests that the appellant-plaintiff refuted the aforesaid counterclaim of the respondent-defendants by way of replication as well as by filing separate written statements. However, the fact remains that the learned trial Court, after framing issues, as have been reproduced 24 2026:HHC:14478 above, dismissed the suit of the plaintiff and decreed the cross-objection having been filed by the respondent- defendants. The operative part of the judgment and decree passed by the learned trial Court clearly suggests that the learned trial Court dismissed the suit of the appellant-plaintiff for possession, whereas it decreed the counterclaim of ownership and possession preferred on behalf of the respondent-defendants. A careful perusal of the decree sheet available on record suggests that the decree for possession was passed in favour of the respondent defendants and against the appellant- plaintiff. 25. Careful perusal of the decree, as referred to herein above, suggests that it also stands mentioned, "in view of my findings on the aforesaid issues, the suit of the plaintiff fails, and the same is, accordingly, dismissed, whereas, the counterclaim of the defendants is decreed and the defendants are declared to be the owners in possession of the suit property." A perusal of the aforesaid decree prepared by the learned trial Court while dismissing the suit and accepting the counterclaim of the defendants, clearly suggests that a proper decree was drawn as far as acceptance of the counterclaim filed by the defendants is concerned. 26. Appellant-plaintiff, being aggrieved with the aforesaid judgment and decree, approached the learned District Judge by way of an appeal under Section 96 CPC, laying therein a challenge to the aforesaid judgment and decree passed by the learned trial Court. At this stage, it would be appropriate to reproduce the cause title/head note of appeal preferred by the appellant-plaintiff before the learned District Judge, which reads thus:- "Civil appeal under section 96 CPC read with section 21 of the H.P. Courts Act against the judgment and decree dated 30.11.2004 passed by the learned Civil Judge (Jr.Division), Chamba in Civil Suit no.2 of 1995, titled as Mohan Singh v. Inder Singh and others, with a prayer to set aside the 25 2026:HHC:14478 same." 27. Careful perusal of aforesaid cause title as well as relief claimed in the appeal suggests that the appellant- plaintiff before the learned first appellate Court prayed that the appeal filed by him be accepted with costs and the judgment and decree dated 30.11.2014 passed by the learned trial Court be set aside, but there is no prayer, if any, for setting aside the judgment and decree passed by the learned trial Court, whereby counterclaim filed by the defendants-respondents have been decreed and they were declared owners in possession of the suit property. 28. Before adverting to the submissions having been made on behalf of the learned counsel representing both parties, it would be appropriate to refer to relevant provisions of law applicable in the present case, i.e. Order 8, Rule 6A : "6A. Counterclaim by the defendant.- (1) A defendant in a suit may, in addition to his right of pleading a set off under rule 6, set up, by way of counterclaim against the claim of the plaintiff, any right or claim in respect of a cause of action accruing to the defendant against the plaintiff either before or after the filing of suit but before the defendant has delivered his defence or before the time limited for delivering his defence has expired, whether such counterclaim is in the nature of a claim for damages or not: Provided that such counterclaim shall not exceed the pecuniary limits of the jurisdiction of the court. (2) Such counterclaim shall have the same effect as a cross-suit so as to enable the court to pronounce a final judgment in the same suit, both on the original claim and on the counterclaim. (3) The plaintiff shall be at liberty to file a written statement in answer to the counterclaim of the defendant within such period as may be fixed by the court. 26 2026:HHC:14478 (4) The counterclaim shall be treated as a plaint and governed by the rules applicable to plaints." 29. Aforesaid provisions of law entitle a defendant in a suit to set up a counterclaim against the claim of the plaintiff in respect of a cause of action accruing to him against the plaintiff either before or after filing the suit, but definitely before the defendant files his defence or before the time stipulated for delivering the defence expires. Needless to say, the aforesaid right of filing a counterclaim is in addition to his right of pleading as set up in Rule 6. Further perusal of the aforesaid provisions of law suggests that a counterclaim, if any, filed on behalf of the defendant would be treated as a plaint and the same would be governed by the rules applicable to the plaint. Similarly, counterclaims filed on behalf of the defendant would have the same effect as a cross-suit so as to enable the Court to pronounce a final judgment in the same suit, both on the original claim and the counterclaim. 30. Similarly, Rule 6A(3) enables the plaintiff to file a written statement, if any, to the counterclaim filed by the defendant. Rule 6D specifically provides that in case the suit of the plaintiff is stayed, discontinued or dismissed, the counterclaim filed on behalf of the defendant would nevertheless be proceeded with. 31. Similarly, Rule 6E provides that if the plaintiff fails to file a reply to the counterclaim made by the defendant, the Court may pronounce judgment against the plaintiff in relation to the counterclaim made against him/her, or make such order in relation to the counterclaim as it deems fit. It would be relevant here to refer to Order 8, Rule 6F : "6F. Relief to the defendant where the counterclaim succeeds.- Where in any suit a set-off or counter- claim is established as a defence against the plaintiff's claim and any balance is found due to the plaintiff or the defendant, as the case may be, the 27 2026:HHC:14478 Court may give judgment to the party entitled to such balance." 32. Perusal of the aforesaid Order 8, Rule 6F clearly suggests that where in any suit a set-off or counterclaim is established as a defence against the plaintiff's claim and any balance is found due to the plaintiff or the defendant, the Court may give judgment to the party entitled to such balance. Further perusal of Order 8, Rule 6G suggests that no pleadings, if any, subsequent to the written statement filed by a defendant other than by way of defence to set up a claim can be presented except with the leave of the Court. 33. Under Order 8, Rule 10, when any party fails to file a written statement as required under Rule 1 or Rule 9 within the stipulated time, the Court shall pronounce judgment against him, or make such order in relation to the suit as it thinks fit, and on the pronouncement of such judgment, a decree shall be drawn up. 34. Careful perusal of the aforesaid provisions of law clearly suggests that the counterclaim, if any, preferred by the defendant in the suit is in the nature of a cross- suit, and even if the suit is dismissed, the counterclaim would remain alive for adjudication. Since the counterclaim is in the nature of a cross suit, the defendant is required to pay the requisite court fee on the valuation of the counterclaim. It has been specifically provided in the aforesaid provisions that the plaintiff is obliged to file a written statement qua counterclaim, and in case of default, the court can pronounce the judgment against the plaintiff in relation to the counterclaim put forth by the defendant, as it has an independent status. As per Rule 6A (2), the Court is required to pronounce a final judgment in the same suit both on the original claim and also on the counter-claim. 35. In the present case, as clearly emerged from the judgment passed by the learned trial Court, the learned trial Court effectively determined the rights of the parties 28 2026:HHC:14478 on the basis of the counterclaim as well as the written statement thereto filed by the respective parties, and as such, it attained the status of a decree. It would be profitable here to reproduce the definition of the term 'decree' as contained in Section 2(2) of CPC:- "2. (2) "decree" means the formal expression of an adjudication which, so far as regards the Court expressing it, conclusively determines the rights of the parties with regard to all or any of the matters in controversy in the suit and may be either preliminary or final. It shall be deemed to include the rejection of a plaint and the determination of any question within [1][ * * *] Section 144, but shall not include - (a) any adjudication from which an appeal lies as an appeal from an order, or (b) any order of dismissal for default. Explanation- A decree is preliminary when further proceedings have to be taken before the suit can be completely disposed of. It is final when such adjudication completely disposes of the suit. It may be partly preliminary and partly final." 36. Close scrutiny of the aforesaid definition of "decree" clearly suggests that there should be a formal expression of adjudication by the Court while determining the rights of the parties with regard to controversy in the suit, which would also include the rejection of the plaint. Similarly, the determination should be a conclusive determination resulting in a formal expression of the adjudication. It is a settled principle that once the matter in controversy has received judicial determination, the suit results in a decree, either in favour of the plaintiff or in favour of the defendant. 37. In this regard, it would be appropriate to place reliance on the judgment of the Hon'ble Apex Court in Rajni Rani and Another v. Khairati Lal and Others, (2015)2 SCC 682, wherein the Court has held as under:- 29 2026:HHC:14478 "16. We have referred to the aforesaid decisions to highlight that there may be situations where an order can get the status of a decree. A Court may draw up a formal decree or may not, but if by virtue of the order of the Court, the rights have finally been adjudicated, irrefutably it would assume the status of a decree. As is evident, in the case at hand, the counterclaim, which is in the nature of a cross- suit, has been dismissed. Nothing else survives for the defendants who had filed the counter-claim. Therefore, we have no hesitation in holding that the order passed by the learned trial Judge has the status of a decree and the challenge to the same has to be made before the appropriate forum where the appeal could lie by paying the requisite fee. It could not have been unsettled by the High Court in the exercise of the power under Article 227 of the Constitution of India. Ergo, the order passed by the High Court is indefensible." 38. After perusing the aforesaid judgment passed by the Hon'ble Apex Court, this Court need not elaborate further on the issue at hand because the Hon'ble Apex Court has categorically held that if by virtue of an order of the Court, rights have finally been adjudicated, it would assume the status of a decree. Hon'ble Apex Court has also stated that the Court may or may not draw a formal decree, but if rights are finally adjudicated, it would assume the status of a decree. The Apex Court has further held that in such like situation, an order passed by the trial Judge has the status of a decree and a challenge to the same has to be made before the appropriate forum where an appeal could lie by paying the requisite fee. 39. Apart from the above, this Court viewed this matter from another angle also. Admittedly, the appellant- plaintiff, claiming himself to be the owner of the suit land, as recorded in Jamabandi for the year 1970-71, filed a suit for declaration and a permanent prohibitory injunction restraining defendants No.1 and 2 from 30 2026:HHC:14478 changing the nature of the suit land. The aforesaid claim, having been set up by the plaintiff in the instant Civil Suit, was dismissed, meaning thereby that he was not declared as the owner of the suit land entitling him to seek possession of the same. Whereas, in the aforesaid suit having been filed by the plaintiff, the defendants filed a written statement-cum-counter claim seeking a declaration to the effect that they may be declared owners in possession of the suit property, which relief was extended by the trial Court by decreeing the counterclaim of the defendants declaring them to be the owners in possession of the suit property. 40. Since, as has been observed above, no challenge has been laid to the judgment and decree passed by the trial Court decreeing the counterclaim of the defendants, whereby they have been declared to be owners in possession of the suit property, the composite appeal laying therein challenge to the judgment and decree passed by the learned Civil Judge in Civil Suit No.2 of 1995 was not maintainable. Moreover, relief as claimed in the appeal, having been filed by the appellant-plaintiff, could not be extended to him without setting aside the judgment and decree passed in the counterclaim in favour of the defendants. Once defendants have been declared to be owners in possession of the suit property by the trial Court while decreeing their counterclaim, it is not understood how relief, as prayed for in a Civil suit having been filed by the plaintiff, can be extended without setting aside the judgment and decree passed in the counterclaim. 21. This question was also considered by a Division Bench of this Court in Ramesh Chand v. Om Raj, 2022 SCC OnLine HP 2094, and it was held that a person is required to file two separate appeals in case of judgment and decree in a suit and 31 2026:HHC:14478 counterclaim. It was observed: - “40. The contention that the counter-claim cannot be tried as an independent suit for all purposes but is deemed to be an independent suit for the purposes as mentioned in the Code under Order 8 Rule 6a (2), (3) & (4) and for the purpose of limitation as per Section 3(2)(b) of the Limitation act, 1963, cannot be countenanced for reasons to be stated presently. We also cannot agree with the argument that if the counterclaim is to be treated as a separate suit, independent from the main suit, then it would amount to rewriting Order 8 Rule 6a (2), which mandates "a final judgment" and in "the same suit". A further argument that treating the counterclaim as a separate suit would mean that there will be a "common judgment" as against the "final judgment" and that it will be common for "both the suits" as against the mandate of having it in the "same suit" per Order 8 Rule 6a (2) also does not convince us. The further submission that since the counterclaim can also be set up through amendment (Order 8 Rule 8 the Code) and by way of subsequent pleadings (Order 8 Rule 9 the Code), treating the counterclaim as an independent suit would mean that a suit may be filed by way of amendment or by way of subsequent proceedings, is also not founded on a sound interpretation. One of the consequences of the amendment in 1976 amendment in Order 8 by virtue of the insertion of Rule 6-D is that if, in any case, in which the defendant sets up a counterclaim, the suit of the plaintiff is stayed, discontinued or dismissed, the counterclaim may nevertheless survive. Moreover, this signifies the independent character of the counter-claim. A reading of Order 20 Rule 19 (1) clearly shows that separate decrees are required to be prepared for set off, as well as the counterclaim, which shall state what amount is due to the plaintiff and what amount is due to the defendant, and shall be for the recovery of any sum which appears to be due to either party. Order 20 Rule 19 (2), inter alia, provides that any decree passed in a suit in 32 2026:HHC:14478 which a set off or counterclaim is claimed shall be subject to the same provisions in respect of an appeal to which it would have been subject if no set-off or counterclaim had been claimed. 41. The Supreme Court in the LaxmidasDayabhai case supra examined the question whether there is anything in law which precludes treating the counterclaim as a plaint in a cross-suit and answered the same in the negative. The Supreme Court held that even though CPC prescribes the contents of a plaint, and it might very well be that a counterclaim, which is to be treated as a cross-suit, might not conform to all these requirements, but this by itself is not sufficient to deny the Court the power and the jurisdiction to read and construe the pleadings in a reasonable manner. If, for instance, what is really a plaint in a cross-suit is made part of a Written Statement either by being made an annexure to it or as part and parcel thereof, though described as a counter-claim, there could be no legal objection to the Court treating the same as a plaint and granting such relief to the defendant as would have been open if the pleading had taken the form of a plaint. The unamended provisions of CPC prior to 1976 was that any respondent, though he may not have filed an appeal from any part of the decree, may still support the decree to the extent to which it is already in his favour, at the same time by laying a challenge to a finding recorded in the impugned judgment against him. That, however, is not the position of law now after the 1976 amendment in CPC. After the 1976 amendment of Order 41 Rule 22, the insertion made in sub-rule (1) thereof makes it permissible to file a cross-objection against a finding. The difference is basically that a respondent may defend himself without taking recourse to file a cross-objection to the extent the decree stands in his favour. But if he intends to assail any part of the decree, it is obligatory on his part to file the cross-objection. Post-amendment, read in the light of the Explanation to Order 41 Rule 22(1), though it is still not necessary for the respondent to take 33 2026:HHC:14478 any cross-objection laying challenge to any finding adverse to him, as the decree is entirely in his favour, yet he may support the decree without cross-objection. It gives him the right to take a cross-objection to a finding recorded against him either while answering an issue or while dealing with an issue. After the aforesaid amendment in CPC, if the appeal stands withdrawn or dismissed in default, the cross-objection taken to a finding by the respondent would still be adjudicated upon on merits, which remedy was not available to the respondent under the unamended CPC, the Supreme Court held. 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 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; 34 2026:HHC:14478 (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. 22. This Court also held in HPSEB versus Raj Kumar (supra) that a single appeal filed by the appellant before the learned First Appellate Court and before this Court is not maintainable in a suit and a counterclaim. Therefore, the submission made by Mr Vinod Kumar Gupta, learned counsel for 35 2026:HHC:14478 the plaintiff/respondent, has to be accepted as correct that the first appeal was not maintainable. 23. The matter does not rest here. A similar situation arose before the Hon’ble Supreme Court in Charan Singh (supra), wherein a composite appeal was filed before the learned Appellate Court, which was dismissed after holding that such an appeal was not maintainable. The Hon’ble Supreme Court held that the learned First Appellate Court was right in holding that a composite appeal was not maintainable, but it should have alerted the appellant by making him aware of the requirement of law and by 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 it is the requirement of law 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 36 2026:HHC:14478 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.” 24. 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.” 25. This judgment was followed by a Co-ordinate Bench of this Court in Deshraj versus Vinod Kumar (supra), and the 37 2026:HHC:14478 matter was remitted to the First Appellate Court with liberty to the defendants to file an independent appeal within three weeks, and once so filed, it was ordered to be treated as within limitation. These judgments are binding on this Court. 26. Therefore, the submission made by Mr Vinod Kumar Gupta, learned counsel for the respondent/plaintiff, is accepted that the present appeal is not maintainable. However, the appeal cannot be dismissed as per the binding precedent of the Hon’ble Supreme Court, and the matter is required to be remitted to the learned Appellate Court with a direction to permit the appellants to file an independent appeal and thereafter decide the matter as per the law. Final Order: 27. In view of the above, the present appeal is allowed. Judgment and decree dated 04.06.2008, passed by the learned Appellate Court, are ordered to be set aside. The matter is remitted to the learned Appellate Court with liberty to the defendants to file a memorandum of appeal within a period of three weeks. If such a memorandum is filed, the same shall be treated as within limitation, and thereafter the matter shall be 38 2026:HHC:14478 decided as per law. In case no memorandum of appeal is filed within the prescribed limit, the appeal shall stand dismissed as not maintainable. The parties through their learned counsel are directed to appear before the learned Appellate Court on 20.05.2026. 28. Pending application(s), if any, also stand(s) disposed of. 29. Records of the learned Courts below be sent down forthwith. (Rakesh Kainthla) Judge 5th May, 2026 (Nikita)