2001 PLP 2773 (YLR)

3. Instant revision petition calls in question the aforesaid judgment and decree of the learned Additional District Judge.

4. Learned counsel for the petitioners argues that both the suits filed against the petitioners/vendees were consolidated; consolidated issues were also framed; suits were disposed of by the learned trial Court by one consolidated judgment, though two decrees were prepared yet one appeal against the same was competent as held by the superior Courts. Reliance has been placed on 1981 SCMR 585 (Abdullah v. Faqir. Ullah and others), 1988 CLC 436 (Manzoor Ahmad v. Additional Judge‑III Rahimyar Khan and another), 2000 YLR 1296 (Bahawal and five others v. Akbar Ali and 17 others and AIR 1927 Lahore (F.B.) 289 (Mst. Lachhmee v. Mst. Bhulli). It is also contended with force that mere technicalities not to be allowed to prevent the Court from doing substantial justice between the parties.

5. On the other hand, learned counsel for successful pre‑emptor/respondent No.1 vehemently supports the impugned judgment of the learned Additional District Judge by submitting that the same had been passed strictly in accordance with law and facts. Adds with vehemence that the judgments cited by the learned counsel for the petitioners have been passed in the context of doctrine of res judicata (section 11, C.P.C.) and the same have not been passed with reference to Order 41, rule 1, C.P.C., relating to the filing of appeal which clearly lays down that an appeal shall lie only from a decree and memorandum of appeal shall also be accompanied by a copy of the decree and the same cannot be dispensed with in any eventuality. In the instant case, decree passed in a suit of respondent No. 1 was never challenged by the petitioners through an appeal. Thus, decree passed in this suit had attained the finality as the same was never brought under attack and the learned Additional District Judge had rightly held so. Reliance has been placed on 1980 CLC 530 (Imam Gul v. Mst. Begum Gi), AIR 1960 Madras 57 (V 47 C 16) Gundu Rao), 1987 CLC 2331 (Abdul Majeed and 6 others v. Mst. Haleema and 18 others) 1988 CLC 514, Province of the Punjab through Board of Revenue, Lahore and 2 others v. Muhammad Hussain and 4 others) and PLD 1967 SC 271 (Government of West Pakistan through Chief Secretary, Lahore and four others v. Niaz Muhammad).

6. I have given due consideration to the valuable arguments of learned counsel for the parties, perused the record and gone through the judgments cited at the bar.

7. The precises question for determination in this revision petition is that where two suits between the same parties are consolidated, tried together on consolidated issues and disposed of by one common judgment but separate decrees are prepared and an appeal is filed in one case only, whether in such a case, the same could be held to be competent with regard to separate decree. It has been repeatedly held that the un‑appealed decree does not operate as res judicata. The judgments cited by the learned counsel for the petitioners to support this proposition. With reference to sections 11 and 96, C.P.C., it has been observed in the case of Mansoor Ahmad (supra) "as a result of consolidation there was virtually one decree passed to regulate both suits and in such situation, just one appeal would suffice because Appellate Court could therein exercise jurisdiction effectively about both the matters ‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑ ‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑ ‑‑‑‑‑‑‑‑‑‑‑‑If two separate decrees had been passed in two consolidated suits between the same parties, even then one appeal would have been sufficient. Reliance has been placed on Saeed Ahmad v. Messrs Indo Enamel Works Ltd., Lahore (PLD 1954 Lah. 490). In the case of Bahawal (supra). The case was also examined with reference to section 96 and Order 41, rule 1, C.P.C., and it was held "an appeal against two decrees based on one consolidated judgment‑‑‑‑One appeal is permissible against such decree".

8. The judgments cited by the learned counsel for contesting respondent No. 1 cannot be strictly made applicable to the present set of circumstances. For instance, in case of Imam Gul (supra) only one decree was passed in one suit of declaration but the memorandum of appeal was not accompanied by a copy of the decree, therefore, it was held that the appeal was not validity presented. In A I R 1960 Madras 57, it was held with reference to section 96, C.P.C. that a single appeal against the decrees in two suits based on different causes of action and having different scone is not competent. In case of Abdul Majeed (supra) it was held with reference to Order 41, rule 1, C.P.C. that the production of copy of the judgment can be dispensed with by the appellate Court but a copy of the decreed appealed from must be filed alongwith the appeal. This was also a case of one decree passed in one suit. In 1998 C L C 514, only one decree was passed in one suit and certified copy of decree was not appended with memorandum of appeal. So, it was held "that appeal could be considered to have been instituted on the date when the certified copies of judgments and decrees were placed on record". PLD 1967 SC 271 also relates to one decree passed in one suit only and appeal against the same was examined with reference to Order 41, rule 1, C.P.C., and Article 156, of the Limitation Act.

9. Thus, it is clear that all the judgments referred to by the learned counsel for respondent No. 1 have been passed under the circumstances entirely different from the present one. All the judgments related to the case of one decree arising out of one suit and in the instant case about the same subject- matter between the same parties, to suits were filed, the same were consolidated and tried together on the premises of consolidated issues and disposed of by one consolidated judgment.

10. It is also held in the case of Abdullah (supra) "that such a plea of not filing appeal against another decree where the consolidated suits were disposed of by one judgment is a mere technicality and the same is not to be normally allowed to prevent Courts from doing substantial justice between the parties".

11. I am convinced that the impugned judgment and decree of the learned Additional District Judge cannot be validly sustained in the facts and circumstances of the instant case. Since the appeal of the petitioners was dismissed on a hyper‑technical ground and the merits were not touched, the case is liable to be remanded.

12. Resultantly, the instant petition is allowed by setting aside the impugned judgment and decree of the learned Additional District Judge dated 22‑6‑1988 and the case is remanded to him for a decision afresh on merits, in accordance with law after hearing the parties. It is further directed that appeal shall be decided within four months positively from the date of appearance of the parties. There shall be no order as to costs. S.A.K./M.A.K./A‑276/L Case remanded.