P L D 1957 (W (PLP)

MUHAMMAD SHAFI, J.‑--The question which requires to be answered by the Full Bench can be formulated thus, "where two or more pre‑emption suits by rival pre‑emptors are consolidated and adjudicated upon by one single judgment, but two separate decree sheets are drawn up in each suit then, whether the aggrieved party in order to nullify the effect of the decrees granted against him should file separate appeals against each decree or one single appeal demanding the vacation of all the decrees will satisfy the law and achieve the required object?" The facts leading up to this question are as follows: By mutation No. 6913 attested on the 27th of March 1954, one Gulzada sold 6/8th share in Khasra No. 1531 and 3/8th share in Khasra No. 1530, situated in Togh village of Hangu Tehsil, in favour of Masti Khan for an ostensible price of Rs.

700. Two suits for possession by pre‑emption were instituted, one by Muhammad Zaman Khan on the 2nd of September 1954, and the other by Inzar Gul on the 18th of December 1954. The latter having been instituted subsequently, Muhammad Zaman was shown as defendant No. 2, defendant No. 1, being the vendee. Muhammad Zaman claimed a preferential right on the grounds that he as a co‑sharer in the two Khasra numbers sold and that the property sold, and the plaintiff's lands bearing Khasra No. 1615/1529, were irrigated from a common source. Inzar Gul on the other hand claimed that the right of pre‑emption in respect of the property sold vested in him in preference to both the vendee and Muhammad Zaman the rival pre‑emptor, because he was the owner of Khasra No. 5136/1523, which is contiguous to Khasra No. 1531 and the second Khasra No. 1530, had no separate entity and being a well only irrigated Khasra No. 1531. On the 19th of February 1955, a formal order was written on the records of both the suits that they should be consolidated and the plaintiff in one case impleaded as a defendant in the other. The learned trial Court, however, seems to have overlooked the fact that Inzar Gul had already impleaded Muhammad Zaman as defendant in his suit. His name was in spite of it written for the second time in Inzar Gul's plaint. Thereafter both the suits were treated as one suit. The issues were framed and the evidence of the witnesses was taken in the record of Muhammad Zaman's case only. Finally both the suits were disposed of by one single judgment, which was placed on the file relating to Muhammad Zaman's case. A brief order was written in Inzar Gul's case. It was to the following effect:‑ "Counsel for the pre‑emptors and the vendee present. This case has been decided. For orders see file No. 336/1 which is also a file for this case. According to the said order Inzar Gul's suit is dismissed. Parties to bear their own costs." This surely cannot be said to be a judgment within the meaning of Order XX, rule 4 of the Civil P. C., which requires the judgment to contain a concise statement of the case, the points for determination, the decision thereon and the reasons for such decision. The trial Judge held Muhammad Zaman to have preferential right of pre‑emption as against the vendee and Inzar Gul both in respect of the whole of the suit land. He held Inzar Gul pre‑emptor to have a preferential right as against the vendee alone in respect of field No. 1531 only. Having arrived at this conclusion he dismissed Inzar Gul's suit and decreed that of Muhammad Zaman's on payment of Rs.

700. Since this amount had already been deposited in Court, all that the vendee was ordered to do was to withdraw this amount. Two separate decree‑sheets were prepared. All that was stated in the decree‑sheet in Inzar Gul's suit was that it was dismissed and that the parties should bear their own costs. In Muhammad Zaman's suit the decree which was drawn up in Urdu, when rendered in English language reads as under: "The decree claimed is hereby granted in favour of Muhammad Zaman against the vendee and the rival pre- emptor Inzar Gul on payment of Rs.

700. Inzar Gul's suit is dismissed. The parties will bear their own costs. The detailed judgment shall be placed on file No. 336/1 (Muhammad Zaman's suit) and its copy on file No. 553/1. Muhammad Zaman had already deposited Rs. 700, which can be drawn by Masti Khan." The words of this decree‑sheet would show that it related to both Muhammad Zaman's suit as well as that of Inzar Gul. Inzar Gul lodged one single appeal in the Court of Senior Sub‑Judge, Kohat in which he demanded that Muhammad Zaman's suit for pre‑emption for the two Khasra Nos. in dispute should be dismissed with costs of both the Courts and his decreed. The memorandum of appeal was accom panied by the copies of the decree‑sheets prepared in both the suits and also by that of the detailed judgment. The certified copy of the brief order written in his file (translated from Urdu into English earlier in this judgment) was not appended to the memorandum of Appeal. An objection was raised in the Court of Senior Sub‑Judge that one single appeal by Inzar Gul was not competent and that the matter had become res judicata on account of the fact that the decree in the other suit has been suffered by Inzar Gul to have become final, as he had not appealed against it. This objection was overruled by the learned lower Appellate an Court, who then went into the merits of the appeal and remanded the case to the lower Court under section 151 of the Civil P. C. with the direction that the parties should be given an opportunity to lead evidence with regard to the assess ment and the determination of the price of the land bearing Khasra No. 1531 and when it was done, then to pass a decree therefore in favour of Inzar Gul. The suit of Muhammad Zaman in its entirety and that of Inzar Gul with regard to Khasra No. 1530 was to be dismissed. Muhammad Zaman has come up to this Court under section 34 of the North‑West Frontier Province Courts Regulation with the request that this Court may call for the record of both the cases and revise the order passed by the learned Senior Sub‑Judge. He has re‑iterated his objection that the appeal of Inzar Gul which has been accepted by the learned Senior Sub‑Judge should have been dismissed on the strength of his preliminary objection. It is argued that applying the rule of res judicata as envisaged in section 11 of the Civil P. C. to the facts set forth above Inzar Gul's appeal was clearly bad in law. On this argument the question at once arises as to whether section 11 of the Civil P. C. in terms applies to appeals. It seems necessary to reproduce here section 11 of the Civil P. C. verbatim even though it is one of the most familiar sections in the practice of law. "No Court shall try any suit or issue in which the matter directly and substantially in issue has been directly and substantially in issue in a former suit between the same parties or between the parties under whom they or any of them claim, litigating under the same title, in a Court competent to try such subsequent suit or the suit in which such issue has been subsequently raised, and has been heard and finally decided by such Court." There is some authority for the view that the word "Suit" wherever it occurs in the body of the Civil P. C. should be taken to include proceedings before the appellate Court. This rule, however, if accepted in such general terms, might in certain cases lead to absurd results. It is, therefore, necessary to limit its scope and taking the clue from section 107, subsection (2) of the Civil P. C., where the appellate Court is required to exercise the same powers and perform the same duties as are conferred and imposed on Courts of original jurisdiction in respect of suits instituted therein, the words "as nearly as may be" added to it. The result of this addition will be that the word "Suit" wherever it occurs will not be taken indiscriminately to include appeals, but it would be taken to include it only in such cases where it is necessary to do so to carry into effect the requisite relief and to meet the ends of justice. If the word "Appeal" is substituted for the word "Suit" in section 11 of the Civil P. C., then it will become clear (without straining one's intelligence) that in this section at least the word "Suit" cannot be taken to include the proceedings before an Appellate Court. The opening words of section 11 are, "No Court shall try any suit". Now under section 9 of the Code of Civil Procedure it is only the Court of the first instance that tries any suit. The Court of appeal under section 107 read with Order XLI of the Civil P. C, hears the appeal and exercises the definite powers given to it. Similarly "the matter directly and substantially in issue has been directly and substantially in issue in a former suit between the same parties or between the parties under whom they or any of them claim litigating under the same title in a Court competent to try such subsequent suit or the suit in which such issue has been subsequently raised and has been heard and finally decided by such Court" can only have reference to a Court of the first instance and not to a Court of appeal. In the latter case section 11 of the Civil P. C. would carry no sense whatsoever. If any doubt is left in one's mind with regard to the non‑applicability of section 11 to the proceedings before the Court of Appeal, it is completely removed by looking at Explanation II of section 11, which is to the following effect:-- "For the purposes of this section the competence of a Court shall be determined irrespective of any provisions as to a right of appeal from the decision of such Court." Even if it is assumed for the sake of argument that section 11, of the Civil P. C. applies to proceedings in a Court of appeal, still it should have no application to the appeals in rival suits decided by one judgment. Explanation I of section 11, defines "former suit" as denoting a suit which has been decided prior to the suit in question whether or not it was instituted prior thereto. Where two suits are decided at one and the same time by one single judgment, as is the case here, then by no stretch of imagination can it be said, that one suit is former to the other, in the sense that it has been decided prior to it. It is thus settled that section 11 of the Code is completely inapplicable and must, therefore, be ruled out of consideration. The matter, however, does not rest her. Even if section 11 has no application to the circum‑f stances of this case still the general doctrine of res judicata` embodying exceptio rei judicate or plea of former judgment, nemo aebet bis vexari pro eadem cause (No one should be twice vexed for the same cause) and interest rei publicate utsit finis litium (it is for the public good that there be an end of litigation) would come into play. But then the fetters of technicalities are broken, and we get out of the narrow scope of ascertaining the meaning of the specific words used in a section and applying them to the facts of a particular case regardless of the consequences that might flow from it. We are then required to find out the raison d'etre of tire doctrine. It is then the spirit of the law and (not the eutvaid form which would govern our judgment. The ultimate result shall in that case have to be taken into consideration and the argument ab inconvenienti would at once become admissible. Where two or more suits have common issues, are consolidated by the order of the .Court, are tried at one and the same time, only one record of issues and evidence is prepared in all of them and finally they are adjudicated upon and disposed of by one single judgment, the Court applying its mind only once to all cases collectively treating them as one case, then in substance as well as in form there will most definitely be one trial and one verdict in all those suits. To hold otherwise would, if I may venture to say so strain credibility and would amount to flying in the face of the realities. The principle involved in this case was the subject -matter of lucid, learned and thorough discussion by a Full Bench of the Lahore High Court, consisting of five Judges in case Mst. Lachhmi v. Mst. Bhulli (A I R 1927 Lah. 289). The facts of that case were that one Dewa Singh died leaving behind considerable landed property which was mutated, half in the name of his widow, and the other half in the name of Mst. Lachhmi, the widow of his pre‑deceased son. Each of these two ladies then brought a suit for declaration that she was the sole owner of the entire land. In each case the other widow was the sole defendant. Different issues were struck in each suit, but they were disposed of by the same judgment and by the consent, of the parties the evidence in Mst. Bhulli's suit was read as evidence in that of Mst. Lachhmi's. Finally one single judgment was written in two suits and two decree‑sheets were drawn up. According to the judgment of the trial Court Mst. Bhulli was given a declaration that she was the owner of half -square of Dewa Singh as heir of Dewa Singh, and that the other half‑square was to remain with Mst. Lachhmi in lieu of maintenance. In Mst. Lachhmi's suit, she was given a declaration that she was in possession and shall remain in possession of half‑square in lieu of maintenance only. Mst. Lachhmi appealed against the decree in her own suit but did not do so in the decree of the other suit. The same objection was raised, as is raised, in this case, and it was held that section 11 applies to the suits and not to appeals. But the general principle of res judicata would apply to appeals; and in applying those general principles, the Courts were not hampered by any technical rules of inter pretation such as govern the applicability of the statute. It was further held that the essence of the rule was that the two proceedings should be so independent of each other that the trial of one cannot be confused with the trial of the other. Where two suits, having a common issue are by consent of the parties or by order of the Court, tried together, the evidence being written in one record and both suits disposed of by a single judgment in cannot be said that there had been two distinct and independent trials. It was held by the Full Bench, Dalip Singh, J. dissenting, that the fact that no appeal had been preferred by Mst. Lachhmi against the decree in the other suit of Mst. Bhulli could not prevent her appeal from proceeding. This authority has since been followed by the Supreme Court of India in case Narhari and others v. Shankar and others (A I R 1953 S C (Ind.) 419) The same view has been taken by a Division Bench of Allahabad High Court in case Shri Ram v. Shripat Singh and others (A I R 1957 All. 105). The facts of the last quoted case were some what similar to the facts of the case now before us. Earlier the Calcutta High Court in case Man Mohan Das v. Shib Chandra Shah and another (A I R 1931 Cal. 353 (Following 33 Cal. 1101)), had also held that where two separate suits were instituted by the same parties against each other and they were tried together as cross suits, and one of the parties preferred an appeal from the decision in which he was defendant and not from the other suit instituted by him, the latter suit did not operate as res judicata in the hearing of appeal. A Full Bench of Madras High Court in case Pappammal alias Muthu v. Meenammal and others (A I R 1943 Mad. 139), has also taken the same view as the one taken by Lahore, Calcutta and Allahabad High Courts as well as the Supreme Court of India. An opposite view was, however, taken by the Court of the Judicial Commissioner of North‑West Frontier Province (since merged in West Pakistan High Court) in case Mst. Zohra v. Raza Khan and others (A I R 1945 Pesh. 35). Learned Judges in this case "felt persuaded" (as they put it) to agree with the dissenting judgment of Dalip Singh J. in Mst. Lachhmi's case for the argument given by this learned Judge as well as for the reasons of their own. Like Dalip Singh, J. they agreed with the majority view in the above case that section 11 of the Civil P. C. did not in terms apply to appeal and the matter had therefore to be considered from the point of view of the general principle of res judicata. They also concurred in their decision that the presence of another decree did not operate as an estoppel by verdict for in such cases the matter in issue between the parties had been decided once for all and there were no two contradictory decisions on the same point. They were of the view that estoppel by record applied to the case and the existence of the other decree was a serious and fatal obstacle in the way of the appellant in such cases. It will be noticed that the facts of Mst. Lachhmi's case were very much different from the facts of this case. It was in the peculiar circumstances of Mst. Lachhmi's case that Dalip Singh, J. differed from his learned brothers. Those peculiar circumstances in the words of Dalip Singh, J. himself were as follows:‑ "I should like to point out however, that on the facts given above it is a question of some difficulty as to whether the Court meant to deliver two identical judgments in the two suits or whether the Court intended to dispose of the suits by one judgment as stated by him in words. It must be borne in mind that apart from certain formal and technical issues there were two main issues on the merits in the two suits. The first issue was whether Mst. Bhulli was the lawful widow of Dewa Singh. The onus of the issue was not the same in the two cases because issue No. 1 in Mst. Lachhmi's case which was framed "is the defendant Mst. Bhulli still the wife of Ram Singh" was really equivalent to the issue "Is defendant Mst. Bhulli not the widow of Dewa Singh." The second issue on the merits was whether Lachhmi was preferential heir to Dewa Singh's land in the presence of his widow Mst. Bhulli. The onus of this issue was the same in both suits. The learned Judge in his order placed on the record in Mst. Bhulli's case held both negatively that Mst. Lachhmi has failed to prove that Mst. Bhulli was not the widow of Dewa Singh and held affirmatively that Mst. Bhulli was the widow of Dewa Singh. The reliefs sought by both the plaintiffs were also stated in that order. As already pointed out, the opening line of the judgment was that the two suits were to be disposed of by one judgment. On the other hand it seems to me extremely difficult to hold that two suits can be disposed of by one judgment though it is easy to hold that they are disposed of by two identical judgments. However, no copy of the order in Mst. Bhulli's case was placed on the record in Mst. Lachhmi's case which only contained the few words already given. If those few words were to be treated as a judgment then the decision of the present appeal would be that Mst. Lachhmi had appealed from the decree in her own suit and had attacked the judgment in Mst. Bhulli's suit but not the judgment in. her own suit. The appeal would, therefore, not be properly constituted". Again a little further his Lordship observed as under:‑ "Next I proceed to consider the question whether in this case there is an estoppel by record, because of the fact that two separate decrees were drawn up in the two sits. Bearing in mind the definition given of cause of action in the ruling of their Lordships of the Privy Council already cited above it seems to me that in substance the plaint of Mst. Bhulli asserted that she was the heir of Dewa Singh in preference to Mst. Lachhmi and asked for a declaration to the effect. Similarly in substance the suit of Mst. Lachhmi asserted that she was the preferential heir of Dewa Singh as against Mst. Bhulli and asked for a declaration to that effect. A declaration was given in Mst. Bhulli's suit to the effect that she was the heir of Dewa Singh in preference to Mst. Lachhmi. It is clear that if the above is the correct way of looking at the two suits then there is an estoppel by record against Mst. Lachhmi, because of the existence of the decree. I have been much pressed by the argument that it is really a matter of accident that the suit was brought in a declaratory form as it actually was. If Mst. Lachhmi had been in possession of other property the suits of both parties would have been suits for possession of that property of which they themselves were not in possession. No doubt even in such a case on issue would have arisen as to which of them was the preferential heir, and the decision on the issue might have constituted in certain circumstances an estoppel by verdict, but would not necessarily have constituted as estoppel by record. In this particular case for instance both the suits have been dismissed. Mst. Lachhmi's on the ground that Mst. Bhulli was a preferential heir and Mst. Bhulli's on the ground that Mst. Lachhmi was entitled to retain the property in lieu of maintenance. But, the decrees in the two suits would simply have been for the dismissal of the suits and in order to see whether any bar created by way of estoppel it would have been necessary to look at the judgment as distinguished from the decree. It might be urged that in effect the two suits really related to the property to which the title of the parties was disputed, and that it was only the accident of mutation which constituted them co‑sharers in a joint Khata which led to the suits being in the form that they were. It seems to me, however, on a closer examination of the argument that the form of the suit did really express the real matter of contention between the parties which was their claim to the inheritance of Dewa Singh. It follows that Mst. Bhulli obtained a decree declaring that she was the heir and this decree settled the status of the parties inter se, and as the decree in that suit has not been appealed against it is now out standing against Mst. Lachhmi and constitutes a bar by record against her. In this appeal, therefore, where she asks for declaration that she is the exclusive owner of the square on the ground that she is a preferential heir to Mst. Bhulli if she succeeded there would be two conflicting decisions on the same point. I am, therefore, of opinion that his appeal cannot proceed". Mst. Lachhmi's case is thus distinguished from this case in the following respect‑‑ (a) There was no consolidation of suit by express or implied order of the Court in Lachhmi's case while there is such an order existing in express words in this case. (b) It appears that in Mst. Lachhmi's case issues were framed separately in the two suits, while in this suit only one set of issues was framed. (c) According to Dalip Singh, J, two suits could not be disposed of by one judgment, while in the case before us no such difficulty faces us. (d) Causes of action of the two suits in Mst. Lachhmi's case were different while in this case cause of action was the same viz. the sale of the land in favour of the vendee. (e) In Mst. Lachhmi's case, Mst. Lachhmi had attacked the judgment in Mst. Bhulli's suit, but not the judgment in her own suit which is not the case here when Inzar Gul attached both decrees in his as well as in Muhammad Zaman's suit. A careful and close examination of Dalip Singh J's judgment will reveal that even he, so far as rival pre '" emption suits, consolidated and disposed of by one judgment were concerned agreed with the majority opinion that a decree formally prepared in each suit could be pleaded as res judicata in an appeal which attacked the judgment as a whole. While discussing Jogal Kishore v. Chimmo, His Lordship observed:‑ "In Jogal Kishore v. Chammo there were two suits for pre‑emption filed by two rival pre‑emptors against the same defendant. The plaintiff in one case was made a party in the suit of the other pre‑emptor. No corresponding order was passed in the suit in which the first pre‑emptor was himself plaintiff. The two cases were tried together and ultimately the second pre‑emptor was held by the trial Court to have the superior right and a decree was passed in favour of the second pre‑emptor giving him the right to pre‑empt within a certain time and on his failure to do so the first pre‑emptor was also given a right to pre‑empt. There was one judgment and decree in both the suits, see page 261 of the reported ruling. The second pre‑emptor appealed in his own case and the question was whether the decision in the other case barred the appeal. Assuming that the facts are correctly stated and that there was only one judgment and decree in both the cases (and I draw attention to this fact because in Bhan Singh v. Gokal Chand it is stated that the head note of the case is wrong in stating that the same decree was given in both suits) then it seems to me quite clear that impliedly the trial Court had consolidated the two suits after impleading the second pre‑emptor in the suit of the first pre‑emptor and as held by the Full Bench it was only a clerical omission on account of which the first pre‑emptor was not impleaded in the suit of the second pre‑emptor. If this was so then there could be no question of bar of an appeal because when the suits were consolidated there was but one judgment and decree and therefore the decision was correct". Following sentence from Dalip Singh, J's judgment may be quoted with advantage in this connection:‑ "My conclusion, therefore, is that in cases of this kind the Court should draw the presumption, if the subject -matter of the two suits is identical and the questions raised in them are also, in substance identical because of the principle that I have already stated, viz., that the Court should lean in favour of the right to proceed." This shows that so far as the type of case now before us is concerned there was concurrence and not difference of opinion between Dalip Singh, J and the other four learned Judges. With all respect we cannot resist noticing that the learned Judicial Commissioners in Mst. Zohra v. Raza Khan's case, while preferring to follow Dalip Singh J's. dissenting judgment, were in actual fact, in the circumstance of the eases disagreeing with him. If they had appreciated the dissenting judgment correctly, then decision would surely have been in favour of the majority view. The facts of that case were: "Sherin sold some land to Raza Khan, Ashraf (also known as Ashraf Ali) and Mst. Zohra filed separate pre‑emption suits. The trial Judge consolidated the suits and made each pre‑emptor a defendant in the cross case. The Judge gave judgment in the case instituted by Ashraf. He held that Ashraf had a superior right of pre‑emption compared to Mst. Zohra. Ashraf was, therefore, granted possession on payment of Rs. 317‑8‑0 the price assessed by the Court. The final order in Mst. Zohra's case is only to the effect that the order of the Court in the other case should be seen. A decree sheet was prepared in the case of Ashraf. It is in the terms of the judgment. It appears that the pre -emption money having already been deposited by Ashraf, the Court did not consider it necessary to direct that Mst. Zohra should have the land in case Ashraf did not put in the amount. The decree sheet drawn up in the case of Mst. Zohra, therefore, contains an order of dismissal of the suit. Mst. Zohra presented an appeal to the District Court against the dismissal of her suit. She attached copies of the detailed judgment, of the short final order passed in her own case, and of the decree sheet drawn up in that case. She did not file an appeal against the decree passed in favour of Ashraf." The additional reason which the learned Judicial Commissioners gave for arriving at the conclusion that Mst. Zohra's appeal before the District Judge was hit by the principle of res judicata after quoting Order XX, rules‑4, 5, 6 and 14 as well as section 96 and Order XLI, rule 1 of the Civil P. C. was:‑ "It will be observed that for the purposes of appeal only the decree is the effective document and not the judgment No doubt, the judgment can be used to elucidate an ambiguity in the decree, but then the fact remains that it is the decree which has to be appealed from under Order XLI, rule 1, Civil P. C., and which has to be executed under section 38, Civil P. C. It must have beer noticed that the Court may on appeal from a decree ever dispense with the production of a copy of the judgment of which the decree is founded. It is quite consistent, for after all section 2 subsection (2) Civil P. C., defines the decree (and not the judgment) as the: "formal expression of an adjudication which, so far a regards the Court expressing it, conclusively determines the rights of the parties with regard to all or any of the matter in controversy in the suit." "Applying the principles enunciated above to the case in hand, Mst. Zohra has asked on appeal that she should be given a decree for possession by pre‑emption of the land i dispute. A similar decree in favour of Ashraf has become final. It Mst. Zohra were given the relief she had asked for, the decree of the appellate Court in the case of Mst. Zohra, and the decree of the trial Court in favour of Ashraf will be in conflict. Ashraf will take out execution of his decree which has not been appealed against, and Mst. Zohra will ask the execution Judge to execute the decree which has been passed in her favour by the appellate Judge. The execution judge will not know what to do, for he cannot give the same land to two persons at the same time. Surely the Legislature never intended that such an embarrassing situation should arise. We, con sequently, hold that Mst. Zohra is estopped by the principle of res judicata from maintaining her appeal, and the Additional Judge was right in dismissing it. The petition is dismissed with costs." This reasoning of the learned Judicial Commissioners, if I may venture to say with all deference is completely erroneous. It is settled law that suits involving common questions of law and fact and between the same parties can be consolidated under section 151 of the Civil P. C. in order to save the trouble and cost of having separate trials and when that is done then the intention is to have one trial and one judgment and treat all the consolidated actions as one action is substance and in form. In such a case there is no reason why the Court should not draw up one single decree sheet giving "formal expression of an adjudication which conclusively determines the rights of the parties with regard to all or any of the matters in controversy in all the suits". Now if one single decree is drawn up in consolidated suits, the learned Judicial Commissioners are also of the view that one single appeal would satisfy the law. They say: "It follows from what we have said above that both from the point of view of statute and of general principles a decree will act as an estoppel by record against a person who have been directly or indirectly refused a relief thereby or whose rights (supposed or real) have been taken away from him. Now, it is usual in India to consolidate suits where common questions of law or fact are involved. It is done under section 151, Civil P. C., for unlike English law there is no statutory provision in India for consoli dation. In the first place there is no reason why the Court should not deliver one judgment and prepare one decree sheet in consolidated suits. But then it may be as in the case before us that the Judge delivers the main judgment in one suit and makes a brief reference to it in the other and prepares two decree sheets, one in each case. If in such circumstances the aggrieved party appeals from one decree and not from the other, we are strongly of opinion that it is a question of fact which is to be decided on the merits of each case, whether the decree which has not been appealed against and has, therefore, become final in any way deprives the appellant of the alleged rights or refuses him the relief which be directly or indirectly seeks to get on appeal. If it does, the appeal should be dismissed, for the decree which has become final acts as res judicata. If it does not, the appeal should be entertained." They, however, opined that when separate decree sheets are prepared in different consolidated suits, then separate appeals should be filed, because each decree would then operate as estoppel by record, though not as estoppel by verdict. Under section 28 of the North‑West Frontier Province Pre‑emption Act XIV of 1950, which is identical with section 28 of the Punjab Pre‑emption Act I of 1913, when more suits than one arising out of the same sale or, foreclosure are pending, the plaintiff in each suit shall be joined as defendant in each of the other suits, and in deciding the suits the Court shall in each decree state the order in which each claimant is entitled to exercise his right. This section in my judgment is to be read with Order XX, rule 14 of the Civil P. C. which is of general application. It runs as under: "(1) Where the Court decrees a claim to pre‑emption in respect of a particular sale of property and the pur chase‑money has not been paid into Court, the decree shall (a) specify or day on or before which the purchase‑money shall be so paid, and (b) direct that on payment into Court of such purchase- money together with the costs (if any) decreed against the plaintiff, on or before the day referred to in clause (a), the defendant shall deliver possession of the property to the plaintiff, whose title thereto shall be deemed to have accrued from the date of such payment, but that, if the purchase‑money and the costs if any are not so paid, the shall be dismissed with costs. (2) Where the Court has adjudicated upon rival claims to pre‑emption, the decree shall direct (a) if and in so far as the claims decreed are equal in degree, that the claims of each pre‑emptor complying with the provisions of sub‑rule (1) shall take effect in respect of a proportionate share of the property including any proportionate share in respect of which the claim of any pre‑emptor failing to comply with the said provisions would, but for such default, have taken effect; and (b) if and in so far as the claims decreed are different in degree, that the claim of the inferior pre‑emptor shall not take effect unless and until the superior pre‑emptor has failed to comply with the said provisions". Sub‑rule (2) prescribes the form of decree to be passed when there are rival pre‑emptors. It contemplates one single decree in all the rival suits. Under section 28 of the North‑West frontier Province Pre‑emption Act too, even though the preparation of separate decree sheets in all the suits seems to be intended yet the wordings of all those decrees have got to be exactly the same with the result that in effect and in actual fact there will be only one decree in all the suits, and they will be treated as such in applying the general principles of res judicata unhampered by any technical and narrow rules of interpretation which govern the applicability of a statute. I, therefore hold that on the facts given in the question formulated in the opening para graph of this judgment, one single appeal was competent and was rightly allowed by the lower appellate Court to proceed. KAYANI, J.--‑I agree. RAHMAN, C. J.--‑I agree. A. H. Reference answered.