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PETITIONER: SHRI RAM PRAKASH

       Vs.

RESPONDENT: SMT. CHARAN KAUR & ANR.

DATE OF JUDGMENT:       03/02/1997

BENCH: K. RAMASWAMY, G.T. NANAVATI

ACT:

HEADNOTE:

JUDGMENT:                THE 3RD DAY OF FEBRUARY, 1997 Present:                Hon’ble Mr.Justice K.Ramaswamy                Hon’ble Mr.Justice G.T. Nanavati A.K. Goel and Mrs. Sheela Goel, Advs. for the Petitioner                          O R D E R      The following Order of the Court was delivered:      This special leave petition arises from the judgment of the Himachal  Pradesh High Court, made on September 18, 1996 in Second  Appeal  No.215  of  1987.  Admittedly,  both  the petitioner  and   the  respondents  had  filed  civil  suits claiming damages  against each  other. The petitioner’s suit was dismissed  and the  respondents’ suit was also dismissed by the  trial Court  but on appeal filed by the respondents, it was  allowed and was decreed for recovery of Rs.24,875/-. The petitioner  filed second appeal against the decree which was admitted.  However, the  petitioner did  not  carry  the matter in second appeal against his suit for damages and was content with  filing an appeal against the decree of damages granted against  him. The  High Court recording the findings has held thus:      "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 recorded in one of he suit      have become  final in 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 factual      side,  as   detailed   above,   the      decree, not appealed against by the

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    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."      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  accurred to  the respondents due to misfeasance or malfeasance  having been  allowed to  become  final,  the decree which is 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. 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.      The special leave petition is accordingly dismissed.