The Kerala High Court dismissed a regular second appeal arguing that it was not maintainable because the appellant sought to challenge findings on common issues already adjudicated in a previous appeal governed by res judicata.
The appeal is dismissed. Appellant ordered to pay 1/3rd court fees.
This page shows the compact analysis of this judgement. The full analysis — procedural history, issue-by-issue holdings with ratio and obiter, advocates, and paragraph-level evidence for every claim — is being added to the record in batches and will appear here when this judgement has been through it.
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT : THE HONOURABLE MR. JUSTICE S.S.SATHEESACHANDRAN
TUESDAY, THE 14TH SEPTEMBER 2010 / 23RD BHADRA 1932
RSA.No. 844 of 2010() --------------------AS.28/1994 of SUB COURT,KOTTARAKKARA OS.355/1990 of MUNSIFF COURT, PUNALUR ....................
APPELLANT/DEFENDANT (S): ------------------------------------------
ASANAR RAWTHER ABDUL SALAM, THOPPIL VEEDU, NADUKKUNNU MURI, PATHANAPURAM.
BY ADV. SRI.V.N.ACHUTHA KURUP, SENIOR ADVOCATE ADV. SRI. HARILAL
RESPONDENT(S): --------------GEEVARGHESE CHAKO, PINARUVILA, KOCHU PUTHEN VEEDU, VETTIPUZHA, PUNALUR, PATHANAPURAM.
ADV. SRI.MOHAN JACOB GEORGE SMT.P.V.PARVATHI SMT.REENA THOMAS SRI.L.RAM MOHAN GOVERNMENT PLEADER
THIS REGULAR SECOND APPEAL HAVING COME UP FOR ADMISSION ON 14/09/2010, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:
S.S.SATHEESACHANDRAN, J
R.S.A No.844 OF 2010
Dated this the 14th day of September 2010
JUDGMENT
This appeal is directed against the concurrent decision rendered in a suit for money. Defendant is the appellant. Three suits were filed against the appellant/defendant, two of them by the respondent as plaintiff and the other by his father as plaintiff. All the suits were jointly tried and disposed under a common judgment by the trial court, by which, two of them were decreed against the appellant and the other one, dismissed as settled. The appellant preferred two appeals against the adverse decision rendered against him in two suits under the aforesaid common judgment and those two appeals after being heard together were disposed by a common judgment by the first appellate court upholding the decree of the trial court and dismissing the appeals. The appellant, admittedly, preferred the present appeal, that alone, from one of the two appeals decided against him under the common judgment dismissing the two appeals by the first appellate court. Perusing the issues considered by the trial court and also the first appellate court, it is found that the issues involved for adjudication in all the suits were common and as such, the finding entered in one of them, if not challenged as
R.S.A No.844 OF 2010
provided by law, would operate as resjudicata in entertaining further challenge from any of the suits. Since the appellant has filed only one appeal against the two appeals dismissed under the common judgment by the first appellate court, it is needless to point out that the findings rendered for the dismissal of the other appeal on the common questions considered would debar the entertainability of this appeal in view of the applicability of the resjudicata. That being so, I find, the appeal is not entertainable, and, it is dismissed.
Sd/-
S.S.SATHEESACHANDRAN
JUDGE
//True Copy//
P.A to Judge
vdv
2 issues framed by the court
Whether an appeal is maintainable when it is directed against the dismissal of an appeal on common issues res judicata.
Whether findings on common issues in a suit barred under res judicata preclude further entertainment of another appeal based on dismissed appeals.
Asanar Rawther Abdul Salama
Geevarghese Chako
S.S.Satheesachandran
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
