Sahai, J. - (1.) The short and the only question of law that arises for consideration in this appeal is the effect of non filing of appeal in the connected suit tried together with common issues.
(2.) The appellant filed a suit for recovery of certain amount due to it on the supplies made by it to the respondent-Corporation. Whereupon the respondent-Corporation filed a suit for recovery of the excess amount paid by it to the appellant. The claim of the appellant was that it was entitled to the invoice price whereas according to the respondent the Corporation was not liable to pay in excess of D.G.S. and D. contract rates. Both the suits were connected and tried together as the nature of dispute in both the suits were same. Issues framed were also common. The trial Court found that the Corporation was liable to pay for the goods supplied to it by the appellant only at D.G.S. and D. contract rates. Even on this finding the claim of appellant was found substantiated for a part and consequently the suit was decreed to that extent. The suit of the Corporation was also decreed in part and it was directed that in respect of supplies where the payment had been made in excess of D.G.S. and D. rates, the respondent was entitled to refund. The appellant did not file any appeal against the dismissal of the suit for the part of its claim but appeal was filed against the decree granted in favour of the Corporation in the suit filed by it. At the time of hearing, the High Court dismissed the appeal of the appellant as barred by res judicata as the finding recorded in the connected suit that the appellant was entitled to charge and collect only on the D.G.S. and D. rates and not on the invoice price had become final.
(3.) The validity of this finding has been assailed by Shri Raja Ram Aggarwal, the learned Sr. Advocate appearing on behalf of the appellant. It is urged that S. 11 of the Civil, Procedure Code does not apply as such. According to him since both the suits were connected and decided by a common order the issue in neither suit can be said to have been decided in a former suit. Therefore, the basic ingredient of S. 11 of the C.P.C. was not satisfied. The submission derives some support from observations in Narhari v. Shanker, AIR 1953 SC 419, that, 'even when there are two suits it has been held that decision given simultaneously cannot be a decision in the former suit'. But this decision was distinguished in Sheodan Singh v. Smt. Daryao Kunwar, (1966) 3 SCR 300, as it related to only one suit, therefore, the observations extracted above were not relevant in a case where more than one suit were decided by a common order. The Court further held that where more than one suit were filed together and main issues were common and appeals were filed against the judgment and decree in all the suits and one appeal was dismissed either as barred by time or abated then the order operated as res judicata in other appeals, 'In the present case there were different suits from which different appeals had to be filed. The High Court's decision in the two appeals arising from suits Nos. 77 and 91 was 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 the present case. The contention that there was no former suit in the present case must therefore fail'. In Shri Ramagya Prasad Gupta v. Sri Murli Prasad, (1974) 2 SCC 266, an effort was made to get the decision in Sheodan Singh, (supra) reconsidered. But the Court did not consider it necessary to examine the matter as the subject matter of two suits being different one of the necessary ingredients for applicability of Section 11 of the C.P.C. were found missing.;