Orissa High Court · 2025
Case Details
Signature Not Verified Digitally Signed Signed by: CHITTA RANJAN BISWAL Reason: Authentication Location: Orissa High Court, Cuttack Date: 22-Dec-2025 16:25:24 IN THE HIGH COURT OF ORISSA AT CUTTACK CMP No.1167 of 2025 (In the matter of an application under Article 227 of the Constitution of India) Gourav Naik@Gourav Nayak … Petitioner Rama Majhi and others … Opposite Parties -versus- Advocate(s) appeared in this case:- For Petitioner :
Legal Reasoning
Mr.R.K.Sahoo, Advocate For Opposite Parties : Mr.S.K.Dash, Advocate CORAM: JUSTICE B.P. ROUTRAY JUDGMENT 16th December 2025 B.P. Routray, J. 1. Heard Mr.Sahoo, learned counsel for the Petitioner and Mr.Dash, learned counsel for the Opposite Parties. 2. Present CMP is directed assailing order dated 25th June 2025 passed by the learned First Appellate Court in R.F.A.No.38 of 2017. 3. The simple question involves in present challenge is that, when the suit was dismissed and the cross suit was allowed, issuing one composite decree in favour of the defendant, whether two separate CMP No.1167 of 2025 Page 1 of 6 Signature Not Verified Digitally Signed Signed by: CHITTA RANJAN BISWAL Reason: Authentication Location: Orissa High Court, Cuttack Date: 22-Dec-2025 16:25:24 appeals would lie from the same composite decree or a single appeal. In the opinion of the learned District Judge, the single appeal in R.F.A.No.38 of 2017 is maintainable against the same composite decree allowing the counter claim and dismissing the suit. 4. Law is well settled in this regard and it is no more res integra. The Hon’ble Supreme Court in the case of Charan Singh vrs. Ram Saroop, disposed of on 3rd February 2025 (C.A.No.001586- 001586/2025 arising out of SLP(C)No.003447-003448/2025), has observed, as follows:- “7. In our considered view, reliance was rightly placed by the first appellate court on precedents to hold that a composite appeal was not maintainable in law but, at the same time, the first appellate court ought to have borne in mind that courts exist for rendering justice albeit in accordance with law. Once the first appellate court found, correctly, that challenge to the common judgment of the trial court dated 16th March, 2021 had been laid in a composite appeal but it is the requirement of law to file two appeals with separate memoranda of appeal, which had not been filed by the appellant, the court ought to have at least alerted the appellant by making him aware of the requirement of law and giving him the liberty to file a separate memorandum of appeal. In fact, in terms of Order XLI Rule 1 of the CPC, the appellate court has the power to even dispense with the requirement of law of filing copy of the impugned judgment twice over if it is part of the memorandum of appeal already filed. In any event, the CMP No.1167 of 2025 Page 2 of 6 Signature Not Verified Digitally Signed Signed by: CHITTA RANJAN BISWAL Reason: Authentication Location: Orissa High Court, Cuttack Date: 22-Dec-2025 16:25:24 defect was not such that it was incurable. The composite appeal was filed well within the period of limitation and, except for the fact that a separate memorandum of appeal was not filed, no other defect, far less serious defect, was shown to exist. If even after being alerted the appellant had failed to file a separate memorandum, the first appellate court would have been perfectly justified in dismissing the appeal. It is not shown to us that any such endeavor was made. 8. The first appellate court having failed to alert the appellant, we would have expected the High Court to intervene to set right the wrong by its interdiction. Technicality of a nature such as this should not have been allowed to prevail over substantive justice. The appellant had filed two second appeals before the High Court, meaning thereby that he had been properly advised while such advice might have been missing in the district of which the parties are residents. Unfortunately, the High Court did not address the point from the proper perspective either. While spurning the objection of learned counsel for the respondents, who has vehemently argued that there is no occasion to interfere since the appellant did not adhere to the law, we find good reason and ground to interfere. 9. For the ends of justice, we set aside the impugned second appellate judgment and decree of the High Court together with the first appellate judgment and decree. This would result in revival of the first appeal on the file of the first appellate court. We grant liberty to the appellant to file a separate memorandum of appeal, without certified copy of the impugned judgment and decree, within three weeks from date. Once it is filed, the CMP No.1167 of 2025 Page 3 of 6 Signature Not Verified Digitally Signed Signed by: CHITTA RANJAN BISWAL Reason: Authentication Location: Orissa High Court, Cuttack Date: 22-Dec-2025 16:25:24 same shall be registered without limitation being treated as a bar. Should there be a default, the appellant shall lose the benefit of this order.” 5. Further, in Smt. Rama Deo vrs. State of Orissa and others, 2019(I) OlR-800, this Court has observed that, “12. In Smt. Kishori Devi and others v. Rameshwar Prasad, AIR 2017 Patna 187, the question arose (i) Whether a decree granting relief to the defendants in the counter-claim is separately appealable or a composite appeal is maintainable against the judgment and decree of the trial court by the plaintiff whereby the suit has been dismissed but the counter-claim has been decreed ? and (ii) Whether non-filing of the appeal against the decree passed in the counter-claim in accordance with law and procedure would attract the bar of res judicata in the appeal filed only against the judgment and decree dismissing the suit ? Taking a cue from the decision of the apex Court in the case of Rajni Rani, the Court held: “15……… that a counter-claim filed in a suit has to be tried as a cross suit with all legal implications and consequences and the order passed in such a counter-claim has to be appealed separately in accordance with law and procedure. In the said case, no separate appeal was filed by the plaintiff- respondent against the decree of the counter-claim of the defendants which attained finality thereby and the said fact was potent enough to attract the bar of res judicata……” CMP No.1167 of 2025 Page 4 of 6 Signature Not Verified Digitally Signed Signed by: CHITTA RANJAN BISWAL Reason: Authentication Location: Orissa High Court, Cuttack Date: 22-Dec-2025 16:25:24 13. This Court in the case of Karunakar Panda v. Durgabati Bewa and others, AIR 1981 Orissa 23 held that:- “16........ But where the subject-matter of each of the two suits or appeals is different and the decision in the two proceedings, though stated in one judgment, really amounts to two decisions and not one decision common to both the proceedings, an appeal filed against the decision in one proceeding will be barred by the rule of res judicata if no appeal is filed against the decision in the other proceeding.” 14. Mr. Mishra, learned counsel for the appellant submits that since one of the decree was drawn up, only appeal filed. The same was not pointed out by the first appellate court. Hence the matter may be remitted back to the first appellate court so as to enable the appellant to file two appeals. The submission of the learned counsel is difficult to fathom. Order 41 Rule 1 CPC provides that every appeal shall be preferred in the form of a memorandum signed by the appellant or his pleader and presented to the Court or to such officer as it appoints in this behalf. The memorandum shall be accompanied by a copy of the judgment. In view of the fact that the plaintiff has not appealed against the judgment and decree passed by the counterclaim, the said judgment shall operate as res judicata.” 6. Taking note of the situation of the present case that the composite decree dated 30th September 2015 of learned trial court is regarding dismissal of the suit of the plaintiff and allowing the counter CMP No.1167 of 2025 Page 5 of 6 Signature Not Verified Digitally Signed Signed by: CHITTA RANJAN BISWAL Reason: Authentication Location: Orissa High Court, Cuttack Date: 22-Dec-2025 16:25:24 claim of the defendant, it is directed that the learned First Appellate Court should confine the appeal, i.e. R.F.A.No.38 of 2017 to any one of the decrees at the choice of the appellant and the appellant is also granted liberty to file another appeal, if he wishes so. In the event of filing of another appeal, delay may be considered liberally. 7. With the aforesaid observation and direction, the CMP is
Decision
disposed of. Judge ( B.P. Routray) C.R.Biswal, A.R.-cum-Sr.Seretary CMP No.1167 of 2025 Page 6 of 6