About Me

My photo

ADVOCATEMMMOHAN -  Practicing both IN CIVIL, CRIMINAL AND FAMILY LAWS,Etc.,

Sunday, November 25, 2012

Res judicata - Accordingly, I hold that the findings of the trial court in O.S. Nos.274 and 276 of 1983 that the suit land is not part of Survey No.43 of Bholakpur village operates as Res judicata against the Government, since they have not preferred any appeals against the said findings. Therefore, the appeal filed by the Government in CCCA No.194 of 1998 is not maintainable. As far as the issue with regard to the powers of the appellate Court, under Order XLI Rule 33 CPC, are concerned, the same has to be considered in other appeals, therefore I am not inclined to express any final opinion on the said point.1) Whether the findings of the lower Court on issue No.1 in O.S. Nos.274 and 276 of 1983 have to be treated as decree and whether they operate as res judicata against the Government, since the Government have not filed any appeals challenging the said findings? 2) Whether the Government of Andhra Pradesh was not required to file appeals on the ground that no enforceable decree was passed against it?


THE HON'BLE SRI JUSTICE B.CHANDRA KUMAR        

C.C.C.A. No.194 of 1998

01.10.2012

State of A.P. rep. by Collector, Hyderabad District, Nampally, Hyderabad and
others

B. Ranga Reddy and others.

Counsel for the Appellants:Sri A. Sudershan Reddy, Advocate-General

Counsel for the Respondents:   Sri Challa Sitaramaiah, learned Senior Counsel,
representing Sri B. Rajendra and M. Narender Reddy

<Gist :

>Head Note:

?  Cases Referred:
1. (1974) 2 SCC 151
2. (1979) 4 SCC 163
3. (2005) 6 SCC 304
4. 1993 Supp(2) SCC 146
5. 1993 Supp(2) SCC 149
6. 1995(2)ALT 122(DB)
7. AIR 1966 SC 1332
8. (2010) 7 SCC 717
9. AIR 1996 Karnataka 296
10. (1974) 2 SCC 393
11. (1995) 6 SCC 733
12. (2007) 11 SCC 75
13. (2001) 8 SCC 173
14. AIR 1996 Madras 94
15. AIR 1995 SC 1205
16. (2004) 1 SCC 712
17. (2002) 2 SCC 85
18. (2003) SCC 34
19. (2003) 9 SCC 606

Order:
        The preliminary objection raised by Sri Challa Sitaramaiah, learned Senior
Counsel, representing Sri B. Rajendra and M. Narender Reddy, learned counsel for
the respondents, is that
the present appeal is not maintainable since the
appellants herein i.e., State of Andhra Pradesh have not challenged the common
findings in O.S. Nos.274 and 276 of 1983, but challenged only the findings in
O.S. No.141 of 1984 and, therefore, this appeal is hit by the principle of Res
judicata.
        The brief facts of the case are as follows.
One Ghulam Ahmed Khan filed
O.S. No.274 of 1983 claiming title to an extent of Ac.6.08 guntas in Survey
No.9/13, Khairatabad village, within the specified boundaries seeking
declaration of title and for injunction.
 One Mohd. Osman filed O.S. No.276 of
1983 claiming title to an extent of Ac.3.00 guntas in Survey No.9/13 of
Khairatabad village within the specified boundaries.
 One Ranga Reddy, Vijaya
Reddy and 7 others filed O.S. No.141 of 1984 claiming title to an extent of
Ac.19.23 guntas in Survey Nos.49 and 50 in Rasoolpura village, Hyderabad within
the specified boundaries.
 In all these suits, the relief sought is declaration
of title and injunction and certain other reliefs.

        All these three suits were tried together; evidence was recorded in O.S.
No.274 of 1983.
The defendants Nos.5 to 9 i.e., State of Andhra Pradesh,
represented by its District Collector, Hyderabad and other officials in O.S.
No.274 of 1983 were arrayed as Defendants 3 to 7 in O.S. No.276 of 1983 and
defendants 3, 4, 5, 9 and 10 in O.S. No.141 of 1984.
The plaintiffs in O.S.
Nos.274 and 276 of 1983 were arrayed as defendants 1 and 2 in O.S. No.141 of
1984.
The plaintiffs 1 and 2 in O.S. No.141 of 1984 were arrayed as defendants
1 and 2 in O.S. No.274 of 1983.
The first plaintiff in O.S. No.141 of 1984 was
arrayed as defendant No.1 in O.S. No.276 of 1983.

        The main question in all these three suits was
whether the disputed land
forms part of Survey No.9/13 in Khairatabad village as claimed by the plaintiffs
in O.S. Nos.274  and 276 of 1983 or forms part of Survey Nos.49 and 50 in
Rasoolpura as claimed by the plaintiffs in O.S. No.141 of 1984 or in Survey
No.43 of Bholakpur village as claimed by the State of A.P.

        The specific case of the State of A.P., is that Survey No.9/13 is situated
to the side of the Secretariat building besides mint compound and whereas the
Ministers Road is situated at the side of Deccan Continental Hospital and,
therefore, there is no relevancy between the boundaries of the suit schedule
property as mentioned by the plaintiffs. 
 It is also the case of the State of
A.P. (hereinafter referred to as 'Government' for convenience since referred as
Government in the lower Court judgment) that Survey No.43 of Bholakpur village
is a Government Shikkam Talab i.e., Tank Bed Government land and such lands vest  
in Government. 
On behalf of the plaintiffs, PWs. 1 and 2 were examined and Exs.A-1 to A-4 were
marked.  On behalf of the defendants, DWs. 1 to 12 were examined and Exs.B.1 to
B.90 were marked.  Exs.C-1 to C-3 and EXs.X.1 to X.10  were also marked.
The
issue No.1 is almost same in all the three suits.
In O.S. No.274 of 1983, the issue No.1 is as follows.
Whether the suit property
is part of Survey No.9/13 of Khairatabad village as claimed by the plaintiffs or
whether it is a part of Survey Nos.49 and 50 of Rasoolpura village as claimed by
the defendants 1 and 2 or whether it is the part of Survey No.43 of Bholakpur
village as claimed by the Government?
On this issue in O.S. No.274 of 1983, the
lower Court gave a finding that the plaintiffs miserably failed to establish
that the suit  property forms part of Survey No.9/13 of Khairatabad village, and
the Government also failed to establish that the suit land forms part of Survey
No.43 of Bholakpur village, but held that the defendants 1 to 4 clearly
established that that the suit land forms part of Sy.Nos.49 and 50 of Rasoolpura
village.
 In the result, the lower Court dismissed the suit in O.S. No.274 of
1983.  With regard to issue No.1 in O.S. No.276 of 1983 i.e. which is almost the
same issue as framed in O.S. No.274 of 1983, the lower Court held that the
finding of issue No.1 in O.S. No.274 of 1983 holds good therein also.  Similar
finding was given in O.S. No.141 of 1984 also.
 As far as the findings in O.S.
No.274 and 276 of 1983 are concerned, the Government i.e. , defendants 5 to 9 in
O.S. No.274 of 1983 and the defendants 3, 4, 5, 9 and 10 in O.S. No.276 of 1983
have not preferred any Appeal.
Therefore, the findings on issue No.1 in O.S.
Nos.274 and 276 of 1983, according to the learned Senior Counsel for the
respondents became final and therefore those findings operate as res judicata
between co-defendants.
The plaintiff in O.S. No.274 of 1983 preferred an appeal
in C.C.C.A. No.1 of 1999, the plaintiff in O.S. No.276 of 1983 preferred an
appeal in C.C.C.A. No.7 of 1999, the defendants 1 and 2 in O.S. No.141 of 1984
preferred C.C.C.A. No.206 of 1998 and the Government i.e., defendants 3 to 6 and
9 to 13 in O.S. No.141 of 1984 preferred C.C.C.A. No.194 of 1998.
The main contention of Sri Challa Sitaramaiah, learned Senior Counsel,
representing Sri B. Rajendra and M. Narender Reddy, learned counsel, is that as
far as the Government is concerned the findings against the Government in O.S.
Nos.274 and 276 of 1983 became final and operate as res judicata.
Thus, his
main contention is that the appeals filed by the Government are not maintainable
since the findings have become final and hit by the principles of res judicata.
Sri Sitaramaiah has placed reliance on some decisions which will be referred
while discussing the points.
The learned Advocate-General Sri A. Sudershan Reddy has submitted that
 the plea
of res judicata may not deserve any consideration.  His main submission is that
no decree is passed against the Government in O.S. Nos.274 and 276 of 1983 and
when the Government have not suffered any decree the question of filing an
appeal against such decree does not arise and there is no possibility to prefer
an appeal.
 It is also submitted that no appeal lie against a mere finding and
therefore even if there is some finding against the Government, there is no need
to file an appeal.
 It is submitted that the Government have disputed the
boundaries and location of the suit property and the suits filed by the
plaintiffs in those two suits have been dismissed.
The main submission of the learned Advocate-General is that
the government have
suffered a decree in O.S. No.141 of 1984 and therefore the Government preferred
an appeal against the judgment and decree passed in O.S. No.141 of 1984 and the 
unsuccessful plaintiffs in other two suits filed appeals.
The learned Advocate-
General referring to
Order 41 Rule 33 of CPC submitted that the appellate Court
shall have power to pass any decree and make any order notwithstanding the fact
that no appeal has been preferred challenging a part of the decree and such
power may be exercised in favour of all or any of the respondents or parties
although such respondents or parties may not have filed any appeal or
objections.
It is further argued that the lower Court based its findings on the
judgments of the Special Court under the A.P. Land Grabbing (Prohibition) Act,
1982 in L.G.C. No.10 of 1990 and subsequently the judgment of the Land Grabbing
Court has been set aside in W.P. No.260 of 1998 and W.P. No.2111 of 1998.
It is not in dispute that the three suits in O.S. Nos.274 and 276 of 1983 and
O.S. No.141 of 1984 are tried together and a common judgment has been delivered,
however, three separate decrees and judgments have been passed.
It is not in dispute that C.C.C.A. No.1 of 1999, C.C.C.A. No.7 of 1999 and
C.C.C.A. No.194 of 1998 have been filed challenging the judgment and decree
passed in O.S. Nos.274 and 276 of 1983 and O.S. No.141 of 1984 respectively.  It
is also not in dispute that the Writ Petition Nos.260 and 2111 of 1998 have been
preferred by the State Government against the judgments of the Special Court
referred above in Exs.B.88 and 89 and those writ petitions have been allowed on
04.06.2009 and the matter has been remanded back to the Special Court; after
remand, the Special Court has allowed L.G.C.Nos.104 and 105 of 1990  on
04.07.2011 while recording the finding that the land grabbed is found to be
falling on the northern side of the railway track, a part of Survey No.43 of
Bholakpur village. The learned Advocate-General argued that the contentions of
the plaintiffs in O.S. No.141 of 1984 is that Survey No.43 does not fall on the
northern side of the railway track is not available to them since the earlier
judgments marked in Exs.B.88 and 89 have been set aside and subsequently  
different view has been taken by the Special Court constituted under the Land
Grabbing Act.  It is also contended that since the appeals have been filed
challenging the judgments in O.S. Nos.274 and 276 of 1983, they have not
attained finality and therefore, the respondents cannot plead that the findings
in those decisions act as res judicata to the present appeals.
Sri Challa Sitaramaiah submits that challenging the judgments in LGC Nos.104 and
105 of 1990, dated 04.07.2011, W.P. Nos.34050 and 21554 of 2011 are filed and
they are now pending before this Court.
Since the judgments in LGC Nos.104 and 105 of 1990 dated 04.07.2011 seems to  
have been challenged in Writ Petition Nos.34050 and 21544 of 2011 now it cannot
be said that the findings of the lower Court in the common judgment have lost
its basis.
In the above circumstances, the points that arise for consideration are :
1) Whether the findings of the lower Court on issue No.1 in O.S. Nos.274 and 276
of 1983 have to be treated as decree and whether they operate as res judicata
against the Government, since the Government have not filed any appeals
challenging the said findings?
2) Whether the Government of Andhra Pradesh was not required to file appeals on
the ground that no enforceable decree was passed against it?

Section 11 of CPC reads as follows.
11. Res Judicata: 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 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.
Explanation I.- The expression "former suit" shall denote a suit which has been
decided prior to the suit in question whether or not it was instituted prior
thereto.
Explanation II.- 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.
Explanation III.- The matter above referred to must in the former suit have been
alleged by one party and either denied or admitted, expressly or impliedly, by
the other.
Explanation IV.- Any matter which might and ought to have been made ground of
defence or attack in such former suit shall be deemed to have been a matter
directly and substantially in issue in such suit.
Explanation V.- Any relief claimed in the plaint, which is not expressly granted
by the decree, shall for the purposes of this section, be deemed to have been
refused.
Explanation VI.- Where persons litigate bona fide in respect of a public right
or of a private right, claimed in common for themselves and others, all persons
interested in such right shall, for the purposes of this section, be deemed to
claim under the persons so litigating.
Explanation VII.- The provisions of this section shall apply to a proceeding for
the execution of a decree and references in this section to any suit, issue of
former suit shall be construed as references respectively, to a proceeding for
the execution of the decree, question arising in such proceeding and a former
proceeding for the execution of that decree.
Explanation VIII.- An issue heard and finally decided by a court of limited
jurisdiction, competent to decide such issue, shall operate as res judicata in a
subsequent suit, notwithstanding that such court of limited jurisdiction was not
competent to try such subsequent suit or the suit in which such issue has been
subsequently raised."

To attract the principle of Res judicata it is necessary that the issue in the
present suit and in a former suit must be directly and substantially the same
issue and the Court must be a competent Court.
As far as the competency of
Court is concerned the same is not in dispute.
 It is also settled law that the
Res judicata debars a Court from exercising its jurisdiction to determine the
lis if it has attained finality.
Though the principle no doubt appears to be
technical aspect but the same appears to be on the principle that there should
be a finality to the litigation and no party shall be allowed to raise the same
issue which has been decided between the same parties in a previous suit.
Order 14 of the CPC which deals with the issues, is as follows:
1. Framing of issues: (1) Issues arise when a material proposition of fact or
law is affirmed by the one party and denied by the other.
(2) Material propositions are those propositions of law or fact which a
plaintiff must allege in order to show a right to sue or a defendant must allege
in order to constitute his defence.
(3) Each material proposition affirmed by one party and denied by the other
shall form the subject of a distinct issue.
(4) Issues are of two kinds:
(a) issues of fact,
(b) issues of law.
(5) At the first hearing of the suit the Court shall, after reading the plaint
and the written statements, if any, and after examination under rule 2 of Order
X and after hearing the parties or their pleaders, ascertain upon what material
propositions of fact or of law the parties arc at variance, and shall thereupon
proceed to frame and record the issues on which the right decision of the case
appears to depend.
(6) Nothing in this rule requires the Court to frame and record issues where the
defendant at the first hearing of the suit makes no defence.

Thus, issues are framed with regard to only those pleadings which are asserted
by one party and denied by the other.  Admittedly, issue No.1 in these suits has
been framed basing on the pleadings of the parties.
Order 14, Rule 2 of CPC reads as follows.
2. Court to pronounce judgment on all issues.- (1) Notwithstanding that a case
may be disposed of on a preliminary issue, the Court shall, subject to the
provisions of sub-rule (2) pronounce judgment on all issues.
(2) Where issues both of law and of fact arise in the same suit, and the Court
is of opinion that the case or any part thereof may be disposed of on an issue
of law only, it may try that issue first if that issue relates to-
(a) the jurisdiction of the Court, or
(b) a bar to the suit created by any law for the time being in force,
and for that purpose may, if it thinks fit, postpone the settlement of the other
issues until after that issue has been determined, and may deal with the suit in
accordance with the decision on that issue.

Order 20 Rule 5 CPC reads as follows.
5. Court to state its decision on each issue:  In suits in which issues have
been framed, the Court shall state its finding or decision, with the reasons
therefor, upon each separate issue, unless the finding upon any one or more of
the issue is sufficient for the decision of the suit.

Order 20 Rule 6 CPC reads as follows.
6. Contents of decree.- (1) The decree shall agree with the judgment; it shall
contain the number of the suit, names and descriptions of the parties, their
registered addresses, and particulars of the claim, and shall specify clearly
the relief granted or other determination of the suit.

Decree is defined in Section 2 of CPC, which reads as follows.
(2) "decree" means the formal expression of an adjudication which, so far as
regards the Court expressing it, conclusively determines the rights of the
parties with regard to all or any of the matters in controversy in the suit and
may be either preliminary or final. It shall be deemed to include the rejection
of a plaint and the determination of any question within Sec. 144, but shall not
include-
(a) any adjudication from which an appeal lies as an appeal from an order, or
(b) any order of dismissal for default.
Explanation.- A decree is preliminary when further proceedings have to be taken
before the suit can be completely disposed of. It is final when such
adjudication completely disposes of the suit. It may be partly preliminary and
party final.

Section 96 deals with the appeals, which is as follows.
96. Appeal from original decree.- (1) Save where otherwise expressly provided in
the body of this Code or by any other law for the time being in force, an appeal
shall lie from every decree passed by any court .exercising original
jurisdiction to the Court authorized to hear appeals from the decisions of such
Court.
(2) An appeal may lie from an original decree passed ex parte.
(3) No appeal shall lie from a decree passed by the Court with the consent of
parties.
(4) No appeal shall lie, except on a question of law, from a decree in any suit
of the nature cognizable by courts of small causes, when the amount or value of
the subject-matter of the original suit does not exceed ten thousand rupees.

Thus, it is clear that an appeal shall lie from a decree.  A plain reading of
definition of 'decree' reveals that decree means the formal expression of
adjudication whereby the court conclusively determines the rights of the parties
with regard to all or any of the matters in controversy in the suit.
Thus, it is clear that "decree" does not mean only the operative portion of the
judgment.  The common understanding of "decree" that it is only an operative
portion of judgment appears to be not correct.
A combined reading of the definition of 'decree', Order 14 Rule 1 of CPC makes
it clear that the decision on issues or on any matter in controversy shall be
deemed to be a decree.
Admittedly, the plaintiff in O.S. No.274 of 1983 filed a suit for declaration
and title and for permanent injunction.  His specific case is that the suit
schedule land measuring Ac.6-08 guntas, forms part of larger extent of Ac.26-00
and 0-38 guntas in Sy.No.9/13 of Khairatabad village, Taluq Garbe, Zilla Atraf
Balda, Surfekhas Mubarak, originally belonged to Surfekhas, Hyderabad.  It is
also his case that he applied to the District Collector in 1348 fasli to grant
patta for the extent in his possession and enjoyment.  The District Collector
issued a letter No.1530 dated 4th Khurdad 1351 fasli to the Tahsildar directing
him to enter the names of the plaintiff and others in the revenue records as per
the supplemental setwar.  It is also his case that when one Ashagowni Rangaiah
filed a petition claiming the land, the Collector dismissed the said petition in
judgment No.119 of 1355 fasli dated 15th Amardad and the Collector issued a
letter dated 21st Shahrwar 1355 fasli to the Tahsildar requiring him to enter
the names of the plaintiff and others in the revenue records as pattedars.
The case of the first defendant is that the suit land forms part of Survey
Nos.49 and 50 of Rasoolpura village.  On behalf of the Government fifth
defendant i.e., the Collector, Hyderabad District, filed written statement.  It
appears that the Collector in his written statement admitted that the then
Collector passed judgment in Case No.119 of 1355 FAsli in file No.2222 deleting
the Sy.Nos.49 and 50 of Rasoolpura village as the same were overlapping Sy.No.43
of Bholakpur village.  However, it is denied that the names of the plaintiff and
others were directed to be entered into the revenue records as the pattedars.
The specific case of the Government is that the suit property is the Sikhim
Talab Government land and neither the plaintiff nor the defendants 1 to 4 have
any right over the said property.
The plaintiff in O.S. No.276 of 1983 claimed an extent of Ac.3-00 guntas on the
same grounds as pleaded by the plaintiff in O.S. No.274 of 1983.  The defence of
the defendants is almost same.  Thus, the Government has taken a specific stand
that the suit land is in Sy.No.43 of Bholakpur village and not in Sy.No.9/13 of
Khairatabad village and Sy.Nos.49 and 50 of Rasoolplura village.  Thus, the main
controversy that fell for consideration is whether the disputed land forms part
of Sy.Nos.9/13 as claimed by the plaintiffs in O.S.Nos.274 and 276 of 1983 or
Sy.Nos.49 and 50 of Rasoolpura as claimed by the plaintiffs in O.S. No.141 of
1984 or Sy.No.43 of Bholakpur village as claimed by the Government.
It appears that the lower court has not believed Ex.A5 assigning certain
reasons.  There is no need to discuss that point whether the reasons assigned by
the lower Court are valid or not while deciding the preliminary objections.
Suffice to say that the lower Court passed a detailed judgment and decided the
main controversy between the parties.  It has to be seen that not only the
judgments of the Special Court but several other oral and documentary evidence
was considered by the lower Court.  The lower Court observing that the
Government and the plaintiffs failed to prove that the alleged judgment of the
Collector in case 115 of 1355 fasli was implemented and incorporated in the
revenue records.  It also came to the conclusion that Sy.Nos.49 and 50 of
Rasoolpura village have not been deleted from the revenue records of Rasoolpura
village.  The lower Court has also taken into consideration the circumstance
that the proceedings in respect of Sy.Nos.49 and 50 of Rasoolpura village were
not available and Ex.B6 revision map did not show deletion of Sy.Nos.49 and 50.
Whether the findings are based on proper appreciation of evidence or not cannot
be gone into at this stage but suffice to say that the main controversy between
the parties has been decided.
In the above circumstances, we have to see whether the principle of res judicata
apply when the Government have not filed appeals challenging the judgments
passed in O.S. Nos.274 and 276 of 1983.
It has to be seen that in the operative portions of the judgments the lower
Court categorically held that the plaintiffs failed to establish that the suit
property forms part of Sy.No.9/13 of Khairatabad village but the defendants 1 to
4 clearly established that it forms part of Sy.Nos.49 and 50 of Rasoolpura
village.  However, the Government also failed to establish that the suit land
forms part of Sy.No.43 of Bholakplur village.  In O.S. No.141 of 1984 the lower
Court on issue No.1 held that the findings of issue No.1 in O.S.No.274 of 1983
holds good and coming to issue No.2, the lower Court held that the plaintiffs
established their title and they are entitled for the reliefs of declaration and
possession.  Though they were in possession of the property originally, the
Special Executive Magistrate took possession of the property after the
initiation of Section 145 of Cr.P.C proceedings.  So, the Government is bound to
surrender possession to the plaintiffs in this suit O.S. No.141 of 1984.
It is true that on Issue No.6 in O.S. No.141 of 1984 there was a specific
direction to the Government to deliver possession of the suit property to the
plaintiffs within two months.  It is also a fact that there is no specific
direction against the Government in the decree as far as O.S. Nos.274 and 276 of
1983 are concerned, but the fact remains that, a specific finding was given in
those cases that the Government failed to establish that the suit land forms
part of Sy.No.43 of Bholakpur village and it was further held that defendants 1
to 4 established that it forms part of Sy.Nos.49 and 50 of Rasoolpura village.
Thus, there is a clear declaration of rights and title of the parties.  It
appears that when there is a clear declaration that the Government failed to
establish that the suit land forms part of 43 of Bholakpur village and that the
defendants 1 to 4 proved that it forms part of Sy.Nos.49 and 50 of Rasoolpura
village such findings, when not challenged seems to have became final.  When
such findings have been given in common judgment and when appeal is filed
challenging the judgment and decree passed in one suit and the findings in other
two suits remain unchallenged, such findings become final.  When findings
declaring the rights of the parties become final they operate as res judicata in
subsequent proceedings.  The plaintiffs in O.S.Nos.274 and 276 of 1983 have
challenged the findings of the lower Court and their main contention is that the
lower Court committed an error in not localizing the land with reference to the
revenue records in proper perspective.  They have also taken a ground that
plaintiffs in O.S. No.141 of 1984 failed to trace their source of title, the
Government filed CCCA No.194 of 1998, the findings of the lower Court in O.S.
No.141 of 1984 have been challenged on various grounds, of course the findings
are common since the three suits have been clubbed together and the issues
settled are also common.  It appears that in the appeals filed by the plaintiffs
in O.S. Nos.274 and 276 of 1983 the main question that falls for consideration
is whether thesuitproperty is in Sy.No.9/13 of Khairatabad or in Sy.Nos.49 and
50 of Rasoolpura village.  The point raised by the Government whether suit
property is in Sy.No.43 of Bholakpur village and it is Government land cannot be
considered in the appeals filed by the plaintiffs in O.S. Nos.274 and 276 of
1983.  Even if it is argued that the conflict is between co-defendants, the
principle of res judicata appears to be applicable.
The learned Senior Counsel Sri Challa Sitaramaiah has placed reliance on the
following decisions:  In a decision of the Apex Court reported in Iftikhar Ahmed
and others v. Syed Meharban Ali and others1, it was held as follows.
"Now it is settled by a large number of decisions that for a judgment to operate
as res judicata between or among co-defendants, it is necessary to establish
that (1) there was a conflict of interest between co-defendants; (2) that it was
necessary to decide the conflict in order to give the relief which the plaintiff
claimed in the suit and (3) that the Court actually decided the question."

It is also further submitted that the contesting parties must not be common and
in support of his contention reliance is placed on the decision of the Apex
Court in Pandit Ishwardas v. State of Madhya Pradesh and others2, whereunder the
Apex Court observed as follows.
"The plea of res judicata may be sustained, without anything more, if the
questions at issue and the parties are the same, subject of course to the other
conditions prescribed by S. 11 Civil Procedure Code. It is, however, not
necessary that all the parties to the two litigations must be common.   It is
sufficient that the issue should be between the same parties or between parties
under whom they or any of them claim.  Further, once the questions at issue in
the two suits are found to be the same, the fact that the material which led to
the decision in the earlier suit was not again placed before the Court in the
second suit cannot make the slightest difference.
In order to sustain the plea of res judicata, it is not necessary that all the
parties to the two litigations must be common.  All that is necessary is that
the issue should be between the same parties or between parties under whom they
or any of them claim."

For the same proposition, reliance is placed in case between Makhija
Construction and Engineering (Petitioner) Limited v. Indore Development
Authority3, wherein it was held as follows.
"The principle of res judicata has been held to bind co-defendants if the relief
given or refused by the earlier decision involved a determination of an issue
between co-defendants (or co-respondents as the case may be)"

It is further argued that the Government have not filed cross-objections,
therefore it cannot question the findings without filing either the appeal or
cross-objections, however it may support the findings of lower Court.  Reliance
is also placed on the decisions of the Apex Court in Premier Tyres Limited v.
Kerala State Road Transport Corporation4, Union of India v. Hari Krishna Khosla
(Dead) by L.Rs5, and also in K. Krishnan and others v. Tirumala Tirupathi
Devasthanams, rep. by the Executive Officer, Tirupati and another6.
The Division Bench of this Court placing reliance on the judgment of the Apex
Court in Sheodan Singh v. Daryao Kunwar7, came to the conclusion that once a
decree passed in a suit attained finality, it cannot be disturbed indirectly by
adjudicating the very same questions in another appeal.
In the above referred decision, the Apex Court observation is quoted which is as
follows.
"Four suits were consolidated and tried together with the consent of the
parties.  By a common judgment, the civil Court disposed of the four suits but
separate decrees were drawn up in each suit.  Five issues were common in all the
suits, and there were other issues in each case separately.  One of the common
issues related to the respective rights of the parties to the suit property.
Against the decrees in the four suits, two appeals were preferred to the High
Court and two appeals to the District Court and later the appeals were
transferred from the District Court to the High Court to be heard along with the
other two connected appeals.  Two of the four appeals were dismissed by the High
Court - one on the ground of limitation and the other on account of failure to
apply for translation and printing of the record as required by the rules of the
High Court.  The question as whether the dismissal of the two appeals would
constitute res judicata in so far as the other two surviving appeals were
concerned.  A Full Bench of the Allahabad High Court took the view that the
surviving two appeals must fail on the ground of res judicata."

Then, this Court observed as follows.
"We are therefore of opinion that where a decision is given on the merits by the
trial Court and the matter is taken in appeal and the appeal is dismissed on
some preliminary ground, like limitation or default in printing, it must be held
that such dismissal when it confirms the decision of the trial Court on the
merits itself amounts to the appeal being heard and finally decided on the
merits whatever may be the ground for dismissal of the appeal."

The decree which attained finality cannot be disturbed indirectly by
adjudicating the very same questions in the present appeal.
Sri Challa Sitaramaiah, learned Senior Counsel, has relied on a decision of the
Apex Court in Laxman Tatyaba Kankate and another v. Taramati Harishchandra
Dhatrak8, in support of his contention that the Government cannot attack the
findings and the decree without filing cross-objections.
The learned Senior Counsel placing reliance on the decision of the High Court of
Karnataka in case between N. Hanumantha Rao v. Corporation of the City of
Bangalore9, has also referred to Order 41, Rule 1 and Section 11 of CPC and
submitted that the word used in Section 11 is finding of issue and it does not
refer to any enforceable decree or direction.  Thus, his main contention is that
when there is a specific finding such finding has to be challenged by filing an
appeal and when no appeal is filed, Section 11 of CPC attracts.
        Learned Advocate-General has relied on the judgment reported in Smt. Ganga
Bai v. Vijay Kumar10.  In that case defendant No.1 executed a mortgage deed his
behalf and his minor son.  The plaintiff filed a suit and obtained preliminary
decree for the sale of defendant No.1's interest in the mortgaged property.
Defendants 2 and 3, sons of defendant No.1, pleaded partition.  However, the
trial Court held that the partition deed was a sham and colourable transaction.
The plaintiff filed an appeal against the decree directing the sale of half of
the mortgaged property only.  Defendants 2 and 3 filed appeals and subsequently
moved an amendment to challenge the preliminary decree.  The amendment was  
allowed and the High Court set aside the preliminary decree and held that the
deed of partition was real and genuine.  When the matter was carried to the Apex
Court, the main point that fell for consideration was whether the appeal filed
by defendants 2 and 3 was maintainable.  The Apex Court observed as follows.
        "It is thus clear that the appeal filed by defendants 2 and 3 in the High
Court was directed originally not against any part of the preliminary decree but
against a mere finding recorded by the trial Court that the partition was not
genuine."
       
In para 25 of the judgment the Apex Court observed as follows.
        "Whether the partition between the father and sons was sham or real had no
impact on the judgment of the trial Court and made no material difference to the
decree passed by it.  The finding recorded by the trial Court that the partition
was a colourable transaction was unnecessary for the decision of the suit
because even if the Court were to find that the partition was genuine, the
mortgage would only have bound the interest of the father as the debt was not of
a character which, under the Hindu law, would bind the interest of the
sons........."
       
It was further observed thus.
        "As the matte relating to the partition was not directly and substantially
in issue in the suit, the finding that the partition was sham cannot operate as
res judicata."
       
Thus, it has to be seen that the finding recorded by the trial Court that the
partition was a colorable transaction was found to be unnecessary for the
decision of the suit and thus the issue of partition was not directly and
substantially an issue in that suit, but in this case the finding on issue No.1
which went against the Government appears to be a finding was on main
controversy and it cannot be said that such finding do not make any material
difference or unnecessary operate as res judicata.  In the circumstances, it
appears that the above referred decision can be distinguished on facts.
        Learned Advocate-General has relied on a decision reported in Deva Ram v.
Ishwar Chand11.  In that case on facts it was found that in subsequent suits,
the issue which was raised and tried in the previous suit was not raised, framed
and tried and no finding therefore came to be recorded as to whether the
defendants were tenants of the land in the suit.  In para 24 of the said
decision it was observed as follows.
        "In the previous suit, which was instituted by the respondents, an issue,
namely, Issue No.5 was framed on the status of the appellant as to whether they
were the tenants of the land in suit under the respondents but in the subsequent
suit this issue was not raised as the appellants who were the defendants in the
subsequent suits did not plead that they were the tenants under the respondents.
What they pleaded was that they were in possession since a long time namely from
Samvat 2005 and had, therefore, acquired title by adverse possession.
Consequently, in the subsequent suits, the issue which was raised and tried in
the previous suit was not raised, framed or tried and no finding, therefore came
to be recorded as to whether the defendants were tenants of the land in suit. It
is true that the instant suit which is the subsequent suit, is between the same
parties who had litigated in the previous suit and it is also true that the
subject matter of this suit, namely, the disputed land, is the same as was
involved in the previous suit but the issues and causes of action were
different. Consequently, the basic requirement for the applicability of rule of
res judicata is wanting and, therefore, in the absence of pleadings, in the
absence of issues and in the absence of any finding, it is not open to the
learned counsel for the appellants to invoke the rule of res judicata on the
ground that in the earlier suit it was found by trial Court that the appellants
were the tenants of the land in dispute under the respondents."
       
Thus, it was finally held that an appeal does not lie against mere findings
recorded by the Court unless the findings amount to a decree or order.
 Thus,
what is to be seen is whether the findings amount to a decree or order.  The
crux of the issue appears to be whether a person is prejudicially and adversely
affected by the decree.  Since the issue in the previous suit was not the issue
in the subsequent suit in the above referred decision, the said decision can be
distinguished on facts.
In S. Nazeer Ahmed v. State Bank of Mysore12, the appellant borrowed a sum of
Rs.1,10,000/- from the plaintiff Bank for purchase of a bus.  He secured
repayment of that loan by hypothecating the bus and further by equitably
mortgaging two items of immovable properties. The Bank first filed O.S. No. 131
of 1984 for recovery of the money due. The said suit was decreed. The Bank, in
execution, sought to proceed against the hypothecated bus. The bus could not be
traced and the money could not be recovered. The Bank tried to proceed against
the mortgaged properties in execution. The appellant resisted by pointing out
that there was no decree on the mortgage and the bank could, if at all, only
attach the properties and could not sell it straightaway. That objection was
upheld. The Bank thereupon instituted the present suit, O.S. No. 35 of 1993, for
enforcement of the equitable mortgage. The appellant resisted the suit by
pleading that the suit was barred by Order II Rule 2 of the Code of Civil
Procedure.  The trial Court held that the suit was not hit by Order II Rule 2 of
the Code, however, the suit was dismissed holding that it was barred by
limitation.  The Bank filed an appeal in the High Court.  The High Court held
that though the suit is hit  by Order 2 Rule 2 of the Code, but since the
appellant had not challenged the finding of the trial Court that the suit was
not hit by Order 2 Rule 2 of the Code by filing a memorandum of cross-
objections, the plea in that behalf could not be and need not be upheld.  The
Apex Court observed that the bar under Order 2 Rule 2 has been kept out by Order
34 Rule 14 of the Code.  The Apex Court further observed that it is clear from
sub-rule (1) of Rule 14 of Order 34 of the Code that notwithstanding anything
contained in Order 2 Rule 2 of the Code, a suit for sale in enforcement of the
mortgage can be filed by the plaintiff Bank and in fact that is the only remedy
available to the Bank to enforce the mortgage since it would not be entitled to
bring the mortgaged property to sale without instituting such a suit.  It was
also observed that Order 34 Rule 14 has been enacted for the protection of the
mortgagor.  Thus it was held that bar under Order 2 Rule 2 has been kept out by
Order 34 Rule 14 of the Code.  The Apex Court in para 7 of the judgment further
observed thus.
".........The respondent in an appeal is entitled to support the decree of the
trial court even by challenging any of the findings that might have been
rendered by the trial court against himself. For supporting the decree passed by
the trial court, it is not necessary for a respondent in the appeal, to file a
memorandum of cross-objections challenging a particular finding that is rendered
by the trial court against him when the ultimate decree itself is in his favour.
A memorandum of cross-objections is needed only if the respondent claims any
relief which had been negatived to him by the trial court and in addition to
what he has already been given by the decree under challenge. We have therefore
no hesitation in accepting the submission of the learned counsel for the
appellant that the High Court was in error in proceeding on the basis that the
appellant not having filed a memorandum of cross-objections, was not entitled to
canvass the correctness of the finding on the bar of Order II Rule 2 rendered by
the trial court."

In the present case, there is clear finding against the Government.  When there
is a clear finding that the suit land does not form part of Survey No.43 of
Bholakpur village as claimed by the Government, it was obligatory on the part of
the Government to file cross-objections.  What Government can do is it can
support the findings of the lower Court.  The findings of the lower Court is
that the suit land forms part of Survey Nos.49 and 50 of Rasoolpura village.
Obviously the Government cannot support such finding, because its case is that
the suit land forms part of Survey No.43 of Bholakpur village.
In the appeals filed by the plaintiffs the main question that falls for
consideration is whether the suit properties form part of Survey No.9/13 of
Khairatabad village or it forms part of Survey Nos.49 and 50 of Rasoolpura
village.  The question whether the suit land forms part of Survey No.43 of
Bholakpur village as claimed by the Government does not fall for consideration
in the appeals in CCCA 1 of 1999 or in CCCA No.9 of 1999 i.e., appeals filed by
the plaintiffs in O.S. Nos.274 and 276 of 1983.  Therefore, without filing
cross-objections the Government cannot challenge the findings of the trial
court.
In Rachakonda Narayana v. Ponthala Parvathamma13,  relied on by the learned
Advocate-General, the plaintiff entered into an agreement of sale to purchase
plot A comprising 2 acres patta land and plot B comprising Ac.1.30 Cents
Sivaijama land from defendant No.1.  One Bhima Naik issued a registered notice
claiming that he is the owner of the land comprising in plot B measuring Ac.1.30
Cents and that the defendant No.1 has no right to sell the same.  Then the
plaintiff filed a suit for specific performance of the agreement against
defendant No.1 in respect of Ac.2-00 of patta land only and sought proportionate
deduction of the price for the land. Defendant No.1 took a plea that the
plaintiff cannot seek to enforce a new contract.  The Trial Court held that the
plaintiff is not entitled to seek enforcement of new contract.  The plaintiff
filed an appeal before the first appellate Court.  Before the first appellate
Court for the first time it was stated by defendant No.1 that he has no title in
respect of plot B land and the same belonged to his wife. The first appellate
Court decreed the suit holding that the plaintiff is entitled to decree for
specific performance in respect of the land comprised in plot A measuring Ac.2-
00 of land.  The defendant preferred second appeal and the second appeal was
allowed holding that since the plaintiff did not come with the suit claiming the
benefit of sub-section (3) of Section 12 of the Specific Relief Act and claimed
performance of only part of the whole agreement, and therefore he was not ready
and willing to perform his part of the whole contract.  Then the Apex Court,
taking into consideration of the fact that for the first time at the appellate
stage defendant No.1 stated that he had no title in respect of plot B Sivaijama
land and it is on account of the said statement the plaintiff filed an
application for amendment of the plaint relinquishing his claim in respect of
Plot B of land  and under the circumstances it was open to the plaintiff to move
for amendment of the plaint pleading therein the ingredients for part-
performance of the contract as provided under sub-section (3) of Section 12 of
the Act.  In the above circumstances, it was observed that an appeal is a
continuation of the suit.  When an appellate court hears an appeal, the whole
matter is at large.  The appellate Court can go into any question relating to
rights of the parties which a trial Court was entitled to dispose of provided
the plaintiff possess that right on the date of filing of the suit.
There cannot be any doubt to say that an appeal is continuation of the suit.  In
view of the stand taken by defendant No.1 the appellant moved an application for
amendment of the plaint.  In this case, the Government have not filed any appeal
nor cross-objections.  Had Government filed an appeal, it could have said that
the whole matter is at large and the appellate Court can go into any question
relating to the rights of the parties.  Without filing an appeal and cross-
objections, in my considered view, the Government cannot challenge the findings
recorded by the trial Court which went against it.
In Kuppuswami v. Krishnaveni14, the plaintiffs filed suit for injunction.  The
said suit has been dismissed by the trial Court as well as by the appellate
Court holding that the plaintiffs are trespassers and they are not entitled for
injunction.  The Trial Court held that there was an encroachment by the
plaintiffs to the extent of one foot.  Aggrieved by the said observation the
first defendant filed cross-objections in the appeals filed by the plaintiffs.
The cross-objection has been dismissed without any discussion.  The Madras High
Court held that the cross-objection itself is not maintainable since the decree
is not based on finding about the extent of trespass but is based on the factum
of the trespass.  I am unable to agree with the view taken by the Madras High
Court.  It is clear to my mind that a decree means not only an enforceable
decree.  Many persons seem to have under a wrong impression that the decree
means an enforceable decree i.e., operative portion of the judgment.  The
definition of decree under Section 2(2) of CPC makes it clear that the "decree"
means the formal expression of an adjudication which, so far as regards the
Court expressing it, conclusively determines the rights of the parties with
regard to all or any of the matters in controversy in the suit.  Thus, it
appears that a formal expression of an adjudication whereby the Court which
conclusively determines the rights of the parties with regard to all or any of
the matters in controversy on all or any one issue in a suit amounts to a
decree.  Therefore, wherever there is a clear finding by a Court, the finding
which exclusively determines the rights of the parties amounts to a decree.
Suppose in a case a woman as first plaintiff claims maintenance for herself and
also for her minor son i.e., the second plaintiff, if a finding is given in such
a suit that the said woman is not the legally wedded wife of the defendant and
that the second plaintiff is not the legitimate son of the defendant, whether
the plaintiffs are not effected by such finding.  Even if maintenance is granted
to second plaintiff on the ground that illegitimate son is also entitled for
maintenance whether the finding that the second plaintiff is not the legitimate
son of the defendant has to be challenged or not.   Therefore, in a case where
there is a clear finding adjudicating the rights of the parties or declaring the
status of the parties or declaring the rights of the parties or a conclusive
finding has been given with regard to localization of the disputed property such
finding in my view assumes the character of a decree and if not challenged
operates as res judicata in future proceedings between the same parties.  Such
findings have to be challenged by filing an appeal or at least by filing cross
objections.
In Mahboob Saheb v. Syed Ismail15, one Maqdoom had entered into an agreement of  
sale to sell his land and had also executed sale deeds to discharge antecedent
debts.  A suit for specific performance was filed against the said Maqdoom in
O.S. No.4 of 1966 and the said suit was decreed.  In another suit filed by one
Ismail on the foot of promissory mortgage it was held that Maqdoom had jointly
gifted the lands to his sons and wife by registered gift deed.  The question
that came up for consideration is whether the decree in O.S. No.3/1/1951
operates as res judicata.  It was held that no evidence has been adduced to
establish acceptance of the gift by or on behalf of the minor or delivery of
possession or taking possession. It was also held that the gifts have not been
proved.  The Apex Court observed that the trial Court negatived the plea of res
judicata as preliminary issue.  The issue of res judicata was not raised before
the appellate Court.  It was held by the appellate Court that Maqdoom played
fraud upon his creditors by creating false oral gifts.  It was also found that
the decree obtained in O.S. No.3/1/1951 was collusive or fraudulent to defraud
the creditors.  The pleadings in the said former suit were not made available.
It was found that there was no conflict of interest between the defendants in
the said suit and that the main dispute in that suit was whether the creditors
could proceed against Maqdoom and whether the property was liable to sale for
realization of mortgage debt.  It was held in that context the relevancy and
validity of gift was immaterial.  In the light of the above facts, the Apex
Court observed as follows.
".............But for application of this doctrine between co-defendants four
conditions must be satisfied, namely, that (1) there must be a conflict of
interest between the defendants concerned; (2) it must be necessary to decide
the conflict in order to give the reliefs which the plaintiff claims; (3) the
question between the defendants must have been finally decided; and (4) the co-
defendants were necessary or proper parties in the former suit. This is the
settled law as held in S. M. Sadat Ali Khan v. Mirza Wiquar Ali, AIR 1943 PC
115; Shashibushan Prasad Mishra v. Babjui Raj, (1969) 2 SCR 971: ( AIR 1970 SC
809); and Iftikhar Ahmed v. Syed Meharban Ali, (1974) 2 SCC 151: (AIR 1974 SC
749)"
"...........In other words, if a plaintiff cannot get at his right without
trying and deciding a case between co-defendants, the court will try and decide
the case, and the co-defendants will be bound by the decree. But if the relief
given to the plaintiff does not require or involve a decision of any case
between co-defendants, the co-defendants will not be bound as between each
other."
"...........The doctrine of res judicata must, however, be applied to co-
defendants with great care and caution. The reason is that fraud is an extrinsic
collateral act, which vitiates the most solemn proceedings of courts of justice.
If a party obtains a decree from the court by practising fraud or collusion, he
cannot be allowed to say that the matter is res judicata and cannot be re-
opened. There can also be no question of res judicata in a case where signs of
fraud or collusion are transparently pregnant or apparent from the facts on
record."

In the present case, it is clear that there is a conflict of interest between
the co-defendants and there is no allegation that the lower Court decree was
obtained by playing fraud or collusion.  Therefore, the said decision appears to
be not helpful to the appellants.
The learned Advocate-General has relied on a decision reported in Dharam Dutt v.
Union of India16.  In that case, on 30.06.1990, the President of India
promulgated an Ordinance whereby a statutory body known as the Indian Council of
World Affairs was constituted with power to hold and dispose of property both
movable and immovable. The constitutional validity of this Ordinance was
challenged by filing a writ petition before the High Court of Punjab and Haryana
at Chandigarh.  The learned single Judge of the High Court allowed the writ
petition holding the Ordinance to be ultra vires of the Constitution of India,
violating Articles 14, 19(1)(a) and 19(1)(c) thereof and also beyond the
legislative competence of the Parliament. The Union of India filed a letters
patent appeal against this judgment of the learned single Judge.  During the
pendency of the said appeal, the ordinance was replaced by an Act of Parliament,
namely, the Indian Council of World Affairs Act, 2001 (Act 29 of 2001).  A Writ
Petition was filed challenging the constitutional validity of the said Act.  It
was held by the Apex Court that the doctrine of colourable legislation does not
involve any question of bona fides or mala fides on the part of the legislature.
The Supreme Court observing that the decision of the learned Single Judge was
not left unchallenged and the correctness of the judgment of the learned Single
Judge was put in issue by the Union of India by filing an intra-court appeal
observed that filing of an appeal destroys the finality of the judgment under
appeal.  It was further observed that the issues determined by the learned
Single Judge were open for consideration before the Division Bench.  However,
the Division Bench was denied the opportunity of hearing and the aggrieved party
could not press for decision of the appeal on merits, as before the appeal could
be heard it was rendered infructuous on account of the Ordinance itself having
ceased to operate. The judgment of the Division Bench refusing to dwell upon the
correctness of the judgment of the Single Judge had the effect of leaving the
matter at large. Upon the lapsing of the earlier Ordinance pending an appeal
before a Division Bench, the judgment of the Single Judge about the illegality
of the earlier Ordnance, cannot any longer bar the Apex Court from deciding
about the validity of a fresh law on its own merits, even if the fresh law
contains similar provisions.
In that case the Union of India being an aggrieved party filed the appeal.  In
the above circumstances it was observed that filing of an appeal destroys the
finality of the judgment under appeal.  In the case on hand, the Government have
not filed any appeal or counter claim challenging the findings of the lower
Court with regard to claim of the Government.
Reliance is also placed on the decision in Madhukar D. Shende v. Tarabai Aba
Shedage17, wherein it was held that res judicata is mixed question of fact and
law.  In that case no arguments were advanced raising the plea of res judicata
before any of the Courts below or the High Court.
In Baldev Singh v. Surinder Mohan Sharma18, one Ajay Kumar filed a suit for
permanent injunction against the first respondent.  The said suit was dismissed
as withdrawn.  It appears that the first respondent entered into an agreement to
sell the property with the father of the appellant.  The first respondent filed
a suit for possession against Ajay Kumar treating him as his tenant and the
appellant as sub-tenant.  In that case the appellant made a statement that he
had been staying with his wife Paramjit Kaur and his first wife is Sarbjit Kaur.
On the basis of the said statement, the first respondent made complaints to the
employers of the appellant alleging that he contracted second marriage during
the life time of his first wife.  A suit was filed by Sarbjit Kaur contending
that the appellant had divorced her in the year 1982 and that the said suit was
decreed declaring that the marriage of Sarbjit Kaur and the appellant had been
dissolved with effect from 27.01.1982.  Questioning the said judgment, the first
respondent filed an application before the High Court of Punjab and Haryana at
Chandigarh under Article 227 of the Constitution of India.  His case is that he
is not party to the suit, so he cannot file any appeal against the said
judgment.  When the matter went to the Apex Court, the Apex Court observed that
the appellant and Sarbjit Kaur have a right of privacy.  Such a right of privacy
extends not only to the matrimonial home but also to the matter of dissolution
of a marriage.  A third party who has nothing to do with the relationship of the
appellant and the said Sarbjit Kaur cannot be permitted to intrude into their
privacy by preferring an appeal.  The locus standi of a person who preferred an
appeal came up for consideration in the said case.  It was further held that the
allegations made by the first respondent does not disclose any cause of action
and it was not a bona fide one.  Admittedly, the first respondent was not an
aggrieved party in the civil suit filed by Sarbjit Kaur.  He was only a third
party.  He was having some other litigation with the appellant.  In the above
circumstances, the Apex Court observed that an appeal would be maintainable only
at the instance of a person aggrieved by and dissatisfied with the judgment and
decree.  Coming to the facts of this case can we say that the Government is not
an aggrieved partyand not dissatisfied with the judgment and decree passed by
the lower Courts in O.S. No.s274 and 276 of 1983?  So, on facts the above
referred case appears to be not relevant.
Both Sri Challa Sitaramaiah, learned Senior Counsel, and the learned Advocate-
General have referred to the judgment reported in Banarsi v. Ram Phal19.  In
that case, the first respondent filed a suit for specific performance contending
that based on the agreement of sale dated 03.11.1988 he had paid an amount of
Rs.2,40,000/- and agreed to pay the balance of Rs.50,000/- at the time of
execution of the sale deed.  The appellants filed a separate suit seeking
cancellation of the agreement of sale on the ground that the nature of
transaction between the parties was one of loan.  The two suits were
consolidated and tried together.  In the judgment, the appellants were directed
to deposit the amount paid by the first respondent within two months and it was
further directed that if the appellants/defendants failed to deposit the said
amount within a period of two months, the plaintiff was directed to deposit
Rs.50,000/- and to get the sale deed executed in his favour.  The appellants
filed two appeals in the High Court and both the appeals were dismissed.  The
respondent did not prefer any appeal of his own nor filed any cross-objection.
However, while rejecting the appeals, the appellate Court held that the suit
filed by the plaintiff Ram Phal is liable to be decreed for specific relief and
original suit filed by Banarsi is liable to be rejected.  The appellants
preferred two second appeals.  The High Court dismissed both the appeals holding
that no substantial question of law arose for consideration.  Then the matter
was carried to the Apex Court.  The question that arose for consideration is
whether appellate court could have set aside the decree passed by the trial
court and grant straight away a decree for specific performance of contract when
there were no cross-objections by the respondents.  Then the Apex Court examined
the legal position of Order 41 Rule 22  CPC before and after amendment of CPC by
Amendment Act 104 of 1976 with effect from 01.02.1977.  The Apex Court observed
as follows.
"Sections 96 and 100 of the CPC make provision for an appeal being preferred
from every original decree or from every decree passed in appeal respectively;
none of the provisions enumerates the person who can file an appeal. However, it
is settled by a long catena of decisions that to be entitled to file an appeal
the person must be one aggrieved by the decree. Unless a person is prejudicially
or adversely affected by the decree he is not entitled to file an appeal (See
Phoolchand and Am: vs. Gopal Lal 1967 (3) SCR 153; Smt. Jatan Kanwar Golcha vs.  
M/'s. Golcha Properties (P) Ltd. 1970 (3) SCC 573 : Smt. Ganga Bai vs. Wjay
Kumar and Ors.- (1974) 2 SCC 393).  No appeal lies against a mere finding. It is
significant to note that both Sections 96 and 100 of the CPC provide for an
appeal against decree and not against judgment.
Any respondent though he may not have filed an appeal from any part of the
decree may still support the decree to the extent to which it is already in his
favour by laying challenge to a finding recorded in the impugned judgment
against him. Where a plaintiff seeks a decree against the defendant on grounds
(A) and (B), any one of the two grounds being enough to entitle the plaintiff to
a decree and the Court has passed a decree on ground (A) deciding it for the
plaintiff while ground (B) has been decided against the plain tiff, in an appeal
preferred by the defendant, in spite of the finding on ground (A) being reversed
the plaintiff as a respondent can still seek to support the decree by
challenging finding on ground (B) and persuade the appellate court to form an
opinion that in spite of the finding on ground (A) being reversed to the benefit
of defendant-appellant the decree; could still be sustained by reversing the
finding on ground (B) though the plaintiff-respondent has neither preferred an
appeal of his own nor taken any cross objection. A right to file cross objection
is the exercise of right to appeal though in a different form.  Thus it is clear
that just as an appeal is preferred by a person aggrieved by the decree so also
a cross objection is preferred by one who can be said to be aggrieved by the
decree. A party who has fully succeeded in the suit can and needs to neither
prefer an appeal nor take any cross objection though certain finding may be
against him. Appeal and cross-objection - both are filed against decree and not
against judgment and certainly not against any finding recorded in a judgment.
This was well-settled position of law under the Unamended CPC.
The CPC Amendment of 1976 has not materially or substantially altered the law
except for a marginal difference. Even under the amended Order 41 Rule 22 sub-
rule (1) a party in whose favour the decree stands in its entirety is neither
entitled nor obliged to prefer any cross objection. However, the insertion made
in the text of sub-rule (1) makes it permissible to file a cross objection
against a finding. The difference which has resulted we will shortly state. A
respondent may defend himself without filing any cross objection to the extent
to which decree is in his favour; however, if he proposes to attack any part of
the decree he must take cross objection. The amendment inserted by 1976
amendment is clarificatory and also enabling and this may be made precise by
analysing the provision. There may be three situations: - (i) The impugned
decree is partly in favour of the appellant and partly in favour of the
respondent; (ii) The decree is entirely in favour of the respondent though an
issue has been decided against the respondent; (iii) The decree is entirely in
favour of the respondent and all the issues have also been answered in favour of
the respondent but there is a finding in the judgment which goes against the
respondent.
In the type of case (i) it was necessary for the respondent to file an appeal or
take cross objection against that part of the decree which is against him, if he
seeks to get rid of the same though that part of the decree which is in his
favour he is entitled to support without taking any cross objection. The law
remains so post amendment too. In the type of cases (ii) and (iii) pre-amendment
CPC did not entitle nor permit the respondent to take any cross objection as he
was not the person aggrieved by the decree. Under the amended CPC. read in the
light of the explanation, though it is still not necessary for the respondent to
take any cross objection laying challenge to any finding adverse to him as the
decree is entirely in his favour and he may support the decree without cross
objection; the amendment made in the text of sub-rule (1), read with the
explanation newly inserted, gives him a right to take cross objection to a
finding recorded against him either while answering an issue or while dealing
with an issue. The advantage of preferring such cross objection is. spelled out
by sub-rule (4). In spite of the original appeal having been withdrawn or
dismissed for default the cross objection taken to any finding by the respondent
shall still be available to be adjudicated upon on merits which remedy was not
available to the respondent under the unamended CPC. In pre-amendment era. the
withdrawal or dismissal for default of the original appeal disabled the
respondent to question the correctness or otherwise of any finding recorded
against the respondent.
The fact remains that to the extent to which the decree is against the
respondent and he wishes to get rid of it he should have either filed an appeal
of his own or taken cross objection failing which the decree to that extent
cannot be insisted on by the respondent for being interfered, set aside or
modified to his advantage."

The findings are of two kinds.  Finding may be a decision on an issue framed in
a suit and will only cover material questions which arise in a particular case
for decision.  The Court may give final decision on an issue i.e., upon a
controversy between the parties.  There may be a finding which may not be
necessary or called for while deciding the main controversy between the parties.
Where a finding, if on a material issue, which declares the rights of the
parties, comes within the definition of a decree, has been given, such finding
has to be challenged though there may not be any executable decree against the
party.  A party need not challenge a finding which is not absolutely necessary
nor called for in a suit, but where it appears that a finding which effects the
rights of the parties or declares the right or title of a party and if not
challenged would become final and may operate as res judicata and such finding
is to be treated as a decree though not an executable decree and has to be
challenged in an appeal.
In the case on hand, the lower Court has given a categorical finding against the
Government that the suit land is part of Survey No.43 of Bholakpur village.
Though the suit filed by the plaintiffs has been dismissed the issue has been
decided against the Government and in the absence of any appeal filed by the
Government or cross-objections by them they cannot seek the modification of the
decree.  Though the decree is against the plaintiffs, but part of the decree is
definitely against the Government.  Again at the cost of repetition it has to be
observed that the definition of decree makes it clear that decree means 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 the suit.
Therefore, where a Court has conclusively determined an issue it cannot be said
as a mere finding, but it has to be treated as a decree within the definition of
Section 2(2) of the Code of Civil Procedure 1908.  The conclusive determination
against the Government cannot be treated as a passing observation or a finding
on an issue which is not in controversy.  If there is mere passing of a remark
or a finding with regard to unconnected matter or a finding not on an issue
which is not material then it can be treated as a mere finding.  But when the
Court has conclusively determined the rights of the parties with regard to all
or any of the matters in controversy in the suit the same in my view attracts
the definition of decree.  The word "A decree" cannot be restricted to the
operative portion of the judgment as understood commonly.
Sri C. Challa Sitaramaiah, learned Senior Counsel, raised a preliminary
objection that the appeal filed by the Government is not maintainable since the
Government have not preferred appeals challenging the judgment and decree in
O.S. Nos.274 and 276 of 1983 and since the decrees passed in those cases became  
final.  It is also his submission that since the claim of the Government has
been negatived and the Government did not prefer any appeal the findings of the
lower Court on the said issue became final and since the judgment passed by the
lower Court in the above referred two suits operate as Res judicata, the present
appeal filed by the Government is not maintainable.   I find considerable force
in the submission of the learned Senior Counsel Sri Challa Sitaramaiah and hold
that the objections raised by him are sustainable.
Accordingly, I hold that the findings of the trial court in O.S. Nos.274 and 276
of 1983 that the suit land is not part of Survey No.43 of Bholakpur village
operates as Res judicata against the Government, since they have not preferred
any appeals against the said findings.   Therefore, the appeal filed by the
Government in CCCA No.194 of 1998 is not maintainable.  As far as the issue with
regard to the powers of the appellate Court, under Order XLI Rule 33 CPC, are
concerned, the same has to be considered in other appeals, therefore I am not
inclined to express any final opinion on the said point.
_____________________  
B. CHANDRA KUMAR, J.    
Date.  01st October 2012.

whether by virtue of clause (iii) of Section 407(1)(c) Cr.P.C., the Sessions Judge got authority to transfer the case as was done in this case. On the analysis of the scope of Sections 209, 407 and 408 Cr.P.C., I am unable to agree with the observations made that Section 408(1) Cr.P.C. only gives power to a Sessions Judge to transfer a case pending in one criminal court to another criminal court in his Sessions Division, but it does not give power to the Sessions Court to call for a case to that Court from the Court of Judicial Magistrate of First Class without formal committal, because the committal of a case from a Court of Judicial Magistrate of First Class to a Court of Session under Section 209 Cr.P.C. or under Section 407(1)(c)(iii) Cr.P.C., cannot be equated with power of transfer as enshrined in Section 408(1) Cr.P.C. Consequently, I am also unable to agree with the observation that the ideal procedure is to file application before the Magistrate itself by the Public Prosecutor or by the aggrieved party requesting the Magistrate to commit the case under Section 323 Cr.P.C. to the Court of Sessions where the connected case is pending. Consequently the observation made that if the case is not committed by the Magistrate and the aggrieved party file an application before the Court of Sessions for transfer, even though the Sessions Court has no power to transfer, it can dispose of the transfer application directing the Magistrate to consider the request to commit the same to the Sessions Court where the connected case is pending is also not acceptable. In my considered opinion, these observations are quite contradictory to the provisions of Section 408 Cr.P.C., which empowers the Sessions Judge to transfer a criminal case from one criminal court to another criminal court, which got superior jurisdiction, within his Sessions Division. 13. Therefore, for the reasons discussed above, the plea of the learned counsel for the accused is not tenable as I see no infirmity in the order passed by the Sessions Court. Ultimately, the petition is liable to be dismissed. 14. The Transfer Criminal Petition is, accordingly, dismissed.


THE HON'BLE SRI JUSTICE G. KRISHNA MOHAN REDDY          

TRANSFER CRIMINAL PETITION No.154 of 2012      

05-10-2012

Aijaz Ali Qureshi and others

The State of A.P. and another

Counsel for the Appellant: Sri M. Layeeq Khan

Counsel for Respondent No.2: Public Prosecutor

<Gist:

>Head Note:

?Cases referred:
2007 CRI.L.J. 1877

ORDER:

1.      This Criminal Petition is filed under Section 407 of the Code of Criminal
Procedure, 1973 (Cr.P.C) to set aside order dated 03.5.2012 passed in Transfer
Crl.M.P.No.202 of 2012 (Crl.M.P.) on the file of the Court of Metropolitan
Sessions Judge, Hyderabad, transferring C.C.No.725 of 2009 (C.C) on the file of
the Court of VIII Additioinal Metropolitan Sessions Judge, Hyderabad, to try and
dispose of along with S.C.No.540 of 2011 on the file of the latter Court under
Section 408 Cr.P.C.
2.      Whereas the petitioners herein are the respondents in the Crl.M.P. and A1
to A8 in the C.C., the second respondent herein is the petitioner in the
Crl.M.P. and defacto complainant in the C.C.  For convenience sake, I refer the
parties as arrayed in the Crl.M.P. from here afterwards.
3.      The question raised here is
whether by virtue of clause (iii) of Section
407(1)(c) Cr.P.C., the Sessions Judge got authority to transfer the case as was
done in this case.
4.      Learned counsel for the respondents would contend that by virtue of the
said clause under Section 407(1)(c) Cr.P.C., only the High Court got the
authority to commit the case to the Court of Session for conducting necessary
trial along with the Sessions Case by reason of which the Metropolitan Sessions
Judge got no authority to transfer the C.C., which in fact amounts to committing
the case to the Court of VII Additional Metropolitan Sessions Judge, Hyderabad
directly which is not permissible under law.  He has placed reliance in this
context upon a decision reported in C.H. Abdul Salam v Sameera1 rendered by
Kerala High Court.
5.      Therefore, it is to be seen as to whether the transfer of the case
effected by the Metropolitan Sessions Judge is proper or not.  With regards to
the subject on hand it is necessary to distinguish what is meant by committal
and what is meant by transfer of a criminal case from one criminal court to
another criminal Court within a sessions division as per law.  In fact the
language employed in Section 209 Cr.P.C. itself gives a clear picture of this
distinction which is fortified by the corresponding provisions enumerated in the
Sections 407 and 408 Cr.P.C.
This section deals with the question of committal
of a case to the Court of Session from a Court of Judicial Magistrate of First
Class when an offence is exclusively triable by the court of Sessions subject to
the conditions incorporated thereunder.  Only in this Section the question of
sending a criminal case, which is exclusively triable by a Court of Session, to
a Court of Session is termed as "committal".  The language used is to be taken
in the true spirit of the intendment of the legislation.  Therefore, any other
mode of sending a criminal case from one Court to another Court as employed in
the Code cannot be taken as "committal" of that case from the first Court to the
second Court.  It actually enjoins:
Commitment of case to Court of Session when offence is triable exclusively by it
When in a case instituted on a police report or otherwise, the accused appears
or is brought before the Magistrate and it appears to the Magistrate that the
offence is triable exclusively by the Court of Session, he shall-

(a) Commit, after Complying with the provisions of Section 207 or Section 208,
as the case may be, the case to the Court of Session, and subject to the
provisions of this code relating to bail, remand the accused the custody until
Such commitment has been made;  

(b) Subject to the provisions of this Code relating to bail, remand the accused
to custody during, and until the conclusion of, the trial;

(c) Send to that Court the record of the case and the documents and articles, if
any, which are to be produced in evidence;

(d) Notify the Public Prosecutor of the commitment of the case to the Court of
Session.

6.      Section 407 Cr.P.C., deals with the power of the High Court in respect of
transfer of cases and appeals, whereas Section 408 Cr.P.C., deals with the power
of Sessions Judge to do so.  It is necessary to extract these provisions for
proper appreciation of the question on hand.
Section 407 reads:

Power of High Court to transfer of cases and appeals.-

(1) Whenever it is made to appear to the High Court-
(a) that a fair and impartial inquiry or trial cannot be had in any Criminal
Court subordinate thereto, or
(b that some question of law of unusual difficulty is likely to arise, or
(c) that an order under this section is required by any provision of this Code,
or will tend to the general convenience of the parties or witnesses, or is
expedient for the ends of justice,
it may order-
(i) that any offence be inquired into or tried by any court not qualified under
Sections 177 to 185 (both inclusive), but in other respects competent to inquire
into or try such offence;
(ii) that any particular case or appeal, or class of cases or appeals, be
transferred from a criminal court subordinate to its authority to any other such
Criminal Court of equal or superior jurisdiction;
(iii) that any particular case be committed for trial to a Court of Session; or
(iv) that any particular case or appeal be transferred to and tried before
itself.
(2) The High Court may act either on the report of the Lower Court, or on the
application of a party interested, or on its own initiative:
Provided that no application shall lie to the High Court for transferring a case
from one Criminal Court to another Criminal Court in the same sessions division,
unless an application for such transfer has been made to the Sessions Judge and
rejected by him.
(3) Every application for an order under sub- section (1) shall be made by
motion, which shall, except when the applicant is the Advocate- General of the
State, be supported by affidavit or affirmation.

(4) When such application is made by an accused person, the High Court may  
direct him to execute a bond, with or without sureties, for the payment of any
compensation which the High Court may award under sub- section (7). 

(5) Every accused person making such application shall give to the Public
Prosecutor notice in writing of the application, together with copy of the
grounds on which it is made; and no order shall be made on of the merits of the
application unless at least twenty- four hours have elapsed between the giving
of such notice and the hearing of the application.

(6) Where the application is for the transfer of a case or appeal from any
subordinate Court, the High Court may, if it is satisfied that it is necessary
so to do in the interests of justice, order that, pending the disposal of the
application, the proceedings in the subordinate Court shall be stayed, on such
terms as the High Court may think fit to impose: Provided that such stay shall
not affect the subordinate Court' s power of remand under section 309.
(7) Where an application for an order under sub- section (1) is dismissed, the
High Court may, if it is of opinion that the application was frivolous or
vexatious, order the applicant to pay by way of compensation to any person who
has opposed the application such sum not exceeding one thousand rupees as it may  
consider proper in the circumstances of the case.
(8) When the High Court orders under sub- section (1) that a case be transferred
from any Court for trial before itself, it shall observe in such trial the same
procedure which that Court would have observed if the case had not been so
transferred.
(9)Nothing in this section shall be deemed to affect any order of Government
under section 197.

        Section 408 reads:

Power of Sessions Judge to transfer cases and appeals.-

(1) Whenever it is made to appear to a Sessions Judge that an order under this
sub-section is expedient for the ends of justice, he may order that any
particular case be transferred from one Criminal Court to another Criminal Court
in his session's division.
 (2) The Sessions Judge may act either on the report of the lower court, or on
the application of a party interested or on his own initiative.
 (3) The provisions of sub-sections (3), 4), (5), (6), (7) and (9) of section
407 shall apply in relation to an application to the Sessions Judge for an order
under sub-section (1) as they apply in relation to an application to the High
Court for an order under subsection (1) of section 407, except that sub-section
(7) of that section shall so apply as if for the words "one thousand" rupees
occurring therein, the words "two hundred and fifty rupees" were substituted.
       
        7.      Pertinently the emphasis of learned counsel for the defacto
complainant in this context is upon clause (iii) of Section 407(1)(c) Cr.P.C.,
which reads that whenever it is made to appear to the High Court that any
particular case be committed for trial to a Court of Session, it has power to do
so.
8.      It is emphatical that with reference to the power of High Court three
clauses i.e.,
 clauses (ii), (iii) and (iv) are incorporated in sub-section(1)(c)
of Section 407, two with regards to the transfer of a criminal case and the
other with regards to committal of a criminal case.
 Subject to the sub-section
clause (ii) enjoins "That it may order transfer of a case or appeal or class of
cases or appeals from a criminal court subordinate to its authority to any other
such criminal court of equal or superior jurisdiction",
 clause (iv) enjoins
"That any particular case or appeal be transferred to and tried before itself"
which are subject to sub-section (2), which contemplates "The High Court may act
either on the report of the Lower Court, or on the application of a party
interested, or on its own initiative provided that no application shall lie to
the High Court for transferring a case from one Criminal Court to another
Criminal Court in the same sessions division, unless an application for such
transfer has been made to the Sessions Judge and rejected by him." and clause
(iii) enjoins "That any particular case be committed for trial to a Court of
Session".
Thus these aspects are dealt with under different contexts with
regards to the question of the powers of the High Court in that behalf.
What is
significant is that the procedural aspects regarding the transfer of a criminal
case have been separately dealt with under sub-sections 3 to 9 in Section 407
which are adopted in Section 408 which separately deals with such power of the
Sessions Court within its sessions division. If the word "committal" does not
differ from the word "transfer" within the parameters of the legal terminology,
the employment of such different sub-sections or clauses would not have been
done.
9.      The powers of committal or transfer of criminal cases of the Judicial
Magistrate of First Class, High Court and Sessions Judge have been categorically
given in the provisions enumerated respectively.  There is no confusion or
overlapping of any of the provisions. The power given under Section 209 Cr.P.C.
to commit a criminal case to a Court of Session subject to that that case should
be exclusively triable by the Court of Session is quite distinguishable from the
power of the Sessions Judge to transfer a criminal case from one criminal court
to another criminal court within his Sessions Division as enjoined by Section
408 Cr.P.C.  Significantly Section 209 Cr.P.C. does not speak of committing a
criminal case to the Court of Session, which is not exclusively triable by the
Sessions Court whereas Section 408 does not speak of committal of a criminal
case in specific terms.  There is no provision in the Code which enables the
Judicial Magistrate of First Class to transfer a criminal case from his court to
any other criminal court within the Sessions Division, nor there is any
provision in the Code which enables the Sessions Judge to commit any case to the
Court of Sessions as envisaged in Section 209 Cr.P.C.
10.     In every Sessions Division there would be number of criminal courts of the
category of Judicial Magistrate of First Class, Assistant Sessions Judge, and
Additional Sessions Judge.  Under Section 408 Cr.P.C. vide powers have been
conferred on the Sessions Judge to transfer a criminal case or an appeal from
one criminal court to another criminal court of higher jurisdiction within his
Sessions Division without putting any restrictions when it is made to appear to
him that it is expedient to do so to meet the ends of justice.
 Thereby the
words used in the Section, "From one criminal court to another criminal court"
cannot be confined only to a particular category of courts within the Sessions
Division.   Hence the word, "committal" as used in clause (iii) of Section
407(1)(c) Cr.P.C. cannot be equated with the word "Transfer" as used in Section
408 Cr.P.C.  In other words, the power of a Sessions Judge to transfer a
criminal case from one criminal court to another criminal court within his
Sessions Division cannot be curtailed by virtue of clause (iii) of Section 407
(1)(c) Cr.P.C., which deals with a different mode.  The word, "committal" used
in clause (iii) of Section 407 (1)(c) Cr.P.C. should be read in conjunction with
the procedure laid down in Section 209 Cr.P.C. with regards to the committal of
a criminal case, which is exclusively triable by a Court of Session, by a
Judicial Magistrate of First Class to the Court of Session.
 When Section 407
deals not only with the power of High Court to transfer a criminal case from one
criminal court to another criminal court subject to the question of jurisdiction
to entertain the matter but it also deals with the power to order for committing
a criminal case to the Court of Session, it is not appropriate to confine its
power only to the question of committal restricting the amplitude of the Section
to that extent only.  If that is the case the provisions incorporated in the
section about the power to transfer a criminal case would become redundant.
11.     In fact in the decision cited by learned counsel for the petitioners in
C.H.Abdul Salam v Sameera (supra),
it was observed as follows.
        Section 407(1)(iii) of Cr.P.C. gives power to the High Court to direct the
Magistrate Court to commit a case for trial to the Sessions Division for
simultaneous trial with another Sessions Case pending in that Sessions Division.
It is a wide power to be exercised in the interest of justice.
Sessions Court
has got power under Section 408 to transfer a particular case from a criminal
court to another criminal court in that Sessions Division.
 Neither Section 408
nor any other provision in Cr.P.C. empowers the Sessions Court to call for a
case from the Magistrate Court for trial to that Court without a committal
order. 
A reading of Section 407(3) would make it clear that a power akin to
Section 407(8) is not vested with the Sessions Court even though Sub-sections
(3) to (7) and (9) of Section 407 were made applicable to Sessions Court.
However, the question arising for considering is whether it is possible for the
High Court to exercise that power before such an application is filed before the
Sessions Court as held in Santhosh's case.
The proviso to Section 407(2) of
Cr.P.C. provides that no application shall lie to the High Court for
transferring a case from one Criminal Court to another Criminal Court in the
same Sessions Division, unless an application for such transfer has been made to
the Sessions Judge and rejected by him.
 It is settled law that before an
application can be filed before the High Court for transfer of a case from one
court to another court in the same sessions division one has to file an
application before the Sessions Court and its rejection by the concerned
Sessions Judge is a pre-condition (see Krishna Panicker v State of Kerala, 1981
Crl.LJ. 1973 (Ker.), Radhey Shyam and Anr. v. State of U.P. 1984 (2) Crimes 50
(All.) and Manindra Kumar v. State of Rajasthan 1992 Crl. L.J. 1392 (Raj.)
Section 408(1) of Cr.P.C. only gives power to the Sessions Judge to transfer a
case pending in one Criminal Court to another Criminal Court in his Sessions
Division.
However, it does not give power to the Sessions Court to call for a
case to that court from the Magistrate Court without formal Committal.
 Committal
of a case from the Magistrate Court to the Sessions Court cannot be equated to
transfer under Section 408(1) of Cr.P.C.
 In the case of a direction to commit a
case from the Magistrate Court to Sessions Court the proviso is not a bar in
exercising the power of the High Court conferred under Section 407(1)(iii) of
Cr.P.C.
Therefore, we are in perfect agreement with the decision of the learned
Single Judge of this Court in State of Kerala v Annamma, 2003(2) KLT 763, we are
unable to agree with the decision in Santosh v State of Kerala, 2006 (3) KLT
439.
 However, we are of the view that the ideal procedure is to file an
application before the Magistrate itself by the Public Prosecutor or by the
aggrieved party requesting the Magistrate to commit the case under Section 323
of Cr.P.C. to the Sessions Court where the connected case is pending. If the
case is not committed by the Magistrate and the aggrieved party files a petition
before the Sessions Court for transfer even though Sessions Court has no power
to transfer it can dispose of the Transfer Application directing the Magistrate
to consider the request to commit the same to the Sessions Court where the
connected case is pending. But the aggrieved party can apply to this Court under
Section 407(1)(iii) of Cr.P.C. for directing the Magistrate Court to commit a
case for trial to the Court of Sessions along with connected cases.

        12.     On the analysis of the scope of Sections 209, 407 and 408 Cr.P.C., 
I
am unable to agree with the observations made that Section 408(1) Cr.P.C. only
gives power to a Sessions Judge to transfer a case pending in one criminal court
to another criminal court in his Sessions Division, 
but it does not give power
to the Sessions Court to call for a case to that Court from the Court of
Judicial Magistrate of First Class without formal committal, because the
committal of a case from a Court of Judicial Magistrate of First Class to a
Court of Session under Section 209 Cr.P.C. or under Section 407(1)(c)(iii)
Cr.P.C., cannot be equated with power of transfer as enshrined in Section 408(1)
Cr.P.C. 
 Consequently, I am also unable to agree with the observation that the
ideal procedure is to file application before the Magistrate itself by the
Public Prosecutor or by the aggrieved party requesting the Magistrate to commit
the case under Section 323 Cr.P.C. to the Court of Sessions where the connected
case is pending.  
Consequently the observation made that if the case is not
committed by the Magistrate and the aggrieved party file an application before
the Court of Sessions for transfer, even though the Sessions Court has no power
to transfer, it can dispose of the transfer application directing the Magistrate
to consider the request to commit the same to the Sessions Court where the
connected case is pending is also not acceptable.  
In my considered opinion,
these observations are quite contradictory to the provisions of Section 408
Cr.P.C., which empowers the Sessions Judge to transfer a criminal case from one
criminal court to another criminal court, which got superior jurisdiction,
within his Sessions Division.
        13.     Therefore, for the reasons discussed above, the plea of the learned
counsel for the accused is not tenable as I see no infirmity in the order passed
by the Sessions Court.  Ultimately, the petition is liable to be dismissed.
        14.     The Transfer Criminal Petition is, accordingly, dismissed.


_________________________  
(G. KRISHNA MOHAN REDDY, J)    
Date:05-10-2012