MANZOOR AHMED Versus ADDITIONAL DISTRICT JUDGE III, RAHIMYAR KHAN

ORDER

A suit for restitution of conjugal rights filed by the petitioner against Mst. Mumtaz Khatoon respondent No.2 was consolidated by the Family Court No.10, Khanpur for trial with her suit for dissolution of marriage, claiming decree in exercise of option of puberty and also on the ground of Khula'. The suits having been contested, they were set down to be tried on a total of five consolidated issues to determine her rights of option of puberty and entitlement for a decree on the basis of Khula' as also the petitioner's claim for restitution of conjugal rights. Proceedings were taken in her suit. Parties led their evidence, on the basis whereof learned Family Judge dismissed her suit on 22‑5‑1986 by simultaneously passing a decree for restitution of conjugal rights against her. A composite decree (Annexure 'K') was prepared to regulate the disposal of both the suits and placed on the record of her suit. An identically‑worded version thereof (Annexure 'M') was appended to the other suit filed by the petitioner.

2. Mst. Mumtaz Khatoon, preferred only one appeal to challenge the disposal of both the suits. Mr. Abdul Ghaffar Khan, learned Additional District Judge, Rahim Yar Khan heard the appeal and by his judgment dated 5‑11‑1986, accepted it to set aside the judgment and decree of the trial Court and, in consequence, decreed her suit for dissolution of marriage on the ground of option of puberty and also on the basis of Khula.

3. Manzoor Ahmad has invoked the constitutional jurisdiction of this Court to assail the judgment and decree so passed by the learned Additional District Judge, on the ground that one appeal against the decrees passed in the two suits was not in order and that the decree for restitution of conjugal rights had, in this situation become final, to defeat the claim for dissolution of marriage, moreso because the learned Additional District Judge had not reversed the decree passed in favour of the petitioner. In support of this contention, reliance has been placed on Noor Muhammad Khan v. Muhammad Zaman Khan and 25 others P L D 1983 Azad J&K 34 decided by Sardar Muhammad Ashraf Khan, a learned Judge of the High Court of Azad Jammu and Kashmir, wherein the following observations appear at pages 380‑81:‑

"The trial Court by its consolidated judgment had decided two suits, one filed by the appellant against the respondents for declaration to the effect that he is the owner of the suit land and the other by respondents 1 to 8 against the appellant and pro forma‑respondents, for possession of the suit land and the two decrees were passed in the said suits. The appellant had appealed only against the decree passed in one of the above‑mentioned suits whereas under Section 96, CPC, he was required to file appeal against each of the said decrees. The appeal preferred by the appellant before the Additional District Judge was not competent. Because the decree passed in the other suit, against him, operated as a res judicata."

There is no reason mentioned in support of the above‑quoted conclusion and even the case‑law on the subject has not been examined. The proposition laid down therein is too broad have flowed from the facts of the case. Plea of res judicata, by its very nature, is a bar against an already decided issue between the parties being re‑opened to be tried subsequently and, as such, it arises out of an earlier E decision and can be founded upon a judgment and not upon a decree. It is mentioned in the above‑quoted observation itself that there was only one consolidated judgment passed in the two suits wherein two decrees were drawn up. There is no doubt that each decree is, at its own place, open to appeal but it is inconceivable as to how, when the judgment of both the suits in its consolidated form was before the appellate Court, may have the plea of res judicata been sustained as having followed upon the mere failure to file a separate appeal against the other decree, with profound respect to the precedent case, since in my humble opinion, weight of authority is clearly against the proposition laid down in it, therefore, I regret my inability to contribute to the view expressed therein.

4. As has been mentioned already, in the case in hand, there was virtually one decree passed to regulate both the suits and in such a situation, just one appeal would suffice because the appellate Court can therein exercise jurisdiction effectively about both the matters to be able to instead pass a new decree to take the place of the decree, as drawn up below, and impugned in the appeal. In this case, one appeal was quite capable of leading to the reversal of the entire decree which, for practical purposes, is just one decree and I have no doubt that, upon its being set aside in appeal such a decree, would have to get effaced completely, from both the records simultaneously. But even if two separate decrees may have been passed in the two consolidated suits between the same parties, even then one appeal would in law be sufficient in view of the Full Bench judgment of this Court in Saeed Ahmad v. Messrs Indo Enamel Works Ltd., Lahore P L D 1954 Lah. 490 wherein while considering this question in the context of appeals under section 110 of the C . P . C . , it was held that the wording of this section lends support to the interpretation that the cross‑appeals arising out of one suit, are to be regarded as one proceeding. It was laid down:‑

"When an appeal is presented the appellate Court is seized of the whole dispute though the appeal be directed against a part only of the decree. It is the duty of the appellate Court to consider not only whether the prayer of the appellant should be granted or rejected but to what extent the decree of the lower Court should be interfered with. After the appeal is disposed of, there is no longer in existence any decree of the trial Court for whatever decree subsists after the judgment of the appellate Court is the decree of the Court of appeal. As a result, when two cross‑appeals are disposed of at one time the decree in each appeal, whatever its actual wording, is identical, that is, each decree includes the whole decree that remains in the suit."

The old view on the subject, as appearing in a Full Bench judgment of Allahabad High Court in Zaharia v. Debi and others 7 Indian Cases 156, reached on the basis of a large number of cases decided earlier, is as under:‑

"Two rival suits for pre‑emption were instituted in the same Court. The plaintiff in either case was made defendant in the other. One plaintiff having been found to have preferential right his suit was decreed and the other suit dismissed. Two separate decrees were framed in both the suits. The losing pre‑emptor preferred an appeal against one of the decrees and allowed the other to become time‑barred; Held, that one of the decrees having become final by lapse of time, the appeal against the other was barred by res judicata."

Although this judgment was followed by the Patna High Court in Ram Narain Lal v. Hari Kishen Prasad Narain Sahi 44 1 C 418 to hold: ‑

"Where two appellate decrees are passed in one judgment in two cross‑appeals arising out of the same case and the appellant in second appeal wants to challenge both of them, he must file two appeals."

Yet, rational of the above‑quoted Full Bench judgment of the Allahabad High Court is that in the given situation one judgment pronounced by a competent Court (the identity of parties and other conditions of section 13 of the old Code being fulfilled), such judgment operates as res judicata upon the decision, original or appellate of the issue in the later litigation. Despite this observation, although there was only one judgment passed in that case to regulate both the suits and two separate decrees had been framed, the rule of res judicata was applied on account of unappealed decree and concurring judgment of Chamier, J. is as under;‑

"The Court of first instance wrote only one judgment but a copy of that judgment was placed upon the record of the second suit. The case must be treated, in my opinion, as if two separate judgments had been prepared. There were, of course, two separate decrees. The Code of Civil Procedure requires a separate judgment and decree for each suit or appeal and two.or more decrees cannot be challenged by one appeal. In the absence of a provision enabling a Court to consolidate suits and appeals and pass one judgment and one decree instead of as many judgments and decrees as there are suits or appeals, I see no escape from the conclusion that in a case like that of Abdul Basit v. Ashfaq Hussain 1908 AWN 211, the appellant must file two appeals if he wishes to avoid the bar of res judicata."

5. Since it is firmly established now that a trial Court has the power under section 151 of the C . P. C . to consolidate different suits) on the same subject to be tried and disposed of together, therefore, the afore-noted cases of Allahabad and Patna High Courts seem to have become obsolete and reference may be made to Seth Yusaf Ali Mamoonji Hakimji v. Seth Ali Bhoy and others A I R 1923 Lah. 8 wherein a Division Bench of this Court held that in cases where two suits are decided on a common ground (of estoppel) and plaintiff appeals only in one case the objection, that as there was no appeal filed from the other case, the question of estoppel had become res judicata, is untenable. The rule relating to res judicata came up for consideration before a Full Bench of five learned Judges of this Court in Mt. Lachhmi v. Mt. Bhulli A I R 1927 Lah. 289 and it was held that where two cross‑suits about the same subject‑matter filed between the same parties are consolidated and one judgment is delivered in both the suits but two decrees are framed then appeal from one of the decrees alone, without the other decree being appealed against, is not barred by res judicata for the reason that principle of res judicata applies only to judgments and not to decrees. The test applicable in such cases was also stated to be, whether the Judge had applied his mind to the decision of the issue involved in the two suits twice, or whether there has been in reality but one trial, one finding and one decision. This judgment was followed by another Full Bench of the West Pakistan High Court in Muhammad Zaman Khan v. Inzar Gul and others P L D 1957 Pesh. 129 where two rival pre‑emption suits were consolidated to be disposed of by one single judgment but two separate decrees were drawn up, to decree one suit and dismiss the other and a single appeal had been filed with the copies of both the decrees and that of the judgment attached thereto, it was held that single appeal to claim vacation of both the decrees was sufficient and it was observed as under:‑

"The single appeal was competent and was rightly allowed by the lower appellate Court to proceed.

Further, that section 11, Civil Procedure Code did not apply to appeals and should be completely ruled out of consideration in such a case. And, if the general principle of res judicata was sought to be invoked, then the argument ab inconvenienti would at once become admissible against the suggestion of a multiplicity of appeals."

There is no legal provision discernible to affect the maintainability of one appeal filed by Mst. Mumtaz Khatoon to claim vacation of the entire decree of the Family Court passed in the two rival‑suits and in view of the above‑cited judgment contention of the learned counsel is repelled

6. In the present case, since it has been held on the basis of evidence on the record that the Nikah of Mst. Mumtaz Khatoon was performed by her father during her minority but no Rukhsati had taken place until then, therefore, there was no real need to have had resort to the rule of Khula for dissolution of marriage which in law stood dissolved upon the exercise of option to that effect which stands expressed by the very institution of the suit by her before the attainment of age of 18 years and the aid of the Court is, in such cases, invoked for its being simply blessed with a declaration to that effect. See Mst. Muni v. Habib Khan P L D 1956 Lah. 403 wherein it is held:‑

"Repudiation of marriage by the exercise of option of puberty puts an end to the marriage without the aid of any Court and when the matter comes to Court, the Court does not dissolve the marriage by its own act but recognises the termination of marriage. "

In the above situation, the suit for restitution of conjugal rights could not at all have been decreed'. Mere omission of the learned Additional District Judge to so provide in express words in his judgment does not invalidate the decree passed by him because so is envisaged in the well‑recognized rule of law embodied in Section 99 of the C . P. C . , which, though in terms is not applicable to Family Courts, its principle applies all the same. In the appellate Court's decree affirming the exercise of option of puberty by Mst. Mumtaz Khatoon, the decree for restitution of conjugal rights passed by the Family Court in favour of the petitioner, gets automatically annulled because the decree passed in the appeal below replaces the trial Court's decree and is, as such, not open to any valid objection. Judgment passed in the appeal is unexceptionable on merits and has, in fact, not been challenged by the learned counsel.

7. There is no force in the Writ Petition which is accordingly dismissed in limine.

A.A./M‑514/L Petition dismissed.