Code of Civil Procedure, 1908–Secs. 96 & 11–Two suits for permanent injunction as regard to the same subject matter–One by respondent no. 2 and another by the appellant–Trial Court consolidated both suits and framed the common issues–Suit of respondent no. 2 was decreed whereas appellant’s suit was dismissed–Appellant preferred the first appeal challenging the decree and filed the application with seeking the permission to file a single appeal assailing the common judgment–High Court without passing any order on the application, dismissed the appeal, accepting the objection of res judicata in maintaining the appeal–Whether proper ?–Held, no–Prior to deciding the preliminary objection, High Court was required to decide the application of appellant–In case, the application would have rejected, the appellant could have availed the opportunity to file the separate appeal and rectify the defect–Serious prejudice was caused to the appellant–Impugned order set aside and matter remanded back for deciding the application first.
