JUDGMENT
S.K. Kar, J.
1. Order dated 8.10.2002 passed in T. Ex. 12 of 1999 (out of decree in TS 10/84) has been assiled by Md. Harmuj Ali Pramanik, TS No. 10/84 was instituted by Md. Saifuddin Sankar and another as plaintiffs against Md. Harmuj Ali Pramanik and TS No. 167/97 was filed by Md. Harmuj Ali Pramanik as plaintiff against Md. Saifuddin Sankar and 4 other including State of Assam and Settlement office, Dhubri, as the proforma-defendants No. 4 and 5.
2. Before entering into the discussions about any illegality or errors in the impugned order, a brief narration of facts giving the back ground will be essential to understand the disputes and related matters in controversy clearly.
3. The petitioners Md. Saifuddin Sankar & another as back as in the year 1980 instituted title suit No. TS 35/80 for eviction of Harmuj Ali Pramanik from land, measuring 1 (one) bigha appearing to dag No.13, Khatian No. 58 situated at villege Manipur Part-I under Bagribari Circle, District Goalpara and the houses standing thereupon, claiming ownership. The suit (TS No. 35/80) was dismissed on technical ground of want of service of valid notice Under Section 106 of T.P. Act and hence they filed as second suit, registered as TS No. 10/84 for the same purpose, inter alia, that he along with the plaintiff No. 2 were owners of aforesaid land and houses thereupon described in the Schedule appended to the plaint and the houses thereupon were let out to the defendant Harmuj at monthly rent of Rs. 50 for a period of one year w.e.f. 1.7.1978 expiring by 30.6.1979. That defendant neither paid rents nor vacated the house in spite of notice terminationg the tenancy and accordingly prayed for a decree of ejectment and recovery of khas possession, reserving their further rights to claim compensations for use and occupation and arrears of rents due etc.
5. The suit (TS No. 10/84) was contested by defedant Harmuj and it was decreed on 25.8.1984. Such decree passed by trial court became final being confirmed by this High Court vide order dated 12.12.1996 passed in Second Appeal, S.A. No. 159/88. Thereafter, title execution case No. T. Ex. 12/99 wsa filed by said Saifuddin & another which is still pending for disposal and the latest order passed therein was on 8.10.2002.
6. Defendant of said TS. No. 10/84 after loosing all throughout presented the subsequent Suit T.S. 167/97 claiming that land measuring 3K-11L was given to him by landlord Anil Kr. Saha by issuance of pattanama on 19.2.1976 B. S. (Correponding to 1970 AD) and thereafter he was in possession for last 18 years by construction of houses upon such tenanted land, thereby acquiring tenancy rights and defendant No. 3 had no subsisting title or legal interest in that land save and accept the right for realization of rents. (The descriptions and particulars of suit land in both suits are same). In this Suit, Harmuj Ali Pramanik averred further that the defendants Saifuddin and another instituted T.S. No. 35/80 claiming purchase of 1 bigha of land from defendant No. 3 Anil Kr. Saha on the strength of sale-deed No. 6771 of 1997, delivery of possession and construction of houses, 30 ft x 20 ft. in measurement on the western part of said land and induction of him from 1.7.1978 for one year as a tenant. That title suit No. 35/80 being dismissed, title suit No. 10/84 was again instituted for the same purpose by Saifuddin and another with regard to the same land and obtained a fraudulent, collusive and concocted decree from cout of Civil Judge (Jr. Div.) No. 1, Dhubri, on 25.8.1984. That sale deed No. 6771/1977 is false, fraudulent, collusive, concocted and manufactured one. That Saifuddin and others were not legally entitled to recover possession of the disputed land by evicting him (Harmuj Ali) on the strength of fraudulent decree/order dated 25.8.1984 passed in T.S. No. 10/1984, etc. Accordingly, he prayed for the declaration of his tenancy right and possession and for mutating his name in the revenue records expunging names of defendants name 1 and 2, (i.e., Saifuddin and another) and for a declaration that sale-deed No. 6771/77 is false, fraudulent, concocted and manufactured. He also prayed for injunction to restrain defendant No. 1 and 2 from evicting on dispossessing him from said ‘C’ schedule land, (i.e., 3K-11L of land and houses thereupon etc.).
7. In their written statement the defendant Nos. 1 and 2 of this subsequent title Suit No. 167/97 had claimed that the Goalpara Tenancy Act being repeated there was no question of issuance of ‘pattanama’ dated 19.2.1976 B.S. as stated in favour of the plaintiff Harmuj Ali. That they are the owners of the suit land and plaintiff (Harmuj) is their tenant. That on determination of the tenancy on expiry of the term the plaintiff Harmuj was asked to vacate the land and houses and on his failing to do so the title suit No. 10/84 was instituted. That they had acquired title on the strength of purchase of the suit land through a registered sale-deed No. 6771/77 on and from 24.10.1977 and at the relevant time of execution of sale deed their vendor had saleable interest in the property and delivery of possession was accordingly, handed over to them. That mutation of their names with respect to the suit land/disputed land was validly done under the provision of Assam Land Revenue Regulation. That the allegations brought against the trial court, vide paras 23-24 of the plaint, was highly objectionable as the plaintiff himself contested the suit before the said court as defendant and was subsequently the appellant before court of Asstt. District Judge and the High Court. That he had sufficient opportunity to challenge the claim of the plaintiffs of the former suit on the ground of fraud etc., or otherwise but he had failed to do so.
8. They also took the formal plea in the W.S. that title suit No. 167/97 is barred of principle of res judicata, limitation and was wanting in cause of action etc.
9. I have heard learned counsel appearing on both sides in connection with this two revision petitions, perused the annexures annexed with the petitions by both parties and considered the submission made vis-a-vis the contents of documents/papers relied upon. My decisions therein and reasons therefore are recorded as hereunder.
10. After going through the entire history of the cases/suits between the rival parties it is clear that Harmuj, is in actual physical possession of the land notwithstanding the transfer of title as claimed by the plaintiffs of the former suit on the strength of sale-deed No. 6771/77. It is also not in dispute that Anil Kumar Saha was the landlord and the original owner of the suit land/disputed land and that the said land now stands mutated in the names of Saifuddin and another in the revenue records of the government. It will mean that if and when sale-deed No. 6771/77 is found valid, Saifuddin & another will step into the shoe of Anil Kr. Saha acquiring title w.e.f. 24.10.1977 (date of execution of sale-deed).
11. It will be pertinent to note that tenancy right of the plaintiffs of title suit No. 10/84 was ‘the fact in issue’ in the former suit and it was contested by Harmuj and was unsuccessful.
12. The plaint of title Suit No. 10/84 (annexure-1 in CRP 372/2002) is before us. From the plain reading of that plaint, it will be seen that the plaintiffs of that suit, Saifuddin and another, pleaded that they are owners of suit land.
13. Unfortunately it has not been brought, at this stage of the dispute, to the notice of this court, as has been observed beforehand, what was the exact plea of Harmuj while contesting the former suit (TS No. 10/ 84) as defendant; but then, from the pleadings on the plaint of TS No. 10/84 it will be very clear that he was asked to face the challenge to his title and required to answer the claim of the plaintiffs of that suit asserting their right of ownership with respect to the same disputed land and the houses thereupon.
14. Be that as it may, from materials of these two revision petitions it is clear that names of Saifuddin and another got mutated in the corresponding revenue records on the strength of their purchase vide sale-deed 6771/77. Therefore, the fact of notice of existence of the sale-deed No. 6771/77, was very much there to the defendant of TS No. 10/ 84 and plaintiff of TS No. 167/97, i.e., Harmuj. Under all reasonable inference thus, it will be accepted that the claim of tenancy and purchase by the plaintiffs of title Suit No. 10/84 could have been assailed by Harmuj Ali the defendant of the former suit (TS No. 10/84) on all and every grounds that were available to him in the former suit. But it will be seen that he instituted the subsequent suit, T.S. No. 167/97, perhaps by way of frustration failing all throughout in the former suit, thus, inviting a scope for raising the plea of bar of the latter suit on the principle of res judicata as enunciated by Section 11 of CPC.
15. It may be noted here that on institution of title suit No. 167/97, Harmuj filed an application for injunction, registered as Misc. (j) No. 105/97, which was disallowed by the learned Civil Judge (Jr, Div.) No. 1, Dhubri, and a revision petition against such order of refusal to grant injunction before High Court, viz., CRP 359/2001, was abortive and while disposing the CRP this court held K in this context vide order dated 6.5.2002 that it is well settled that a rigorous test has to be applied and stay could be granted only for good and cogent reason in connection
with any prayer for setting aside execution of decree validly obtained. It is also the settled law that no court will order stay of a decree unless sufficient cause shown and it is challenged on grounds of illegality, fraud, without jurisdiction etc.
16. But then, a second petition for injunction was filed, which was registered as Misc. Case (j) No. 126/02, and after hearing only the petitoner the same court of Civil Judge (Jr. Div.) by passing an unusually lengthy order dated 24.7.2002 (impugned) directed the status quo to be maintained with respect to decretal land by both parties until further order or till disposal of T.S. No. 167/97, which ever is earlier. This court while admitting the revision (CRP 301/02) petition on 20.9.2002 passed an order simultaneously suspending operation of impugned order dated 24.7.2002 as well as the further proceedings in title Suit No. 167/97.
17. From a close study of the entire facts as narrated above, it will be seen that Title Suit No. 167/97 may come under the purview of Section 11 of CPC. The ‘former suit’ as contemplated by Section 11 of CPC, particularly when read with explanation III and IV given below it will cover the present suit between Saifuddin and Harmuj. More specifically explaination IV makes it very clear that the defence in the former suit would also cover in addition to the plea taken in the plaint, all grounds of defence which could have been taken. For proper appreciation the law is quoted as below :
“Res judicata …….. *****
Explanation I ……..*****
Explanation II …….*****
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.
Explantion 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 or substantially in issue in such suit.”
The principle of res judicata is based of need to give finality to judicial proceedings and is a part of public polity. It has repeatedly been held that neither party will be allowed in a furture suit or proceedings between the same parties to canvas the matter again which has been in issue between them in a former suit/proceeding. In Abdul Samad v. Abdul Mahit, (1979) 2 Cal LJ 219, it was held that ‘after suffering a contested decree (here upto appeal) a defendant canot sue for setting aside the decree on the plea of fraud, such a suit is barred by res judicata’. It was also held by Hon’ble Supreme Court as reflected in AIR 1979 SC 1569; (1976) 4 SCC 780 (Mohamad. S. Labbai v. Mah. D. Hanifa) that ‘best method to decide the question of res judicata is first to determine the case of the parties as put forward in their respective pleadings of their previous suit, and then to find out as to what had been decided by the former judgment which is to opeate as res judicata’. Hon’ble Privy Council, vide, AIR 1971 PC 231 (233) held ‘res judicata refers to both parties and precludes a suit as well as a defence, while Order 2 and Rule 2 refers only to plaintiff’.
18. In this context of assailing a decree on ground of fraud it was held by Hon’ble High Court of Kerala in Keepattel Bappu v. B. Kazkakke Vallappil Muhammad, AIR 1993 Ker 273 as follows :
“However, the ground of fraud for vacating the judgment relied upon to substantiate plea of res judicata must be extraneous to everything adjudicated upon in judgment relied upon.”
It cannot to be disputed that he who comes to Court mast come with clean hands and if the court finds that any of party has resorted to false suit or is trying to abuse the process of court with frivolous litigation he can summarily be thrown out by court at any stage of the litigation. It was held by different courts in the context of pleading fraud against a decree as follows. Where a decree is sought to be set aside on around of fraud, the fraud alleged must be actual, positive fraud, a meditated and intentional contrivance to keep the parties and the court in ignorance of the real facts of the case and the obtaining of that decree by that contrivance (AIR 1923 Pat 242). A bare statement that the decree, is fraudulent and collusive is not enough to assail an otherwise contested decree. In such case it is wall-settled that fraud must be external and collateral to adjudication and must be of person who secured judgment. Hon’ble Apex Court held in Sankar v. Lakshmi AIR 1974 SC 1764 –
“Nature of fraud which vitiates a judgment is that though a judgment would be res judicata and not impeachable from within, it may be impeached from without, though it is not permissible to show that the court was mistaken, it may be shown that it was misled. There is an essential distinction between mistake and trickery. A judgment cannot be impeached on ground of wrong decision. But it can be impeached on the ground that court has been tricked into giving a Judgment.”
19. Bearing in mind the laws cited above and on a serious/anxious thought on the law of res judicata, it will be seen that any court is duty bound to decide the question of res judicata raised by any party, or suo motu on the examination of the plaint. If there is any such doubt about the question of application of res judicata, the parties would be asked to make their respective submissions and the question will be answered before any further proceedings in the suit. It was held by Hon’ble High Court of Andhra Pradesh, refer (AIR 1965 Andh. Pra. 12 (13) that ‘objections on the ground of res judicata should be disposed of as a preliminary issue and not reserved to be tried with other issues. Moreover, it is on public policy that public time and energy should not be wasted for nothing. If a decision can be arrived on the basis of material before the court right now there is no meaning to defer the same.
20. While dealing with suits before it a civil court is also supposed to meticulously adhere to procedure prescribed for the quick and effective decision. Order VII Rules 10 and 11 contain the provisions for ‘Return of the plaint’ and ‘Rejection of the plaint’ respectively and in appropriate cases in order to avoid useless, abortive and frivolous litigations Court may pass order at the inception itself terminating such litigations. On appearances of the parties being complete and submissions of pleadings completed there is scope under Order X again to pronounce judgment under certain conditions. Then again, there is further scope to pronounce judgment at first hearing of the suit under provision of Order XV after the settlement of the issues as per the provisions of Order XIV, taking issues of law as preliminary issue and if practicable to decide the suit on such issues of law, or admitted facts, as the case may be, if any.
21. Thus, it will be seen and can be argued that a question of bar of res judicata cannot be deferred unless it is a mixed question of law and facts inseparably intertined with each other.
22. Reverting to the question of examination the illegality, material irregularity or abuse of jurisdiction in passing the impugned order, dated 8.10.2002, I find it is an order passed under the compelling circumstances and court had no alternative but to pass such an order in view of the order of the High Court suspending the order of maintaining of status quo of suit land and the further proceeding in TS. No. 167/97. There is nothing to impugne this order as not exercising jurisdiction or acting with any irregularity. The decree passed in TS No. 10/84 had remained till date valid, legal and executable. The petition presented under Order 21 Rule 20 read with 151 of CPC giving rise to CRP 372/02 is itself without any basis. Rule 20 of Order 21 of CPC deals with cross-decrees and cross-claims in mortage-suit. There is no cross-decrees here and law cited has no application at all. The petition under Order 21, Order 20 was only abuse of the process of court and was ill conceived. The revision petition is absolutely without any merit.
23. In the result, the petition is rejected.