* IN THE HIGH COURT OF DELHI AT NEW DELHI
% Judgment Reserved on: 30.07.2010
Judgment Delivered on: 04.08.2010
+ R.S.A.No. 71/1987 & C.M.Appl.1507/1996
RAJ SINGH ...........Appellant
Through: Mr.Sanjay Kr.Pathak and
Ms.Kaomudi Kiran, Advocates.
Versus
BHUP SINGH
THROUGH LR SURAT SINGH ..........Respondent
Through: Mr.Surat Singh, LR of
respondent in person.
CORAM:
HON'BLE MS. JUSTICE INDERMEET KAUR
1. Whether the Reporters of local papers may be allowed to
see the judgment?
2. To be referred to the Reporter or not? Yes
3. Whether the judgment should be reported in the Digest?
Yes
INDERMEET KAUR, J.
1. Raj Singh, the appellant had filed a suit for mandatory and
permanent injunction against his cousin Bhup Singh. Plaintiff was
the owner of house no.84, Nangloi Jat, Delhi. This house had come
to his share by way of a family settlement in the year 1952.
Defendant was the owner of property no.83 and 85 situated on
either side of the lane facing the property of the plaintiff. In
property no.83 a two storeyed house was constructed which did
not have staircase. Defendant was using a wooden staircase for
access to the first floor of the said building. Later on defendant
had put up a temporary wooden plank as an over bridge to pass
through his house. In 1968 defendant had constructed the ground
floor and the first floor of house no.85. He also tried to construct
RSA No.71/1987 Page 1 of 13
pakka over bridge about 8 feet in width to connect house no.83
with the newly constructed room on the first floor of house no.85
which blocked the frontage of property no.84 which had fallen to
the share of the plaintiff. The plaintiff and the owner of the
adjoining houses objected to this construction. Property no.84 was
at that time only a vacant plot but the house was to be constructed
and a proposed over bridge sought to be constructed by the
defendant would have marred the property of the plaintiff
defeating his easement rights.
2. This suit was contested. Primary objection was that this suit
is barred by the principle of res judicata as an earlier suit on the
same cause of action had been instituted by the brother of the
plaintiff namely Sultan Singh in respect of the same property in
which the same relief had been sought. The judgment of the said
suit dated 14.2.1977 Ex.D-1 was proved. On merits as well the suit
was contested.
3. Trial judge had framed five issues. The first issue related to
the application of the doctrine of res judicata to the present
proceedings. Trial judge had held that Ex.D-1 i.e. the judgment
dated 14.2.1977 was pronounced in a suit in respect of the same
property which was a suit instituted by Sultan Singh on his behalf
as also on behalf of the other co-sharers of the property which also
included the present appellant i.e. Raj Singh. It was a bonafide
litigation which Sultan Sigh had pursued. Appeal filed by Sultan
Singh against the said judgment had been withdrawn by him. The
order withdrawing the appeal dated 12.8.1980 was proved as
Ex.D-2. The application Ex.P-3 seeking permission to withdraw the
appeal was also proved on record. Trial judge had held that in
RSA No.71/1987 Page 2 of 13
view of this withdrawal of the appeal by Sultan Singh, the
judgment Ex.D-1 had become final between the parties.
Explanation VI of Section 11 of the Code of Civil Procedure
(hereinafter referred to as „the Code‟) was attracted; the present
plaintiff was interested in the bonafide litigation pursued by his
brother Sultan Singh; the said judgment operated as res judicata.
The trial court had further held that the suit is also barred by
limitation under Article 113 of the Limitation Act. The over bridge
had been constructed in the year 1968; suit having been filed on
10.10.1979 was beyond the period of limitation. On both these
grounds the suit was dismissed.
4. On 10.8.1987, the first appellate court had endorsed this
finding of the Civil Judge. The relevant extract of the said findings
read as follows:
“7. I have heard the learned counsel for the parties and
have perused the pleadings and documents on the record. A
perusal of Judgment Ex.D-1 in the suit filed by Sultan Singh,
brother of the plaintiff against the defendant and that suit was
filed by the brother of the plaintiff in the year 1971 and the
plaintiff who has appeared as PW-1 in his cross-examination
admitted that property no.84 belongs to him and his brother
Sultan Singh; that suit was dismissed vide Judgment Ex.D-1
and even the appeal filed by the brother of the plaintiff proved
on the record as Ex.D-2 was dismissed as withdrawn and vide
Judgment Ex.D-1 it was held that Sultan Singh, brother of the
plaintiff has no easementary rights upon the land nor the
threatened construction is going to materially effect the
easementary rights, if any. The present suit filed by the
plaintiff who is other co-owner of the property is thus, not
maintainable and is clearly barred under explanation VI to
section 11 CPC. The judgment relied upon by the ld.trial
court is thus fully applicable to the facts of this case and issue
no.1 has been rightly decided by the learned trial court
against the plaintiff and in favour of the defendant. As the
Judgment in that suit filed by Sultan Singh in respect of
subject matter in this suit has already been dismissed vide
Judgment Ex.D-1 hence the same operates as resjudicata, the
learned trial court has rightly dismissed the suit of the
plaintiff for mandatory and permanent injunction. Moreover,
the evidence on the record show that the construction in
question was done in the year 1968, the present suit has been
filed in the year 1979, the learned trial court has rightly
refused to grant the equitable relief of injunction to the
plaintiff on account of laches. The finding of the learned trial
RSA No.71/1987 Page 3 of 13
court are based upon evidence on the record and, therefore,
the findings of the trial court are affirmed and Judgment and
decree of the trial court is up-held.”
5. This is a second appeal. On 23.9.1987 the appeal was
admitted and the following substantial question of law was
formulated:
“Whether in the facts and circumstances of the present case,
withdrawal of appeal by Sultan Singh would operate as res
judicata against the Plaintiff?”
6. Learned counsel for the appellant has addressed lengthy
arguments. It is submitted that the courts below had gravely erred
in applying the doctrine of res judicata; explanation VI is not
attracted. Suit filed by Sultan Singh was on his own behalf; it was
not a representative suit; it was not filed bonafide; it did not in any
manner represent the rights of the plaintiff; in fact, the other two
brothers namely Ratan Singh and Jai Kishan had been arrayed as
defendant no.3 and defendant no.4 in this suit filed by Sultan
Singh; Raj Singh, the present appellant was nowhere in the
picture; the judgment Ex.D-1 is not binding on the present
appellant. Even otherwise, an appeal had been preferred by Sultan
Singh; he had thereafter in his application for permission o
withdraw the appeal (Ex.P-3) categorically stated that he seeks this
permission for the reason that his brother Raj Singh had also filed
a suit which is pending disposal and the matters in issue being
subjudice in that suit, permission was sought to withdraw the
appeal to get the matter adjudicated in that suit. Attention has
been drawn to the order Ex.D-2 which had been passed on the said
application. This order is dated 12.8.1980. It categorically records
that permission is granted to Sultan Singh to withdraw the appeal
mentioning therein „reasons sufficient‟. It is submitted that it is
thus clear that the appeal had been withdrawn by Sultan Singh
RSA No.71/1987 Page 4 of 13
only for the reason that the same matters were in issue in the suit
of Raj Singh upon which an adjudication had been sought by Sultan
Singh, which was the reason why he had withdrawn the said
appeal. As such the question of the matter having been finally
decided did not arise.
Reliance has been placed upon AIR 1970 SC 809
Shashibhushan Prasad Mishra vs. Babuaji Rai to support a
submission that where an appeal has been filed, the decision of the
trial court loses its character of finality. This judgment has been
relied upon to advance the proposition that the appeal filed by
Sultan Singh had made the judgment Ex.D-1 lose its finality and
had become a dead-wood between the parties.
It is submitted that even otherwise, the judgment of two
courts below holding that the principle of res judicata is applicable
is misconstrued for the reason that the pleadings in the earlier suit
i.e. the suit filed by Sultan Sigh were never before the subsequent
court in the absence of which it could not be conclusively
concluded as to whether this doctrine would or would not be
applicable. For this proposition reliance has been placed upon AIR
2000 NOC 20 (Andh.Pra.) Kesarapu Manikyalu vs. Venna
Perumalllayya (dead) & Ors. wherein it was held that where
pleadings in the previous suit between the same parties had not
been filed on record and only the judgment is forthcoming, the
question of res judicata could not have been decided. For the same
proposition reliance has been placed upon AIR 1976 SC 1569 Syed
Mohd. Sale Labbai (dead) by LRs and Ors. vs. Mohd. Hanifa (dead)
by LRs and Ors. wherein the Supreme Court had held that the best
method to decide the question of res judicata is to put forward the
RSA No.71/1987 Page 5 of 13
respective pleadings of the parties in their previous suits and then
to find out what has been decided by the judgment which will
operate as res judicata.
Counsel for the appellant has further submitted that cause of
action in the two suits i.e. the suit filed by Sultan Singh and the
present suit filed by Raj Singh are even otherwise distinct and
different. The suit filed by Sultan Singh sought a restraint order
against Bhup Singh from constructing the over bridge on the first
floor of his house over the public street in front of the plaintiff‟s
house no.84 with a further direction to him to demolish the Karries
laid down by the defendant for the construction of the said over
bridge. This submission has been made on the basis of the trial
court record which has been requisitioned which includes the
judgment Ex.D-1. The plaint of the suit no.84/1971 which was the
suit filed by Sultan Singh is however not on record. The second
suit i.e. the suit no.542/1979 filed by Raj Singh was also a suit for
mandatory and permanent injunction. The prayer made in this suit
was that the defendant Bhup Singh be ordered to remove the over
bridge constructed by him in front of plaintiff‟s property no.84
blocking the frontage of his property and to restrain the defendant
by a decree of permanent injunction from making any further
construction on the over bridge like a staircase etc. It is
contended that the cause of action in both the suits is distinct and
as such res judicata is clearly inapplicable. For this proposition
reliance has been placed upon 2009 (2) Arb.LR 182 (Delhi)
Bhartiya Construction Co. vs. Delhi Development Authority to
support his submission that where the subsequent dispute was not
RSA No.71/1987 Page 6 of 13
even in existence at the time when the earlier dispute had been
raised this doctrine would be inapplicable.
7. Arguments have been countered by the respondent. He has
appeared in person. Written submissions have been placed on
record. It is stated that the courts below had rightly applied the
doctrine as contained in Section 11 of the Code.
8. The substantial question of law as aforenoted has to be
answered by this court. That apart, it is urged by learned counsel
for the appellant that all the grounds contained in his appeal also
raise questions of law which have to be dealt with by this court.
He has however not argued that these grounds which are almost
24 in number raise any substantial question of law.
9. Be that as it may, this court shall consider this submission of
the learned counsel for the appellant. All the grounds urged in the
memo of appeal are almost all overlapping one and other and
border upon the applicability of the doctrine of res judicata. The
second legal proposition which can be deduced is on the
applicability of the law of limitation and whether the same had
been correctly construed. The question of limitation is a mixed
question of law and fact. It does not always border on a legal
proposition; depending upon the evidence adduced before the fact
finding court, the court has to draw the conclusion as to from
which date the period of limitation has to be computed. This
question was decided by the courts below on the basis of the
evidence adduced. While dealing with issue no.4, trial judge
relying upon the evidence of PW-3 and PW-4 had held that the suit
is time-barred. In this context, the observations of the
Supreme Court in Dudh Nath Pandey (dead) by LRs vs. Suresh
RSA No.71/1987 Page 7 of 13
Chandra Bhattasali (dead) by LRs. AIR 1986 SC 1509 are relevant
which inter alia read as under:
“6. … … …The High Court however reversed the finding of the
First Appellate Court on the question of limitation relying on
the so-called admission of the defendant in the written
statement and the evidence of the witnesses produced on
behalf of the defendant. Virtually, the High Court has made a
fresh appraisal of the evidence and has come to a different
finding contrary to the finding recorded by the First Appellate
Court which the High Court could not do in the exercise of
power under Section 100 of the CPC. Even on merits, if the
High Court had to rely upon the alleged admission in the
written statement, the admission must be taken as a whole and
it is not permissible to rely on a part of the admission ignoring
the other. The High Court, in our opinion, has erred in making
a fresh appraisal of the evidence to come to a different
conclusion.”
This court is thus of the view that this question being fact
based does not raise a substantial question of law. As such this
court has to only answer the substantial question of law as
formulated on 23.9.1987.
10. It is an admitted case that Sultan Singh, the plaintiff in the
first suit and Raj Singh, the plaintiff in the second suit are real
brothers. They are sons of Ram Singh. Ram Singh had four sons;
apart from Sultan Singh and Raj Singh there were Ratan Singh and
Jai Kishan. Sultan Singh in the first suit filed by him had arrayed
Ratan Singh and Jai Kishan as defendant no.3 and defendant no.4.
Ratan Singh in the said proceedings had come into the witness box
as PW-3 in support of his brother Sultan Singh. Sultan Singh had
been examined as PW-4. It is not the case of the parties that the
interests of Sultan Singh and Raj Singh are in conflict. They are in
fact common. The application Ex.P-3 filed by Sultan Singh seeking
permission to withdraw his appeal states that since the dispute
raised by him was covered by the dispute now raised by Raj Singh
in his second suit, Sultan Singh wished to withdraw the appeal in
RSA No.71/1987 Page 8 of 13
order that the suit of Raj Singh could be adjudicated upon. Para 3
of the application reads as:
“That the said suit filed by Raj Singh is an exhaustive one
and will finally decide the rights of the parties”
11. These averments made it clear that Sultan Singh was
litigating bonafide for and on behalf of his other co-sharers
brothers including Raj Singh. It was for this reason that his brother
Ratan Singh had come into the witness box as PW-3 in his support.
The reason for the withdrawal of the appeal by Sultan Singh was
only because Raj Singh had filed a more comprehensive suit.
12. As such the bonafides of Sultan Singh were not and could not
be in dispute; interest of Sultan Singh and Raj Singh were
common; they both sought mandatory and permanent injunction
against their cousin Bhup Singh who was the owner of property
no.83 and 85 which had effected the easement rights of Raj Singh
and Sultan Singh who were owning property no.84.
13. Section 11 of the Code has engrafted the doctrine of res
judicata. Explanation VI of Section 11 of the Code reads as under:
11. … … …
… … … ..
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 person interested in such right
shall, for the purposes of this section, be deemed to claim
under the persons so litigating.
14. To attract this provision to a private right it must be
established that the plaintiff in the first suit was litigating bonafide
in respect of a private right claimed in common for himself and the
others i.e. all other person interested in such right shall, for the
purposes of this Section would be deemed to claim under the
RSA No.71/1987 Page 9 of 13
persons so litigating. It is clear that Section 11 read with its
explanation VI leads to the result that a decree passed in suit
instituted by persons to which explanation VI applies will bar
further claims by persons interested in the same right in respect of
which the prior suit had been instituted. Explanation VI thus
illustrates one aspect of constructive res judicata. Of course, the
earlier litigation must also be filed bonafide. This statutory
provision is clearly applicable to the facts of the instant case.
15. The appeal withdrawn by Sultan Singh on 12.8.1980 did not
make Ex.D-1 any less binding as has been contended. In fact,
Ex.D-1 then had attained a finality. The judgment of S.P.Mishra
(supra) relied upon by the counsel for the appellant has no
application. The ratio of which was that only when the matter is
subjudice and an appeal is pending till that time the judgment of
the trial court loses its character. It nowhere states if an appeal is
then withdrawn, the judgment of the trial court would become a
nullity.
16. The next submission of the learned counsel for the appellant
that the doctrine of res judicata cannot be applied where the cause
of action in the two suits is distinct is also without any force. The
appellant cannot be allowed to blow hot and cold at the same time.
On the one hand, appellant has submitted that Sultan Singh had
withdrawn his appeal as he wished that the second suit filed by the
appellant i.e. Raj Singh be adjudicated upon; this was an implied
admission on the part of the appellant that the cause of action in
the first suit filed by him and the second suit filed by Raj Singh was
the same; it was obviously for this reason that Sultan Singh had
RSA No.71/1987 Page 10 of 13
withdrawn the appeal. In the same breadth, the appellant cannot
now contend that the cause of action in the two suits was different.
17. Perusal of Ex.D-1 i.e. the judgment in the case of Sultan
Singh shows that the contents of the plaint have been recorded in
detail on page 3 and 4. Four issues had been framed in the suit.
Defence of Bhup Singh was that the chhajja (over bridge) in
question i.e. in front of the property of the plaintiff had been
constructed by the grand-father of the plaintiff. For the said
purpose, PW-1 Harphool Singh, PW-2 Ratan Singh and PW-4 Sultan
Singh had been examined. PW-3 and PW-4 were the co-owners of
this property. PW-2 Chaman Singh was an architect who had
prepared the site plan. Seven witnesses had been examined on
behalf of the defendant; DW-3 Jagat Singh, DW-4 Om Prakash and
DW-5 Dhan Singh who were independent witnesses of the
neighbourhood had been relied upon by the court. They had stated
that the „chhajja‟ (over bridge) was in existence since the last 25-30
years. Ex.DW-1/1 which was an order of the Circle Panchayat also
evidence that „the chajja‟ was an old construction; only part of it
was a new construction. This had been further fortified by a spot
inspection conducted by the Sub-Judge in the case of Sultan Singh
wherein it was an admitted fact that the chajja (over bridge) was in
existence prior to 31.7.1971 i.e. before the filing of the suit by
Sultan Singh. This has been recorded in the order dated 25.5.1983
while disposing of an application under Order 39 of the Code.
Further the easement rights of the plaintiff were not disturbed. In
view of these findings contained in Ex.D-1 suit of Sultan Singh had
been dismissed. After the withdrawal of the appeal on 12.8.1980
Ex.D-1 has attained a finality. In the second suit it is the same
RSA No.71/1987 Page 11 of 13
questions of fact which have again been raised and disputed by Raj
Singh who is second brother of Sultan Singh. Interest of Raj Singh
and Sultan Singh is common; they are claiming through one and
other. As already noted explanation VI of Section 11 is attracted;
all the other ingredients of the principle of res judicata also stand
meted. The first suit and the second suit are between the same
parties; the issues which have arisen for decision are the same.
The first and the second suit were both suits for mandatory and
permanent injunction seeking the same reliefs. The prayer in the
first suit was that the defendant be directed to demolish the
Karries laid down by him for the construction of this chhajja/over
bridge. In this suit it was held that the „chhajja‟ was an old
construction and already in existence. The prayer in the second
suit was that the chhajja which stood completed be demolished by
way of a mandatory injunction. The plea that the cause of action in
the two suits is distinct is clearly contrary to the earlier plea raised
by the appellant wherein he has stated that Sultan Singh had
withdrawn his appeal only for the reasons that the case of Raj
Singh could be adjudicated upon; inevitable conclusion is that the
second suit was based on the same cause of action; these contrary
stands taken by the appellant take him nowhere. The judgment of
Bhartiya Construction (supra) is clearly inapplicable to the facts of
the present case.
18. To decide the plea of res judicata, the identity in the suit
proceedings has to be established; needless to state that this can
be founded by looking into the pleadings, the issues and the
judgment in the previous suit. However, in a given case where only
the copy of the judgment of the previous suit is filed in proof of
RSA No.71/1987 Page 12 of 13
plea of res judicata and where the said judgment contains
exhaustive or requisite details, this statement of the pleadings and
the issues may be taken as enough proof from the said judgment.
This has been held by the Supreme Court in Smt.V.Rajeshwari vs.
T.C.Saravanabava 2004 (1) BLJR 524. In the instant case, the
judgment Ex.D-1 on page 3-4 has given an exhaustive detail of the
readings of the plaint. These factual submissions even otherwise
were never in dispute; as such this submission of the learned
counsel for the appellant that in the absence of the plaint of the
first suit (i.e. of the suit filed by Sultan Singh) the question of res
judicata could not be decided is also without any force.
19. There is no merit in the appeal. Appeal as also the pending
application is dismissed.
INDERMEET KAUR, J.
AUGUST 04, 2010
rb
RSA No.71/1987 Page 13 of 13