BEFORE THE MADURAI BENCH OF THE MADRAS HIGH COURT DATED : 01/07/2005 CORAM THE HONOURABLE MR. JUSTICE A. KULASEKARAN C.R.P. (PD) No. 2790 of 2003 and C.M.P. No. 21096 of 2003 V.C.M.P. No. 67 of 2005 V. Kandasamy .. Petitioner Vs 1. C. Kandasamy 2. C. Srirangam 3. C. Marappan ... Respondents Revision under Article 227 of The Constitution of India against the order dated 31-10-2002 made in I.A. No. 555 of 2001 in O.S. No. 182 of 1998 on the file of the Additional District Munsif Court, Karur. !For Petitioner ... Mrs. Krishnaveni ^For Respondents ... Mr. Srinivasa Raghavan :ORDER
The plaintiff is the revision petitioner, who has filed the suit in O.S.
No. 182 of 1998 before the District Munsif Court, Karur for declaration and for
other reliefs. In the said suit, the first defendant has filed I.A. No.555 of
2001 praying to decide the preliminary issue as to whether the suit is barred by
resjudicata or not, which was allowed by the trial court by order dated 31-10-
2002 and the same is challenged in this revision petition invoking Article 227
of the Constitution of India.
2. The case of the respondents in the said interim application was that
the petitioner herein has already filed a suit in O.S. No. 587 of 1990 before
the District Munsif Court, Karur against them for permanent injunction from
interfering with their possession and enjoyment of the property; that the said
suit was dismissed and later, the petitioner herein has filed A.S. No. 78 of
1994 which was also dismissed and in view of the said fact that the issue
involved in the present suit was already adjudicated upon on merits finally in
an earlier litigation and that the present suit is hit by the principles of
rejudicata.
3. The petitioner herein contested the said interim application stating
that whether the issue involved in the present suit is directly and
substantially involved in the earlier suit or not be decided only at the time of
trial after adducing oral and documentary evidence and the subject matter of the
present suit is entirely different from the earlier proceedings, hence the plea
of resjudicata ought to have been rejected by the court below.
4. It is not in dispute that the parties and properties in both the
suit are same.
5. Now, we look into the provisions of Section 11 C.P.C. Which runs 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
or 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 purpose 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 reference in this section to any
suit, issue or 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
resjudicata 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.
6. Explanation VII to the said section have been added by Amendment Act
1976. Explanation VII has been added to ensure legislatively what had in
several decisions been recognised as the general principles of resjudicata apart
from this section applied to the proceedings in execution and Explanation VIII
has been incorporated to provide as against certain decisions to the contrary
that the decisions of a Court of limited jurisdiction shall in so far as it is
within the jurisdiction of such Courts operate as resjudicata, although such
Court was not competent to try the subsequent suit in which the same question is
subsequently raised.
7. Section 11 CPC contains the Rule of conclusiveness of the judgment
which is based partly on the maxim “interest reipublicae at sit finis litum” (it
concerns the state that there be an end to law suits) and partly on the maxim
“Nemo debet bis vexari pro una at eadem cause (no man should be vexed twice over
for the same cause).
8. The doctrine of resjudicata is principals of equity, good conscience
and justice. It would neither be equitable nor fair nor in accordance with the
principles of natural justice that the issue concluded earlier ought to be
permitted to be raised later in a different proceedings.
9. The principles of resjudicata is intended not only to prevent a new
decision, but is also to prevent a new investigation so that the same person
cannot be harassed again and again in various proceedings upon the same question
of law.
10. The general principles of resjudicata has been incorporated in
Section 10, 11, 47, Order II Rule 2 and Order XXIII of the Code of Civil
Procedure, which has been made applicable in different situations. However,
none of the aforesaid provisions are applicable to debar a person from getting
his claim adjudicated on merits.
11. The principles of resjudicata is based on the need of giving
finality to judicial decision. Section 11 of CPC is not an exhaustive, it’s
underlying doctrine is that none should be vexed twice on the same subject
matter. Where Section 11 does not in terms apply, general principles of
resjudicata can be applied.
12. Resjudicata prevents coming into existence of two inconsistent
beginnings.
13. In the decision reported in (Syed Mohd. Salie Labbai (Dead) by L.R.s
and others Vs. Mohd. Hanifa (dead) by L.R.s and others) AIR 1976 SC 1569 the
Honourable Supreme Corut held in para Nos. 7 and 8 thus:-
“7. In the light of these arguments of the parties and the history of
the case, we would now proceed to decide the points in controversy in this case.
We would first deal with the question of res judicata. In support of this plea,
the defendants have relied on Exts. B-5 to B-9, B-12, B-16, B-28, B-30, B-31 and
B-73 in support of their case that these judgments constitute and operate as res
judicata, and particularly judgments given in those suits which were brought in
representative capacity under Order I Rule 8 of the Code of Civil Procedure.
Before we analyse these judgments, it may be necessary to mention that before a
plea of res judicata can be given effect, the following conditions must be
proved:-
(1)that the litigating parties must be the same
(2)that the subject-matter of the suit also must be identical
(3)that the matter must be finally decided between the parties; and
(4)that the suit must be decided by a court of competent jurisdiction;.
8. In the instant case according to the plaintiffs/ respondents the
identity of the subject-matter in the present suit is quite different from the
one which was adjudicated upon in the suits which formed the basis of the
previous litigation. In our opinion the best method to decide the question of
resjudicata is first to determine the case of the parties as put forward in
their respective pleadings of their previous suits and then to find out as to
what had been decided by the judgments which operate as res judicata.
Unfortunately, however in this case the pleadings of the suits instituted by the
parties have not at all been filed and we have to rely upon the facts as
mentioned in the judgments themselves. It is well settled that pleadings cannot
be proved merely by recitals of the allegations mentioned in the judgment. We
would also like to note what the High Court has said on the question of res
judicata. The High Court found that although the litigation between the parties
lasted for a pretty long time it was never decided whether all or any of the
suit properties constituted a public trust. Both the parties appear to have
taken extreme stands but even despite the fact that the previous judgments
contained an incidental finding that the mosque was a public property and so was
the burial ground, the effects of these findings were nullified in 1939 when the
High Court held that even if the properties in dispute were the exclusive
properties of the Labbais, this expression was not meant to indicate that they
were their private properties. This, in our opinion, clearly shows that the
public character of the wakf or of the mosque was never in issue. The High
Court on this point found as follows:-
‘We are therefore of the view that the issue as to whether the properties
constituted a public trust having been never raised and decided between the
parties in any of the prior suits O.S. No. 9 of 1956 on that question was not
barred by res judicata. The findings of the court below in this regard is
affirmed.’
The trial court had also negatived the plea of res judicata taken by the
defendants.”
14. The test of resjudicata is the identity of title in two litigations
and not the identity of actual property involved in two suits. (Ram Gobinda Daw
and others vs. Smt. H. Bhakta Bala Dassi etc.,) AIR 1971 SC 664 wherein in Para
Nos. 20, 24 and 25, it was held thus:-
“20. In our opinion, the decision of this Court referred to above does
not assist the appellants. It is now well esablished that where a dispute as to
title to receive compensation amount has been referred to a Court, a decree
thereon not appealed from renders the question of title res judicata in a suit
between the same parties to the dispute. A party in such circumstances cannot
be heard to say that the value of the subject-matter on which the former
decision was pronounced was comparatively so trifling that it was not worth
their while to appeal from it. It is true that the test of res judicata is the
identity of title in the two litigations and not the identity of two actual
property involved in the two cases but the previous decision must be one on a
title in respect of which a dispute has been raised and which dispute was heard
and finally decided by the Court.
24. ……..It was further pointed out that none of those considerations
apply to a case 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 was held that such dismissal
by an appellate Court has the effect of confirming the decision of the trial
court on merits, and that it ‘amounts to the appeal being heard and finally
decided on the merits whatever may be the ground for dismissal of the appeal’.
25. It will be seen from the above reasoning that in order to
operate as res judicata, the previous decision must have been given after the
matter was heard and finally decided on merits. This Court has further held
that the High Court in that case, when it dismissed the two appeals in question,
though on a preliminary ground of limitation or default in printing, must be
considered to have heard and finally decided on merits………”
15. The parties in both the suit must be litigating in the same title.
It means and refers to the capacity and interest of a party, it has nothing to
do with the particular cause of action on which a party sues or be sued or is
sued.
16. A finding is different from mere isolated observation, which has not
called for either on the basis of the pleadings of the parties or on the basis
of evidence led by them. Such isolated observation do not constitute
resjudicata. Doctrine of resjudicata covers adjudication both on factual as
well as legal matters.
17. A decision on an issue of law will operate as resjudicata in a
subsequent pleading between the same parties, if the cause of action of the
subsequent proceeding be the same as in the previous proceeding, but not when
the cause of action is different, nor when the law has changed since earlier
decision by a competent authority nor when the decision relates to the
jurisdiction of the Court to try the earlier proceeding nor when the earlier
decision declared valid the transaction which is prohibited by Law.
18. In the decision reported in (Mathura Prasad Sarjoo Jaiswal and
otherss vs. Dossibai N.B. Jeejeebhoy) AIR 1971 SC 2355, the Honourable Supreme
Court held in Para Nos. 9 and 11 as follows:-
“9. A question of jurisdiction of the Court, or of procedure, or a pure
question of law unrelated to the right of the parties to a previous suit, is not
res judicata in the subsequent suit. Rankin C.J. Observed in Tarini Charank
Bhattacharjee’s case, ILR 56 Cal 723 = (AIR 1928 Cal 777)
“The object of the doctrine of resjudicata is not to fasten upon the
parties special principles of law as applicable to them inter se, but to
ascertain their rights and the facts upon which these rights directly and
substantially depend; and to prevent this ascertainment from becoming nugatory
by precluding the parties from reopening or recontesting that which has been
finally decided.”
A question relating to the jurisdiction of a Court cannot be deemed to
have been finally determined by an erroneous decision of the Court. If by an
erroneous itnerpretation of the statute the Court holds that it has no
jurisdiction, the question would not, in our judgment, operate as res judicata.
Similarly, by an erroneous decision, if the Court assumes jurisdiction which it
does not possess under the statute the question cannot operate as res judicata
between the same parties. Whether the cause of action in the subsequent
litigation is the same or otherwise.
11. In the present case the decision of the Civil Judge, Junior
Division, Borivli, that he had no jurisdiction to entertain the application for
determination of standard rent, is, in view of the judgment of this Court
plainly erroneous, see (1962) 3 SCR 928 = AIR 1966 SC 1939). If the decision in
the previous proceeding be regarded as conclusive it will assume the status of a
special rule of law applicable to the parties relating to the jurisdiction of
the Court in derogation of the rule declared by the Legislature.”
19. The facts in the case on hand, as per the pleadings of the petition
is that an earlier suit was filed by the revision petitioner against the
respondents herein for injunction stating that the suit property is a joint
family property; that he, his father and brother were entitled to equal share;
that a registered deed of partition dated 07-02-1979 was entered into between
them thereby B schedule property mentioned therein was allotted to him; that in
the said property, the petitioner herein constructed a tiled building and
running a business of selling bed sheets; that while constructing the said
building, he left 1 ft. on the North eatern side and 1 . ft. on the Southern
side to use the same as passage for repairing and white washing purposes and the
respondents purchased one portion of the property from one of the sharers of the
petitioner’s family and attempted to construct a building abetting the southern
side of the wall of the petitioner.
20. The respondents herein filed a written statement stating that no
space was left by the petitioner on the southern side; that the existing
building was constructed by the petitioner and his brother before the
construction of the building by them; that the respondents left 1 ft. between
his house and the petitioner’s house to facilitate free flow of drain water;
that the respondents father has purchased the land in the year 1965 from one
Nachayee Ammal much prior to the purchase of the lands by the petitioner and his
family members and are in continuous possession from the said period and
perfected their title by adverse possession.
21. The trial court framed issues as to (i) whether the petitioner is
entitled to the injunction as prayed for (ii) whether 1 . ft. was left by the
petitioner on the southern side of his wall (iii) whether the respondents have
perfected their title by adverse possession and (iv) to what other relief the
petitioner is entitled to. An advocate commissioner was also appointed by the
trial court.
22. The petitioner has marked Exs. A1 to A4 and the respondents have not
marked any document. Exs. C1 to C6 were marked as court exhibits. The
petitioner has examined himself as PW1 and the first respondent was examined as
DW1 and the Advocate Commissioner was examined as CW1. The court below decided
the issues in favour of the respondents herein and dismissed the suit with
costs. The first Appellate Court also confirmed the findings rendered by the
trial court and dismissed the appeal preferred by the petitioner herein.
23. The present suit is filed for declaration declaring that the red
coloured portion of ‘A’ schedule described property namely the lane one foot
width on the southern side of his property absolutely belonged to the petitioner
and for a consequent injunction and costs. In the present suit also, the
petitioner has stated that the partition deed was entered into between him, his
father and brother on 07-03-1979 whereby ‘A’ schedule property in this suit was
allotted to him in which he constructed a tiled building, leaving some space on
the Southern side of his building for the purpose of repairing and white
washing. The property of the respondents was shown as ‘B’ Schedule in the
plaint.
24. The respondents have taken the same defence, which they have taken
in the earlier suit and filed written statement in the present suit.
25. It is evident from the pleadings of both the parties that the
subject matter of the property in both the suit is one and the same.The matter
directly and substantially in issue in the former suit also directly and
substantially in issue in the later suit. The competent Court has finally
decided the issue in the earlier suit after considering the oral and documentary
evidence let in by the parties. The respondents have established the
ingredients of resjudicata as required under Section 11 CPC.
26. An argument was advanced by the learned counsel for the revision
petitioner that the court below ought not to have taken the issue as a
preliminary issue and if at all, it could have been decided after a fair trial.
27. The bar of resjudicata is an issue of law and it could be tried as a
preliminary issue under Order 14 Rule 2 CPC which contemplates that:-
“27. Court to pronounce judgment on all issues:- (1) Notwithstanding that
a case may be disposed of on 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.”
28. In a case where a issue of law go to the very root of the case such
as resjudicata or jurisdiction or being barred on the face of it by any law etc
and the case or any part thereof may be disposed of on the issue of law only it
is incumbent upon the Court to determine the issues of law first as it save
unnecessary inconvenience and expenses to the party and waste of time and the
labour of the Court as well.
29. Though the trial court has not given requisite reasons for the
decision arrived at, which is absolutely essential, the conclusion arrived at by
it is justified by this Court, since the fact that the matter directly and
substantially in issue in the former suit also directly and substantially in
issue in the later suit.
30. Before parting with, this Court expresses its displeasure over the
lethargic approach of the trial court.
31. In the result, the revision is dismissed. No costs. Connected CMP
is closed.
rsh
