{"id":8862,"date":"2005-07-01T00:00:00","date_gmt":"2005-06-30T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/v-kandasamy-vs-c-kandasamy-on-1-july-2005"},"modified":"2017-09-04T14:12:58","modified_gmt":"2017-09-04T08:42:58","slug":"v-kandasamy-vs-c-kandasamy-on-1-july-2005","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/v-kandasamy-vs-c-kandasamy-on-1-july-2005","title":{"rendered":"V. Kandasamy vs C. Kandasamy on 1 July, 2005"},"content":{"rendered":"
Madras High Court<\/div>\n
V. Kandasamy vs C. Kandasamy on 1 July, 2005<\/div>\n
       \n\n  \n\n  \n\n \n \n BEFORE THE MADURAI BENCH OF THE MADRAS HIGH COURT\n\nDATED : 01\/07\/2005\n\nCORAM\nTHE HONOURABLE MR. JUSTICE A. KULASEKARAN\n\nC.R.P. (PD) No. 2790 of 2003\nand\nC.M.P. No. 21096 of 2003\nV.C.M.P. No. 67 of 2005\n\n\nV. Kandasamy\t\t\t.. Petitioner\n\nVs\n\n1. C. Kandasamy\n2. C. Srirangam\n3. C. Marappan\t\t\t... Respondents\n\n\n\tRevision under Article 227 of The Constitution of India against the order\ndated 31-10-2002 made in I.A. No. 555 of 2001 in O.S. No. 182 of 1998 on the\nfile of the Additional District Munsif Court, Karur.\n\n\n!For Petitioner \t...\tMrs. Krishnaveni\n\n^For Respondents \t...\tMr. Srinivasa Raghavan\n\n\n:ORDER\n<\/pre>\n
\tThe plaintiff is the revision petitioner, who has filed the suit in O.S.
\nNo. 182 of 1998 before the District Munsif Court, Karur for declaration and for
\nother reliefs.  In the said suit, the first defendant has filed I.A. No.555 of
\n2001 praying to decide the preliminary issue as to whether the suit is barred by
\nresjudicata or not, which was allowed by the trial court by order dated 31-10-
\n2002 and the same is challenged in this revision petition invoking Article 227
\nof the Constitution of India.\n<\/p>\n
\t2.\tThe case of the respondents in the said interim application was that
\nthe petitioner herein has already filed a suit in O.S. No. 587 of 1990 before
\nthe District Munsif Court, Karur against them for permanent injunction from
\ninterfering with their possession and enjoyment of the property; that the said
\nsuit was dismissed and later, the petitioner herein has filed A.S. No. 78 of
\n1994 which was also dismissed and in view of the said fact that the issue
\ninvolved in the present suit was already adjudicated upon on merits finally in
\nan earlier litigation and that the present suit is hit by the principles of
\nrejudicata.\n<\/p>\n
\t3.\tThe petitioner herein contested the said interim application stating
\nthat whether the issue involved in the present suit is directly and
\nsubstantially involved in the earlier suit or not be decided only at the time of
\ntrial after adducing oral and documentary evidence and the subject matter of the
\npresent suit is entirely different from the earlier proceedings, hence the plea
\nof resjudicata ought to have been rejected by the court below.\n<\/p>\n
\t4.\tIt is not in dispute that the parties and properties in both the
\nsuit are same.\n<\/p>\n
\t5.\tNow, we look into the provisions of Section 11 C.P.C. Which runs as
\nfollows:-\n<\/p>\n
\t“11.\tRes judicata. – No Court shall try any suit or issue in which the
\nmatter directly and substantially in issue has been directly and substantially
\nin issue in a former suit between the same parties, or between parties under
\nwhom they or any of them claim, litigating under the same title, in a Court
\ncompetent to try such subsequent suit or the suit in which such issue has been
\nsubsequently raised, and has been heard and finally decided by such Court.\n<\/p>\n
\tExplanation I : The expression ‘former suit’ shall denote a suit which has
\nbeen decided prior to the suit in question whether or not it was instituted
\nprior thereto.\n<\/p>\n
\tExplanation II : For the purposes of this section, the competence of a
\nCourt shall be determined irrespective of any provisions as to a right of appeal
\nfrom the decision of such Court.\n<\/p>\n
\tExplanation III : The matter above referred to must in the former suit
\nhave been alleged by one party and either denied or admitted, expressly or
\nimpliedly, by the other.\n<\/p>\n
\tExplanation IV : Any matter which might and ought to have been made ground
\nor defence or attack in such former suit shall be deemed to have been a matter
\ndirectly and substantially in issue in such suit.\n<\/p>\n
\tExplanation V : Any relief claimed in the plaint, which is not expressly
\ngranted by the decree, shall, for the purpose of this section, be deemed to have
\nbeen refused.\n<\/p>\n
\tExplanation VI : Where persons litigate bona fide in respect of a public
\nright or of a private right claimed in common for themselves and others, all
\npersons interested in such right shall, for the purposes of this section, be
\ndeemed to claim under the persons so litigating.\n<\/p>\n
\tExplanation VII : The provisions of this section shall apply to a
\nproceeding for the execution of a decree and reference in this section to any
\nsuit, issue or former suit shall be construed as references, respectively, to a
\nproceeding for the execution of the decree, question arising in such proceeding
\nand a former proceeding for the execution of that decree.
\n\tExplanation VIII : An issue heard and finally decided by a Court of
\nlimited jurisdiction, competent to decide such issue, shall operate as
\nresjudicata in a subsequent suit notwithstanding that such Court of limited
\njurisdiction was not competent to try such subsequent suit or the suit in which
\nsuch issue has been subsequently raised.\n<\/p>\n
\t6.\tExplanation VII to the said section have been added by Amendment Act
\n1976.  Explanation VII has been added to ensure legislatively what had in
\nseveral decisions been recognised as the general principles of resjudicata apart
\nfrom this section applied to the proceedings in execution and Explanation VIII
\nhas been incorporated to provide as against certain decisions to the contrary
\nthat the decisions of a Court of limited jurisdiction shall in so far as it is
\nwithin the jurisdiction of such Courts operate as resjudicata, although such
\nCourt was not competent to try the subsequent suit in which the same question is
\nsubsequently raised.\n<\/p>\n
\t7.\tSection 11 CPC contains the Rule of conclusiveness of the judgment
\nwhich is based partly on the maxim “interest reipublicae at sit finis litum” (it
\nconcerns the state that there be an end to law suits) and partly on the maxim
\n“Nemo debet bis vexari pro una at eadem cause (no man should be vexed twice over
\nfor the same cause).\n<\/p>\n
\t8.\tThe doctrine of resjudicata is principals of equity, good conscience
\nand justice.  It would neither be equitable nor fair nor in accordance with the
\nprinciples of natural justice that the issue concluded earlier ought to be
\npermitted to be raised later in a different proceedings.\n<\/p>\n
\t9.\tThe principles of resjudicata is intended not only to prevent a new
\ndecision, but is also to prevent a new investigation so that the same person
\ncannot be harassed again and again in various proceedings upon the same question
\nof law.\n<\/p>\n
\t10.\tThe general principles of resjudicata has been incorporated in
\nSection 10, 11, 47, Order II Rule 2 and Order XXIII of the Code of Civil
\nProcedure, which has been made applicable in different situations.  However,
\nnone of the aforesaid provisions are applicable to debar a person from getting
\nhis claim adjudicated on merits.\n<\/p>\n
\t11.\tThe principles of resjudicata is based on the need of giving
\nfinality to judicial decision.  Section 11 of CPC is not an exhaustive, it’s
\nunderlying doctrine is that none should be vexed twice on the same subject
\nmatter.  Where Section 11 does not in terms apply, general principles of
\nresjudicata can be applied.\n<\/p>\n
\t12.\tResjudicata prevents coming into existence of two inconsistent
\nbeginnings.\n<\/p>\n
\t13.\tIn the decision reported in (Syed Mohd. Salie Labbai (Dead) by L.R.s
\nand others Vs. Mohd. Hanifa (dead) by L.R.s and others) AIR 1976 SC 1569 the
\nHonourable Supreme Corut held in para Nos. 7 and 8 thus:-\n<\/p>\n
\t“7.\tIn the light of these arguments of the parties and the history of
\nthe case, we would now proceed to decide the points in controversy in this case.
\nWe would first deal with the question of res judicata.  In support of this plea,
\nthe defendants have relied on Exts. B-5 to B-9, B-12, B-16, B-28, B-30, B-31 and
\nB-73 in support of their case that these judgments constitute and operate as res
\njudicata, and particularly judgments given in those suits which were brought in
\nrepresentative capacity under Order I Rule 8 of the Code of Civil Procedure.
\nBefore we analyse these judgments, it may be necessary to mention that before a
\nplea of res judicata can be given effect, the following conditions must be
\nproved:-\n<\/p>\n
(1)that the litigating parties must be the same
\n(2)that the subject-matter of the suit also must be identical
\n(3)that the matter must be finally decided between the parties; and
\n(4)that the suit must be decided by a court of competent jurisdiction;.\n<\/p>\n
\t8.\tIn the instant case according to the plaintiffs\/ respondents the
\nidentity of the subject-matter in the present suit is quite different from the
\none which was adjudicated upon in the suits which formed the basis of the
\nprevious litigation.  In our opinion the best method to decide the question of
\nresjudicata is first to determine the case of the parties as put forward in
\ntheir respective pleadings of their previous suits and then to find out as to
\nwhat had been decided by the judgments which operate as res judicata.
\nUnfortunately, however in this case the pleadings of the suits instituted by the
\nparties have not at all been filed and we have to rely upon the facts as
\nmentioned in the judgments themselves.  It is well settled that pleadings cannot
\nbe proved merely by recitals of the allegations mentioned in the judgment.  We
\nwould also like to note what the High Court has said on the question of res
\njudicata.  The High Court found that although the litigation between the parties
\nlasted for a pretty long time it was never decided whether all or any of the
\nsuit properties constituted a public trust.  Both the parties appear to have
\ntaken extreme stands but even despite the fact that the previous judgments
\ncontained an incidental finding that the mosque was a public property and so was
\nthe burial ground, the effects of these findings were nullified in 1939 when the
\nHigh Court held that even if the properties in dispute were the exclusive
\nproperties of the Labbais, this expression was not meant to indicate that they
\nwere their private properties.  This, in our opinion, clearly shows that the
\npublic character of the wakf or of the mosque was never in issue.  The High
\nCourt on this point found as follows:-\n<\/p>\n
\t‘We are therefore of the view that the issue as to whether the properties
\nconstituted a public trust having been never raised and decided between the
\nparties in any of the prior suits O.S. No. 9 of 1956 on that question was not
\nbarred by res judicata.  The findings of the court below in this regard is
\naffirmed.’<\/p>\n
\tThe trial court had also negatived the plea of res judicata taken by the
\ndefendants.”\n<\/p>\n
\t14.\tThe test of resjudicata is the identity of title in two litigations
\nand not the identity of actual property involved in two suits.  (Ram Gobinda Daw
\nand others vs. Smt. H. Bhakta Bala Dassi etc.,) AIR 1971 SC 664 wherein in Para
\nNos. 20, 24 and 25, it was held thus:-\n<\/p>\n
\t“20.\tIn our opinion, the decision of this Court referred to above does
\nnot assist the appellants.  It is now well esablished that where a dispute as to
\ntitle to receive compensation amount has been referred to a Court, a decree
\nthereon not appealed from renders the question of title res judicata in a suit
\nbetween the same parties to the dispute.  A party in such circumstances cannot
\nbe heard to say that the value of the subject-matter on which the former
\ndecision was pronounced was comparatively so trifling that it was not worth
\ntheir while to appeal from it.  It is true that the test of res judicata is the
\nidentity of title in the two litigations and not the identity of two actual
\nproperty involved in the two cases but the previous decision must be one on a
\ntitle in respect of which a dispute has been raised and which dispute was heard
\nand finally decided by the Court.\n<\/p>\n
\t24.\t……..It was further pointed out that none of those considerations
\napply to a case where a decision is given on the merits by the trial court and
\nthe matter is taken in appeal and the appeal is dismissed on some preliminary
\nground, like limitation or default in printing.  It was held that such dismissal
\nby an appellate Court has the effect of confirming the decision of the trial
\ncourt on merits, and that it ‘amounts to the appeal being heard and finally
\ndecided on the merits whatever may be the ground for dismissal of the appeal’.\n<\/p>\n
\t25.\t\tIt will be seen from the above reasoning that in order to
\noperate as res judicata, the previous decision must have been given after the
\nmatter was heard and finally decided on merits.  This Court has further held
\nthat the High Court in that case, when it dismissed the two appeals in question,
\nthough on a preliminary ground of limitation or default in printing, must be
\nconsidered to have heard and finally decided on merits………”\n<\/p>\n
\t15.\tThe parties in both the suit must be litigating in the same title.
\nIt means and refers to the capacity and interest of a party, it has nothing to
\ndo with the particular cause of action on which a party sues or be sued or is
\nsued.\n<\/p>\n
\t16.\tA finding is different from mere isolated observation, which has not
\ncalled for either on the basis of the pleadings of the parties or on the basis
\nof evidence led by them.  Such isolated observation do not constitute
\nresjudicata.  Doctrine of resjudicata covers adjudication both on factual as
\nwell as legal matters.\n<\/p>\n
\t17.\tA decision on an issue of law will operate as resjudicata in a
\nsubsequent pleading between the same parties, if the cause of action of the
\nsubsequent proceeding be the same as in the previous proceeding, but not when
\nthe cause of action is different, nor when the law has changed since earlier
\ndecision by a competent authority nor when the decision relates to the
\njurisdiction of the Court to try the earlier proceeding nor when the earlier
\ndecision declared valid the transaction which is prohibited by Law.\n<\/p>\n
\t18.\tIn the decision reported in (Mathura Prasad Sarjoo Jaiswal and
\notherss vs. Dossibai N.B. Jeejeebhoy) AIR 1971 SC 2355, the Honourable Supreme
\nCourt held in Para Nos. 9 and 11 as follows:-\n<\/p>\n
\t“9.\tA question of jurisdiction of the Court, or of procedure, or a pure
\nquestion of law unrelated to the right of the parties to a previous suit, is not
\nres judicata in the subsequent suit. Rankin C.J. Observed in Tarini Charank
\nBhattacharjee’s case, ILR 56 Cal 723 = (AIR 1928 Cal 777)
\n\t“The object of the doctrine of resjudicata is not to fasten upon the
\nparties special principles of law as applicable to them inter se, but to
\nascertain their rights and the facts upon which these rights directly and
\nsubstantially depend; and to prevent this ascertainment from becoming nugatory
\nby precluding the parties from reopening or recontesting that which has been
\nfinally decided.”\n<\/p>\n
\tA question relating to the jurisdiction of a Court cannot be deemed to
\nhave been finally determined by an erroneous decision of the Court.  If by an
\nerroneous itnerpretation of the statute the Court holds that it has no
\njurisdiction, the question would not, in our judgment, operate as res judicata.
\nSimilarly, by an erroneous decision, if the Court assumes jurisdiction which it
\ndoes not possess under the statute the question cannot operate as res judicata
\nbetween the same parties.  Whether the cause of action in the subsequent
\nlitigation is the same or otherwise.\n<\/p>\n
\t11.\tIn the present case the decision of the Civil Judge, Junior
\nDivision, Borivli, that he had no jurisdiction to entertain the application for
\ndetermination of standard rent,  is, in view of the judgment of this Court
\nplainly erroneous, see (1962) 3 SCR 928 = AIR 1966 SC 1939).  If the decision in
\nthe previous proceeding be regarded as conclusive it will assume the status of a
\nspecial rule of law applicable to the parties relating to the jurisdiction of
\nthe Court in derogation of the rule declared by the Legislature.”\n<\/p>\n
\t19.\tThe facts in the case on hand, as per the pleadings of the petition
\nis that an earlier suit was filed by the revision petitioner against the
\nrespondents herein for injunction stating that the suit property is a joint
\nfamily property; that he, his father and brother were entitled to equal share;
\nthat a registered deed of partition dated 07-02-1979 was entered into between
\nthem thereby B schedule property mentioned therein was allotted to him; that in
\nthe said property, the petitioner herein constructed a tiled building and
\nrunning a business of selling bed sheets; that while constructing the said
\nbuilding, he left 1 ft. on the North eatern side and 1 . ft. on the Southern
\nside to use the same as passage for repairing and white washing purposes and the
\nrespondents purchased one portion of the property from one of the sharers of the
\npetitioner’s family and attempted to construct a building abetting the southern
\nside of the wall of the petitioner.\n<\/p>\n
\t20.\tThe respondents herein filed a written statement stating that no
\nspace was left by the petitioner on the southern side; that the existing
\nbuilding was constructed by the petitioner and his brother before the
\nconstruction of the building by them; that the respondents left 1 ft. between
\nhis house and the petitioner’s house to facilitate free flow of drain water;
\nthat the respondents father has purchased the land in the year 1965 from one
\nNachayee Ammal much prior to the purchase of the lands by the petitioner and his
\nfamily members and are in continuous possession from the said period and
\nperfected their title by adverse possession.\n<\/p>\n
\t21.\tThe trial court framed issues as to (i) whether the petitioner is
\nentitled to the injunction as prayed for (ii) whether 1 . ft. was left by the
\npetitioner on the southern side of his wall (iii) whether the respondents have
\nperfected their title by adverse possession and (iv) to what other relief the
\npetitioner is entitled to.  An advocate commissioner was also appointed by the
\ntrial court.\n<\/p>\n
\t22.\tThe petitioner has marked Exs. A1 to A4 and the respondents have not
\nmarked any document.  Exs. C1 to C6 were marked as court exhibits.  The
\npetitioner has examined himself as PW1 and the first respondent was examined as
\nDW1 and the Advocate Commissioner was examined as CW1.  The court below decided
\nthe issues in favour of the respondents herein and dismissed the suit with
\ncosts.  The first Appellate Court also confirmed the findings rendered by the
\ntrial court and dismissed the appeal preferred by the petitioner herein.\n<\/p>\n
\t23.\tThe present suit is filed for declaration declaring that the red
\ncoloured portion of ‘A’ schedule described property namely the lane one foot
\nwidth on the southern side of his property absolutely belonged to the petitioner
\nand for a consequent injunction and costs.  In the present suit also, the
\npetitioner has stated that the partition deed was entered into between him, his
\nfather and brother on 07-03-1979 whereby ‘A’ schedule property in this suit was
\nallotted to him in which he constructed a tiled building, leaving some space on
\nthe Southern side of his building for the purpose of repairing and white
\nwashing.  The property of the respondents was shown as ‘B’ Schedule in the
\nplaint.\n<\/p>\n
\t24.\tThe respondents have taken the same defence, which they have taken
\nin the earlier suit and filed written statement in the present suit.\n<\/p>\n
\t25.\tIt is evident from the pleadings of both the parties that the
\nsubject matter of the property in both the suit is one and the same.The matter
\ndirectly and substantially in issue in the former suit also directly and
\nsubstantially in issue in the later suit.  The competent Court has finally
\ndecided the issue in the earlier suit after considering the oral and documentary
\nevidence let in by the parties.  The respondents have established the
\ningredients of resjudicata as required under Section 11 CPC.\n<\/p>\n
\t26.\tAn argument was advanced by the learned counsel for the revision
\npetitioner that the court below ought not to have taken the issue as a
\npreliminary issue and if at all, it could have been decided after a fair trial.\n<\/p>\n
\t27.\tThe bar of resjudicata is an issue of law and it could be tried as a
\npreliminary issue under Order 14 Rule 2 CPC which contemplates that:-\n<\/p>\n
\t“27.\tCourt to pronounce judgment on all issues:- (1) Notwithstanding that
\na case may be disposed of on preliminary issue, the Court shall, subject to the
\nprovisions of sub-rule (2), pronounce judgment on all issues.
\n\t(2)\tWhere issues both of law and of fact arise in the same suit, and the
\nCourt is of opinion that the case or any part thereof may be disposed of on an
\nissue of law only, it may try that issue first if that issue relates to–\n<\/p>\n
\t(a)\tthe jurisdiction of the Court, or\n<\/p>\n
\t(b)\ta bar to the suit created by any law for the time being in force.\n<\/p>\n
\tand for that purpose may, if it thinks fit, postpone the settlement of the
\nother issues until after that issue has been determined, and may deal with the
\nsuit in accordance with the decision on that issue.”\n<\/p>\n
\t28.\tIn a case where a issue of law go to the very root of the case such
\nas resjudicata or jurisdiction or being barred on the face of it by any law etc
\nand the case or any part thereof may be disposed of on the issue of law only it
\nis incumbent upon the Court to determine the issues of law first as it save
\nunnecessary inconvenience and expenses to the party and waste of time and the
\nlabour of the Court as well.\n<\/p>\n
\t29.\tThough the trial court has not given requisite reasons for the
\ndecision arrived at, which is absolutely essential, the conclusion arrived at by
\nit is justified by this Court, since the fact that the matter directly and
\nsubstantially in issue in the former suit also directly and substantially in
\nissue in the later suit.\n<\/p>\n
\t30.\tBefore parting with, this Court expresses its displeasure over the
\nlethargic approach of the trial court.\n<\/p>\n
\t31.\tIn the result, the revision is dismissed.  No costs.  Connected CMP
\nis closed.\n<\/p>\n
rsh<\/p>\n","protected":false},"excerpt":{"rendered":"
Madras High Court V. Kandasamy vs C. Kandasamy on 1 July, 2005 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. […]<\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_lmt_disableupdate":"","_lmt_disable":"","_jetpack_memberships_contains_paid_content":false,"footnotes":""},"categories":[8,13],"tags":[],"class_list":["post-8862","post","type-post","status-publish","format-standard","hentry","category-high-court","category-madras-high-court"],"yoast_head":"\nV. Kandasamy vs C. 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