Madras High Court
V. Kandasamy vs C. Kandasamy on 1 July, 2005
Author: A. Kulasekaran
Bench: A. Kulasekaran
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