Gujarat High Court
Dalwadi Arjanbhai Jahabhai & vs Koli Ukabhai ChaganbhaiDecd. & 3 on 24 April, 2017
Author: Rajesh H.Shukla
Bench: Rajesh H.Shukla
C/SA/219/2016 JUDGMENT
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
SECOND APPEAL NO. 219 of 2016
With
CIVIL APPLICATION NO. 8547 of 2016
In
SECOND APPEAL NO. 219 of 2016
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR.JUSTICE RAJESH H.SHUKLA : Sd/
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1 Whether Reporters of Local Papers may be NO
allowed to see the judgment ?
2 To be referred to the Reporter or not ? NO
3 Whether their Lordships wish to see the NO
fair copy of the judgment ?
4 Whether this case involves a substantial
question of law as to the interpretation NO
of the Constitution of India or any
order made thereunder ?
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DALWADI ARJANBHAI JAHABHAI & 1....Appellant(s)
Versus
KOLI UKABHAI CHAGANBHAIDECD. & 3....Respondent(s)
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Appearance:
MR RASESH H PARIKH for the Appellant(s) No. 1 2
MR.HEMANG H PARIKH for the Appellant(s) No. 1 2
MR MEHUL SHAH, Sr. Advocate with MR JENIL M SHAH,
ADVOCATE for the Respondent(s) No. 3 4
NOTICE SERVED for the Respondent(s) No. 1.1 1.6
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CORAM: HONOURABLE MR.JUSTICE RAJESH H.SHUKLA
Date : 24/04/2017
ORAL JUDGMENT
1. The present Second Appeal has been filed by the appellantsoriginal plaintiffs under Section 100 of the Civil Procedure Code being aggrieved with the impugned judgment and order in Regular Civil Page 1 of 13 HC-NIC Page 1 of 13 Created On Sun Aug 13 00:09:16 IST 2017 C/SA/219/2016 JUDGMENT Appeal No.10 of 2016 by the Additional District Judge, Surendranagar dated 30.07.2016 confirming the judgment and order in Special Civil Suit No.41 of 2012 below Exh.39 by the 2nd Additional Sr. Civil Judge, Dhrangadhra dated 30.10.2015 posing substantial questions of law as under: "(A) Whether he facts and circumstances of the case a civil suit can be decided on the ground of resjudicata without framing the issues in the subsequent suit and without recording the evidence and without coming to the conclusion that the lis between the parties is the same?
(B) Whether the courts below had failed to consider that for dismissing the suit on ground only O. 7 R.11 of Code of Civil Procedure, 1908 would be applicable and the ground of resjudicata would not be available under O.7 R. 11 of Code of Civil Procedure, 1908?
(C) Whether the defendants are required to state in the Application below Exh.39 that how the resjudicata is applicable between the different parties (D) Whether, in the facts and circumstances of the case, the provisions of Section 11 of the Civil Procedure Code, 1908, is applicable when the possession of the land is with the Appellants and the Judgment and Order passed in Special Civil Suit No.8/1997 is not followed?
(E) Whether in the facts and circumstances of the
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case the courts below have failed to consider the fact that the earlier suit being Special Civil Suit No. 8/1997 filed by the plaintiff was for the purpose of an injunction, wherein the Hon'ble court has come to the conclusion the defendants no 2 to 4 of the suits if wants to have the possession they have to initiate legal proceedings under the revenue laws to set aside the sale executed in favour of in predecessor in title of the appellant as the same is within the jurisdiction of revenue officer, and as without initiating any revenue proceeding or any other proceedings for obtaining the possession from the present appellant the suit is on a different cause of action and hence, principle of resjudicata would not be applicable?
(F) Whether in the facts and circumstances of the case, in view of the provision of section 63AB of the Gujarat Tenancy and Agriculture Lands Act, if the present appellants are an agriculturist in that case the revenue officer are entitled to initiate any proceedings on the ground that predecessor in title of the present appellant was not an agriculturist?
(G) Whether the courts below has failed to consider that when there is special provision for dismissing the suit on as provided under O.7 R. 11 of the Code of Civil Procedure, 1908 the section 151 of the Code of Civil Procedure, 1908 can be exercise?
(H) Whether the registered Sale Deed of the Appellants is in force and the Appeal Court Page 3 of 13 HC-NIC Page 3 of 13 Created On Sun Aug 13 00:09:16 IST 2017 C/SA/219/2016 JUDGMENT can allow the second Sale Deed of the same land?"
2. Heard learned advocate, Shri H.M. Parikh for the appellants and learned Senior Counsel, Shri Mehul Shah appearing with learned advocate, Shri Jenil Shah for the respondent nos.3 and 4.
3. Learned advocate, Shri Parikh referred to the papers particularly the order below Exh.39 and submitted that both the Courts below have failed to appreciate the provision of Section 11 of the Civil Procedure Code and the res judicata. He referred to the background of the facts and papers and submitted that suit could not have been dismissed without providing an opportunity of hearing the evidence on the ground of res judicata. He emphasized that the parties are different and each issue has not been considered and decided. For that purpose, he referred to the judgment and order below Exh.39 by the first Appellate Court and submitted that the reasons recorded clearly suggest that earlier suit was for the possession, whereas subsequent suit being Special Civil Suit No.41/2012 is for different prayer. He emphasized that when the earlier suit has been filed, prayer was for declaration and Page 4 of 13 HC-NIC Page 4 of 13 Created On Sun Aug 13 00:09:16 IST 2017 C/SA/219/2016 JUDGMENT protection of possession. He submitted that the respondentoriginal owner was permitted to recover the possession in accordance with law, however, they have sold and conveyed to the respondent nos.3 and 4. He, therefore, submitted that as the respondent nos.3 and 4 may not disturb the possession, the suit has been filed and, therefore, it is a different cause of action, which has not been appreciated. He, therefore, submitted that suit could not have been dismissed. In support of his contention, he referred to and relied upon the judgment of the Hon'ble Apex Court in case of Vaish Aggarwala Panchayat Vs. Inder Kumar & Ors., reported in AIR 2015 SC 3357 and emphasized the observation in Para No.16. He submitted that as the res judicata involves mix question of law and fact, which can be decided on the basis of the evidence, suit could not have been dismissed. Similarly, he has referred to and relied upon the judgment of the Hon'ble Apex Court in case of Alka Gupta Vs. Narender Kumar Gupta, reported in AIR 2011 SC 9. He submitted that if the grounds are different then the subsequent suit could not have been dismissed on the principle of Page 5 of 13 HC-NIC Page 5 of 13 Created On Sun Aug 13 00:09:16 IST 2017 C/SA/219/2016 JUDGMENT res judicata.
4. Learned Senior Counsel, Shri Shah referred to the background of the facts as well as the order below Exh.39 passed by the first Appellate Court and submitted that as could be seen from the order itself, earlier Special Civil Suit NO.8 of 1997 was filed and it came to be dismissed. Thereafter, present Special Civil Suit No.41 of 2012 is filed without disclosing earlier suit having been dismissed. He emphasized that it is with regard to the same property and the same issue. He, therefore, submitted that as observed, the subject matter is already decided by the competent court in earlier Special Civil Suit No.8 of 1997 and, therefore, subsequent suit i.e. Special Civil Suit No.41 of 2012 would be barred on the principle of res judicata. He, therefore, submitted that when the property is the same and when the parties or the issue involved between the parties is same, which has already been decided earlier, it could not be permitted to be raised by filing one after another suit. Learned Senior Counsel, Shri Shah submitted that in fact, the appellants have suppressed the material fact about filing of Page 6 of 13 HC-NIC Page 6 of 13 Created On Sun Aug 13 00:09:16 IST 2017 C/SA/219/2016 JUDGMENT Special Civil Suit No.8 of 1997 and subsequent suit or the Appeal could have been dismissed on the ground of suppression of fact. He submitted that insptie of that, the Court below have considered and examined the papers and, thereafter, decided by detailed order that the issue or subject matter is already decided and, therefore, subsequent suit is barred by res judicata. He, therefore, submitted that a close examination of the record would suggest that earlier suit was also filed for the title and possession. Therefore, the present civil suit with regard to same property or part of the property is filed and when it is sold and transferred to the present respondent nos.3 and 4, they would step in the shoes of the original owner. He therefore submitted that subsequent suit being Special Civil Suit NO.41 of 2012 filed for the same prayer would be abuse of process of the court and, therefore, the Court below have rightly on examination of the material and evidence have dismissed the suit. Learned Senior Counsel, Shri Shah referred to and relied upon the judgment of the Hon'ble Apex Court in case of Maria Margarida Sequeria Fernandes & Page 7 of 13 HC-NIC Page 7 of 13 Created On Sun Aug 13 00:09:16 IST 2017 C/SA/219/2016 JUDGMENT Ors. Vs. Erasmo Jack de Sequeria (Dead) through L. Rs., reported in AIR 2012 SC 1727 and emphasized the observation made in Para Nos.84 and 85, which referred to "false claim and false defence". He emphasized the observation, "In order to curb uncalled for and frivolous litigation, the Courts have to ensure that there is no incentive or motive for uncalled for litigation. It is a matter of common experience that Court's otherwise scarce time is consumed or more appropriately, wasted in a large number of uncalled for cases."
5. Learned Senior Counsel, Shri Shah further emphasized that the Court in order to avoid abuse of the process of the law taken into consideration the relevant aspects and dismissed the suit. He also emphasized the observation made in Para No.99 with regard to the possession and strenuously submitted that two elements of possession are the corpus and the animus. He further submitted that though the person may be in physical possession, it cannot be said to be possession in eye of law. He referred to and relied upon the judgment of the Hon'ble Apex Court in case of Shanmugam Vs. Ariya Kshatriay Rajakula Vamsathu Madalaya Nandhavana Paripalanai Sangam, Represented by its President, Page 8 of 13 HC-NIC Page 8 of 13 Created On Sun Aug 13 00:09:16 IST 2017 C/SA/219/2016 JUDGMENT reported in AIR 2012 SC 2010 in Para NO.42 and also in case of Sopan Sukhdeo Sable & Ors. Vs. Assistant Charity Commissioner & Ors., reported in AIR 2004 SC 1801.
6. Learned Senior Counsel, Shri Shah submitted that the concurrent finding of facts on appreciation of material and evidence may not be disturbed as there is no substantial questions of law, which can be said to have been involved. He, therefore, submitted that in background of the facts and considering the suppression of material facts before the Court about earlier suit for the same subject, the order passed is just and proper.,
7. In rejoinder, learned advocate, Shri Parikh referred to the papers and submitted that earlier suit was for a different prayer and cause of action or issues were different.
8. In view of these rival submissions, it is required to be considered whether the present Second Appeal deserves consideration.
9. As could be seen from the background of the facts, earlier Special Civil Suit No.8 of 1997 was filed by the present appellants for the same subject matter or the property and after the suit has been Page 9 of 13 HC-NIC Page 9 of 13 Created On Sun Aug 13 00:09:16 IST 2017 C/SA/219/2016 JUDGMENT dismissed, admittedly no appeal has been preferred, meaning thereby, the judgment has been final between the parties. Thereafter another Special Civil Suit No.41 of 2012 is filed without making any discloser of the earlier suit being Special Civil Suit No.8 of 1997 and, therefore, when the written statement was filed and it was disclosed pointing out that earlier suit was also regarding the same subject matter and parties were the same and the issue was decided between the parties, the order below Exh.39 came to be passed, which cannot be said to be erroneous.
10. Though feeble attempt has been made by learned advocate, Shri Parikh to make the submission that the parties were the same, one cannot overlook the totality of the fact that subject matter in the present suit is also a subject matter in Special Civil Suit NO.8 of 1997 between the same contesting parties and it has been decided. The recovery of the possession was left to the original owner in accordance with law. However when the original owner, who is entitled to deal with his property, may have conveyed to the respondent nos.3 and 4 herein, who would step in Page 10 of 13 HC-NIC Page 10 of 13 Created On Sun Aug 13 00:09:16 IST 2017 C/SA/219/2016 JUDGMENT the shoes of the original owner, may pursue the recovery of the possession in accordance with law. Therefore suit which has been filed subsequently raising the same issue again and again cannot be entertained. The provision of Section 11 clearly provides that it is the obligation of the Court also to see that no suit is filed with regard to the same subject matter again. Similarly the contention is raised by learned advocate, Shri Parikh that the issue or the cause of action are different in two suits, however, same is without any merits. A useful reference can be made to the judgment of the Hon'ble Apex Court in case of Alka Gupta (supra) referred to by learned advocate, Shri Parikh. The Hon'ble Apex Court in this judgment referring to earlier judgment of the Hon'ble Apex Court in case of Forward Construction Co. Vs. Prabhat Mandal, reported in AIR 1986 SC 391 has observed, "an adjudication is conclusive and final not only as to the actual matter determined but as to every other matter which the parties might and ought to have litigated and have had decided as incidental to or essentially connected with subject matter of the litigation and every matter coming into the Page 11 of 13 HC-NIC Page 11 of 13 Created On Sun Aug 13 00:09:16 IST 2017 C/SA/219/2016 JUDGMENT legitimate purview of the original action both in respect of the matters of claim and defence."
11. Therefore the submission made by learned advocate, Shri Parikh trying to make distinction regarding the cause of action to suggest that the cause of actions were different and the issues were different in two different suits, is without any merits.
12. A useful reference can be made to the observation of the Hon'ble Apex Court in case of Maria Margarida Sequeria Fernandes (supra), reported in AIR 2012 SC 1727, wherein it has been observed, "Lord Denning further observed in the said case of Jones (supra) that "`It's all very well to paint justice blind, but she does better without a bandage round her eyes. She should be blind indeed to favour or prejudice, but clear to see which way lies the truth..."
"World over, modern procedural Codes are increasingly relying on full disclosure by the parties. Managerial powers of the Judge are being deployed to ensure that the scope of the factual controversy is minimized."
13. Therefore having regard to the background of the facts, it cannot be said that there is any substantial question of law is involved or the Court below have misdirected, which would call for Page 12 of 13 HC-NIC Page 12 of 13 Created On Sun Aug 13 00:09:16 IST 2017 C/SA/219/2016 JUDGMENT any interference with the concurrent findings of facts by both the Court below. The Hon'ble Apex Court has laid down broad guidelines with regard to the scope of exercise of direction under Section 100 of the Civil Procedure Code after the amendment in the year 1976 expressing a word of caution that normally the concurrent finding of facts may not be disturbed unless there is any substantial question of law involved. It is in this background, having regard to the scope of Section 100 of the Civil Procedure Code, the impugned judgment and order of both the Courts below does not call for any interference.
14. Therefore having regard to the aforesaid discussions and background of the facts, the present Second Appeal cannot be entertained and deserves to be dismissed and accordingly stands dismissed.
15. In view of the dismissal of Second Appeal, the Civil Application does not survive and stands disposed of accordingly.
Sd/ (RAJESH H.SHUKLA, J.) Gautam Page 13 of 13 HC-NIC Page 13 of 13 Created On Sun Aug 13 00:09:16 IST 2017