Calcutta High Court
Smt. Asha Lata Debya vs Shri Chandi Das Bhattacharya on 8 June, 2004
Equivalent citations: (2004)3CALLT585(HC)
JUDGMENT Arun Kumar Mitra, J.
1. This appeal has been preferred, challenging the Order of remand dated 23rd August 1985 and the decree dated 30th August 1985 passed by the learned Additional District Judge, Second Court, Bankura in the Title Appeal No. 24 of 1984 remanding the case for retrial after setting aside the judgment and decree dated 31st January, 1984, and the 4th February, 1984 respectively passed by the learned Munsif, 1st Court, Bankura in Title Suit No. 84 of 1983.
2. The case as has been made out in the plaint of Title Suit No.84 of 1983 is inter alia as follows:
One Brazalal Adhurryya had 1/3rd (5 Annas 6 Gandas 2 Kara 2 Kranti) share in the tank referred to in the plaint. Said Sri Brazalal Adhurryya had two daughters, Thakomani Debi and Sarat Kumari Debi who inherited the property in equal shares that is each of them got (1/6th share each) in the tank and their names were recorded in the cadastral survey record of rights. According to the plaintiff their interest was limited interest. Thakomani sold her 1/6th share (suit property) in the tank and also a certain share in a plot which is however, not covered in this suit, to the husband of the defendant, Ramkinkar Chatterjee through a registered deed of coveyance dated 06.04.1949. It has been also alleged in the plaint that Thakomani had no legal necessity, her husband was an affluent one. She was illiterate. Her husband Radha Raman had short vision and the deed was executed in good faith and on representation of Ram Kinkar Chatterjee.
3. Thakomani died in 1959 and in 1960, her husband Radha Raman Babu made in property Khas to him, and possessed the same. Thakomam had three (3) daughters Motorbala, Nirmalabala and Ushabala.
4. In 1960 said Radha Raman babu gave the property (that is 1/6th share of the said property which Thakomani inherited from her father) to Motorbala through a village salish and Motorbala possessed the same and even acquired title by adverse possession through her bhagidars Bima, Profulla and Banshi. It has been also alleged in the plaint that Motorbala's husband who died 4 years ago would realise Bhag fish from Bhagidars. While in possession Motorbala sold the 1/6th share to the plaintiff by a Kobala on 29.06.1983 and the plaintiff is the possession. It has been further alleged in the plaint that Ram Kinkar Babu made transfer of the said 1/6th share (which he got from Thakomani illegally by Kobala dated 06.04.1949) to his wife Smt. Asha Lata Devi, the present defendant on 09.08.1972. The present defendant refused to acknowledge the plaintiffs title and threatened him with dispossession.
5. It is recorded at this juncture that the suit has been filed under Section 7(iv)(b) of the Court Fees Act.
6. The case made out by the defendant is inter alia as follows:
The suit is barred by res judicta and the Court has no jurisdiction to try the suit in this Court. The defendant's case is that the entire allegations made out in the plaint are false and in the written statement the defendant made out her case in the manner as follows:
It is contended that Brazalal was the owner to the extent of 1/3rd share. He made a will in favour of his wife Lachhman Kumari in respect of the said share. On the death of Lachhman Kumari her daughters Thakomani and Sarat Kumari inherited the share to the extent of 1/6th share each. Due to legal necessity Thakomani sold her 1/6th share of the tank and (certain share of plot which are not covered by this suit) to the defendant's husband Ramkinkar Chatterjee for Rs. 979/- on 06.04.1949. Thakomani thus divested herself of her interest therein and put Ramkinkar in possession. Ramkinkar possessed the same and remaining in possession. Ramkinkar transferred the said property to his wife, present defendant on 09.08.1972 and the present defendant is in possession over the same.
7. On behalf of the defendant it has been alleged that the transfer dated 06.04.1949 is void and illegal on the ground of want of legal necessity. Thakomani's sister's son that is Sarat Kumari's son Kriti Bhusan Tiwari instituted a Title Suit being No. 101 of 1961 in the Court of the learned Sub-Ordinate Judge at Bankura against the present defendant's husband Ramkinkar and certain other transfers and the said suit was re-numbered as Title Suit No. 11 of 1968. The said suit was decided by the Additional Sub-Ordinate Judge, Bankura by making a decree of dismissal. The learned Court held categorically Ramkinkar's possession and held the legal necessity behind transfer. The plaintiffs alleged vendor, Motorbala was a principal defendant No. 3 in that suit. She entered appearance but did not contest.
8. It has been further alleged that in the above context, the present plaintiffs claim of having derived title from Motorbala by attacking in legal necessity behind transfer dated 06.04.1949 is barred by principles of res judicata. Ramkinkar had also acquired title by adverse possession and Motorbala's alleged possession or the story of making khas by Thakomani's husband Radha Raman is but a lie.
9. It has also been alleged that the plaintiffs Kobala is void, illegal and inoperative. He has no title and possession. The suit is vexatious and is liable to be dismissed.
10. In the above pleading the learned trial Judge framed 14 issues. Out of these 14 issues, issue No. 5 is "Is the suit barred by res judicata?" 11th January 1984 was the date fixed for hearing of the suit. On the date of hearing the defendant filed a petition under Order XIV Rule 2(2) and Order XX Rule 5 of the Code of Civil Procedure. On the hearing date the learned trial Judge took up the issue No. 5.
11. The learned trial Judge drew reference of the Title Suit No. 11 of 68/101 of 61 and found that the matter in issue in the former suit is directly and substantially identical with that of the suit. The learned trial Judge observed that the suit is hit by the doctrine of res judicata. The learned trial Judge dismissed the suit on contest but without costs. The plaintiff referred appeal against the said judgment and decree passed by the learned trial Judge.
12. The said appeal was allowed by the learned Appellate Court below on contest and the judgment and decree passed by the learned Munsif was set aside. The suit was sent back on remand with a direction to dispose of the same after deciding all the issues framed therein.
13. Challenging the said order of remand passed by the learned appellate Court below the defendant Chandi Das Bhattacharyta has preferred the instant appeal.
14. The learned counsel for the appellant filed a written argument also before this Court.
15. The learned counsel for the appellant submitted that the suit was barred under Section 11 of the Code of Civil Procedure. It was also submitted by the learned counsel for the appellant that on that date of hearing the defendant (appellant herein) filed a petition under Order XIV Rule 2(b) of the Code of Civil Procedure and this was not objected to by the plaintiff. The learned trial Judge on 11th January 1984 allowed the petition and decided to hear out issue No. 5 that is "Is the suit barred by res judicata?
16. The learned counsel for the appellant submitted that the learned trial Court dismissed the suit as barred under Section 11 of the Code of Civil Procedure by holding inter alia that in the earlier suit namely Title Suit No. 101 of 1961. It was held that there was legal necessity for transfer by Thakomani on 6th April 1949 and that Ramkinkar Chatterjee acquired good title and possession by the said sale deed.
17. The learned counsel for the appellant relied on a decision (Guda Vijaya Lakshmi v. Guda Ramchandra Sekhara Sastry). The learned counsel for the appellant relied on paragraph 3 of this decision.
"3. In our view, on proper construction of the relevant provisions it is not possible to uphold the preliminary objection. In the first place it is difficult to accept the contention that the substantive provision contained in Section 25 Code of Civil Procedure is excluded by reason of Section 21 of the Hindu Marrige Act, 1955. Section 21 of the Hindu Marriage Act merely provides" : "Subject to the other provisions contained in this Act and to such rules as the High Court may make in that behalf, all proceedings under this Act shall be regulated, as far as may be, by the Code of Civil Procedure, 1908". In terms of Section 21 does not make any distinction between procedural and substantive provisions of CPC and all that it provides is that the Code as far as may be shall apply to all proceedings under the Act and the phrase "as far as may be" means and is intended to exclude only such provisions of the Code as are or may be inconsistent with any of the provisions of the Act. It is impossible to say that such provisions of the Code as partake of the character of substantive law are excluded by implication as no such implication can be read into Section 21 and a particular provision of the Code irrespective of whether it is procedural or substantive will not apply only if it is inconsistent with any provisions of the Act. For instance, it is difficult to countenance the suggestion that the doctrine of res judicata contained in Section 11 of the Code which partakes of the character of substantive law is not applicable to proceedings under the Act. Res judicata, after all, is a branch or specie of the Rule of Estoppel called Estoppel by Record and though Estoppel is often described as a rule of evidence, the whole concept is more correctly viewed as a substantive rule of law. (See. Canadian and Dominion Sugar Co. Ltd. v. Canadian National (West Indies) Steamships Ltd., (1947) Act 46, at p. 56 (P.C.)".
18. The learned counsel for the appellant further submitted that Appellate Court below erred in holding that "In the instant case the question of res judicata is not purely an issue of Jaw but a mixed issue of law and fact which required investigation into the facts and circumstances of the case and that being shown that the learned Munsif was definitely written in disposing of the suit after deciding the preliminary issue of jurisdiction". The learned counsel for the appellant then submitted that without considering that in what respect further investigation is necessary, the finding is bad and no necessity for sale by Thakomanin was there. In so far as the sale of the suit property on 6th April 1949 it was found in the earlier suit that Ram Kinkar Chatterjee has acquired good title and possession in the earlier suit in respect of the suit property. In the written argument it was further argued by the learned counsel for the appellant that Smt. Motorbala inherited nothing on the death of Thakomani in the year 1960 and the present plaintiff acquired something by virtue of Kobala dated 13th July 1983 as his vendor Motorbala had no saleable interest in the suit property.
19. The learned Counsel for the appellant then submitted that there was categorical findings in the earlier suit that there was legal necessity and Ramkinkar Chatterjee acquired good title and possession in respect of the suit property by the said Kobala dated 6th April 1949 which cannot be reopened in the present suit and the same is barred under Section 11 of the Code of Civil Procedure.
20. The learned counsel for the appellant submitted that all the other issues are dependant on the said issue No. 5 and it goes root of the case and the learned lower appellate Court erred in setting aside the judgment and decree of the learned trial Court.
21. The learned counsel for the appellant then submitted that no objection was raised by the plaintiff for taking the issue No. 5 as preliminary issue and in the memorandum of appeal filed before the learned lower appellate Court, no ground was taken against the hearing of issue No. 5 as preliminary issue and that it was in accordance with law. Now, at the time of the hearing of appeal it was urged before the learned appellate Court below, that hearing of issue No. 5 as preliminary hearing was illegal. The learned counsel submitted that in above view of the matter that the order of remand passed by the appellate Court below should be set aside. The learned counsel for the appellant in support of his contention relied on a judgment (Smt. Radharani Dassi v. Smt. Binodamoyee Dassi). The learned counsel relied on the observation made by the Hon'ble Division Bench of this High Court in the instant judgment which is inter alia as follows:
"The doctrine of "res judicata" differs from "estoppel" chiefly in not resulting from an act of party himself but from a decision of the Court. An execution creditor while claiming to take in execution a property in assertion of his debtor's title thereto may not claim through and under his debtor so as to be bound by his debtor's acts, and his claim may, for this purpose, be adverse to the debtor; yet, what he is claiming to take is nothing but his judgment-debtor's title and any determination of that title available to the judgment-debtor himself as against any claimant will be equally available to him. The plea of res judicata is not merely a plea of estoppel. It amounts to an assertion that the very legal rights of the parties are such as they have been determined to be by the judgment of a competent Court and no other Court should proceed to determine this again. A matter once formally decided is decided once for all as between the parties to the decision or as between those claiming under them. That which has been delivered in judgment must be taken for established truth. In all probability it is true in fact; even if not, it is expedient that it should be held as true none the less. The operation of the doctrine is thus the transformation of a question of a fact into a question of law."
22. The learned counsel for the appellant then relied on a decision (M.V. Narasamma, Petitioner v. M. Venkataratnam, Respondent). The learned counsel laid stress on the observations of the Hon'ble Andhra Pradesh High Court made in this judgment which are inte alia as follows:
"The only question which requires to be considered in this revision is whether the Asst. Settlement Officer was justified in postponing the consideration of the objection raised by the petitioner. Under Order 14, Rule 2 CPC 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 the issues of law only, and shall try those issues first, and for that purpose may, if it thinks fit, postpone the settlement of the issues of fact until after the issues of law have been determined. While it is true that in a Civil suit which can come up before this Court on appeal, it is found always desirable for the trial Court to dispose of all the issues, it does not necessarily mean that an issue which goes to the root of the trial cannot be considered at the appropriate stage. If that interpretation is accepted the provisions of Order 14 Rule 2 will become nugatory. It is true that it is left to the discretion of the tribunal before whom proceedings are pending to determine whether the question of law is of that nature or not. But undoubtedly that discretion has to be exercised in a judicial manner.
Without assigning any reason, it cannot be stated by any tribunal that any issue which falls within the purview of Order 14 Rule 2 CPC will be heard only at the end of the trial. For example, Section 3 of the Indian Limitation Act obliges the Court to consider at the initial stage, whether the suit is time barred or not. Similarly a question of jurisdiction raised ought to be disposed of as a preliminary issue. On the same analogy any objection taken under Section 11 CPC, i.e. objection as to res judicata, that objection has to be disposed of at the earlier stage of the suit. The opening words of Section 11 CPC clearly stated that no Court shall try any suit or issue in which the matter was directly and substantially in issue in a former suit and was finally disposed of by a competent Court. The very purpose of this Section will be defeated if it is uniformly insisted that such issues also should be tried at the end of the trial along with the other issues of fact. That wholesome principle referred to above is applicable where the preliminary issues do not reach the roots of the case.
(2) The learned counsel appearing for the respondent was doubtful whether the provisions of Civil Procedure Code are applicable to the proceedings instituted before the Settlement Officer. Assuming that the provisions of Civil Procedure Code are not applicable, nevertheless the analogy underlying the above said provisions of Civil Procedure Code would apply to such proceedings. Therefore I find no difficulty in reaching the same conclusion even if the provisions of Civil Procedure Code are not directly made applicable. I do not, however, decide in this case, as it is unnecessary, whether the provisions of Civil Procedure Code are applicable to the proceedings under Section 56 of the Abolition Act.
(3) I am therefore satisfied that the objection raised by the petitioner in this case was such that it ought to have been treated as a preliminary issue of law falling within the provisions of Order 14, Rule 2 Civil Procedure Code and should have been heard and disposed of before entering into an enquiry in regard to other issues. In this respect one cannot ignore that the parties in the earlier proceedings did set up the self-same pleas. Those proceedings had reached this Court and were finally determined. It must therefore be seen what is the effect of the decision given in a proceeding falling under sections 11 and 15 of the Abolition Act. I should not be taken to have said anything on the merits of the objection raised. What I would like to emphasize is that this is a question which falls clearly within Order 14, Rule 2 Civil Procedure Code and should have been tried as such. The tribunal, in my opinion has failed to exercise its jurisdiction on well recognized principles".
24. The learned counsel for the appellant then submitted that the principle of res judicata is also applicable to co-defendants. The learned counsel mainly relied on the observation made by the Hon'ble Apex Court in the judgment (Mahboob Sahab, Appellant v. Syed Ismail and Ors., Respondent) in Paragraphs 8, 9, 10 & 11.
"8. Under these circumstances the question emerges whether the High Court was right in reversing the appellate decree on the doctrine of res judicata. At this juncture it may be relevant to mention that the trial Court negatived the plea of res judicata as a preliminary issue. Thought it was open to sustain the trial Court decree on the basis of the doctrine of res judicata, it was not argued before the appellate Court on its basis. Thereby the findings of the trial Court that the decree in OS No.3/1/1951 does not operate as a res judicata became final. The question then is whether the doctrine of res judicata stands attracted to the facts in his case. It is true that under Section 11 Civil Procedure Code when the matter has been directly or substantially in issue in a former suit between the same parties or between parties under whom they or any of them claimed litigating under the same title, the decree in the former suit would be res judicata between the plaintiff and the defendant or as between the co-plaintiff or co-defendant. But for application of this doctrine between co-defendants four conditions must be satisfied, namely, that (1) there must be a conflict of interest between the defendants concerned; (2) it must be necessary to decide the conflict in order to give reliefs which the plaintiff claims; (3) the question between the defendants must have been finally decided; and (4) the co-defendants were necessary or proper parties in the former suit. This is the settled law as held in S.M. Sadat Ali Khan v. Mirza Wiquar Ali ; Shashibhushan Prasad Mitra v. Babuji Raj, ; and Iftikhar Ahmed v. Syed Meharban Ali, . Take for instance that if in a suit by 'A' against 'B & C', the matter is directly and substantially in issue between B & C and an adjudication upon the matter was necessary to determine the suit to grant relief to 'A', the adjudication would operate as res judicata in a subsequent suit between B & C in which either of them is plaintiff and the other defendant. In other words, if a plaintiff cannot get at his right without trying and deciding a case between co-defendants, the Court will try and decide the case, and the co-defendants will be bound by the decree. But if the relief given to the plaintiffs does not require or involve a decision of any case between co-defendants the co-defendants will not be bound as between each other.
9. When the above four conditions did not exist the decree does not operate as res judicata. It must, therefore, be that all the persons to the suit and that they should have knowledge that the right, title and interest would be in adjudication and the finding or the decree therein would operate as a res judicata to their right, title and interest in the subject-matter of the former suit. Even in their absence a decree could be passed and it may be used as an evidence of the plaintiffs title either accepted or negatived therein. The doctrine of res judicata would apply even though the party against whom it is sought to be enforced, was not eo-nomine made a party nor entered appearance nor did he contest the question. The doctrine of res judicata must, however, be applied to co-defendants with great care and caution. The reason is that fraud is an extrinsic collateral act, which vitiates the most solemn proceedings of Courts of justice. If a party obtains a decree from the Court by practicing fraud or collusion, he cannot be allowed to say that the matter is res judicata and cannot be re-opened. There can also be question of res judicata in a case where signs of fraud or collusion are transparently pregnant or apparent from the facts on record.
10. Therefore, in applying the doctrine of res judicata between co-defendant or co-plaintiff, care must, of necessity, be taken by the Courts to see that there must in fact be a conflict of interest between the co-defendants or co-plaintiffs concerned and it is necessary to decide the conflict in order to give relief which the plaintiff in the suit claimed and the question must have been directly and substantially in issue and was finally decided therein. As found by the Appellate Court, Maqdoom was playing fraud upon his creditors by creating false oral gifts or spurious claims of mortgages with a view to defraud them. Section 44 of the Evidence Act envisages that any party to a suit or proceedings may show that any judgment, order or decree, which is relevant under sections 40, 41 or 42 has been obtained by fraud or collusion. Under Section 40, the existence of the judgment, order or decree which by law prevents any Court from taking cognizance of a suit or holding a trial, is a relevant fact when the question is whether such Court ought to take cognizance of such suit or to hold such trial.
11. When the evidence on record establishes that the suit in OS No. 3/1/1951 was collusive or fraudulent to defraud the creditors, it is a relevant fact and the Court would take cognizance thereof to find whether the trial Court is precluded to try the issue. The High Court had not averted to nor bestowed its attention, this aspect of the matter except mechanical application of the principles laid by this Court in Iftikhar Ahmed's case (supra). The pleadings in OS No. 3/1/1951 were not produced in the Courts below. The judgment, annexure II, indicates that the respondents and their another brother and the parents were impleaded as defendants 1 to 5. Sixth defendant was the decree-holder in another suit. It was claimed therein that the defendants 1 to 4 were said to have executed possessory mortgage in favour of one Ismail, the plaintiff therein. A joint written statement was filed by them admitting the claim of the plaintiff who had pleaded the gift said to have been given by Maqdoom in favour of the three sons and his wife. They have admitted the same. Thus it would be clear that there was no conflict of interest between the defendants in that suit. On the other hand they had confessed to the claim set up by the alleged possessory mortgagee therein. Though the appellant claimed title to the property through the parents of the respondents, there was neither conflict of interest nor was it necessary to decide about the validity of the gift said to have been executed by Maqdoom. The dispute therein was whether the possessory mortgagee was bound by the decree and the creditor could proceed against the Maqdoom and the said property is liable to sale for realization of his decree debt? In that context the relevancy or validity of the gift is immaterial. It was admitted therein that they had executed possesory mortgage in favour of Ibrahim, plaintiff therein. On that basis, the only question would have been whether he would be entitled to resist the execution of the decree obtained against Maqdoom by the 6th defendant therein? The oral gift or sale of 4 acres under Ex. D-3 was not the subject-matter of OS No. 3/1/1951. The High Court, therefore, committed gross palpable error of law in applying the doctrine of res judicata between co-defendants relying upon decree in OS No. 3/1/1951 dated September 24, 1951, even it could be pressed into service in the second appeal."
25. The learned counsel for the appellant submitted that the Appellate Court below erred in law by sending the matter on remand in as much as admittedly the instant suit is barred by res judicata which is evident from the records itself. The learned counsel submitted that in the above view of the matter the instant appeal should be allowed and the trial Court's judgment should be upheld.
26. The learned counsel submitted that the point of res judicata as provided under Section 11 of the Code of Civil Procedure is a substantive law in nature.
27. The learned counsel for the appellant relied on a decision reported in AIR 1979 SC 551 (Ishwardas v. State of M.P.). The learned counsel relying on this judgment of the Hon'ble Apex Court submitted that in this judgment the Hon'ble Apex Court laid down the pre-conditions for attraction of the principles of res judicata. The learned counsel relied on paragraph 6 of this judgment which is quoted herein below:
"6. The plaintiff in both the suits was the same. The contesting defendant was also the same, namely the State of Madhya Pradesh.
In the present suit Melaram and the Chief Conservator of Forests were also impleaded as parties whereas in the other suit some other person was a party. We do not see that it makes any difference. In order to sustain the plea of res judicata it is not necessary that all the parties to the two litigations must be common. All that is necessary is that the issue should be between the same parties under whom they or any of them claim. The issue in the present suit and the issue in the Dewas suit were between the same parties namely the appellant and the State of Madhya Pradesh. The submission that the subject-matter of the two suits were different because of the present suit was for a declaration and the other suit was for damages is equally without substance since the issue between the parties was identical in both the suits. The question at issue in both the suits was whether the agreement between Melaram and the Government and the surety bond executed by the plaintiff were not enforceable because of the failure to comply with Article 299 of the Constitution. The ground on which the agreement and the surety bond were sustained in the Dewas suit was that the Raj Pramukh and ratified the same. The fact that the ratification by the Raj Pramukh was not expressly mentioned in the present suit does not make any difference to the plea of res judicata. Once the questions at issue in the two suit's are found to be the same, the fact that the material which led to the decision in the earlier suit was not again placed before the Court in the second suit cannot make the slightest difference. The plea of res judicata may be sustained, without anything more, if the questions at issue and the parties are the same, subject of course to the other conditions prescribed by Section 11 Civil Procedure Code. The submission of the learned counsel that the decision of the Dewas Court and the High Court in the other suit were non est because, they upheld an illegal contract has only to be noticed to be rejected."
28. The learned counsel for the appellant concludingly submits that the order of remand passed by the Appellate Court below should be set aside and the trial Court's judgment and decree should be upheld.
29. The learned counsel for the respondent submits that after the amendment of the Civil Procedure Code in 1976, Order XIV Rule 2 provides that specially to Sub-Rule 2 of the Court shall have to pronounce judgment on all the issues that the learned trial Judge was wrong in dismissing the suit only on the basis of a finding of the preliminary issue being issue No. 5 which is "whether the suit is barred by res judicata, the res judicata in the instant case is not only a question of law but it is a mixed question of law and fact". Some of the points in the instant case are to be gone into through evidence.
30. The learned counsel for the respondent also submitted that the question of res judicata that may be raised on behalf of any party in a suit should not ordinarily be disposed of as a preliminary issue. This issue, according to the learned counsel, should be disposed of along with other hearing of the suit. The learned counsel for the respondent then submitted that this being appealable case, the trial Court should dispose of this suit while deciding all the issues altogether. The learned counsel submitted that after the amendment of Order XIV Rule 2 of the Code of Civil Procedure, the issue of law which goes to the root of the case and which is capable of being decided without evidence, the Court can try the said issue.
31. In support of his contentions the learned counsel relied on certain propositions or citations which are placed serially and the relevant portions of the said are quoted herein below:
1. (Smt. Sarojini Rath v. Bhaskar Rath). It has been held in this case "in appealable cases the Court should as far as possible decide on all the issues together, inasmuch as a piecemeal trial might lead to a protracted litigation and repeated appeals in the same suit". The second is which is contained in Rule 2 of Order XIV that where issues of law going to the root of the case, and capable of being decided without evidence arise, the Court is bound to try these issues first.
2. AIR 1960 Orissa 295 (Ram Saraf v. Mani Devi). In this judgment it has been observed "it is well known that the suit must be tried as a whole and not piecemeal unless it involves the question of jurisdiction. For instance, if the valuation of the suit be such that it will oust the jurisdiction of the Court before whom it was instituted, then in such cases ordinarily this issue should be tried as a preliminary issue to prevent unnecessary harassment to the litigants. But in all other matters it is always desirable that the case should be tried as a whole so that it would not be remanded times without number from the appellate Court to re-examine other matters left undecided".
3.
(The Charity Commissioner, Maharashtra State v. Hirjobhoy Mancherji Kavarana and Ors.). The Hon'ble Bombay High Court in this judgment has observed "the question of res judicata that may be raised on behalf of any party in a suit should not ordinarily dispose of as a preliminary issue. This question should normally be tried and disposed of at the final hearing of the suit when all issues can be adjudicated upon by Court".
4. (Praduman Kumar v. Giridhari Singh and Ors.). The learned counsel for the respondent relied on the observations made by the Hon'ble Rajasthan High Court in this regard which is as follows:
Paragraph 4-'The observations made by the learned Judge in Chhinga Ram's case, should, in my opinion, be read in the context of that case. But if the learned Judge meant to lay down the above a quoted principle for general application then I may say with the greatest respect, that the observations are too wide and are directly in conflict with the Division Bench decision of this Court in Prithvi Raj's case, and would have the effect of rendering the provisions of Order 14, Rule 2 absolutely nugatory. The language of Order 14, Rule 2 is quite clear and in a case where issues are purely of law which do not require any investigation into facts and the Court is of opinion that 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. If this course is not adopted by the Courts and the determination of the issues of law is postponed to be determined along with the issues of fact it will mean unnecessary inconvenience and expense to the parties and wastage of time and labour of the Court as well. In many cases if issues of law such as on a point of limitation, res judicata, jurisdiction or the suit being barred on the face of it by any law, arise and the Court having regard to the facts and circumstances of the case, is of opinion, that the case or any part thereof will be disposed of on such issues, the Court has no option having regard to the provisions of Order 14, Rule 2 but to determine those issues first. If on the other hand the Court is of opinion that the issue of law cannot be determined without investigation into facts or the point of law raised is not clear or that the case or any part of it cannot be disposed of, the Court may decline to determine the issues of law first. Therefore, the Court should address itself to these vital points and then decide whether the issues of law should be decided first or they should be decided along with the issues of fact."
5. (Mary w/o Thomas and Anr. v. Mathew Joseph and Ors.). In this judgment the Hon'ble Kerala High Court observed that bar to suit created by law within the meaning Clause (b) of Rule 2(2) does not come as restraint in the issue of res judicata or estoppel. In either case the matter involves proof. Para 5 of this judgment is quoted herein below in this context.
Para-5. "Even assuming that additional issue No. 6 could be treated as once concerning res judicata by reason of the finding in O.S. 711 of 1971, the same in the circumstance, cannot be a bar to the suit created by law within the meaning of sub-rule (2) of Order XIV, Rule 2. A judgment can operate as res judicata if the conditions enjoined under Section 11, Civil Procedure Code are satisfied, it should be proved that the issue in the suit was directly or substantially in issue in an earlier suit between the same parties, or between parties under whom they claim, and that they were litigating under the same Title. A compromise decree creates an estoppel by judgment. Estoppel is a rule of evidence. In either case, the matter involves proof. Further res judicata prevents only trial; it does not prevent institution or entertaining of the suit. Therefore res judicata or estoppel cannot be said to be a bar to the suit created by law within the meaning of clause (b) of sub-rule (2) of Order XIV, Rule 2, Civil Procedure Code. This, it cannot be said that the issue was one which could be tried as a preliminary issue".
32. In a full bench decision of Allahabad High Court reported in AIR 1991 Allahabad (Sunni Central Waqf Board and Ors. v. Gopal Singh Virshad and Ors.) the issue was again raised and decided. Paragraphs 10, 11 and 32 of this decision are quoted herein below:
"10. Order 14, Rule 2 of the Code of Civil Procedure as it stood prior to the amendment made in the year 1976 read as follows:
"Rule 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 the issues of law only, it shall try those issues first, and for that purpose may, if it thinks fit, postpone the settlement of the issues of fact until after the issues of law have been determined".
33. Under the above provision once the Court come to the conclusion that the case or any part thereof could be disposed of on the issues of law only it was obliged to try those issues first and on the other issues could be taken up only thereafter, if necessity survived. The Court had no discretion in the matter. This flows from the use of the word "it shall try those issues first". Material change has been brought about in legal position by amended Order 14, Rule 2 which reads as follows:-
"Rule 2(1) Notwithstanding that a case may be disposed of on a 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, if it thinks fit, postpone the settlement of the other issues until after that issue".
This amendment has been made by Act 104 of 1976 which came into effect on 1.2.1977.
"11. The word "shall" used in old Order 14, Rule 2 has been replaced in the present Rule by the word "may". Thus now it is discretionary for the Court to decide the issue of law as a preliminary issue or to decide it along with the other issues. It is no longer obligatory for the Court to decide an issue of law as a preliminary issue."
"32. We have observed hereinabove that after the amendment brought about in the year 1976 it is discretionary with the Court to take up an issue as a preliminary issue. The Court is not bound to take up any issue as a preliminary issue. All judicial discretions have to be exercised reasonably. Reasonable exercise of discretion in the present case dictates us against taking up issues 3 and 5(f) as preliminary issues. The suit in question is connected with four other suits; namely suits numbered 1, 2, 3 and 5 of 1989. The corresponding number of these suits in the Court of the Civil Judge were 2 of 1950, 25 of 1950, 26 of 1959 and 236 of 198.9. The earliest suit was filed on 16.1.1950; this is Suit No. 2 of 1950 of the Court of civil Judge which has been registered here as Original Suit No. 1 of 1989. From this it would appear that dispute between the parties is pending for the last 40 years. The dispute raised in these suits is of vital importance to the country. It is not a suit between two individuals, it is a dispute between two major communities of the country. Off and on leaders of these communities adopt hostile postures. The entire nation is waiting for resolution of the dispute by this Court. Delay in resolution of the dispute threatens to disturb peace in one or the other part of the country. It is, therefore, desirable that all the suits should be decided as early as possible. Our decision on the so called preliminary issues will not be final. Appeal may be preferred against our decision and further hearing in the suits may be stayed. This will cause delay in the final resolution of the dispute. Accordingly we are of the opinion that issues 3 and 5(f) should not be decided as preliminary issues even if they fall within the ambit of Clause (a) and (b) of Rule 2 of Order 14 of the Code of Civil Procedure".
34. Now Order XIV Rule 2 of the Code of Civil Procedure is quoted herein below:-
"Rule 2. Court to pronounce judgment on all issues. - (1) Notwithstanding that a case may be disposed of on a 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."
35. From the above rule itself in plain reading, it will appear that normally the Court is to pronounce judgment on all the issues and Order XIV Rule 2(2) provides that the Court may try that issue first if that issue relates to jurisdiction of the Court or a bar to the suit created by any law for the time being in force. In the instant case the Court is not without jurisdiction nor there is a bar to the suit created by law. Therefore, the Court should adopt the normal procedure of taking up all the issues at the time of hearing of the suit prior to 1976 that is in the unamended Civil Procedure Code as the word "shall" and not "may" and in that view after the amendment of the Code, the Court may take up an issue or may not take up any issue as preliminary issue for the purpose of hearing. Of course, excepting the two conditions mentioned above in 1998 these two conditions are not prevailing. It appears that certain documents were filed by making a firisti and relying on those documents the learned trial Judge decided that there is question of res judicata and on the application filed under Order XIV Rule 2, the learned trial Judge took up the issue of res judicata giving up all other issues in deciding that the suit is barred by res judicata.
36. But on scanning of evidence and documents on record it appears that there were some facts which were new introduction and if there is introduction of new facts or if there is introduction of documents not proved, then in that event question of res judicata will come into play after all the issues are being decided inasmuch as new facts are to be proved and new documents are also to be proved.
37. In view of the discussions made above, I respectfully agree with the full bench decision of the Hon'ble Allahabad High Court and decide that the trial Judge should not have heard the issue of res judicata only, at the time of hearing and should not have decided that the suit is bared by res judicata. In my view, the appellate Court below rightly remanded the matter to the learned trial Judge for hearing the suit on all the issues. The instant appeal therefore fails and is dismissed and the order of remand passed by the learned appellate Court below is affirmed.
In the particular facts and circumstances, there will be no order as to costs and the parties are to bear their own costs respectively.
The lower Court records be sent down to the Court below forthwith.
Urgent Xeroxed certified copy, if applied for will be given expeditiously.