Madras High Court
In Both Appeals vs Paulraj (Died) on 18 July, 2022
Author: N. Seshasayee
Bench: N.Seshasayee
S.A.(MD)Nos.872 and 873 of 2014
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
Reserved on: 02.11.2022
Pronounced on: 25.11.2022
CORAM: JUSTICE N.SESHASAYEE
S.A(MD).Nos.872 and 873 of 2014
In both appeals:
Nadar Uravinmurai
Rep. By its President
Packiamuthu
S/o Andi Nadar .... Appellant/Appellant/ Defendant-1
(Name of the President is substituted Vide court order dated 18.07.2022 made in
C.M.P(MD)No.6114 and 6115 of 2022 in SA(MD) Nos. 872 and 873 of 2014)
Vs
1. Paulraj (Died)
2. Kamaraj (Died)
3. Ramachandran ... Respondents 1 to 3/Respondents 1-3/
Plaintiffs 1 – 3
4.Muruganandam
5.Ganesan .. Respondents/Respondents 4 & 5/
Plaintiffs 4 & 5
6.Kaleeswari
7.Maruthu
8.Ponrani .. Respondents/Respondents 6 – 8
Defendants 5 – 7
1
https://www.mhc.tn.gov.in/judis
S.A.(MD)Nos.872 and 873 of 2014
9.Darnar
10.Pechimuthu ..Respondents/Respondents 9 – 10
Defendants 3 & 5
11.Mari Ammal
12. Parvathi
13.Kanniya Devi
14. Sivaraman
15. Annalakshmi
16.Ponmurugan
17.Palanivel ...Respondents 11 to 17
(R11 to R14 were brought on record as the lrs of the deceased R1 Vide Court
order dated 30.11.2018)
(R15 to R17 were brought on record as lrs of the deceased 2nd respondent Vide
Court order dated 23.06.2022 made in CMP(MD)Nos.4138 & 4140 of 2022)
Prayer : Second Appeals are filed under Section 100 of Code of Civil
Procedure, against the judgment and decree dated 19.12.2013 in A.S.No.46 of
2012 and Cross Objection No.46 of 2012 in A.S.No.46 of 2012 on the file of the
Subordinate Court, Paramakudi, confirming the judgement and decree dated
14.12.2011 in O.S.No.50 of 2004 on the file of the District Munsif Court,
Muthukulathur.
In both appeals:
For Appellant : Mr.S.Srinivasa Raghavan
For R3 : Mr.K.S.Balaji
2
https://www.mhc.tn.gov.in/judis
S.A.(MD)Nos.872 and 873 of 2014
COMMON JUDGMENT
The first defendant in O.S.No.50 of 2004, which was instituted for recovery of possession of the suit property and for mesne profits, is the appellant in both appeals. The trial court granted the plaintiff a decree for recovery of property but not his prayer for mesne profits. Aggrieved by the said decree, the first defendant preferred A.S.No.46 of 2021 whereas the plaintiffs filed their cross objection for denying them the mesne profits. The first appellate court dismissed the appeal but allowed the cross objection. Parties would be referred to by their rank in the trial court.
2.1 The facts are:
l A certain Duraisamy Nadar owned the western 4.77 acres out of a total extent of 4.82 acres in Survey No.259/2A1 in Naripaiyoor Village in Ramnad District under Ext.A.5 sale deed dated 17.06.1987, executed by one Cheeni Chettiyar.
l When he faced obstructions to his title and possession, he laid O.S.No.319 of 1987 for declaration of his title and also for prohibitory injunction to 3 https://www.mhc.tn.gov.in/judis S.A.(MD)Nos.872 and 873 of 2014 protect his possession against the defendants 2 to 4 in this case. l The defendants entered appearance in that suit and took a plea that the suit property belonged to Cheeni Chettiyar, that he executed Ext.B.1 sale agreement, dated 6.10.1982, for the sale of the suit property in favour of the first defendant 'Nadar Uravinmurai', which is an unregistered association of persons belonging to the Nadar community of that locality. l Ultimately, O.S.No.319 of 1987 came to be decreed partly Vide Ext.A.1 decree and Ext.A.2 judgment. The trial court, though declared the title of the plaintiff Duraisamy Nadar yet declined injunction, since it found that he was not in possession of the property. The plaintiff Duraisamy Nadar preferred A.S.No.3 of 1996 challenging the decree declining him a decree of prohibitory injunction by the trial court. The defendants 2 to 4 on their part had filed a cross objection challenging the declaratory decree granted to the plaintiff. The First Appellate Court dismissed both the appeal and the cross objection, Vide Ext.A.3 and Ext.A.4 judgment and decree. l Sometime in 1998, Duraisamy Nadar died. His children have now filed the present suit in O.S.No.50 of 2004 as the plaintiffs. The first defendant is Nadar Uravinmurai. The defendants 2 to 4 were the defendants in earlier 4 https://www.mhc.tn.gov.in/judis S.A.(MD)Nos.872 and 873 of 2014 suit in O.S.No.319 of 1987. The defendants 5 to 8 are the children of Ponnusamy Nadar, who has since died. The present suit is laid for recovery of possession on the ground that the title to the property had been already granted in the earlier suit in O.S.No.319 of 1987 in favour of their father Duraisamy Nadar.
2.2 The defendants' principal contentions are twofold:
a) That Cheeni Chettiyar had entered into Ext.B.1 sale agreement with the first defendant but sold the property to Duraisamy Nadar. In the earlier round of litigation, Duraisamy Nadar did not implead the first defendant but impleaded only the defendants 2 to 4 in their personal capacity but not as representing the members of the first defendant association of persons.
Therefore, the decree passed in O.S.No.319 of 1987 declaring the title of Duraisamy Nadar to the suit property will not bind the first defendant; and
b) that at any rate, the defendants had perfected title by adverse possession. 3.1 The suit went to trial. The first of the five issues framed by the trial Court is, 5 https://www.mhc.tn.gov.in/judis S.A.(MD)Nos.872 and 873 of 2014 whether the judgement in O.S.No.319 of 1987 bind the defendants in the present suit? In plainer terms it would mean if the finding as to the genuineness of Ext.B-1 as found in O.S.No.319 of 1987 will operate as res judicata. Decreeing the suit partially, the trial court has held that the judgement in O.S.No.319 of 1987 will not constitute res judicata and proceeded to hold that even though it does not constitute res judicata, yet it will bind the defendants under Sec.13 of the Evidence Act, and directed the defendants to deliver vacant possession of the suit property. As regards claim of mesne profits, the suit was dismissed. 3.2 Aggrieved by the said decree, the defendants preferred A.S.No.46 of 2012. On their part the plaintiffs had preferred their cross objection as concerning the dismissal of their claim for mesne profits. And, the first appellate court has raised two points each for deciding the appeal and the cross objection. And, not one is framed on how the trial court's finding that the judgement in O.S.No. 319 of 1987 will bind the defendants dehors the rule of res judicata. The principal points it raised are: (a) whether a suit for recovery of possession can be sustained without a prayer for declaration of title? And, (b) whether the suit was barred by limitation and whether the defendants have prescribed title by adverse 6 https://www.mhc.tn.gov.in/judis S.A.(MD)Nos.872 and 873 of 2014 possession. But in dealing with the first question, irrespective of how it was framed, the first appellate court has trekked along the same route through which the trial court had traveled. Ultimately, the first appellate court dismissed the appeal and allowed the cross objection and held that the quantification of mesne profits could be made under Order XX Rule 20 CPC. These decrees are now under challenge.
4.1 This Court has framed the following substantial questions of law for its consideration:
a) Were not the courts below erred in relying on Section 13 of the Indian Evidence Act, which only made a judgment not inter-parties, a relevant fact for assertion or denial of title in any subsequent legal proceedings for decreeing the suit?
b) Were not the courts below erred in ignoring the plea and proof of the first defendant proving her better title by adverse possession?” 4.2 The following additional questions of law have been subsequently raised:
a) Was not the First Appellate Court in error in holding that 7 https://www.mhc.tn.gov.in/judis S.A.(MD)Nos.872 and 873 of 2014 the decree passed in O.S.No.391 of 1987 res judicata when the said suit was not laid against the defendants therein as a representative suit?
b) Were not the courts below in error in over looking the entitlement of the defendant to retain possession of the suit properties under Section 53A of the Transfer of Property Act?
5. The suit property originally belonged to one Cheeni Chettiar. His title is not in dispute. On 17-06-1987, he had sold it to Duraisamy Nadar, the father of the plaintiffs herein. Earlier he laid a suit in O.S.No.319 of 1987 for declaration of his title to the suit property and for an ancillary relief of prohibitory injunction. The defendants in that suit are the defendants 2 to 4 in the present suit. Resisting the suit, the defendant has produced a sale agreement dated 06-10-1982, purported to have been executed by Cheeni Chettiar, the original owner of the property in favour of the first defendant herein, to defend the possession of the property. To remind, the first defendant is an unregistered association of persons from Nadar community of Velayudhapuram. This litigious journey and its outcome is now stated:
l This agreement was marked as Ext.B-6 in that suit. That suit was contested 8 https://www.mhc.tn.gov.in/judis S.A.(MD)Nos.872 and 873 of 2014 to the hilt. The genuineness of Ext.B6 sale agreement was the bone of contention in O.S.No.319 of 1987, as its execution was denied by the plaintiff. The trial court, even though did not frame a pointed issue on the same, yet has framed an issue as to whether the defendants were in possession of the property in part performance of the sale agreement in question. Both sides adduced both and oral and documentary evidence to support their respective case. The plaintiff indeed had examined his vendor Cheeni Chettiar as P.W.2. He supported the case of the plaintiff. For the defendants, the first defendant in that suit (Kasi Nadar) examined himself as D.W.1. (This Kasi Nadar is the second defendant in the present litigation). Besides, he also examined two other witnesses on the side of the defendants as D.W.2 and D.W.3. The defendants also produced some 17 documents and critical to its case was Ext.B-17 (in that case). After trial, the trial court partly decreed the suit when it chose to declare his title, but declined to grant a decree for injunction as it found that the defendants are in settled possession of the suit property. The judgement of the trial court in O.S.No.319 of 1987 is available on record in the present case as Ext.A-2, and the decree is Ext.A-1. What is, however, significant, if not 9 https://www.mhc.tn.gov.in/judis S.A.(MD)Nos.872 and 873 of 2014 critical to the present case is the finding of the Court that the sale agreement has been fabricated after the institution of O.S.No.319 of 1987.
l Challenging the decree denying the plaintiff the relief of prohibitory injunction, the plaintiff preferred A.S.No.3 of 1996. The defendants, on their part, had preferred a cross objection. Both came to be heard and both came to be dismissed by the first appellate court Vide Ext.A-4 judgement, dated 18-11-1996. It could be seen from Ext.A-4 judgement that the first appellate court had concurred with the finding of the trial court that the sale agreement in question could only be a pendente lite fabrication. Neither side chose to challenge the decree of the first appellate court further.
6. This is the setting. In this backdrop the plaintiffs had laid the present suit for recovery of possession of the suit property on the strength of the decree obtained by their father declaring the latter’s title to the suit-property. And, a significant limb of his cause for the present action is the finding of the courts in the earlier round of litigation regarding the genuineness of the sale agreement dated 06-10-1982. And, it was laid against the four defendants. The first defendant is 10 https://www.mhc.tn.gov.in/judis S.A.(MD)Nos.872 and 873 of 2014 'Velayudhapuram Nadar Uravin Murai', through its president. Defendants 2 to 4, as has been introduced a while earlier, are the very defendants 1 to 3 in O.S.No. 319 of 1987. And, the defence offered to resist the present suit is again rooted in the same sale agreement dated 06-10-1982, and it is marked Ext.B-1 in this suit. This has been negated by both the trial court and also by the first appellate court as outlined in paragraph no.5 above.
7. The arguments that were advanced before this Court are essentially pivoted on the point if the judgement in O.S.No.319 of 1987 as confirmed in A.S.No.3 of 1996 would constitute res judicata as to bind the first defendant herein. The learned counsel appearing for the appellant made the following submissions:
l Since the defendants in O.S.No.319 of 1987 and those in the present suit are not the same, and since in the earlier suit Ext.B1 was pressed into service by those who do not have the authority to press the same into service, the rule of res judicata cannot be pressed into service. l Since res judicata cannot be summoned here, the plaintiffs ought to prove that Ext.B1 sale agreement is fabrication de novo. It was not done. 11 https://www.mhc.tn.gov.in/judis S.A.(MD)Nos.872 and 873 of 2014 l Thirdly, because there was no pleading impugning Ext.B-1, it denied an opportunity to the Court to raise an issue on it. Hence, the evidentiary rule of issue estoppel also will not be available l The lower appellate court has relied on Sec. 13 of the Evidence Act but that will not be of any application in the present lis, for Sec. 13 only makes certain facts founded on certain transactions which are inconsistent with the existence of any right or custom and also any particular instance which the right claimed or recognized was disputed or departed as relevant fact merely. A fact relevant to a fact in issue does not tantamount to an admission. The entire foundation to the plaintiff's case is based on the finding as to the genuineness of Ext.B1 on the basis of the finding in O.S.No.319 of 1987 and contextually, it takes it away from the application of Sec. 13 of the Evidence Act.
8. Placing reliance on the ratio in Pandit Ishwardas Vs State of Madhya Pradesh and others [(1979) 4 SCC 163] and A.Shanmugam Vs Ariya Kshatriya Rajakula Vamsathu Madalaya Nandhavana Paripalanai Sangam Rep.by its President [CDJ 2012 SC 308], the learned counsel for the plaintiffs/respondents, Mr. K.S.Balaji submitted:
12
https://www.mhc.tn.gov.in/judis S.A.(MD)Nos.872 and 873 of 2014 l That the defendants are barred from pressing into service Ext.B1 for de novo consideration as its genuineness has been finally decided in O.S.No. 319 of 1987 after granting them a full opportunity to sustain the document they rely on. It is not the case of the defendants that those who defended the suit in O.S.No.319 of 1987 are not members of the first defendant Association. At the end of the day, the interest of the first defendant has been adequately defended even in the earlier suit. Hence, the first defendant cannot claim that they have an interest and existence independent of that which was put forward by the defendants in O.S.No. 319 of 1987.
l To prove that Ext.B1 is a fabrication, the respondents/plaintiffs have now produced a certified copy of the testimony of Cheeni Chettiar, the alleged executant of Ext.B1-Sale Agreement vide C.M.P(MD).No.7607 of 2022. Indeed, he was examined as P.W.2 in O.S.No.319 of 1987. Cheeni Chettiyar is now dead but has been fully cross-examined in the earlier suit and this evidence may have to be taken on record under Section 33 of the Evidence Act. Indeed, in the earlier round of litigation in O.S.No.319 of 1987, the testimony of Cheeni Chettiyar had a critical role in persuading 13 https://www.mhc.tn.gov.in/judis S.A.(MD)Nos.872 and 873 of 2014 the Court to enter the finding that Ext.B1 was a fabrication. This apart, the plaintiffs have now produced another document dated 18.03.1974 which is a mortgage deed executed by Cheeni Chettiyar in favour of a third party which is earlier in point of time to Ext.B1 document. The signature of Cheeni Chettiyar as found in the mortgage deed would adequately show that Ext.B1 is a fabrication. This mortgage deed indeed has been marked in O.S.No.319 of 1987 as Ext.A1. Since Ext.B1 has been found to be a fabrication in the earlier suit and also can be established as a fabrication even in the present suit vide the two additional documents now produced, the defendants cannot invoke Sec. 53A of the Transfer of Property Act. l The present attempt of the defendants to canvass the case again rooting the defence in Ext.B1 would constitute a gross abuse of judicial process. l The sale agreement which the defendants rely on was found to be a fabrication in O.S.No.319 of 1987 on the following grounds: (a) That signature of Cheeni Chettiar as found in the sale agreement varied drastically to his admitted signature found in a mortgage deed dated 18.03.1974 executed by him in favour of a third party; (b) In O.S.No.319 of 1987, the plaintiffs had moved an application for interim injunction, in 14 https://www.mhc.tn.gov.in/judis S.A.(MD)Nos.872 and 873 of 2014 which the defendants therein had filed a counter wherein they did not disclose anything about Ext.B1-agreement, but merely said that there are certain idols in the property measuring 5 cents within the suit property, and the sale agreement was not introduced at the earliest opportunity; (c) that the document which the defendants produced to reconcile the payment of consideration under the sale agreement recoiled on them as they did not tally.
9. Responding to the arguments of the plaintiffs’ counsel, the counsel for the defendants replied that if Ext.B-1 is a fabrication then the onus is on the plaintiffs to establish how they came into possession.
Discussion & Decision:
10. The core issue involved is, if the finding that Ext.B-1 sale agreement is a fabrication as held in the former suit in O.S.No.319 of 1987 and confirmed in A.S.No.3 of 1996 will bind the defendants in this suit, merely because the first defendant in this suit was not a party to that suit. The argument against it was that it would neither bind as res judicata nor as issue-estoppel. The Courts below 15 https://www.mhc.tn.gov.in/judis S.A.(MD)Nos.872 and 873 of 2014 however, applied neither of these principles, and have summoned to their aid Sec. 13 of the Evidence Act and have held that the finding that Ext.B1 agreement was a fabrication as held in Ext.A-2 judgement in O.S.No.319 of 1987 and confirmed by Ext.A-4 judgement in A.S.No.3 of 1996 will bind the defendants in this case.
11. Turning to the line of reasoning of the trial court and the first appellate Court, this Court agrees with the defendants' statement that Sec.13 of the Evidence Act may not have the efficacy to bind the defendants with a finding made in Exts.A-2 and A-4 judgements. Sec.13 merely lists certain facts that are relevant for establishing a fact in issue, and it, on its strength, cannot bind the opposite party as in res judicata.
12.1 On the question of application of res judicata, the defendants do know that this plea is available for the plaintiff and hence they rushed to dispute its application in their written statement. Res judicata in essence is a statutory injunction against the Court from deciding an issue that has been already decided conclusively. The conditions required for the application of res judicata have been stated and re-stated a million times and perhaps more by the Courts in this 16 https://www.mhc.tn.gov.in/judis S.A.(MD)Nos.872 and 873 of 2014 country. Still, it provides an ideal point for commencing the discussion on it. They are: (a) that there should be a finding on a fact which is directly and substantially in issue in an earlier suit; (b) that it should have been decided by a Court of competent jurisdiction and must have attained finality; (c) that the subsequent suit in which the issue arises should be between the same parties or between those who claim under them; and (d) that the parties in the second suit must litigate on the same title. It is imperative that all the criteria listed are present simultaneously and not in the alternative for the doctrine of res judicata to injunct the Court from trying the same issue twice over. 12.2 The resistance of the defendants to the application of res judicata in the present suit is that since the first defendant is not a party to the former suit in O.S.No.319 of 1987 the finding therein as to the genuineness of Ext.B-1 sale agreement cannot bind them in the present suit. In terms of the criteria enumerated above for the application of res judicata, the proximate criterion to which this defence may relate itself to is the one stated in (c): That the parties to the subsequent suit must either themselves be parties to the former suit, or should claim under the parties thereto. Barring this, the defendants concede that the 17 https://www.mhc.tn.gov.in/judis S.A.(MD)Nos.872 and 873 of 2014 other criteria required for the application of res judicata are present in the present suit. This would mean that, if the first defendant is taken out of the equation, then an enquiry into the genuineness of Ext.B1 sale agreement will be an action replay of an earlier action taken place in O.S.No.319 of 1987. The defendants would argue that inasmuch as Ext.B-1 sale agreement was executed in favour of the first defendant, and since it was not represented by the other defendants in O.S.No. 319 of 1987 in a representative capacity under Order I Rule 8 CPC, it cannot be said that the former suit and the present suit are between the same parties.
13. This argument appears brilliant at the first blush, but not without its carefully hidden fallacies. But exposing it is a subtle and delicate exercise which involves an understanding of both Sec.11 and Order I Rule 8 CPC in slightly deeper layers.
14. Before embarking on it, it is necessary to understand the character of the first defendant and the inter se relationship between the defendants 2 to 3 (the defendants in the former suit) and the first defendant. The first defendant is an unregistered body or association of persons. In law it is no more than a club with 18 https://www.mhc.tn.gov.in/judis S.A.(MD)Nos.872 and 873 of 2014 no juristic personality of its own like an incorporated company. In the case of a club, the right that belongs to the club vests in its members based on the rules that the members make for the governance of the affairs of the club. A club thus is a compendious term merely to describe the members thereof. So, is the first defendant in the present case.
15. Turning to the status of the defendants 2 to 4 vis-a-vis the first defendant, they indisputably are its members. Therefore, they have an interest in establishing the genuineness of the sale agreement in question, which is identical, and to borrow the expression of Order I Rule 8 CPC, 'same' with that of the other members of the first defendant.
16. Since defendants 2 to 4 have defended the former suit in O.S.No.319 of 1987, it cannot be said that those who defended it did not have an interest in the subject matter of the suit or in the defence. To state it differently, the participation of the defendants 2 to 4 in the earlier suit cannot but as the members of the first defendant, which would mean that they had defended that suit with Ext.B-1 agreement only on the basis of the interest they have as the members of the first 19 https://www.mhc.tn.gov.in/judis S.A.(MD)Nos.872 and 873 of 2014 defendant. The issue therefore is not whether the parties to both the suits are different, but whether the participation of the defendants 2 to 4 in the earlier suit would bind the other members, if any, of the first defendant. The task here is to match or reconcile the equation in the presence of the first defendant in this suit not in the absence of the defendants 2 to 4, but in their presence. This brings to fore the impact of non-compliance of Order I Rule 8 in the earlier suit. What had happened was that, in the earlier round, this trio who now defend the first defendant in this suit, were not impleaded in their representative capacity in terms of Order I Rule 8 CPC to represent the interest of all the members (again, if any) who have the same interest in defending the suit.
17.1 Order I Rule 8 CPC is merely an enabling rule of procedural convenience which the Code of Civil Procedure prescribes for binding the non-parties to the suit who share the 'same interest' in the subject matter which either constitutes the cause of action for the suit, or the defence, along with the interest of those who they represent with a finding of the Court. But for it, it may provide occasions and opportunities for inviting conflicting decisions on the 'same' interest involved in multiple proceedings. See, Kumaravelu Chettiar & Others 20 https://www.mhc.tn.gov.in/judis S.A.(MD)Nos.872 and 873 of 2014 Vs T.P. Ramaswami Ayyar & Others [AIR 1933 PC 183] and R.K. Chandramohan Vs Elephant G. Rajendran [2011 (5) MLJ 401]. 17.2 What if Order I Rule 8 CPC is not complied with? Will it alter the character of the subsequent suit, or render the earlier decree void and not binding? If it is so construed, then how to negotiate the interest of these three defendants vis-a- vis the subject matter of the earlier suit and also the defence contrived therein through the sale agreement dated 06.10.1982? So far as they are concerned their interest had already come to an end, but if Order I Rule 8 is considered as rendering the finding on the genuineness of Ext.B1 in O.S.No.319 of 1987 a nullity, that will give them an unmerited revival of their lost claim in the present suit. In other words, inasmuch as the first defendant is not a juristic entity, and with the trio continuing their membership with the first defendant, if the argument of the defendants is accepted, then it, in the guise of recognizing the interest of the other members in the defence offered in the earlier suit, will end up keeping alive the lost interest of these three defendants. This will be an illogical paradox. The Court, unlike Bumble the Beadle, who acts contrary to what he preaches, cannot sit back and watch the law being reduced to ridicule even as the 21 https://www.mhc.tn.gov.in/judis S.A.(MD)Nos.872 and 873 of 2014 courts preaches against the abuse of its own process in high octave. It is its duty to ensure that working of the law should not make it appear silly and absurd. Therefore, the procedural utility of Order I Rule 8 CPC cannot be expanded without logic for negating the effect of the decrees passed earlier.
18. Now, if this understanding of Order I Rule 8 CPC is superimposed on Sec.11 CPC to evaluate how it works on the facts before it, it produces a consequence quite opposite to what is canvassed by the defendants. As stated earlier the earlier suit was defended by three men who are not strangers, but themselves are the members of the first defendant and possess the same interest which the other members of the first defendant have. In the context of application of res judicata, they surely were parties to the former suit with interest in the fact constituting their defence, namely the sale agreement dated 06-10-1982. While defending O.S.No.319 of 1987 with the said sale agreement, they did everything which a vigilant and diligent defendant would do in proving its genuineness, and indeed, had even preferred a cross objection before the first appellate court when they lost their defence before the trial court. This implies that there is no collusion between defendants 2 to 4 and the plaintiff when the former lost the earlier suit. 22 https://www.mhc.tn.gov.in/judis S.A.(MD)Nos.872 and 873 of 2014 In a situation such as this, rather than asking how the finding that Ext.B1 is a fabrication will bind those members who were not represented in the former suit in terms of Order I Rule 8, the question that must be raised is, Why not? Now, assuming that the defendants 2 to 4 here were successful in establishing the genuineness of the sale agreement in the earlier round of litigation, will it not benefit all the other members of the first defendant? Will the other members of the first defendant contend that they would reject the advantage that these three men had obtained? Inconceivable that anyone sensible would do it. This precisely what the reasonable man of law also tells this Court. If the advantage obtained by few can have co-sharers or co-owners (i.e the other members of the first defendant), so is the disadvantage they obtain. After all, law does not, and cannot differentiate the effect of participation of the parties by the nature of the outcome of a litigation, but merely looks to ascertain if the interest involved in the earlier litigation is adequately represented. This is the foundation of doctrine of substantial representation.
19. The doctrine of substantial representation enables a finding in a former suit to bind the non-parties to it, if the estate is substantially represented in the former 23 https://www.mhc.tn.gov.in/judis S.A.(MD)Nos.872 and 873 of 2014 suit. Ordinarily, this doctrine finds its relevance more in partition suits or suits on mortgages, for negotiating situations where all those who have an interest in the property required to be partitioned, or mortgaged could not be known despite a diligent enquiry. In such situations, if there are parties who share an interest or right identical with others who are not so formally arrayed as parties to a suit, and have defended the right involved prudently, then its effect is transmitted to bind such others as well, on the principle that the estate of such others who are not formally impleaded has been substantially represented in the former suit. This Court does not find any reason why it should be limited only to partition suits or suits on mortgages, as it would be illogical not to apply it in every circumstances where the interest – same and identical, is defended effectively by some for all in an earlier litigation. The doctrine of substantial representation is the ideal antidote for neutralizing any perceived ill effects which a breach of procedural requirement of Order I Rule 8 CPC is believed to produce, for re-litigation is an unaffordable luxury to any legal system, more so to ours.
20. It could now be derived, that in the absence of any collusion between the parties, a procedural error in not complying with Order I Rule 8 CPC need not 24 https://www.mhc.tn.gov.in/judis S.A.(MD)Nos.872 and 873 of 2014 always alter the equation in the subsequent suit, nor should it necessarily render otiose any finding on an issue directly and substantially in issue in both the former case and the subsequent case. To hold it otherwise would amount to hyper-glorification of a procedural prescription over the purpose behind it.
21. If the effect of the doctrine of substantial representation is telescoped into Order I Rule 8, and further telescoped into the pre-conditions for invoking the rule of res judiciata, it will inevitably bring the other members of the first defendant within the reach of the decree in O.S.No.319 of 1987: That they will have to be treated as the invisible participants in that suit along with defendants 2 to 4, as the latter had defended the former suit to the extent their ability could go. Indeed they had gone as far as fabricating a document for defending the interest of the members of the first defendant over the suit property. Necessarily, rule of res judicata will invite itself for application. The Court may not refuse to apply res judicata merely by counting the heads and spotting the omission. Its effect may have to be tested on the principle behind it. When so tested, this Court finds that res judicata will apply to this suit, and accordingly this court holds that Ext.B-1 is a fabrication.
25 https://www.mhc.tn.gov.in/judis S.A.(MD)Nos.872 and 873 of 2014
22. There is still one hurdle this Court faces. In Syed Mohammed Salie Labbai (dead) by Lrs., Vs Mohammed Hanifa (dead) by Lrs. & Others, [AIR 1976 SC 1569] the Hon'ble Supreme Court had insisted the production of the pleadings in the former suit before invoking the rule of res judicata in the subsequent suit, since the doctrine only injuncts the court from trying an issue which was already decided and hence it should be cautious in refusing to try an issue. In the present case pleadings of the former suit are not produced. It has to be stated that the dictum in Syed Md. Salie Labbai case needs to be explained. Where the parties resist the application of res judicata, on the ground that the issue involved in the subsequent suit was not directly and substantially in issue in the former suit, or that the parties to the subsequent suit are litigating on a different title, then the same cannot be ascertained unless the pleadings of the former suit are before the Court in the subsequent suit. But not in this case, since the application of res judicata is not resisted here on any of these grounds but on the ground of non compliance of Order I Rule 8 CPC in the earlier suit in O.S.No.319 of 1987. Therefore, failure to produce the pleadings in the earlier case may not affect the application of res judicata in this case.
26 https://www.mhc.tn.gov.in/judis S.A.(MD)Nos.872 and 873 of 2014
23. There is another way of looking at the situation. If Ext.B-1 is a fabrication as it was brought into existence after the institution of O.S.No.319 of 1987, then the very induction of the first defendant in it can only be considered as a facade for perpetrating fraud, not only on the plaintiff but also on the court. It was tolerated once earlier in O.S.No.319 of 1987, but not again as it will amount to protecting perjury with a premium tagged to it. Somewhere law and its working must be matched with the logic for its existence. It is often said that life of law is not logic, but it is equally important to realise that it should not also be made to look silly.
24. Then there is a third angle. If res judicata does not get at the defendants, issue estoppel surely will. The issue before the court in O.S.No.319 of 1987 is about the genuineness of the sale agreement dated 06.10.1982, and it is not party centric but document centric issue. Unlike res judicata which operates as an injunction against the Court from trying an issue which was already decided, issue-estoppel injuncts the parties against whom the issue was earlier decided from re-agitating it. Inasmuch as it is a rule of evidence, it can be invoked where 27 https://www.mhc.tn.gov.in/judis S.A.(MD)Nos.872 and 873 of 2014 the facts as stands proved before the Court warrants its application.
25. And there is a fourth angle too. Assuming Ext.B-1 is a genuine document, on its face it indicates that the defendants in this suit have not performed their part of the contract fully. Now, for them to defend their possession with Sec.53A of the Transfer of Property Act, they must prove that they are willing to perform their part of the contract. And given the fact that the execution of Ext.B-1 was denied in the former suit, the only way open to the defendants to prove their willingness was to go for a suit for specific performance. Today this sale agreement is in its 40th year, and now it is too late even to contemplate a suit for specific performance.
26. The defendants find themselves cornered in law. A check-mate situation for them. In conclusion, these second appeals are liable to be dismissed with exemplary costs and hence are dismissed with costs throughout, and the judgment and decree dated 19.12.2013 in A.S.No.46 of 2012 and Cross Objection No.46 of 2012 in A.S.No.46 of 2012 on the file of the Subordinate Court, Paramakudi, confirming the judgement and decree dated 14.12.2011 in O.S.No.50 of 2004 on 28 https://www.mhc.tn.gov.in/judis S.A.(MD)Nos.872 and 873 of 2014 the file of the District Munsif Court, Muthukulathur is hereby confirmed.
25.11.2022 Index:Yes/No Internet:Yes/No CM/TA/ssb/abr To,
1. The Subordinate Court, Paramakudi.
2. The District Munsif Court, Muthukulathur.
29 https://www.mhc.tn.gov.in/judis S.A.(MD)Nos.872 and 873 of 2014 N. SESHASAYEE. J.
CM S.A(MD).Nos.872 and 873 of 2014 25.11.2022 30 https://www.mhc.tn.gov.in/judis