Madhya Pradesh High Court
Bhawar Lal vs Ramchandar on 10 July, 2024
Author: Anil Verma
Bench: Anil Verma
1
IN THE HIGH COURT OF MADHYA PRADESH
AT I N D O R E
BEFORE
HON'BLE SHRI JUSTICE ANIL VERMA
ON THE 10th OF JULY, 2024
SECOND APPEAL No. 949 of 2024
BHAWAR LAL
Versus
RAMCHANDAR AND OTHERS
Appearance:
(SHRI CHHATTAR SINGH SHARMA, LEARNED COUNSEL FOR THE
APPELLANT )
( SHALABH SHARMA GA FOR THE RESPONDENT/STATE.
_________________________________________________________________
JUDGMENT
1/ Record of the Courts below have been received.
2/ Heard learned counsel for the appellant on the question of admission.
3/ Appellant/plaintiff has filed present Second Appeal under section 100 of Code of Civil Procedure, 1908 (hereinafter referred to "CPC") being aggrieved by impugned judgment & decree dated 22/02/2024 passed in Civil Appeal no. 10-A/2022 by 2nd District Judge, Biora,, District - Rajgarh whereby judgment and decree dated 15/07/2022 passed by 1 st Civil Judge, Junior Division, Biora, District - Rajgarh in Civil Suit no.28- A/2020 has been affirmed whereby the application filed under section 11 read with section 151 of C.P.C filed by respondent/defendant has been filed and civil suit filed by Signature Not Verified Signed by: AMOL NIVRUTTIRAO MAHANAG Signing time: 11-07-2024 18:21:01 2 appellant/plaintiff has been dismissed on the ground of res- judicata.
4/ Facts of the case in brief are that earlier, respondent/ defendant instituted civil suit no. 37-A/2011 for declaration and recovery fo the possession of the land in question bearing survey no. 22 Area 1.012 hector situated at Village - Balapura by stating that appellant forcefully dispossessed him on the basis of Kharas of the year 2010-11 Ex.-P/1 and P/2. The trial Court decreed the suit in favour of respondent / defendant. The same was challenged before First Appellate Court, but after re-appreciating the evidence available on record, vide judgment and decre dated 10/03/2016, First Appellate Court dismissed the appeal. Thereafter, the appellant preferred Second Appeal before the High Court, Bench At Indore and vide judgment dated 17/06/2019, his Second Appeal was also dismissed.
5/ Learned counsel for the appellant contended that the respondent obtained aforesaid decree and judgment by suppressing the facts and producing false documentary evidence. The respondent obtained the decree and judgment upto the High Court by fraud and cheating, therefore, all these aspects are not binding upon the appellant and therefore, he preferred civil suit for declaration of title and to declare all the alleged judgment and decree null and void.
6/ During pendency of the trial, respondent/defendant filed an application under section 11 read with section 151 of C.P.C, which has been allowed by the trial Court vide order dated 15/07/2022. Without framing of issues and adducing evidence, Signature Not Verified Signed by: AMOL NIVRUTTIRAO MAHANAG Signing time: 11-07-2024 18:21:01 3 the trial Court committed grave error in dismissing his sut by allowing the application filed under section 11 read with section 151 of C.P.C. The same has been affirmed by First Appellate Court. Both the Courts below have committed error in not considering the provision of section 11 of C.P.C. Thus, in view of the aforesaid, he prays that present Second Appeal deserves to be allowed on the substantial questions of law as proposed by the appellant. Learned counsel has also place reliance upon the judgment delivered by this Court in the case of Usha Rai and another Vs. Sanskrit Pathsala Samiti (Second Appeal no. 414/2000 decided on 03/08/2023) 7/ I have heard learned counsel for the appellant and perused the entire record with due care.
8/ For the sake of reference, section 11 of C.P.C is reproduced hereunder:
"Section 11 : No Court shall try any suit or issue in which the matter directly and substantially in issue has been directly and substantially in issue in a former suit between the same parties, or between parties under whom they or any of them claim, litigating under the same title, in a Court competent to try such subsequent suit or the suit in which such issue has been subsequently raised, and has been heard and finally decided by such Court."
9/ The principle of res judicata is based on the need of giving a finality to judicial decisions. What it says is that once a res judicata, it shall not be adjudged again. Primarily it applies as between past litigation and future litigation. When a matter whether on a question of fact or a question of law has been Signature Not Verified Signed by: AMOL NIVRUTTIRAO MAHANAG Signing time: 11-07-2024 18:21:01 4 decided between two parties in one suit or proceeding and the decision is final, either because no appeal was taken to a higher court or because the appeal was dismissed, or no appeal lies, neither party will be allowed in a future suit or proceeding between the same parties to canvass the matter again. This principle of res-judicata is embodied in relation to suits in sec. 11 of the Code of Civil Procedure, but even where sec. 11 does not apply, the principle of res-judicata has been applied by courts for the purpose of achieving finality in litigation. The result of this is that the original court as well as any higher court must in any future litigation proceed on the basis that the previous decision was correct.
10/ Hon'ble Supreme Court in the case of Saroja v Chinnusamy reported in (2007) 8 SCC 329.has held as under :
"After a careful reading of the provisions under section 11 of CPC, it is discemible that in order to constitute res-judicata, the following conditions must be satisfied-
(i) there must be two suits one former suit and the other subsequent suit,
(ii) the court which decided the former suit must be competent to try the subsequent suit;
(iii) the matter directly and substantially in issue must be the same either actually or constructively in both the suits;
(iv) the matter directly and substantially in issue in the subsequent suit must have been heard and finally decided by the court in the former suit;Signature Not Verified Signed by: AMOL NIVRUTTIRAO MAHANAG Signing time: 11-07-2024 18:21:01 5
(v) the parties to the suits or the parties under whom they or any of them claim must be the same in both the suits;
(vi) the parties in both the suits must have litigated under the same title "
11/ From perusal of both the matters, it appears that the matters directly and subsequently in issue in the former suit and in the later suit are similar. Parties in both the suits are also similar. They have litigated under the same title in earlier suit. The matter in issue in the subsequent suit must have been heard and finally decided in the first suit. The Court trying the former suit must have been competent to try the particular issue in question.
12/ In the case of Vithal Yeshwant Jathar Shikandarkhan Makhtumkhan Sardesai AIR 1963 SC 385 the apex court held as follows:
"It is well settled that if the final decision in any mater at issue between the parties is based by a court on its decisions on more than one point each of which by itself would be sufficient for the ultimate decision the decision on each of these points operates as res judicata between the parties.
The said decision has been relied on by the court in Commr. of Endowments v Vital Rao (2005) 4 SCC 120. See also Sajjadanashin Sayed v Musa Dadabhai Ummer (2000) 3 SCC 350 "
13/ Hon'ble Supreme Court in the case of Swamy Atmananda Vs. Sri Ramakrishna Tapovanam reported in Signature Not Verified Signed by: AMOL NIVRUTTIRAO MAHANAG Signing time: 11-07-2024 18:21:01 6 (2005) 10 SCC 51, it has been held that "even without framing of issue of res-judicata, the pleadings of the parties and the documents filed in the Court and relied on by the parties make out the case of res-judicata, then the findings of the Court that the parties to the suit is estoppel by raising certain issues already decided, cannot be disturbed."
14/ In the instant case, although issues were not framed by the trial Court, but it is established that earlier suit has been decided by competent Court, in which both the parties are similar. Cause of action and subject matter are also similar. Subject matter and issues in subsequent suit has been heard and finally decided in first suit by High Court. All these legal aspects have been expressly considered and decided by both Courts below.
15/ In view of the above, the trial Court has not committed error in allowing the application under section 11 read with section 151 of C.P.C filed by the respondent/defendant, which operates res-judicata in the subsequent proceedings.
16/ Learned counsel for the appellant has failed to show that how the finding of fact recorded by the Courts below are illegal, perverse or based upon no evidence. Thus, no substantial question of law arises for consideration in the present second appeal. The Supreme court in number of cases has held that in exercise of powers under section 100 of the CPC the Court can interfere with the finding of fact only if the same is shown to be perverse and based upon no evidence. Some of these judgments are Hafazat Hussan Vs. Abdul Majeed and others , 2011(7) SCC 189, Union of India Vs. Ibrahim Uddin, 2012(8) SCC 148 and Signature Not Verified Signed by: AMOL NIVRUTTIRAO MAHANAG Signing time: 11-07-2024 18:21:01 7 Vishwanath Agrawal Vs. Sarla Vishwanath Agralwal 2912(7) SCC 288.
17/ For the aforesaid reasons, no substantial questions of law arises for consideration in this appeal. The appeal fails and is hereby dismissed in limine.
Certified copy, as per Rules.
(ANIL VERMA) JUDGE amol Signature Not Verified Signed by: AMOL NIVRUTTIRAO MAHANAG Signing time: 11-07-2024 18:21:01