Andhra HC (Pre-Telangana)
K. Laxminarasimha Chary vs K. Satyanarayana on 24 December, 2001
Equivalent citations: 2002(2)ALD753, 2002 A I H C 1478, (2002) 2 ANDHLD 753 (2002) 2 ANDHWR 92, (2002) 2 ANDHWR 92
JUDGMENT S.R.K. Prasad, J.
1. This second appeal arises out of the judgment and decree passed by the District Judge, Ranga Reddy, District, in AS No. 11 of 1986.
2. The facts that arise for consideration can be briefly summarised as follows. Appellant is the plaintiff in OS No.9 of 1984 on the file of the Subordinate Judge, Vikarabad. Appellant's father Chandraiah had three brothers by name Venkaiah, Papaiah and Kishtayya. Kishtayya is the father of the respondent herein. These brothers had never constituted a joint family and there was no joint business. They were carrying on their caste profession and maintaining themselves with the income earned by them. Appellant's father purchased Acs. 11-16 guntas in S.No.57, corresponding to new S.No.58/1, in Gundla Marpally Village, Vikarabad Taluk, Ranga Reddy District, from out of the money saved by him. It is alleged by the appellant that his father's name was mutated in the revenue records. After the death of his father, respondent came from Karimnagar to Amardi Khurd village, where the father of the appellant lived, and started interfering with the land of the father of the appellant. Thereupon, appellant's father filed OS No.25 of 1973 on the file of the Court of District Munsif, Vikarabad, for injunction against the respondent. In that suit, the respondent contended that he was in joint possession and the property was joint family property, as the said property was purchased with the joint funds of his father and Chandraiah. The suit was decreed. Respondent carried the matter in appeal in AS No. 116 of 1974. The appellate Court gave a finding that the plaintiff in OS No.25 of 1973 could not prove his possession, and allowed the appeal. It also gave a finding that the property in the suit was not the self-acquired property of the father of the appellant, but it was joint family property. Thereupon, the plaintiff in that suit, i.e., the father of the appellant herein, carried the matter in SA No.726 of 1976. The High Court by its judgment dated 21-7-1977 set aside the judgment of the lower appellate Court and remanded the matter to the lower appellate Court with a direction to give a finding as to whether the property covered by OS No.23 of 1975 was joint family property or the self-acquired property of the father of the appellant. The lower appellate Court, after remand, dismissed OS No.23 of 1975. Later, appellant filed OS No.9 of 1984 on the file of the Court of the Subordinate Judge, Vikarabad, Ranga Reddy District, seeking a declaration that he was absolute owner in possession of the suit land in Survey No.57, corresponding to new S.No.58/1, in Gundla Marpally Village, Vikarabad Taluk, Ranga Reddy District and for perpetual injunction against the respondent, and alternatively for possession. That suit was dismissed. Aggrieved by the same, appellant carried the matter in appeal in AA No. 11 of 1986 to the Court of the District Judge, Ranga Reddy District. The lower appellate Court dismissed the appeal holding that the judgment and findings in OS No.25 of 1973 operate as res judicata. The lower appellate Court did not give its findings on other issues. As against the said judgment and decree, the present appeal is preferred.
3. At the time of admission of the second appeal, the following question of law was framed for consideration.
"Whether the judgment in OS No.25 of 1973 on the file of the Court of the District Munsif, Vikarabad, constitutes res judicata for the purpose of the present suit?"
4. Learned Counsel for the respondent, having filed his power into the Court, did not appear and argue the case inspite of giving several opportunities. Hence, the judgment is being delivered in his absence.
5. It is contended by the learned Counsel for the appellant that the findings given in the injunction suit are only collateral or incidental for the decision in the main issue, and those findings cannot be treated to be directly and substantially in issue. It is also contended by him that there are no finding given by the lower appellate Court on the issues other than the issue relating to res judicata. My attention has been drawn to Sections 100 and 103 of the Code of Civil Procedure.
Section 100 CPC reads as under:
"100. Second appeal:--(1) Save as otherwise expressly provided in the body of this Code or by any other law for the time being in force, an appeal shall lie to the High Court from every decree passed in appeal by any Court subordinate to the High Court, if the High Court is satisfied that the case involves a substantial question of law.
(2) An appeal may lie under this section from an appellate decree passed exparte.
(3) In an appeal under this section, the memorandum of appeal shall precisely state the substantial question of law involved in the appeal.
(4) Where the High Court is satisfied that a substantial question of law is involved in any case, it shall formulate that question.
(5) The appeal shall be heard on the question so formulated and the respondent shall, at the hearing of the appeal, be allowed to argue that the case does not involve such question:
Provided that nothing in this sub-section shall be deemed to take away or abridge the power of the Court to hear, for reasons to be recorded, the appeal on any other substantial question of law, not formulated by it, if it is satisfied that the case involves such question."
Section 103 CPC reads as follows :
"103. Power of High Court to determine issue of fact :--In any second appeal, the High Court may, if the evidence on record is sufficient, determine any issue necessary for the disposal of the appeal,--
(a) which has not been determined by the lower appellate Court or both by the Court of first instance and the lower appellate Court, or
(b) which has been wrongly determined by such Court or Courts by reasons of a decision on such question of law as is referred to in Section 100."
6. Learned Counsel for the appellant placed reliance on a catena of decisions, namely Sajjadanashin Syed v. Musa Dadabhai Ummer and others, Rohini Prasad and others v. Kasturchand and another, , Leela Soni and others v. Rajesh Goyal and others, , Ishwar Doss Jain v. Sohan Lal, , State of Rajasthan v. Harphool Singh, , Kulwant Kaur and others v. Gurdial Singh Mann, and Shri Bhagwan Sharma v. Smt. Bani Ghosh, .
7. It would be beneficial to have a glance at Section 11 CPC which reads as under:
"II. Res Judicata :--No Court shall try any suit or issue in which the matter directly and substantially in issue has been directly and substantially in issue in a former suit between the same parties, or between parties under whom they or any of them claim, litigating under the same title, in a Court competent to try such subsequent suit or the suit in which such issue has been subsequently raised, and has been heard and finally decided by such Court.
Explanation I :--The expression "former suit" shall denote a suit which has been decided prior to the suit in question whether or not it was instituted prior thereto.
Explanation II:--For the purposes of this section, the competence of a Court shall be determined irrespective of any provisions as to a right of appeal from the decision of such Court.
Explanation III:--The matter above referred to must in the former suit have been alleged by one party and either denied or admitted, expressly, or impliedly, by the other.
Explanation IV :--Any matter which might and ought to have been made ground of defence or attack in such former suit shall be deemed to have been a matter directly and substantially in issue in such suit.
Explanation V :--Any relief claimed in the plaint, which is not expressly granted by the decree, shall, for the purposes of this section, be deemed to have been refused.
Explanation VI :--Where persons litigate bonafide in respect of a public right or of a private right claimed in common for themselves and others, all persons interested in such right shall, for the purpose of this section, be deemed to claim under the person so litigating.
Explanation VII :--The provisions of this section shall apply to a proceeding for the execution of a decree and references in this section to any suit, issue or former suit shall be construed as references, respectively, to a proceeding for the execution of the decree, question arising in such proceeding and a former proceeding for the execution of that decree.
Explanation VIII :--An issue heard and finally decided by a Court of limited jurisdiction, competent to decide such issue, shall operate as res judicata in a subsequent suit, notwithstanding that such Court of limited jurisdiction was not competent to try such subsequent suit or the suit in which such issue has been subsequently raised."
8. Explanation VIII to Section 11 CPC shows that an issue heard and finally decided by the Court of limited jurisdiction competent to decide such issue shall operate as res judicata in a subsequent suit, notwithstanding that such Court was not competent to try such subsequent suit.
9. It is the contention of the learned Counsel for the appellant that determination of joint family status in AS No.116 of 1974 is only incidental and it does not amount to determination of issue as contemplated by Explanation VIII of Section 11 CPC.
10. Section 11 has been interpreted by the Supreme Court in Sajjadanashin Sayed (supra). In paras 12 to 14 of that judgment, it is held as follows :
"12. It will be noticed that the words used in Section 11 CPC are "directly and substantially in issue". If the matter was in issue directly and substantially in a prior litigation and decided against a party then the decision would be res judicata in a subsequent proceeding. Judicial decisions have however held that if a matter was only "collaterally or incidentally" in issue and decided in an earlier proceeding, the finding therein would not ordinarily be res judiciata in a later proceeding where the matter is directly and substantially in issue.
13. As pointed out in Halsbury's Laws of England (Vol. 16 para 1538, 4th Edn.), the Fundamental Rule is that a judgment is not conclusive if any matter came collaterally in question, or if any matter was incidentally cognizable.
14. A collateral or incidental issue is one that is ancillary to a direct and substantive issue; the former is an auxiliary issue and the latter the principal issue. The expression "collaterally or incidentally" in issue implies that there is another matter which is "directly and substantially" in issue."
11. Tests that have to be applied in distinguishing whether a matter was directly in issue or collaterally or incidentally in issue have been laid down in the said judgment in Paras 15 to 19 which are reproduced below:
"15. Difficulty in this area of law has been felt in various jurisdictions and therefore some tests have been evolved. Halsbury says (vol. 16 para 1538) (4th Edn.) that while the general principle is clear, "difficulty arises in the application of the rule, in determining in each case what was the point decided and what was the matter incidentally cognizable, and the opinion of the Judges seems to have undergone some fluctuations."
16. Spencer Bower and Turner on The Doctrine of Res Judicata (2nd Edn. 1969, p 181) refer to the English and Australian experience and quote Dixon, J., of the Australian High Court in Blair v. Curan say:
"The difficulty in the actual application of these conceptions is to distinguish the matters fundamental or cardinal to the prior decision on judgment, or necessarily involved in it as its legal justification or foundation, from matters which, even though actually raised and decided as being in the circumstances of the case the determining considerations, yet are not in point of law the essential foundations of a groundwork of the judgment."
The authors say that in order to understand this essential distinction, one has always to enquire with unrelenting severity - is the determination upon which is it sought to find an estoppel so fundamental to the substantive decision that the latter cannot stand without the former. Nothing less than this will do. It is suggested by Dixon, J. that even where this inquiry is answered satisfactorily, there is still another test to pass: viz., whether the determination is the "immediate foundation" of the decision as opposed to merely "a proposition collateral or subsidiary only, i.e., not more than part of the reasoning supporting the conclusion". It is well settled, say the above authors, "that a mere stop in reasoning is insufficient. What is required is no less than the determination of law, or fact or both, fundamental to the substantive decision".
17. American jurists and Courts have also found difficulty but they have tried to lay down some tests. It is conceded in Corpus Juris Secundum (Vol. 1.50, para 725) that "it is sometimes difficult to determine when particular issue determined is of sufficient dignity to be covered by the rule of estoppel. It is said that estoppel by judgment does not extend to any matter which was only incidentally cognizable or which came collaterally in question, although it may have arisen in the case and have been judicially passed on". But this rule does not however prevent a judgment from constituting an estoppel with reference to incidental matters necessarily adjudicated in determining the ultimate vital point. American Jurisprudence too says: "Under this rule, if the record of the former trial shows that the judgment could not have been rendered without deciding the particular matter, it will be considered as having settled that matter as to all future actions between the parties.
18. In India, Malta has referred to similar test. The learned author says: a matter in respect of which relief is claimed in an earlier suit can be said to be generally a matter "directly and substantially" in issue but it does not mean that if the matter is one in respect of which no relief is sought it is not directly or substantially in issue - It may or may not be. It is possible that it was "directly and substantially" in issue and it may also be possible that it was only collaterally or incidentally in issue, depending upon the facts of the case. The question arises as to what is the test for deciding into which category a case falls? One test is that if the issue was "necessary" to be decided for adjudicating on the principal issue and was decided, it would have to be treated as "directly and substantially" in issue and if it is clear that the judgment was in fact based upon that decision, then it would be res judicata in a latter case. One has to examine the plaint, the written statement, the issues and the judgment to find out if the matter was directly and substantially in issue. We are of the view that the above summary in Mulla is a correct statement of law.
19. We have here to advert to another principle of caution referred to by Mulla.
"It is not to be assumed that matters in respect of which issues have been framed are all of them directly and substantially in issue. Nor is there any special significance to be attached to the fact that a particular issue is the first in the list of issues. Which of the matters are directly in issue and which collaterally or incidentally, must be determined on the facts of each case. A material test to be applied is whether the Court considers the adjudication of the issue material and essential for its decision."
12. It is clear from the provisions of Section 100 CPC that a Court disposes of a second appeal only by hearing question of law framed at the time of admission of the appeal. However, exception to this rule is that the Court can hear the appeal, for reasons to be recorded by it, on any other substantial question of law not formulated by it, if the Court is satisfied that the clear involves such question.
13. Section 103 CPC is amended in the year 1976 and the amended section vests power in High Court to decide any question of fact which has not been determined by the lower appellate Court or both by the Court of first instance and the lower appellate Court, or which has been wrongly determined by such Court or Courts by reason of a decision on such question of law as is referred to in Section 100 CPC.
14. In the case of Sri Bhagwan Sharma (supra), it is observed by the Supreme Court at Para 5 of the judgment as follows :
"The High Court was certainly entitled to go into the question as to whether the findings of fact recorded by the first appellate Court which was the final Court of fact were vitiated in the eye of law on account of non-consideration of admissible evidence of vital nature. But, after setting aside the findings of fact on the ground the Court had either to remand the matter to the first appellate Court for a re-hearing of the first appeal and decision in accordance with law after taking into consideration the entire relevant evidence on the records, or in the alternative to decide the case finally in accordance with the provisions of Section 103 (b) of the Code of Civil Procedure which reads as follows.
xxxx x x If in an appropriate case the High Court decides to follow the second course, it must bear the parties fully with reference to the entire evidence on the records relevant to the issue in question and this is possible if only a proper paper book is prepared for hearing of facts and notice is given to the parties. The grounds which may be available in support of a plea that the findings of fact, by the Court below is vitiated in law, does not by itself lead to the further conclusion that a contrary finding has to be finally arrived at on the disputed issue.............,."
15. It is stated by the Apex Court in Kulwant Kaur and others (supra) that judicial approach today is justice oriented and no Court ought to base its decision on technicalities alone.
16. It is held in State of Rajasthan (supra) that where there are glaring inconsistencies and contradictions in the evidence and the issues raised are serious, High Court can interfere even with the concurrent findings of fact of the lower Courts.
17. In Paras 10 to 13 it is held by the Apex Court in Ishwar Dass Jain (supra) as follows :
"10. Now under Section 100 CPC, after the 1976 Amendment, it is essential for the High Court to formulate a substantial question of law and it is not permissible to reverse the judgment of the first appellate Court without doing so.
11. There are two situations in which interference with findings of fact is permissible. The first one is when material or relevant evidence is not considered which, if considered, would have led to an opposite conclusion. This principle has been laid down in a series of judgments of this Court in relation to Section 100 CPC after the 1976 Amendment. In Dilbagrai Punjabi v. Sarad Chandra (1988 Supp SC 710) while dealing with a second appeal of 1978 decided by the Madhya Pradesh High Court on 20-8-1981, L.M Sharma, J., (as he then was ) observed that: (SCC Public Prosecutor. 712,13, para 5) "The Court (the first appellate Court) is under a duty to examine the entire relevant evidence on record and if it refuse to consider important evidence having direct bearing on the disputed issue and the error which arises is of a magnitude and that it gives birth to a substantial question of law, the High Court is fully authorised to set aside the finding. This is the situation in the present case."
In that case, an admission by the defendant tenant in the apply notice in regard to the plaintiffs title and the description of the plaintiff as "owner" of the property signed by the defendant were not considered by the first appellate Court while holding that the plaintiff had not proved his title. The High Court interfered with the finding on the ground of non-consideration of vital evidence and this Court affirmed the said decision. That was upheld. In Jagdish Singh v. Natthu Singh with reference to a second appeal of 1978 disposed of on 5-4-1991, Venkatachaliah, J., (as he then was) held: (SCC P.652, Para 10) ". .........where the findings of by the Court of facts is vitiated by non-consideration of relevant evidence or by an essentially erroneous approach to the matter, the High Court is not precluded from recording proper findings."
Again in Sundra Naicka Vadiyar v. Ramaswami Ayyar (1995 Supp (4) SCC 534) it was held that where certain vital documents for deciding the question of possession were ignored - such as a compromise, an order of the Revenue Court - reliance on oral evidence was unjustified. In yet another case in Mehrunnisa v. Visham Kumar arising out of second appeal of 1988 decided on 15-1-1996, it was held by Venkataswami, J., that a finding arrived at by ignoring the second notice by the landlady and without noticing that the suit was not based on earlier notices, was vitiated and the High Court could interfere with such a finding. This was in second appeal of 1988 decided on 15-1-1996."
18. In Leela Soni and others (supra), in Paras 20 and 22, the Apex Court has held as under:
"20. There can be no doubt that the jurisdiction of the High Court under Section 11 of the Code of Civil Procedure (CPC) is confined to the framing of substantial questions of law involved in the second appeal and to decide the same. Section 101 CPC provides that no second appeal shall lie except on the grounds mentioned in Section 100 CPC. Thus it is clear that no second appeal can be entertained by the High Court on questions of fact, much less can it interfere in the findings of fact recorded by the lower appellate Court. This is so, not only when it is possible for the High Court to take a different view of the matter but also when the High Court finds that conclusions on questions of fact recorded by the first appellate Court are erroneous.
22. Section 103 authorises the High Court to determine any issue which is necessary for the disposal of the second appeal provided the evidence on record is sufficient, in any of the following two situations : (1) when that issue has not been determined both by the trial Court as well as the lower appellate Court or by the lower appellate Court; or (2) when both the trial Court as well as the appellate Court or the lower appellate Court have wrongly determined any issue on a substantial question of law which can properly be the subject-matter of second appeal under Section 100 CPC."
19. The Supreme Court has held in Rohini Prasad (supra) that where misreading of evidence by appellate Court would lead to miscarriage of justice or its finding is based on no evidence and thus perverse, High Court can interfere in the second appeal.
20. From the above decisions and Sections 100 and 103 CPC, the following principles can be deduced.
(1) At the time of admission of second appeal, High Court has to formulate the substantial question of law involved in the case.
(2) There shall not be any appeal in respect of concurrent findings of fact unless the appeal involves substantial question of law.
(3) Respondent is entitled to urge that substantial question of law is not involved in the appeal.
(4) When there is no finding on any issue either by the lower Court or lower appellate Court, High Court can determine the issue of fact.
(5) If the finding of the appellate Court is perverse, the finding leads to miscarriage of justice, the finding can be interfered in the second appeal.
(6) When there are glaring inconsistencies and contradictions in the evidence, and the issues raised are serious, High Court can interfere even in concurrent findings of fact of the lower Courts.
(7) When a finding of fact is given collaterally or incidentally to an issue, it does not operate as res judicata in a subsequent proceeding.
21. I now proceed to deal with the facts in this case. The lower appellate Court has given its finding only on issue No. 1 i.e., res judicata, but has not given findings on issue No.2 as can be seen from the observation of the lower appellate Court, "........... in view of my finding on point No. 1, there is no necessity to give a finding on this issue".
22. The issue involved is one of jointness of the family in acquiring the property. By virtue of Section 103 CPC, this Court can interfere with and give a finding on issue of fact. There is absolutely no finding by the lower appellate Court on this issue. Moreover, the earlier suit OS No.25 of 1973 is for injunction simplicitor. Joint nature of the property is incidentally determined, since no title is adjudicated in an injunction suit. The same conclusion can be arrived at when the material tests adumbrated by the Supreme Court in Sajjadanashin Sayed (supra) are applied. There is much force in the contention advanced by the learned Counsel for the appellant that findings arrived at incidentally or collaterally do not operate as res judicata. In view of the peculiar nature of the case, I have no hesitation in holding that the lower appellate Court misread Section 11 CPC and gave a finding that the principles of res judicata apply to the present case. This findings is liable to be set aside by holding that the principles of res judicata do not apply in cases where findings on fact are given collaterally or incidentally on an issue in a suit.
23. Insofar as the joint nature of the property is concerned, the lower appellate Court has not given a finding by making reappraisal of the evidence on record. It amounts to miscarriage of justice. I find that it is a fit case where the matter has to be remanded to the lower appellate Court to give a finding on point No.2 framed by it after giving an opportunity to the parties to let in further oral and documentary evidence in respect of the nature of the property in question. The lower appellate Court shall decide the matter expeditiously. The second appeal is allowed accordingly. Court fee paid in the memorandum of grounds of this appeal is ordered to be refunded. Costs shall abide by the result of the lower appellant Court.