Punjab-Haryana High Court
Oriental Electricals Insulation (P) ... vs Faridabad Complex Administration And ... on 21 December, 1995
Equivalent citations: (1996)114PLR215
JUDGMENT Jawahar Lal Gupta, J.
1. Does the dismissal of a suit under Order 17 Rule 3 of the Code of Civil Procedure, 1908 operate as res judicata? This is the short question that arises in this appeal. The facts maybe briefly noticed.
2. The respondents served a notice dated 17th June, 1983 calling upon the plaintiff-appellant to deposit a sum of Rs. 74,259.60 on account of misuse of the land allotted for use as a lawn on Teh Bazari basis. The appellant filed a suit on 18th October, 1985 to challenge this demand. It produced certain witnesses. However, inspite of the grant of various opportunities, it failed to produce the other witnesses. The trial Court held that the appellant having failed to conclude its evidence inspite of the grant of several opportunities, it was not entitled to prosecute the case. It closed the evidence under Order 17 Rule 3. After consideration of the evidence led by the appellant, it dismissed the suit. No appeal was filed.
3. Thereafter, the respondents served a notice dated 13th February, 1985 directing the appellant to deposit a sum of Rs.
75,404.10 on or before 27th February, 1985. This was done on the ground that, the land had been given to the appellant for use as a lawn on Teh Bazari basis. However, it had used it for dumping of coal and waste paper. The land having been used for a commercial purpose, the impugned demand was raised. The appellant filed a suit for permanent injunction against respondent No. 1. It alleged that the Company had been closed since 1980 as it had become a sick unit and that the demand relating to the period from 1st July, 1972 to 31st August, 1983 was barred by limitation' These pleas were similar to those which had been raised in the earlier suit. The trial Court decreed the suit. The respondents filed an appeal. The learned lower appellate Court accepted the appeal on the ground that the' order passed by the learned trial Court in the previous suit operated as res judicata. It, consequently, set aside the judgment and decree' passed by the trial Court. Hence this appeal.
4. Shri O. P. Goyal, learned counsel for the appellant has submitted that the previous suit was in respect of an amount of Rs. 74,259.60 demanded through notice dated 17th June, 1983. It was dismissed after closing the evidence under Order 17 Rule 3. The subsequent suit was based on the notice dated 13th February, 1985 by which a demand for an amount of Rs. 75,404.10 had been raised. According to the learned counsel, the previous suit having been dismissed on account of failure to produce evidence, the learned lower appellate Court has erred in holding that it was barred by res judicata. This contention has been controverted by the learned counsel for the respondents.
5. Admittedly, the appellant had instituted a 'suit on 18th October, 1985. It had claimed that the respondent was not -entitled to recover the arrears of Teh Bazari from 1st July, 1972 to 30th June, 1983 which amounted to Rs. 74,259.60. It was asserted that the lawn was not used for the purpose of storage of coal and that the impugned demand was barred by limitation. The issues were framed and parties were given several opportunities to lead evidence. The appellant had produced certain witnesses. However, it failed to produce' the other witnesses cited by it. The trial Court held that the appellant having failed to conclude its evidence in spite of various opportunities and to pay the costs, it was not entitled to prosecute the case. It closed the evidence under Order 17 Rule 3 Civil Procedure Code. After consideration of the evidence led by the appellant, it dismissed the suit. No appeal was filed. Therefore, the judgment and decree became final. The subsequent suit was based on substantially the same' grounds as had been taken in the earlier suit. The only additional fact pleaded by the appellant was that arrears for the month of July and August, 1983 had been demanded. Did this make any material difference?
6. Admittedly, the two suits were between the same parties. The matter which was directly and substantially in issue in the two suits was substantially the same. The previous suit had been heard and decided by the Court. The basic issue being the same, it cannot be said that the learned lower appellate Court had erred in accepting the appeal filed by the respondents.
7. The principle of res judicata embodies norms of public policy and a rule of private justice. It is based on the need of giving finality to judicial decisions and the right of the individual to be saved from vexatious multiplicity of proceedings. It also ensures that there are not inconsistent decisions regarding the same issue.
8. A decision under Order 17 Rule 3 Civil Procedure Code was given after recording some evidence. It was, thus, on merits. The 'issues' were heard and decided. Dismissal of the suit consequently would operate as res judicata.
9. Shri Goyal has referred to the two decisions in support of this appeal. The first decision is in the case of The Gauhati Bank Limited v. Baliram Dutta and Ors., A.I.R. 1950 Assam 169. This was a case where the suit had been dismissed in default to deposit adjournment costs. It was found that the dismissal was not on merits. Consequently, it was held that the plea of res judicata could not be sustained. Learned counsel also places reliance on the decision of Saiyad Abdul Nabisha Arbsha v. Thakkar Jivram Sundarji, A.I.R. 1950 Kutch 1. In this case, it was held that the order did not purport to be one of dismissal for default or on merits. But, it only meant that the proceedings had been closed and 'that the suit would not count as a pending case. On a perusal of these decisions, it is clear that the cases were based on peculiar facts. Furthermore, learned counsel for the respondents has referred to the decision of Nila v. Punun, A.I.R. 1936 Lab.385. In this case, it has been clearly held that "a decision under Order 17 Rule 3 of the Civil Procedure Code is to be deemed to be a decision on merits and such a decision falls within the scope of Section 11 Civil Procedure Code". This decision clearly supports the contention raised on behalf of the respondents. Accordingly, the view taken by the learned appellate Court deserves to be upheld.
10. Shri Goyal has also submitted that the pleadings in the earlier suit having not been produced as evidence in the present suit, the Court could not have recorded a finding that the claim was barred by res judicata. This matter is concluded by the decision of their Lordships of the Supreme Court in Ishwardas v. The State of Madhya Pradesh and Ors., A.I.R. 1979 S.C. 551. It was held by their Lordships that "once the question at issue in the two suits 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 II." Consequently, even this contention cannot be accepted.
11. In view of the above, there is no merit in this appeal. It is, consequently, dismissed in limine.