Andhra HC (Pre-Telangana)
Jugal Kishore Loya vs Hanuman Prasad Soni on 19 July, 2005
Equivalent citations: 2005(6)ALD323, 2005(5)ALT1
Author: L. Narasimha Reddy
Bench: L. Narasimha Reddy
ORDER L. Narasimha Reddy, J.
1. The plaintiff in O.S. No. 215 of 2000 on the file of the learned Junior Civil Judge, Sirpur is the petitioner. He feels aggrieved by the order, dated 18-3-2004 passed by the trial Court in I.A. No. 21 of 2004 filed by the petitioner under Order XIV Rule 5 C.P.C.
2. The petitioner filed the suit against the respondent for a three-fold relief viz., for grant of perpetual injunction restraining him from using the wall which is described in the schedule, for a direction to the respondent to remove the portion of the structure raised by him on the northern side of the suit building and for payment of damages assessed at Rs. 3,000/- as compensation for demolition of certain structures. I n the body of the plaint, he made a reference to the filing of O.S. No. 9 of 2000 in the same Court for the relief of perpetual injunction and the compromise decree passed therein. He alleged that subsequent to the compromise decree, the respondent brought about several constructions and caused damage to his building.
3. The respondent filed written statement denying the allegations of the petitioner. One of the pleas raised by the respondent is that the present suit is barred by res judicata and principles of estoppel in view of the decree passed in O.S. No. 9 of 2000.
4. The trial Court framed a preliminary issue viz., "whether the suit is maintainable under Section 11 of C.P.C.". However, it proceeded to record evidence touching on various aspects of the matter. It was in this context, that the petitioner filed the application with a prayer to frame additional issues. The trial Court rejected the same on taking the view that there is no necessity to frame any additional issues for adjudication of the case.
5. Sri A.M. Qureshi, learned counsel for the petitioner submits that the purport of the decree in O.S. No. 9 of 2000 was restricted to the one for the relief of perpetual injunction, whereas the relief claimed in the present suit is for specific directions as to removal of structures, payment of compensation etc. He contends that if for any reason, the trial Court was of the view that the suit can be disposed of on the strength of the preliminary issue, there was no necessity for it to record evidence and conversely, the very fact that evidence is being recorded discloses that issues need to be framed on the controversy. He submits that the approach of the trial Court cannot be sustained in law.
6. Sri A. Ashok Anand Kumar, learned counsel for the respondent, on the other hand, submits that the relief claimed in the present suit is almost the replica of the one claimed in O.S. No. 9 of 2000, and that if the petitioner felt that the decree passed in O.S. No. 9 of 2000 is not respected or flouted, steps ought to have been taken under Order XXI C.P.C. He submits that the plea of res judicata can be dealt with as a preliminary issue and there was no necessity for framing any additional issues. He further submits that it is permissible, for a Court to record findings on certain controversies, though issues are not framed in relation thereto.
7. The short question that falls for consideration in this Civil Revision Petition is as to whether in the facts of the case, the trial Court was under obligation to frame additional issues. The suit was filed for different kinds of reliefs. It is a matter of record that on earlier occasion, the petitioner filed O.S. No. 9 of 2000 against the respondent for the relief of perpetual injunction. The suit ended in a compromise decree. Since the respondent took the plea of res judicata, the trial Court framed the preliminary issue, which is extracted in the preceding paragraphs. To that extent, the petitioner also did not feel any grievance.
8. Having framed a preliminary issue, the trial Court proceeded to record evidence. It was in this context that the petitioner filed I.A. No. 21 of 2004 for framing additional issues. He proceeded on the premise that the evidence is to be adduced only with reference to the issues, and that a preliminary issue by its very nature, does not require the support of any evidence.
9. There hardly exists any doubt that the plea of res judicata can be treated as a preliminary issue and if the answer to it is an affirmative, the suit can be dismissed. The Judgment of the Supreme Court in Abdul Rehman v. Prasoni Bai and Anr. 2002 (8) Supreme 253 relied upon by the learned counsel for the respondent lends support to this. However, it is subject to a rider that there must not exist any dispute as regards the facts. The first and last sentences of para 22 of the judgment, which are on the point, refer to this aspect. Paragraph 22 extracted below emphasizes it:
"For the purpose of disposal of the suit on the admitted facts, particularly when the suit can be disposed of on preliminary issues, no particular procedure was required to be followed by the High Court. In terms of Order XIV Rule 1 of the Code of Civil Procedure, a Civil Court can dispose of a suit on preliminary issues. It is neither in doubt nor in dispute that the issues of res judicata and/constructive res judicata as also the maintainability of the suit can be adjudicated upon as preliminary issues. Such issues, in fact, when facts are admitted, ordinarily should be decided as preliminary issues."
(underlining, by this Court)
10. It is axiomatic that if there is any dispute as to facts, it is impermissible to decide the plea of res judicata as a preliminary issue. In the instant case, the petitioner pleaded that after O.S. No. 9 of 2000 ended in compromise, the respondent demolished the wall, brought about a new structure and that caused damage to the premises of the petitioner. In his written statement, the respondent flatly denied all the allegations, except the existence of compromise decree. Therefore, it cannot be said that the facts are admitted by the parties.
11. There is another angle from which the matter needs to be examined. If the Court intended to take up the adjudication of the matter on the preliminary issue, there was no necessity for it to record evidence. The question as to whether the judgment in O.S. No. 9 of 2000 operates as res judicata has to be examined by comparing the relief claimed and granted in that suit, with the one claimed in the instant suit. However, the parties are permitted to adduce evidence. Once it emerges that it is impermissible to adduce evidence in relation to a preliminary issue, such an exercise can be only with reference to certain other issues that need to be framed on the basis of the assertion in the plaint and denial in the written statement. Otherwise, the very proceedings take a course, contrary to the one stipulated under C.P.C. and the principles of evidence.
12. It is true that there are instances, where the Courts record findings, on certain aspects, in relation to which, no issues are framed. Such instances take place where the Court has framed issues as regards other areas of dispute and the parties have adduced evidence on certain aspects, which are not covered by the issues. That situation cannot be compared to the one where no issues of facts are framed. In such an event, the very exercise of framing of issues under Order 14 C.P.C. becomes redundant.
13. In its order under revision, the trial Court did not address to the points urged by the petitioner. It virtually closed all further discussion in the suit by observing that in view of the compromise decree passed in O.S. No. 9 of 2000, nothing remains to be decided, and flatly ignored the other facets of relief claimed by the petitioner.
14. In examining as to whether the decree in O.S. No. 9 of 2000 operates as res judicata, the important things to be borne in mind are whether the relief claimed in the instant suit is identical to the one in that suit and even if any additional relief is claimed, whether it comes within the bar of constructive res judicata. In clear terms, the petitioner pleaded that after the decree passed in O.S. No. 9 of 2000, the respondent demolished certain structures and brought about certain new ones. Damage is said to have been caused to certain other structures. These are all developments subsequent to that decree. By no stretch of imagination, they could have been pleaded in the previous suit. Therefore, the refusal by the trial Court to frame additional issues cannot be sustained.
15. Hence, the Civil Revision petition is allowed and the order under revision is set aside. The trial Court shall frame additional issues after examining the pleadings and hearing the parties on this aspect. There shall be no order as to costs.