Punjab-Haryana High Court
Suresh Chand And Ors. vs Siri Ram And Ors. on 21 December, 2001
JUDGMENT M.M. Kumar, J.
1. This revision petition is directed againsi order dated 12.9.1981 passed by the learned Sub Judge 1st Class, Gurgaon dismissing the suit of the plaintiff-petitioners (for brevity, 'the plaintiffs') on the preliminary issue that the suit was barred by the principle of resjudicata.
2. The brief facts necessary for deciding the legal controversy raised in this revision petition may first be noticed. The plaintiffs have filed a suit for permanent injunction praying for restraining the defendant-respondents (for brevity, 'the defendants') from stopping the flow of rainy water of the house of the plaintiffs. The averments made in the plaint are that the plaintiffs purchased a plot mentioned in paragraph 1 of the plaint through their fathers as benamidars-defendants 3 and 4 respectively. Later on they built up a house on the plot and claimed that they were the real owners, whereas defendants 3 and 4 were benamidars. The rainy water of the plot and also that of the house has been flowing through the brain (Mori) in wall 'AB' into the street shown in red colour with letters 'ABCDE' and then it falls into the water channel constructed by the gram panchayat for the last 50 years, The plaintiffs have claimed that they had acquired a right of easement for drainage of the rainy water of their house. The right of easement concerning drainage of the rainy water of their house has also been pleaded by asserting that their house is surrounded by other persons on all other sides. It has been alleged that defendants 1 and I intend to demolish the wall 'AB" with the object of diverting the flow of rainy water toward the house of the plaintiffs, although they have no right to do so.
3. Defendants 3 and 4 being the fathers of the plaintiffs did not file any written statement and admitted the claim. However, defendants 1 and 2 contested the suit on several grounds by pleading that the suit is barred by the principle of resjudicata as the issue has already been decided by judgment dated 5.9.1979 Ex. D3. The trial Court on the basis of pleadings framed a preliminary issue to ascertain whether the principle of resjudicata applies and sustained the objection. The operative part of the order sustaining the objection of res judicata finds mentioned in paragraph 5 of the order, which reads as under:-
"Ex. D.1 is certified copy of the plaint of the previous suit filed by Siri Ram (defendant No.1 in the present suit) against Chandmal, Tara Chand defendants and some other persons in respect of the same wall and street, involved in the present suit. Ex. D.2 is certified copy of the site plain of the property involved in that suit. A combined reading of both these documents shows that the relief claimed in that suit was the same which is now being claimed by the plaintiffs in the present suit. In that suit, the wall in question was described as PJ and the street was described as ABJE, whereas in the present suit, the same wall has been shown with words AB and the street has been shown with words ABFG in the plaint and the site plan."
4. I have heard Shri V.G. Dogra, learned counsel for the plaintiffs and Shri O.P. Goyal, Senior Advocate for the defendants and have perused the record with their assistance.
5. Shri V.G. Dogra, learned counsel for the plaintiffs has contended that the earlier suit filed by defendants 1 and 2 was compromised on the statements made by Chanda Mat-defendant No.3 and one Phool Chand. He further submitted that no objection was raised to the disposal of appeal in terms of compromise by defendant No.4. He drew my attention to the operative part of the judgment passed by learned Additional District Judge, Gurgaon Ex.D3 which reads as under:-
"In view of the above holding, the appeal, must be accepted in terms of the statements of the appellant and respondent Nos. 1 and 4 dated 4th August 1979 recorded in the appeal. As a corollary thereof, the suit of the appellant against the respondents shall stand decreed in toto. The respondents are granted three months time to close the outlets of their houses opening in the street, to remove the wall RPJ and level the ground sites mark APJE in the site plan Ex. P.1 attached to the plaint. The costs of the suit as also the appeal are left to be borne by the parties to the suit as incurred by them."
6. Learned counsel cited two judgments of the Supreme Court in the cases of Puhvarthi Venkata Subba Rao and Ors. v. Valluri Jagannadha Rao (deceased) by his heirs and legal representatives and Ors. , A.I.R. 1967 S.C. 591 and Baldevdass Shivlal and Anr. v. Filmstan Distributors (India) Pvt. Ltd and Ors. , A.I.R. 1970 S.C. 406 and contended that earlier judgment dated 5.9.1979 Ex.D3 is nothing else but a consent degree and, therefore, would not attract the application of principles of res judicata. According to the learned counsel, there was no adjudication by the Court in terms of Section 11 of the Code of Civil Procedure which required that earlier suit should have been heard and finally decided by such Court. The learned counsel further argued that principle of estoppel might be attracted but principle of res judicata would not apply. Reliance was placed on head-note (B) of the judgment in the case of Pulavarthi Venkata Subba Rao (supra) which reads as under: -
"A compromise decree is not a decision by the Court. It is the acceptance by the Court of something to which the parties had agreed. A compromise decree merely sets the seal of the court on the agreement of the parties. The Court does not decide anything, Or can it be said that a decision of the Court was implicit in it. Only a decision by the Court can be res judicata, whether statutory under Section 11 of the Code of Civil Procedure, or constructive as a matter of public policy on which the entire doctrine rests. Such a decree cannot strictly be regarded as decision on a matter which was heard and finally decided and cannot operate as res judicata. Such a decree might create an estoppel by conduct between the parties, but such an estoppel must be specifically pleaded."
7. On the other hand Shri O.P. Goyal, learned senior counsel submitted that presuming the consent decree is not barred by the principle of res judicata, then the plaintiffs cannot escape the consequences flowing from the applications of estoppel. He further submitted that an appeal was competent under Order 46, Rule 2 CPC and the remedy of revision availed by the plaintiffs is not available to them. Therefore, he urged that this Court should not exercise its revisional jurisdiction.
8. I have thoughtfully considered the submissions made by the learned counsel for the parties and do not feel persuaded to accept the arguments raised by learned counsel for the plaintiffs.
9. It is true that there is no res judicata in respect of a consent decree but it is equally true that a compromise incorporated-in a consent decree as long as it is valid, is biding on the parties. The provisions of Order 23, Rule 3 CPC makes it abundantly clear that where it is proved to the satisfaction of the Court that there is a lawful agreement/compromise with regard to the suit, the Court is under obligation to pass a decree in accordance therewith. Such a decree cannot be challenged by filing a fresh suit as provided by Order 23, Rule 3-A CPC. Moreover, the argument loses sight of the developments which have taken place after 1967 and 1970. In the case of Byram Pestonji Gariwala v. Union Bank of India and Ors. , 1992(1) S.C.C. 31 an argument similar to " the one raised in this petition was advanced and was repelled by the Supreme Court in the following terms:-
"S.R. Das, C.J., in Sailendra Narayan Bhanja Deo v. State of Orissa, states: (AIR p. 351):
"....a judgment by consent or default is as effective an estoppel between the parties as a judgment whereby the court exercises the mind on a contested case...." A judgment by consent is intended to stop litigation between the parties just as much as a judgment resulting from a decision of the court at the end of a long drawn out fight. A compromise decree creates an estoppel by judgment. As stated by Spencer-Bower and Turner in Res Judicata, (2nd edn., page 37):
"Any judgment or order which in other respect answers to the description of a res judicata is nonetheless so because it was made in pursuance of the consent and agreement of the parties....Accordingly, judgments, orders^ and awards by consent have always been held no less efficacious as estoppels than other judgments, orders, or decisions, though doubts have been occasionally expressed whether, strictly, the foundation of the estooppel in such cases is not representation by conduct, rather than res judicata.
Similar view was expressed by Supreme Court in the case of Smt. Patasibai and Ors. v. Ratanlal. J.T. 1990(3) S.C. 68.
10. The second argument raised by learned senior counsel regarding maintainability of this revision does not require consideration because of the view I am taking in this matter.
11. For the reasons recorded above- the revision petition fails and is dismissed with costs which are assessed at Rs. 5,000/-.