Madras High Court
Thangamani Ammal And Ors. vs Ponnusamy And Ors. on 30 August, 1996
Equivalent citations: (1997)1MLJ558
ORDER S.S. Subramani, J.
1. C.R.P. No. 1240 of1l986 arises from A.S. No. 252 of 1983 on the file of District judge, Trichy which arose from the judgment and decree in O.S. No. 71 of 1982 on the file of the Subordinate Judge of Trichy. Second Appeal No. 1058 of 1985 arises from O.S. No. 503 of 1981 on the file of Subordinate Judge, Trichy which gave rise to an appeal viz., A.S. No. 174 of 1983 of District Judge, Trichy. There is also another suit which is of small cause in nature viz., S.C. No. 436 of 1979. All the above three suits were tried together and common judgment was pronounced on 28.2.1983. Against this Small Cause Suit No. 436 of 1979, there was a revision before the District Court as C.R.P. No. 9 of 1984. In all the three suits a common question arose between the parties who are the same. The plaintiff sought recovery of damages from the defendants, on the allegation that he is cultivating the land against the terms of the lease agreement. The material averments for instituting all these suits may be stated as follows.
2. The property belonged to plaintiffs predecessor and there was a lease to the defendants predecessor. There was a dispute between the parties, and the plaintiffs predecessors moved the revenue court for recovery of property. The entire land which is the subject matter of the lease was 3 acres 44 cents before the revenue court. Plaintiffs predecessor wanted recovery of one half of the property and the same was allowed. The balance area could not be properly cultivated and therefore a compromise was entered into between, the parties thereon and the defendants predecessor agreed to pay rent of Rs. 600 p.m. for about 1.08 acres of land comprised in Survey No. 126/2. The compromise was produced in this case as Ex. B-3 and the same was not registered. The lease was for a term of five years and therefore a contention was taken before the lower appellate court that Ex. B-3 is inadmissible for any purpose since it is an unregistered document. The lower appellate court accepted the contention and held Ex. B-3 cannot be looked into for any purpose including collateral purpose.
3. After holding that, Ex. B-3 cannot be looked into for any purpose, the lower appellate court concluded that even though the possession of the defendant was on the basis of a rental arrangement, since he has cultivated the land against the terms of the agreement he is liable for damages. In all the three suits that was the finding by the lower appellate court. A decree was granted to the plaintiffs. Of course, the quantum claimed by him, was not given but a reduced quantum was awarded.
4. Against A.S. No. 252 of 1983, C.R.P. is filed since the subject-matter of litigation is below Rs. 3,000 and against the decree in A.S. No. 174 of 1983 the second appeal is also filed. The judgment in C.R.P. No. 9 of 1984 has not been challenged and that has become final.
5. The question therefore arises for consideration in this case is Whether these appeal and revision are maintainable.
In view of the finality in C.R.P. No. 9 of 1984 on the file of District Court, Trichy.
6. The liability on the part of the appellants is fixed on the finding of the lower appellate court that the defendants have acted against the terms of tenancy and therefore they are liable for damages. That is the only reason for holding that they are liable. In C.R.P. No. 9 of 1984 that finding has become concluded. Section 11 of the Code of Civil Procedure bars the re-agitation of the same issue.
7. Learned Counsel for the appellants contended in all the three suits the liability is a recurring liability and therefore the cause of action was different. It is the case of the counsel that when the cause of action has become different the plea of res judicata cannot be entertained.
8. In cannot agree with the said submission. In Govardhanam Applacharyulu and Anr. v. Govardhanatn Rangacharyulu A.I.R. 1957 A.P. 1002, a similar question came up for consideration and the Lordships has held that, In judging whether the decision in a previous litigation operates as res judicata or not in a later suit covering the subsequent years, the test is whether it decided a general principle that is applicable to the later years also or whether it was particular or special to that particular year: in other words, whether the considerations vary from year to year or such as would govern the subsequent years also. In the decision of that question, it is also irrelevant whether the previous judgment was erroneous either in law or on fact.
9. It is also contended that C.R.P. No. 9 of 1984 was decided by Court of Small Causes and therefore the decision therein will not be res judicata in the civil suit. The said contention also cannot hold good, in view of the decision of the Supreme Court reported in Sulochana Amma v. Narayanan Nair , their Lordships held thus:
The decree of the District Munsif, though of limited pecuniary jurisdiction, would operate as res judicata in the subsequent suit between the same parties.
Section 11 is to be read in combination and harmony with Explanation VIII. The result that would flow is that an order or an issue which had arisen directly and substantially between the parties or their privies and decided finally by a competent court or tribunal, though of limited or special jurisdiction, which includes pecuniary jurisdiction, will operate as res judicata in a subsequent suit or proceeding, notwithstanding the fact that such court of limited or special jurisdiction was not a competent court to try the subsequent suit. The issue must directly and substantially arise in a later suit between the same parties or their privies. The technical aspect, for instance, pecuniary or subject-wise competence of the earlier forum to adjudicate the subject-matter or to grant reliefs sought in the subsequent litigation, should be immaterial when the general doctrine of res judicata is to be invoked. Explanation VIII, inserted by the Amending Act of 1976, was intended to serve this purpose and to clarify this position. By operation of the non-obstante clause finality is attached to a decree of civil court of limited pecuniary jurisdiction also to put an end to the vexatious litigation and to accord conclusiveness to the issue tried by a competent court, when the same issue is directly and substantially in issue in a latter suit between the same parties or their privies by operation of Sec! 1. The parties are precluded from raising once over the same issue for trial.
If the scope of Explanation VIII is confined to the order and decree of an insolvency court, the scope of enlarging Explanation VIII would be defeated and the decree of civil courts of limited pecuniary jurisdiction shall stand excluded, while that of the former would be attracted. Such an anomalous situation must be avoided. The tribunal whose decisions were not operating as res judicata, would be brought within the ambit of Section 11, while the decree of the civil court of limited pecuniary jurisdiction which is accustomed to the doctrine of res judicata, shall stand excluded from its operation.
10. If the appeal and revision are barred under Section 11 of the Code of Civil Procedure, the substantial question of law that is raised in the appeal need not be decided. I hold that both are barred in view of the judgment in C.R.P. No. 9 of 1984. The second appeal and C.R.P. are therefore dismissed. However, there will be no order as to costs.