Himachal Pradesh High Court
Ltd vs State Of Himachal Pradesh And Others on 11 July, 2019
Author: Tarlok Singh Chauhan
Bench: Tarlok Singh Chauhan
IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA RSA No.522 of 2018.
.
Date of decision: 11.07.2019.
The Mehta Tpt Co-operative Society
Ltd. ......Appellant.
Versus
State of Himachal Pradesh and others ......Respondents
Coram
The Hon'ble Mr. Justice Tarlok Singh Chauhan, Judge.
Whether approved for reporting?1. No For the Appellant: Mr. Kulwant Singh Katoch, Advocate.
For the Respondents: Mr. Vinod Thakur, Addl. A.G. with Mr. Bhupinder Thakur, Dy.A.G. and Mr. Ram Lal Thakur, Asstt. A.G., for respondents No.1 to 4.
Tarlok Singh Chauhan, Judge (Oral).
It is settled principle of law that the defendant should not be vexed twice for the same cause of action by splitting the claim and reliefs.
2. This is precisely what the plaintiff-appellant has indulged in.
1Whether the reporters of the local papers may be allowed to see the Judgment?Yes ::: Downloaded on - 29/09/2019 00:41:11 :::HCHP 2
3. On 07.10.2009, the petitioner approached this Court by filing CWP No.3597 of 2009 which was filed against .
respondents No.1 to 3 wherein it had prayed for the following reliefs:-
"(i) That the respondents be directed to enter the newly replaced buses of petitioner in the route permits of the petitioner Society so as to enable plying of buses on the road/route permit.
(ii) Issue appropriate writ/order to the respondents with regard to the remaining buses for which application for replacement/NOC are pending before the respondents.
(iii) Issue writ/order to the respondents to refund the penalty collected in violation of law laid down in CWP No. 494/2000 in the matter of Johny Mehta and others.
(iv) To issue writ/order to enter newly purchased buses of the petitioners in the fleet permits and release the same as per the law laid down by Hon'ble High Court of Himachal Pradesh in CWP No. 620/2008."
4. The petition was disposed of vide judgment dated 01.04.2010 in the following terms:-
"In view of the reply furnished by the Regional Transport Officer, Solan, prayers (i) and (ii) do not survive. As far as prayers (iii) and (iv) are concerned, it is seen that the matter is now pending before the Supreme Court in SLP No.571-631/2009. Therefore, ::: Downloaded on - 29/09/2019 00:41:11 :::HCHP 3 as far as relief (iii) and (iv) are concerned, it is declared that the parties will be bound by the .
outcome of the decision of the Apex Court in the pending matters, though they are not parties before the Apex Court. It is made clear that subject to the outcome of the matters, as above, required action will be taken in the matter of adjustment of penalty already collected. Petition stands disposed of."
5. One of the claims raised in the petition as set out in para-14 pertained to Bus No. HP-13B-9999 and the same reads as under:-
"14. That the petitioners on 22.9.2009 moved an application for issuance of NOC with regard to Special Road Tax for Bus No.HP-13B-9999 which has been sold on 22.09.2009, for which the NOC has not been issued uptill the date of filing of the present civil writ petition. Copy of the application moved by the petitioners dated 22.9.2009 is annexed herewith as Annexure-P7 and typed copy of the same is annexed herewith as Annexure-P7/T for the kind perusal of this Hon'ble Court."
6. It was during the pendency of the writ petition that the petitioner again served legal notice dated 04.03.2010 Ex. PW1/H which forms the foundation of the suit out of which instant appeal emanates. The notice in question was issued qua non-issuance of of replacement ::: Downloaded on - 29/09/2019 00:41:11 :::HCHP 4 permission for vehicle No. HP-13B-9999 and contained the following request:-
.
"I would, therefore, through this notice required you all to issue the replacement permission as per law in Public Interest to my client as demanded in application dated 12-10-2009 within a period of seven days from the receipt of this notice and further require you all to pay a sum of Rs.2,67,812/- along with interest @ 12% p.a. as financial and business loss and damages suffered by client due to negligent acts and design on the part of above said addresses within a period of 60 days from the receipt of this notice and further require you all to play a sum of Rs.2,100/- as pa legal and consultation fee of this notice to my client within a period of 60 days from the receipt of this notice, failing which my client shall be constrained me to take legal action against all of you before the competent court of law at your risk and cost without any further intimation to you all, which please note."
7. As observed above, the writ petition filed by the appellant was already pending adjudication before this Court and one of the issues raised therein pertained to Bus No. HP-13B-9999 and, therefore, there was no occasion for it to have issued a fresh notice upon the respondents and the prayer made in the notice could conveniently have been ::: Downloaded on - 29/09/2019 00:41:11 :::HCHP 5 sought before this Court by amending the writ or by filing an appropriate application qua the same.
.
8. However, the appellant intentionally and in order to harass the respondents filed a fresh suit on 13.05.2010 after about 40 days of dismissal of the writ petition making the notice Ex.PW1/H its foundation and basis wherein it prayed for the following reliefs:-
"It is, therefore, prayed that under the facts and circumstances of the case this Hon'ble Court may kindly pass a decree of recovery of Rs.4,81,260/-
since 12-10-2009 to 10-05-2010 alongwith interest at the rate of Rs. 18% till its realization and further directed the defendants to pay a sum of Rs.3,086/-
per day as loss and damages suffered by the plaintiff society till its realization in addition to above said amount and further defendants may kindly be directed to issue replacement permission to replace the bus no.HP-13-B-9999 by new bus of the same description on the route permit i.e. Solan-Shimla 2RT vide No. 262-Reg/99 dated 01-12-1999 valid up to 29-11-2014 in the interest of justice and equity. The costs of the suit may also be awarded to the plaintiff Society and against the defendants. Any other relief under the facts and circumstances of the case which this Hon'ble Court may kindly deem fit and proper may kindly be passed in favour of the plaintiff and against the defendants in the interest of justice and equity."::: Downloaded on - 29/09/2019 00:41:11 :::HCHP 6
9. Therefore, in such circumstances, the suit filed .
by the plaintiff was clearly not maintainable and has rightly been dismissed by the learned trial Court and such findings have thereafter been affirmed by the learned first appellate Court.
10. In Virgo Industries (ENG.)Private Limited versus Venturetech Solutions Private Limited, (2013) 1 SCC 625, the Hon'ble Supreme Court held that the principle in Order 2 Rules 2 and 3 of CPC discourages vexing of the defendant again and again by multiple suits. Here, it shall be apposite to refer to the relevant observations as contained in paras 9 and 10 which read as under:-
"9. Order II Rule 1 requires every suit to include the whole of the claim to which the plaintiff is entitled in respect of any particular cause of action. However, the plaintiff has an option to relinquish any part of his claim if he chooses to do so. Order II Rule 2 contemplates a situation where a plaintiff omits to sue or intentionally relinquishes any portion of the claim which he is entitled to make. If the plaintiff so acts, Order II Rule 2 of CPC makes it clear that he shall not, afterwards, sue for the part or portion of the claim that has been omitted or relinquished. It must be noticed that Order II Rule 2 (2) does not contemplate omission or relinquishment of any ::: Downloaded on - 29/09/2019 00:41:11 :::HCHP 7 portion of the plaintiff's claim with the leave of the court so as to entitle him to come back later to seek .
what has been omitted or relinquished. Such leave of the Court is contemplated by Order II Rule 2(3) in situations where a plaintiff being entitled to more than one relief on a particular cause of action, omits to sue for all such reliefs. In such a situation, the plaintiff is precluded from bringing a subsequent suit to claim the relief earlier omitted except in a situation where leave of the Court had been obtained. It is, therefore, clear from a conjoint reading of the provisions of Order II Rule 2 (2) and (3) of the CPC that the aforesaid two sub-rules of Order II Rule 2 contemplate two different situations, namely, where a plaintiff omits or relinquishes a part of a claim which he is entitled to make and, secondly, where the plaintiff omits or relinquishes one out of the several reliefs that he could have claimed in the suit. It is only in the latter situations where the plaintiff can file a subsequent suit seeking the relief omitted in the earlier suit proved that at the time of omission to claim the particular relief he had obtained leave of the Court in the first suit.
10. The object behind enactment of Order II Rule 2 (2) and (3) of the CPC is not far to seek. The Rule engrafts a laudable principle that discourages/prohibits vexing the defendant again and again by multiple suits except in a situation where one of the several reliefs, though available to a plaintiff, may not have been claimed for a good reason. A later suit for such relief is contemplated ::: Downloaded on - 29/09/2019 00:41:11 :::HCHP 8 only with the leave of the Court which leave, naturally, will be granted upon due satisfaction and .
for good and sufficient reasons. The situations where the bar under Order II Rule 2 (2) and (3) will be attracted have been enumerated in a long line of decisions spread over a century now. Though each of the aforesaid decisions contain a clear and precise narration of the principles of law arrived at after a detailed analysis, the principles laid down in the judgment of the Constitution Bench of this Court in Gurbux Singh v. Bhooralal, AIR 1964 SC 1810 may be usefully recalled below: (AIR p.1812 , para 6) "6. In order that a plea of a bar under O. 2. r. 2(3), Civil Procedure Code should succeed the defendant who raises the plea must make out (1) that the second suit was in respect of the same cause of action as that on which the previous suit was based, (2) that in respect of that cause of action the plaintiff was entitled to more than one relief, (3) that being thus entitled to more than one relief the plaintiff, without leave obtained from the Court, omitted to sue for the relief for which the second suit had been filed. From this analysis it would be seen that the defendant would have to establish primarily and to start with, the precise cause of action upon which the previous suit was filed, for unless there is identity between the cause of action on which the earlier suit was filed and that on which the claim in the later suit is based there would be no scope for the application of the bar." The above principles have been reiterated in several later judgments of this Court. Reference by way of illustration may be made to the judgments Deva Ram & Anr. v. Ishwar Chand & Anr., (1995) 6 SCC 733 and Bengal Waterproof Ltd. v. Bombay Waterproof Manufacturing Co.& Anr., (1997) 1 SCC 99."
::: Downloaded on - 29/09/2019 00:41:11 :::HCHP 911. It is more than settled that avoiding the multiplicity of legal proceedings should be the aim of all .
courts and, therefore, a litigant cannot be allowed to split up his claim and file writ petition in piecemeal fashion. If the litigant could have, but did not without any legal justification claim a relief which was available to him at the time of filing earlier writ petition, the same claim cannot be allowed to be subsequently agitated by filing another writ petition.
12. In this context, it shall be apt to refer to the judgment of the Hon'ble Supreme Court in M/s. D. Cawasji and Co., etc. etc. versus State of Mysore and another, AIR 1975 SC 813 wherein it was held as under:
"18. But, that however, is not the end of the matter.
In the earlier writ petitions which culminated in the decisions in (1968) 2 Mys LJ 78 = (AIR 1969 Mys 23) the appellants did pray for refund of the amounts paid by them under the Act and the High Court considered the prayer for refund in each of the writ petitions and allowed the prayer in some petitions and rejected it in the others on the ground of delay. The Court observed that those writ petitioners whose prayers had been rejected would be at liberty to institute suits or other proceedings. We are not sure that, in the context, the High Court, meant by 'other proceedings', applications in the nature of proceedings under Article 226, when it is seen that ::: Downloaded on - 29/09/2019 00:41:11 :::HCHP 10 the Court refused to entertain the relief for refund on the ground of delay in the proceedings under Article .
226 and that in some cases the Court directed the parties to file representations before Government. Be that as it may, in the earlier writ petitions, the appellants did not pray for refund of the amounts paid by way of cess for the years 1951-52 to 1965-66 and they gave no reasons before the High Court in these writ petitions why they did not make the prayer for refund of the amounts paid during the years in question. Avoiding multiplicity of unnecessary legal proceedings should be an aim of all courts. Therefore, the appellants could not be allowed to split up their claim for refund and file writ petitions on this piecemeal fashion. If the appellants could have, but did not, without any legal justification, claim refund of the amounts paid during the years in question, in the earlier writ petitions, we see no reason why the appellants should be allowed to claim the amounts by filing writ petitions again. In the circumstances of this case, having regard to the conduct of the appellants in not claiming these amounts in the earlier writ petitions without any justification, we do not think we would be justified in interfering with the discretion exercised by the High Court in dismissing the writ petitions which were filed only for the purpose of obtaining the refund and directing them to resort to the remedy of suits."
13. That apart, the appellant could have conveniently sought the same relief in the earlier litigation ::: Downloaded on - 29/09/2019 00:41:11 :::HCHP 11 i.e. CWP No. 3597 of 2009 which is now sought in the present suit and having failed to raise the same cannot now .
raise the same in view of the explanation IV to Section 11 CPC which reads thus:-
"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."
14. The object of explanation IV(supra) is to compel the parties to take all grounds of attack in defence which are available and open to them in the suit. This is commonly known as the principle of "constructive res judicata" which is an artificial form of res judicata and clearly provides that if a plea could have been taken by a party between him and his opponent, he should not be permitted to take that plea against same party in the subsequent pleadings with respect to the same subject matter. That is clearly opposed to public policy on which the doctrine of res judicata is based and would mean harassment and hardship to the opponent. Besides, if such a course is permitted and allowed to be adopted, the doctrine of finality of judgment pronounced by the Court ::: Downloaded on - 29/09/2019 00:41:11 :::HCHP 12 would also be materially affected. Thus, it helps in raising the bar of res judicata by suitably construing the general .
principle of subduing rather a cantankerous litigation, that is why this rule is called "constructive res judicata" which in reality is an aspect or amplification of the general principle of res judicata (Refer: Nirmal Enem Horo versus Jahan Ara Jaipal Singh (1973) 2 SCC 189).
15. Section 11 of the Code of Civil Procedure deals with res judicata as under:
"11. 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 to III: xxx xxx xxx 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."
Therefore, in terms of the aforesaid provision, as a general rule, every ground of attack with reference to the ::: Downloaded on - 29/09/2019 00:41:11 :::HCHP 13 title sued on must be pleaded and the plaintiffs will not be allowed to make out a fresh case afterwards. Conversely, if .
the decree passed in the previous suit is inconsistent with a defence which ought to have been raised, that defence must be deemed to have been raised and finally decided, and is barred by principle of res judicata.
16. The Hon'ble Supreme Court in of Income Tax, Bombay versus T.P. Kumaran, (1996) 10 SCC 561, observed as under:
Commissioner "4. The tribunal has committed a gross error of law in directing the payment. The claim is barred by constructive res judicata under Section 11, Explanation IV, Civil Procedure Code which envisages that any matter which might and ought to have been made ground of defence or attack in a former suit, shall be deemed to have been a matter directly and substantially in issue in a subsequent suit. Hence when the claim was made on earlier occasion, he should have or might have sought and secured decree for interest. He did not seek so and, therefore, it operates as res judicata. Even otherwise, when he filed a suit and specifically did not claim the same, Order 2 Rule 2 Civil Procedure Code prohibits the petitioner to seek the remedy separately. In either event, the OA is not sustainable."::: Downloaded on - 29/09/2019 00:41:11 :::HCHP 14
17. Where the principle of constructive res judicata .
would apply to writ petition was subject matter of consideration before the Hon'ble Supreme Court in Avinash Nagra versus Navodaya Vidyalaya Samiti and others, (1997) 2 SCC 534 wherein it was held as under:
"13. The High court also was right in its conclusion that the second writ petition is not maintainable as the principle of constructive res judicata would apply. He filed the writ petition in first instance but withdrew the same without permission of the court with liberty to file the second writ petition which was dismissed. Therefore, the second writ petition is not maintainable as held by the High court in applying the correct principle of law. Thus considered we find no merit in the appeal for interference."
18. A learned Division Bench of this Court in Kundlu Devi and another versus State of H.P. and others, Latest Himachal Law Judgments, 2011 (HP) 579 made these pertinent observations:-
"4. The contention of the learned Counsel for the petitioners is that though the grievance with regard to quantum was dealt with, the grievance with regard to the claim for rent and occupation charges during the period the property was in possession of the Government has not been dealt with. According to the Petitioners, they are entitled to the same in ::: Downloaded on - 29/09/2019 00:41:11 :::HCHP 15 view of the decision of the Apex Court in R.L. Jain v. DDA, 2004 4 SCC 79. We do not think that it will be .
proper for this Court at this stage in proceeding under Article 226 of the Constitution of India to go into the question as to whether the Petitioners are entitled to that component of compensation. That grievance the Petitioners have pursued in accordance with the procedure prescribed under the Land Acquisition Act, 1894 initially before the Collector, thereafter before the Civil Court and finally in appeal before the High Court. According to the Petitioners, though this grievance was raised, the same has not been adverted to. If that be so, a civil writ petition or for that matter any other collateral proceeding is not the remedy. All contentions, which a party might and ought to have taken, should be taken in the original proceedings and not thereafter. That is the well settled principle under Order II Rule 2 CPC. Order II Rule 2 reads as follows:
"2. Suit to include the whole claim. -
(1) Every suit shall include the whole of the claim which the Plaintiff is entitled to make in respect of the cause of action; but a Plaintiff may relinquish any portion of his claim in order to bring the suit within the jurisdiction of any Court.
(2) Relinquishment of part of claim. - Where a Plaintiff omits to sue in respect of, or intentionally relinquishes, any portion of his claim, he shall not afterwards sue in respect of the portion so omitted or relinquished.
(3) Omission to sue for one of several relief's. -
A person entitled to more than one relief in respect of the same cause of action may sue ::: Downloaded on - 29/09/2019 00:41:11 :::HCHP 16 for all or any of such relief's; but if he omits, except with the leave of the Court, to sue for all such relief's, he shall not afterwards sue for any .
relief so omitted."
5. This Rule is based on the principle that the Defendant shall not be vexed twice for one and the same cause. The Rule also seeks to prevent two evils, one the splitting of claims and the other splitting of remedies. If a Plaintiff omits any portion of the claim or omits any of the remedies in respect of the cause, he shall not be permitted to pursue the omitted claim or the omitted remedy. The requirement of the Rule is that every suit should include the whole of the claim which the Plaintiff is entitled to make in respect of a cause of action. Cause of action is a cause which gives occasion for and forms foundation of the suit. If that cause of action enables a person to ask for a larger and broader relief than to which he had limited his claim, he cannot thereafter seek the recovery of the balance of the cause of action by independent proceedings. This principle has been also settled by the Apex Court in Sidramappa v. Rajashetty, 1970 AIR(SC) 1059.
6. Order II Rule 2 applies also to writ proceedings. The left out portion of a cause of action cannot be pursued in a subsequent writ proceedings. All claims which a petitioner might and ought to have taken, should be taken in one proceedings and only in one proceedings. (See the decision of the Supreme Court in Commissioner of Income-tax v. T.P. Kumaran, 1996 10 SCC 561.) ::: Downloaded on - 29/09/2019 00:41:11 :::HCHP 17
7. Equally, a person who has filed the suit seeking certain relief in respect of a cause of action is .
precluded from instituting another suit for seeking other relief's in respect of the same cause of action. He shall not be entitled to invoke the writ jurisdiction of the High Court for obtaining the very same relief. In other words, if a second suit is barred, a writ petition would also be barred. What is directly prohibited cannot be indirectly permitted. That is the principle underlying under Order II Rule 2 CPC."
19. An adjudication is conclusive and final not only as to the actual matter determined but as to every other matter which the parties might and ought to have litigated and have had it decided as incidental to or essentially connected with the subject matter of the litigation and every matter coming within the legitimate purview of the original action both in respect of the matters of claim or defence. No doubt, where a matter has been constructive in issue it cannot be said to have been actually heard and decided. It could only be deemed to have been heard and decided. This was so held by the Hon'ble Supreme Court in Forward Construction Co. and others versus Prabhat Mandal (Regd.) Andheri and others (1986) 1 SCC 100 wherein the Hon'ble Supreme Court held as under:
::: Downloaded on - 29/09/2019 00:41:11 :::HCHP 18"20. So far as the first reason is concerned, the High Court in our opinion was not right in holding that the .
earlier judgment would not operate as res judicata as one of the grounds taken in the present petition was conspicuous by its absence in the earlier petition.
Explanation IV to S. 11, C.P.C. provides that 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. An adjudication is conclusive and final not only as to the actual matter determined but as to every other matter which the parties might and ought to have litigated and have had it decided as incidental to or essentially connected with the subject-matter of the litigation and every matter coming within the legitimate purview of the original action both in respect of the matters of claim or defence. The principle underlying Explanation IV is that where the parties have had an opportunity of controverting a matter that should be taken to be the same thing as if the matter had been actually controverted and decided. It is true that where a matter has been constructively in issue it cannot be said to have been actually heard and decided. It could only be deemed to have been heard and decided. The first reason, therefore, has absolutely no force."
20. The law on the subject has been dealt with in detail in three Judges Bench judgment of the Hon'ble ::: Downloaded on - 29/09/2019 00:41:11 :::HCHP 19 Supreme Court in Ramchandra Dagdu Sonavane (dead) by LRs and others versus Vithu Hira Mahar (dead) by .
LRs and others (2009) 10 SCC 273 wherein it has been held as under:
"Res judicata and the Code of Civil Procedure
42. It is well known that the doctrine of res- judicata is codified in Section 11 of the Code of Civil Procedure. Section 11 generally comes into play in relation to civil suits. But apart from the codified law, the doctrine of res-judicata or the principle of the res-judicata has been applied since long in various other kinds of proceedings and situations by courts in England, India and other countries. The rule of constructive res-judicata is engrafted in Explanation IV of Section 11 of the Code of Civil Procedure and in many other situations also Principles not only of direct res-judicata but of constructive res-judicata are also applied, if by any judgment or order any matter in issue has been directly and explicitly decided, the decision operates as res-judicata and bars the trial of an identical issue in a subsequent proceedings between the same parties.
43. The principle of res- judicata comes into play when by judgment and order a decision of a particular issue is implicit in it, that is, it must be deemed to have been necessarily decided by implications even then the Principle of res- judicata on that issue is directly applicable. When any matter which might and ought to have been made a ground ::: Downloaded on - 29/09/2019 00:41:11 :::HCHP 20 of defence or attack in a former proceeding but was not so made, then such a matter in the eye of law, to .
avoid multiplicity of litigation and to bring about finality in it, is deemed to have been constructively in issue and, therefore, is taken as decided. [See Workmen v. Cochin Port Trust (1978) 3 SCC 119 : AIR 1978 SC 1283].
44. In Swamy Atmandanda vs. Sri Ramakrishna, Tapovanam [(2005) 10 SCC 51], it was held by this court : (SCC p.61 paras 26-27) "26. The object and purport of the principle of res judicata as contended in Section 11 of the Code of Civil Procedure is to uphold the rule of conclusiveness of judgment, as to the points decided earlier of fact, or of law, or of fact and law, in every subsequent suit between the same parties. Once the matter which was the subject-matter of lis stood determined by a competent court, no party thereafter can be permitted to reopen it in a subsequent litigation. Such a rule was brought into the statute-book with a view to bring the litigation to an end so that the other side may not be put to harassment.
27. The principle of res judicata envisages that a judgment of a court of concurrent jurisdiction directly upon a point would create a bar as regards a plea, between the same parties in some other matter in another court, where the ::: Downloaded on - 29/09/2019 00:41:11 :::HCHP 21 said plea seeks to raise afresh the very point that was determined in the earlier judgment."
.
45. When the material issue has been tried and determined between the same parties in a proper suit by a competent court as to the status of one of them in relation to the other, it cannot be again tried in another suit between them as laid down in Krishna Behari Roy vs. Bunwari Lal Roy reported in [1875 ILR (IC-144)], which is followed by this Court in the 28 case of Ishwar Dutt Vs. Land Acquisition Collector & Anr. [(2005) 7 SCC 190], wherein the doctrine of `cause of action estoppel' and `issue estoppel' has been discussed. It is laid down by this Court, that if there is an issue between the parties that is decided, the same would operate as a res-judicata between the same parties in the subsequent proceedings. This court in the case of Isher Singh vs. Sarwan Singh, [AIR 1965 SC 948] has observed : (AIR p.951, para
11) "11. We thus reach the position that in the former suit the heirship of the respondents to Jati deceased (a) was in terms raised by the pleadings, (b) that an issue was framed in regard to it by the trial Judge, (c) that evidence was led by the parties on that point directed towards this issue, (d) a finding was recorded on it by the appellate court, and (e) that on the proper construction of the pleadings it would have been necessary to decide the issue in order to properly and ::: Downloaded on - 29/09/2019 00:41:11 :::HCHP 22 completely decide all the points arising in the case to grant relief to the plaintiff. We thus .
find that every one of the conditions necessary to satisfy the test as to the applicability of Section 11 of the Civil Procedure Code is satisfied."
46. So far as the finding drawn in the suit for injunction in O.S. No.104 of 1953, regarding adoption would also operate as a res-judicata in view of the judgment of this Court in the case of Sulochana Amma Vs. Narayanan Nair [(1994) 2 SCC 14]. It is observed:
"The decision in earlier case on the issue between the same parties or persons under whom they claim title or litigating under the same title, it operates as a res-judicata. A plea decided even in a suit for injunction touching title between the same parties, would operate as res-judicata.
"9....It is a settled law that in a Suit for injunction when title is in issue, for the purpose of granting injunction, the issue directly and substantially arises in that suit between the parties when the same is put in issue in a later suit based on title between the same parties or their privies in a subsequent suit, the decree in injunction suit equally operates as a res-judicata." (SCC p.20,para 9) ::: Downloaded on - 29/09/2019 00:41:11 :::HCHP 23
47. The same view is reiterated in the case of Gram Panchayat of Village Naulakha Vs. Ujagar .
Singh & Ors. [AIR 2000 SC 3272]. This Court has stated, that, even in an earlier suit for injunction, there is an incidental finding on title, the same will not be binding in the later suit or proceedings, where title is directly in question, unless it is established, that it was "necessary" in the earlier suit to decide the question of title for granting or refusing injunction and that the relief for injunction was found or based on the bindings of title. Even the mere framing of an issue may not be sufficient as pointed out in that case."
21. The principle of res judicata comes into play when by judgment and order a decision of a particular issue is implicit in it, that is, it must be deemed to have been necessarily decided by implications not only this, when any matter which might and ought to have been made a ground of defence or attack in a former proceeding but was not so made, then such a matter in the eyes of the law, to avoid multiplicity of litigation and to bring about finality in it, is deemed to have been constructively in issue and, therefore, it is taken as decided. This was so held by the Hon'ble Supreme Court ::: Downloaded on - 29/09/2019 00:41:11 :::HCHP 24 in the judgment of Workmen v. Cochin Port Trust (1978) 3 SCC 119.
.
22. The decision in earlier case on the issue between the same parties or persons under whom they claim title or litigating under the same title, operates as a res judicata. A plea decided even in a suit for injunction touching title between the same parties, would operate as res judicata. (See: Sulochana Amma v. Narayanan Nair (1994) 2 SCC 14 and Gram Panchayat v. Ujagar Singh (2000) 7 SCC 543 : AIR 2000 SC 3272.
23. In view of the aforesaid discussion, I have no hesitation to conclude that not only the instant appeal, but the suit itself was not maintainable and obviously, therefore, even the instant appeal also cannot be held to be maintainable. No question of law, much less substantial question of law, arises for determination in this appeal. Accordingly, the appeal is dismissed along with pending application (s),if any.
24. Ideally, this is a fit case where heavy costs deserve to be imposed upon the appellant, however, taking into account the persuasive submissions made by the learned counsel for the appellant, this Court very ::: Downloaded on - 29/09/2019 00:41:11 :::HCHP 25 reluctantly desist from doing so, with a warning to the appellant not to indulge in such kind of frivolous and .
vexatious litigation in future.
11th July, 2019. (Tarlok Singh Chauhan) (krt) Judge r to ::: Downloaded on - 29/09/2019 00:41:11 :::HCHP