Patna High Court
Sheikh Habibulla vs Jamuna Singh And Ors. on 17 September, 1957
Equivalent citations: AIR1958PAT95, AIR 1958 PATNA 95
ORDER Ahmad, J.
1. The rule in this case has been issued at the instance of the defendant-petitioner calling upon the plaintiffs and some of the defendants, who constitute the opposite party, to show cause why the order dated 10th April 1956, passed by the trial Court holding that the defence of the defendants is barred on the principle of res judicata' be not set aside.
2. The conflict here between the parties substantially centres round the question of title and possession as to five annas and four pies milkiat interest in village Tilberia, bearing touzi No. 1474 in the district of Saran. Originally two suits had been instituted in that regard. The first was by the defendant-petitioner and that was in the first Court of Munsif, Siwan, bearing Title Suit No. 43 of 1951. Therein the relief sought was for the declaration of title land confirmation of possession over that property. The other, namely, Partition Suit No. 38 of 1952, which has given rise to this application, was instituted by the present plaintiffs-opposite party and that was in the Court of the Subordinate Judge, Chapra. Therein the relief sought was one for partition of that share, namely, five annas and four pies, on the plea that the same was acquired by them under an auction purchase and a zerpeshgi bond. In answer thereto the plea set up by the defendant-petitioner was the same as that averred in his plaint of the former suit.
3. It, however, appears that subsequently on application made by the one or the other of the parties, the previous suit, namely, Title Suit No. 43 of 1951, was got transferred to the same Court where the latter suit, namely, Partition Suit No. 38 of 1952, was still pending for disposal.
4. There a petition was filed in Title Suit No. 43 of 1951 on behalf of the defendants of that suit that one of them, namely, Lachmi Singh was dead since long but in spite of it no step had been taken for any substitution. So according to them that suit had abated as a whole. The Court, on hearing the parties, accepted the contention and accordingly dismissed that suit on that ground without any adjudication on merit. Thus, thereafter, only the other case, namely, Partition Suit No. 38 of 1952, was left on the record for disposal on merit. But subsequently therein it was asserted that the defence of that case on the question of title and possession being founded substantially on the same facts as alleged in the plaint of the former suit, the dismissal of one would operate as res judicata in the other to that extent and as such there was nothing left in that case also to be discussed on merit. This submission also found favour with the Court giving rise to the order under revision. Hence the application.
5. Here the order has been challenged mainly on two grounds : (1) that Title Suit No. 43 of 1951 was not heard and decided and that there was no adjudication on merit and (2) that the parties in the two suits were not ex-
actly the same. Therefore, in no case an order passed in Title Suit No. 43 of 1951 could operate as res judicata in the other.
6. In my opinion, the first ground alone is sufficient to dispose of this case and, therefore, it is not necessary for me to give any decision on the other.
7. One of the essentials for the operation of the rule of res judicata, as laid down in Section 11 of the Code of Civil Procedure, is that the former suit should have been heard and finally decided, ''Res judicata," said Romilly in Jen-kins v. Robertson, (1867) 1 Sc & Div 117 (A), "by its very words means a matter upon which the Court has exercised its judicial mind and has come to the conclusion that one side is right and has pronounced a decision accordingly. In my opinion, res judicata signifies that the Court has, after argument and consideration, come to a decision on a contested matter."
Therefore, it is clear that in order to substantiate a plea of res judicata, it is not enough that the parties are the same and that the same matter is in issue, it must also be shown that the matter was heard and finajly decided, Sheo-sagar Singh v. Sitaram Singh, 24 Ind App 50 (PC) (B). In other words, an adjudication on merits, no matter on what ground, is the sine qua non for the operation of the rule of res judicata in a subsequent suit. And it is for that reason that the dismissal of a suit for default under the provision of Order 9, cannot operate as res judicata, Mt. Chand Koer v. Partab Singh, 15 Ind App 156 (PC) (C); Maharaja Ra-dha Parshad Singh v. Lal Sahab Rai, 17 Ind App 150 (PC) (D); Chauthmal v. Khem Karam Das, AIR 1928 Pat 116 (E); Surajdeo v. Partap Rai, AIR 1923 Pat 514 (F); and Mt. Sasiman Chowdhrani v. Subnarain Chowdhari, AIR 1917 Pat 627(2) (G). But once a decision on merit is there, it ie not necessary that the finding on the point in issue should be in explicit terms so long as the same is necessarily involved in that decision. Therefore, on principle it has to be held that the dismissal of a suit on the ground of abatement cannot operate as res judicata though a second suit on the same cause of action will of course be barred; the reason being that res judicata essentially arises out of a decision given on merit while a bar against fresh action is founded on the provisions of law as laid down in the Code of Civil Procedure and not necessarily on an order which is tantamount to a final decision on merit though it is true that for certain purposes that order may operate as judgment.
8. The trial Court, however, relying on the decision in Raju v. Ram Chand, AIR 1933 Lah 752 (H) and Rahimunnissa v. Srinivasa Ayyangar, AIR 1920 Mad 580 (I), has come to the conclusion that even when the dismissal of the former suit is based on abatement, it can operate as res judicata in a subsequent suit. In my opinion, on principle such an unqualified rule cannot be supported and the authorities relied upon by the trial Court are also clearly distinguishable. In AIR 1933 Lah 752 (H), the decision is based mainly on the ground that "under Order 22, Rule 9, C. P. C. where a suit abates or is dismissed, no fresh suit can be brought on the same cause of action" and to that extent, if I may say so, there can be no difference of opinion. But thereafter their Lordships have further observed :
"No authority has been quoted by the learned counsel for the appellant to show that though Raju, appellant, cannot bring a suit himself to establish this title he can resist the claim of the plaintiffs in spite of the definite finding of both the Courts below that he is not in possession of the mortgaged property."
And perhaps it is this observation which has been relied upon by the trial Court in support of the conclusion it has come to. But this observation, in my opinion, is based mainly on the consideration that both the Courts below had concurrently found that the plaintiffs in that suit were in possession and not on the fact that Raju, the defendant in that case, could not contest the claim of the plaintiffs as the Same stood concluded between the parties as a result of the dismissal of the previous suit on the ground of abatement. Further it is clear that in that case a decision on merit had been given and that the suit had abated as against some of the defendants alone and not as a whole. Therefore, it cannot bo said that in that case there was no decision on merit. Similarly in the other case also, namely, AIR 1920 Mad 580 (I), though there is some reference to the doctrine of res judicata, the decision is substantially based again on the same said principle, namely, where a suit abates and is dismissed, no fresh suit can be brought on the same cause of action, and the remedy, if any, is by way of appeal. In developing the latter point, it was further stated therein that an order is tantamount to a judgment in favour of the defendant and, therefore, it must be followed by a decree and in support of that proposition reliance was placed therein on the following dictum of the Privy Council in Brij Indar Singh v. Kanshi Ram, ILR 45 Cal 94 : (AIR 1917 PC 156) (J), which lays down :
"An order abating the suit, looking to the terms of Section 371 already quoted, may be said to be really tantamount to a judgment in favour of the defendant."
This dictum, as it is obvious from the facts of that case, was expressed while their Lord-ships were condemning the practice of passing an ex parte order of dismissal on the ground of abatement without notice to the plaintiff who after all is the main party to bo injured by it. Therefore, on that basis to say that what has been laid down in the aforesaid Madras case is founded "on the principle of res judicata is I think difficult to be sustained. The exact relevant passage in that decision on the question under consideration is in these words :
"So long as the plaintiff is unable to vacate the judgment and so long as the defendant continues in possession he can plead against the plaintiff and those claiming under him that the order of abatement is conclusive of his rights to the property."
But in order to appreciate this passage properly, it has to be read in its context. The lacts in that case were that the suit of the judgment-debtor in regard to certain property had abated and thereafter an application filed by the decree-holder for setting aside abatement had also failed. In those circumstances a question arose as to whether it was still open to the decree-holder to contend thereafter that the property belonged to the judgment-debtor and not to the defendant of that suit and on that footing to follow the same in the execution of the decree which he had against the judgment-debtor. In answer thereto their Lordships expressed their opinion in the negative and. it was in that connection that the above quoted passage was laid down. Therefore, in my opinion, no principle of res judicata can be construed out of that passage. In that case the finding arrived at was that the heirs of the defendants were still in possession. So the learned Judges, who decided that case held :
".....the right position is this, the decree-holder has to establish against a party in possession and in whose favour an order of Court has been passed that the party is not entitled to retain possession as owner of the property. .....It was said that the cause of action for the execution is different from the cause of action for the suit brought by the judgment-debtor against her father. We fail to see the difference. The decree-holder is agitating the same right and is challenging the same infringement which formed the basis of suit in the previous litigation. We must, therefore, hold that the right and the infringement are the same on both the occasions. For these reasons we are of opinion that the decree is not executable against the property as if it belonged solely to the judgment-debtor."
Lastly there is no discussion in that case on the effect of the phrase "has been heard and finally decided" as used in Section 11 of the Code of Civil Procedure. For these reasons and also in view of the decision which - I have already cited above, I find myself unable to accept the contention that an order of dismissal on the ground of abatement without any adjudication on merits can operate as res judicata in a subsequent suit. This is so is also clear from the principle laid clown in Pramatha Nath Malia v. I. S. Mackeys, AIR 1933 Pat 208 (K). Therein Kulwant Sahay, J. observed :
"It is contended that the rejection of the previous application operates as a bar, on the principle of res judicata to the hearing of the present application. In my opinion, the objection cannot be entertained. The previous application was not heard and decided on merits. Notice was ordered to issue, but notices were not issued on account of default on the part of the petitioner. The case of the petitioner may not be worse than the case of a plaintiff whose suit has been dismissed for non-service of summonses upon the defendants. under Order 9, Rule 4, such a plaintiff has the right to institute a fresh suit, subject of course, to the law of limitation. Similarly the dismissal of the previous application in the present case cannot operate as an estoppel and does not debar him from making the present application inasmuch as the previous application had been rejected without adjudication on merits. The point was considered by the Calcutta High Court in Langat Singh v. Janki Kuar, ILR 39 Cal 265 (L) and the cases cited there support the view which I am inclined to take on the point."
9. I, therefore, think that the view taken by the trial Court is not correct.
10. Accordingly the application is allowed and the rule is made absolute but in the circumstances of the case there will be no order as to costs.