Delhi High Court
P.S. Prasad And Family (Huf) vs Bharat Bijlee Limited on 10 August, 2006
Author: Sanjiv Khanna
Bench: Sanjiv Khanna
JUDGMENT Sanjiv Khanna, J.
1. M/s P.S. Prasad & Family (HUF) (hereinafter referred to as the petitioner) has filed the present petition under Section 115 of the Code of Civil Procedure, 1908 (hereinafter referred to as the Code, for short) against the order dated 21st April, 2001 dismissing their application for judgment on admissions under Order XXII Rule 6 of the Code.
2. The petitioner herein has filed a suit for ejectment/recovery of possession against M/s Bharat Bijlee Limited (hereinafter referred to as the respondent).
3. After the respondent had filed its written statement, the petitioner herein moved an application under Order XXII, Rule 6 of the Code. This application was dismissed vide order dated 16th February, 1996 by the learned Trial Court. It was, inter alia, held that the defense raised by the respondent in the written statement required trial and adjudication on several issues. Learned Trial Court referred to the contention of the respondent in the written statement that it was entitled to protection under Section 53A of the Transfer of Property Act, 1882 and the document dated 20th September, 1980 was merely an agreement to lease and not a lease deed itself. It is admitted case of the parties that order dated 16th February,1996 was not made subject matter of challenge and the same has become final.
4. Subsequently, the respondent was proceeded ex parte and an ex parte judgment was also passed but the matter was remanded back to the Trial Court by this Court in RFA No. 584/1999 allowing the respondent's application under Order IX, Rule 13 of the Code.
5. Thereafter, the respondent filed an application under Order VI, Rule 17 read with Section 151 of the Code seeking permission to amend its written statement, which was allowed and amended written statement has been brought on record.
6. The petitioner then again moved a second application under Order XXII, Rule 6 of the Code praying that a decree should be passed in their favor on the basis of the admissions made in the amended written statement. It was the case of the petitioner before the learned Trial Court as before this Court that the respondent has changed its stand taken in the earlier written statement and in the amended written statement the respondent has admitted that the tenancy was created by the document dated 20th September, 1980. Thus, it is admitted by the respondent that the document dated 20th September, 1980 is a lease and not an agreement to lease.
7. By the impugned order dated 21st April, 2001 learned Trial Court has dismissed the application under Order XXII, Rule 6 of the Code filed by the petitioner holding that the so called admissions in the amended written statement were not unequivocal and there was no change in the stand of the respondent that agreement dated 20th September, 1980 was an agreement to lease and not a lease deed. Learned Trial Court further held that as the matter was already fixed for recording of evidence/cross-examination, it would not like to exercise its discretion in favor of the petitioner.
8. I have heard the learned Counsels for the petitioner and the respondent and examined the contentions raised by them.
9. It is admitted by the petitioner that they had earlier filed an application under Order XXII, Rule 6 of the Code but the same was dismissed vide order dated 16th February, 1996. The said order was not challenged by the petitioner. It was the case of the petitioner in the first application under Order XII, Rule 6 of the Code that the lease agreement between the parties dated 20th September, 1985 had expired by efflux of time in 1990 as it was for a period of five years. The petitioner further stated that they had served legal notice dated 2nd August, 1989 terminating the tenancy of the respondent under Section 106 of the Transfer of Property Act, 1882. Service of notice was admitted by the respondent and therefore the petitioner was entitled to decree of ejectment as the relationship of landlord and tenant was admitted in the written statement and the fact that the rent was more than Rs.3,500/- per month, was also the accepted position. The learned Trial Court, however, referred to the written statement and the defense taken by the respondent that it's tenancy was protected under Section 53A of the Transfer of Property Act, 1882 and felt that the suit of the petitioner could not be decreed under Order XII, Rule 6 of the Code. It was also held that the questions, whether the tenancy was properly terminated and whether there was compliance with the mandatory requirements of Section 106 of the Transfer of Property Act, raised by the respondent required trial. It was further held that the petitioner had been accepting rent even after the termination of the lease/notice and the question whether there was waiver of notice terminating the tenancy was required to be decided. Order dated 16th February, 1996 is not under challenge before me and I am not examining merits and legality of the said order. The said order has now become final and no revision or any other proceedings were initiated to challenge and question the said order.
10. It is well settled that principle of res judicata and estoppel apply to different stages of the same litigation. Once a question/contention of the parties is decided by a Court, the same issue/contention cannot be raised again before the same court at a subsequent stage of the same proceedings, unless there is change in law, pronouncement of Supreme Court or High Court or change in facts constituting a new "cause of action" or fraud that entitles the party concerned to move another application for the same relief. Reference in this regard may be made to the judgment of the Supreme Court in Satyadhyan Ghosal v. Deorajin Debi The principle of res judicata is based on the need of giving a finality to judicial decisions. What it says is that once a res is judicata, it shall not be adjudged again. Primarily it applies as between past litigation and future litigation. When a matter whether on a question of fact or a question of law - has been decided between two parties in one suit or proceeding and the decision is final, either because no appeal was taken to a higher court or because the appeal was dismissed, or no appeal lies, neither party will be allowed in a future suit or proceeding between the same parties to canvass the matter again. This principle of res judicata is embodied in relation to suits in Section 11 of the Code of Civil Procedure; but even where Section 11 does not apply, the principle of res judicata has been applied by courts for the purpose of achieving finality in litigation. The result of this is that the original court as well as any higher court must in any future litigation proceed on the basis that the previous decision was correct.
The principle of res judicata applies also as between two stages in the same litigation to this extent that a court, whether the trial court or a higher court having at an earlier stage decided a matter in one way will not allow the parties to re-agitate the matter again at a subsequent stage of the same proceedings....
11. In Hope Plantations Ltd. v. Taluk Land Board , it was observed:
It is settled law that the principles of estoppel and res judicata are based on public policy and justice. Doctrine of res judicata is often treated as a branch of the law of estoppel though these two doctrines differ in some essential particulars. Rule of res judicata prevents the parties to a judicial determination from litigating the same question over again even though the determination may even be demonstratedly wrong. When the proceedings have attained finality, parties are bound by the judgment and are estopped from questioning it. They cannot litigate again on the same cause of action nor can they litigate any issue which was necessary for decision in the earlier litigation. These two aspects are "cause of action estoppel" and "issue estoppel". These two terms are of common law origin. Again, once an issue has been finally determined, parties cannot subsequently in the same suit advance arguments or adduce further evidence directed to showing that the issue was wrongly determined. Their only remedy is to approach the higher forum if available. The determination of the issue between the parties gives rise to, as noted above, an issue estoppel. It operates in any subsequent proceedings in the same suit in which the issue had been determined. It also operates in subsequent suits between the same parties in which the same issue arises. Section 11 of the Code of Civil Procedure contains provisions of res judicata but these are not exhaustive of the general doctrine of res judicata. Legal principles of estoppel and res judicata are equally applicable in proceedings before administrative authorities as they are based on public policy and justice.
12. In Bhanu Kumar Jain v. Archana Kumar , it was observed :
18. It is now well settled that principles of res judicata apply in different stages of the same proceedings. (See Satyadhyan Ghosal v. Deorajin Debi and Prahlad Singh v. Col. Sukhdev Singh.)
19. In Y.B. Patil it was held:
4. ... It is well settled that principles of res judicata can be invoked not only in separate subsequent proceedings, they also get attracted in subsequent stage of the same proceedings. Once an order made in the course of a proceeding becomes final, it would be binding at the subsequent stage of that proceeding.
13. Similarly in Ishwar Dutt v. Land Acquisition Collector , it was opined :
18. In the Reference Court or for that matter the High Court exercising its appellate jurisdiction under Section 54 of the Act could not have dealt with the said question. The principle of res judicata is a specie of the principle of estoppel. When a proceeding based on a particular cause of action has attained finality, the principle of res judicata shall fully apply.
9. Reference in this regard may be made to Wade and Forsyth on Administrative Law, 9th Edn. p.243, wherein it is stated:
One special variety of estoppel is res judicata. This results from the rule which prevents the parties to a judicial determination from litigating the same question over again, even though the determination is demonstrably wrong. Except in proceedings by way of appeal, the parties bound by the judgment are estopped from questioning it. As between one another, they may neither pursue the same cause of action again, nor may they again litigate any issue which was an essential element in the decision. These two aspects are sometimes distinguished as 'cause of action estoppel' and 'issue estoppel'.
14. In Devidayal Rolling Mills v. Prakash Chimanlal Parikh , the Supreme Court did add a word of caution :
22. The principle laid down in Satyadhyan case and Y.B. Patil is to the effect that the principle of res judicata can be invoked not only in separate subsequent proceedings but they can also get attracted in subsequent stage of the same proceedings. There cannot be any difference of opinion in the said view. However, this question would depend on the facts and circumstances of each case and the nature of the order passed at an earlier stage of the proceedings. In Arjun Singh v. Mohindra Kumar it was observed as under:
[W]here the principle of res judicata is invoked in the case of the different stages of proceedings in the same suit, the nature of the proceedings, the scope of the enquiry which the adjectival law provides for the decision being reached, as well as the specific provisions made on matters touching such decision are some of the material and relevant factors to be considered before the principle is held applicable.
15. In the case of Prahlad Singh versus Col. Sukhdev Singh , it has been held that once a Trial Court or the higher court has at an earlier stage decided a contention in one way, the parties cannot re-agitate the matter again at the subsequent stage in the same proceedings. Once a court decides an interlocutory matter against a party which has become final, the same court or the higher court cannot at a later stage of the same litigation reconsider the matter again. However, the Supreme Court clarified that this may not squarely apply to orders granting injunction/appointing receiver etc., which do not purport to decide rights of the parties finally. Principle of res judicata is a rule that prevents the parties from raising in the same litigation, the same question over and over again, even if the earlier determination was wrong. Once a matter has been decided and it has obtained finality, it cannot be reopened and the parties are barred from raising the same plea and contention again and ask for adjudication afresh. There are some exceptions to this Rule viz. change in law or when law has been differently interpreted by a higher forum or new cause of action or when there is fraud.
16. In the present case the petitioner admits that there has been no change in law and or judgment of the High Court or Supreme Court after passing of the order dated 16th February, 1996 that would entitle him to move a second application. No allegation of fraud has been made. The second application is not based on any change in law or judicial pronouncement. The sole basis and justification for the second application under Order XII, Rule 6 of the Code for decree on admission is the change in the stand of the respondent in the amended written statement, which, as per the petitioner entitles them to a decree on admissions. It is submitted that in the amended written statement, the respondent has admitted that the agreement dated 20th September, 1980 is a lease deed and not an agreement to lease and, therefore, the question of res-judicata does not arise.
17. I have examined the amended written statement. I do not think there is a change in the stand of the respondent or any admission as suggested and argued. The stand of the respondent continues to be the same. In the very first paragraph of the written statement, the respondent has stated that it had entered into an agreement to lease dated 20th September, 1980 and not a lease deed creating tenancy rights. It is further stated that pursuant to the agreement to lease, possession of the premises was transferred in part performance of the contract by the petitioner to the respondent and, therefore, the petitioner is barred from filing the suit for ejectment in view of Section 53A of the Transfer of Property Act, 1882. It is further stated that the agreement to lease is not required to be registered in law. The amendments made and incorporated in the written statement, do not in any manner negate or take away the said defense of the respondent. The said defense continues to be the principal and the main defense. The modification/amendments made in the written statement are to the effect that the respondent had also financed and paid costs for the purchase of the premises by the petitioner and other co-owners and, therefore, a lease in perpetuity has been created. Whether this defense is valid and has substance is for the Trial Court to decide but on the reading of the entire written statement, it cannot be said that the respondent has given up and changed its earlier stand that document dated 20th September, 1980 is not a lease deed but merely an agreement to lease.
18. Pleadings have to be construed liberally and the contentions of the parties in their pleadings must be culled out from the reading of the pleading as a whole. One or two sentences cannot be segregated and read in isolation contrary to what in substance has been pleaded by a party. Similarly, a party though cannot raise pleas that are mutually destructive, it can ordinarily raise defenses that are inconsistent (See Order VI, Rule 7 and Order VII, Rule 8 of the Code and refer Shrimoni Gurdwara Committee Vs. Jaswant Singh (1996) 11 SCC 690).
19. For the reasons stated above the present petition is liable to be dismissed. As a matter of abundant caution, I would like to clarify that I have not examined on merits whether the petitioner is entitled to decree under Order XII, Rule 6 of the Code in view of the defense of the respondent that document dated 20th September, 1980 is an agreement to lease and not a lease deed and the respondent is entitled protection under Section 53A of the Transfer of Property Act, 1882. This aspect was decided by the learned Trial Court in the order dated 16th February, 1996 in favor of the respondent and is not subject matter of the present revision petition.
20. However, I feel keeping in view the facts of the present case and as the litigation between the parties has remained pending in the Court for more than sixteen years, it would be appropriate if the case is decided and disposed of expeditiously and without granting any indulgence or adjournments to the parties. The Trial Court is accordingly requested to proceed in the matter with urgency and preferably dispose of the same within a period of six months from today.
21. With these observations, the present revision petition is dismissed. However, there will be no order as to costs.