No Acts & Articles mentioned in this case
High Court of H.P.IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA
R.S.A. No. 464/2006
Reserved on: 22.8.2019
Decided on: 28.8.2019
Asha Devi …Appellant
Versus
Dau Dayal (deceased) through his LRs ....Respondents
Coram
The Hon’ble Mr. Justice Tarlok Singh Chauhan, Judge.
Whether approved for reporting ?
1
Yes
For the appellant: Mr. Rajiv Rai, Advocate.
For the respondents: Mr. Sunil Mohan Goel, Advocate.
Tarlok Singh Chauhan, Judge
On 27.4.2007, this appeal came to admitted on
the following substantial questions of law:
1. Whether a decision rendered under the provisions
of Order 17 Rule 3 CPC is a decree and will operate as
res judicata and bar a second suit for the same relief.
It so, whether the findings of the learned courts below
that the case is not hit by res judicata are sustainable
in the eyes of law?
2. Whether the learned courts below have arrived at a
right conclusion by holding that the order dated
1
Whether reporters of Local Papers may be allowed to see the Judgment ?Yes
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25.3.2000 (Ext. DW1/A) will not bar a second suit
oblivious of the fact that the issues No. 1& 2 framed
thereof have been decided against the plaintiff in the
subsequent suit inter se the parties regarding the
same subject matter and cause of action?
The parties shall be referred to as the “plaintiff”
and “defendant”.
2 The uncontroverted facts are that the
plaintiff/respondent prior to filing of the instant suit had filed
a civil suit (C.S. No. 83/2000, titled as Dau Dayal vs. Asha
Devi) for permanent and mandatory injunction against the
defendant/appellant before the learned Senior Sub Judge,
Kullu and the same was dismissed under Order XVII Rule 3
CPC on 25.3.2000 when the plaintiff failed to lead any
evidence despite several opportunities.
3 It is thereafter that the instant suit qua the same
property bearing Khasra No. 2552/2303, Khata/Khatauni
No. 1013/1020, situated in Phatti Balh, Kothi Maharaja,
Tehsil and District Kullu, H.P. came to be filed. The plaintiff
claimed mandatory injunction directing the defendant to
remove, pull down and demolish the shed measuring 111.92
sq. feet as shown in the site plan in pink colour marked by
letters ‘ABCDEF’ raised by the defendant in absence and
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without the consent of the plaintiff wrongly and illegally over
the slab of the plaintiff and further directing the defendant to
put the suit land into its original position and in the
alternative, suit for possession.
4 It was averred that the suit land was originally
owned and possessed by one Ikadshi Dass, who had raised
single storied lintel roof measuring 16’ x 6” in length and 26’
in breadth over the suit land and the same was purchased
by the plaintiff vide sale deed, dated 12.9.1995. It was further
averred that the plaintiff was basically resident of Mandi
Town and earlier he was in possession of the structure,
which was in the nature of a shop as a tenant and after
purchasing the same in the year 1995, he became its
absolute owner in possession along with land underneath to
it existing over Khasra No. 2552/2303. It was further averred
that the plaintiff after purchasing the suit property also
raised one shed over the slab of the shop measuring 112.50
sq. feet, as shown in the site plan in green colour marked by
letters ‘EDNM’. Lastly, it was averred that the defendant
despite having no right, title and interest over the suit
property in the beginning of January 2004 when the plaintiff
along with his family members had gone to his native place in
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Mandi, encroached upon the aforesaid slab of the plaintiff
wrongly and illegally by raising the shed as shown in the site
plan marked by letters ‘ABCDEF’. The defendant was
requested several times to admit the claim of the plaintiff,
but she refused to do so, hence, the instant suit.
5 The defendant contested the suit by filing written
statement inter alia taking preliminary objections regarding
the suit being barred by limitation, res judicata and estoppel.
On merits, it was admitted that the plaintiff was owner in
possession of the suit land, but it was denied that the whole
of the ground floor of the plaintiff was existing over the suit
land by alleging that part of the house standing over the suit
land, which was about 1/3rd portion of the house, was
owned and possessed by the defendant, which had been
illegally encroached by the plaintiff in absence of the
defendant. It was further alleged that in the year 1993, when
the defendant had gone to her native place in Lahaul, the
plaintiff by taking undue advantage of the absence of the
defendant encroached upon the aforesaid adjoining land of
the defendant and raised part of single storied on it. On
return, when the defendant proceeded against the aforesaid
act of the plaintiff, he entered into a settlement with the
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defendant and it was agreed that the plaintiff would be
allowed to retain the ground floor of the house existing on the
land of the defendant and the defendant would be at liberty
to raise building over her aforesaid land and make use of the
slab of the house as existing on the land of the defendant.
But when the defendant started raising her building over the
slab as per the settlement, the plaintiff backed out and filed
Civil Suit No. 83/2000, which as observed above, came to be
dismissed under Order XVII Rule 3 CPC. It was further
alleged that after dismissal of the aforesaid suit, the parties
again entered into settlement and it was finally settled
between the parties that the plaintiff would be allowed to
retain the ground floor of the house as existing on the land
of the defendant and the defendant may raise and complete
her building and use such portion of the slab of the house as
existing on the land and the plaintiff would have no objection
to the same. It is only thereafter that the defendant
completed construction of one story on the slab of the
plaintiff, which was roughly shown by letters ‘ABCDEF’ and
the said construction was completed in the year 2000.
Similarly, the plaintiff also raised one shed on the aforesaid
slab on the ground floor of his house and since the defendant
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had raised her shed over the slab in the presence of the
plaintiff by spending about Rs. 1 lac, therefore, the plaintiff
was estopped from filing the suit by his own act and conduct.
6 The plaintiff filed replication to the written
statement, wherein he reasserted his claim as putforth in
the plaint and denied the defence of the defendant.
7 On the pleadings of the parties, the learned trial
court on 17.3.2005 framed the following issues:
1.Whether the plaintiff is entitled for relief of
mandatory injunction for demolition of shed
raised by defendant over the suit land as prayed
for ? OPP
2.Whether the suit of the plaintiff is within time?
OPP
3.Whether suit of the plaintiff is barred by
principle of res judicata ? OPD
4.Whether suit of the plaintiff is not maintainable
in the present form? OPD
5.Relief
8 After recording the evidence and evaluating the
same, the learned trial court vide judgment and decree dated
7.3.2006 decreed the suit filed by the plaintiff and the appeal
against the said judgment and decree came to be dismissed
by the learned first appellate court vide judgment and decree
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dated 19.8.2006 constraining the defendant to file the instant
appeal.
9 I have heard the learned counsel for the parties
and have also gone through the records of the case carefully.
SUBSTANTIAL QUESTIONS OF LAW NO. 1 & 2
10 Since both the substantial questions of law are
intrinsically interlinked and interconnected, therefore, these
were taken up together for consideration and are being
answered by common reasoning.
11 In order to appreciate the controversy, it would be
necessary to first refer to the judgments of both the learned
courts below as to see how and in what manner they have
dealt with these questions.
12 The learned trial court had framed specific issue
No.3 as to whether the suit of the plaintiff is barred by
principle of res judicata and while answering the said issue,
the learned trial court in para 17 has observed as under:
“The learned counsel for the defendant contended with
vehemence that as it is proved on record that earlier
the plaintiff has also filed the suit for injunction as well
as for mandatory injunction against the defendant qua
the suit property and the said suit of the plaintiff was
dismissed and as the matter has finally been heard
and decided between the parties as is clear from order
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dated 25.3.2002 through which the suit of the plaintiff
was dismissed under Order 17 Rule 3 CPC, the
present suit of the plaintiff is barred by principal of res
judicata. In support of his argument the learned
counsel for defendant relied upon the copy of order,
Ext. DW1/A copy of issues Ext. DW1/B, copy of plaint,
Ext. DW1/C, copy of written statement, Ext. DW1/D,
copy of replication, Ext. DW1/E filed in the earlier suit,
but there is no force in the contention of learned
counsel for defendant as it is clear from pleadings of
the parties in the earlier suit that earlier suit was filed
by the plaintiff for permanent injunction by alleging
that the defendant is threatening to interfere over the
suit property and in the alternative he filed the suit for
mandatory injunction by alleging that in case the
defendant succeeded in raising any sort of construction
over the suit proeprty the same be ordered to be
demolished as is clear from Ext. DW1/C copy of plaint
and further when the defendant has specifically
alleged in para No. 7 of the earlier statement copy of
which is Ext. DW1/D that the defendant is not raising
any sort of construction over the suit property and
further the matter in controversy in the present case
i.e. defendant has encroached upon the suit property,
it is unsafe to hold that the suit of the plaintiff is
barred by principle of res judicata as the present suit
has been filed by the plaintiff on the cause of action
which arose to him subsequently after the decision of
the earlier suit. Accordingly issue No.3 is decided in
negative.”
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13 The learned first appellate court answered issue
No.3 in para 13 of its judgment, which reads as under:
“Now, if coming to the findings recorded on issues
No.2, 3 and 4 firstly it would not be improper to hold
that the Court below has not committed any illegality
and irregularity while holding that the suit is well
within the period of limitation and even not barred by
the principles of res judicata also because the plaintiff
has categorically stated while in the witness box as
PW1 that the defendant has constructed the disputed
shed over the slab of his house some where in January
2004 when he was away along with other members of
his family to his native place at Mandi. Not only this,
but as per his further version he requested to pull
down the shed so constructed by her but of no avail. It
is thereafter, he has filed the present suit in the trial
court on 11.8.2004, hence the same is well within the
period of limitation and objections to the contrary
raised to the contrary by the plaintiff is without any
substance. The plea of resjudicata raised by the
defendant in preliminary has also been discarded by
the learned trial court because in the previous suit No.
83/2000 filed by the plaintiff against the defendant
and dismissal thereof on 25.3.2002, the cause of
action was absolutely different. As per the copy of
plaint Ext. DW1/C and written statement Ext. DW1/D
and also replication Ext. DW1/E, it is crystal clear that
the previous suit was filed by the plaintiff for the
decree of permanent prohibitory injunction against the
defendant on the grounds that she had been
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threatening to raise construction over the suit property
and in the alternative for mandatory injunction
directing thereby the defendant to pull down the
construction, if any raised by her during the pendency
of that suit. In the written statement, it was the case of
the defendant that she is not raising any sort of
construction over the suit property. Thus, it lies ill in
her mouth to claim that the subject matter directly and
substantially in issue in the present suit was directly
and substantially in issue in the previous suit also. The
present suit as a matter of fact has been filed
completely in changed circumstances because now the
plaintiff has admittedly raised construction of a shed
over the slab of the building belonging to the plaintiff.
This suit has thus been filed on a different cause of
action. Thus issue No.3 has been rightly decided
against her. In view of the defendant has raised
construction of shed over slab of the house of the
plaintiff, therefore, the suit is maintainable as he has
every right to assail such act on her part in accordance
with law.”
14 In this background, the moot question is as to
whether the decree passed in the earlier suit under Order
XVII Rule 3 CPC would operate as res judicata.
15 The learned trial court has simply referred to para
7 of the written statement to conclude that the suit was not
barred by res judicata as the defendant had stated therein
that she was not raising any construction over the suit land,
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whereas the learned first appellate court has simply stated
that the suit was not barred by res judicata on the ground
that the cause of action in both the suits was different.
16 In my considered opinion, the reasoning given by
both the learned courts below is contrary to law.
17 It would be necessary to first refer to the prayer
made in Civil Suit No. 83/2000, which reads as under:
“It is, therefore, requested that the defendant herself
and through her agents and servants may be
restrained through a decree of permanent prohibitory
injunction from raising any sort of construction on the
slab of the suit property as described in para No. 2 of
the plaint and from raising the unauthorized
construction of her building in such a manner so that
the rainy water of her building under construction may
not fall on the suit property and in case if it is found
that the defendant has succeeded in raising any sort
of construction over the suit property, the same may be
ordered to be removed, demolished and pull down at
the costs and expenses of the defendant and the suit
property may be ordered to be restored into its original
position by way of mandatory injunction and a decree
to that effect together with costs of the suit may be
passed in favour of the plaintiff and against the
defendant in the interest of justice.”
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18 It is in dispute that the subject matter in both the
suits is the same and in para 5 of the plaint in the earlier
suit, the plaintiff had clearly averred that the defendant was
raising construction over the suit land and it was for this
reason that the relief of mandatory injunction had also been
sought.
19 It would be apposite to refer to para 5 of the
plaint, which reads as under:
“That the plaintiff is the permanent resident of Mandi
Town, and he generally resides there. On 6.6.2000,
when the plaintiff visited the suit property, he came to
know that the defendant has started raising the
additional construction of some structure on the
aforesaid vacant land, by constructing the walls of the
holloblocks and while doing so, she had threatened to
raise the proposed construction on the slab of the suit
property by encroaching upon the same and also to
deprive the plaintiff from raising further construction on
his existing building. Not only so, the defendant is also
threatening to keep the slope of the roof of her building
under construction, so that rainy water may fall on the
building of the plaintiff. Further the proposed building
is being constructed by the defendant unauthorizedly
without the prior permission and sanction of building
plan from the Town and Country Planning Department
as well as from the Municipal Council, Kullu, which is
mandatory for which the defendant has go no right
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and in case if the defendant is not restrained from
doing so, then it will cause an irreparable loss and
substantial injury to the plaintiff, which cannot be
compensated otherwise by any costs.”
20 Now, in case the written statement is seen, even
though the learned trial court has only relied upon para 7 of
the same, but what was more important and has been
conveniently ignored is the averments made in para 4
thereof, which reads as under:
“That para No.4 of the plaint is not admitted to be
correct.
The true facts are that the replying defendant is
owner in possession of land measuring 020 bigha
comprised in Khasra No. 2304/1813 of Khata No.758,
Khatauni No. 1026, incorporated in Jamabandi for the
year 199394 of Phati Balh Kothi Maharaja Tehsil and
District Kullu. After that the replying defendant had
purchased land measuring 0110 bigha comprised in
Shikmi, Khasra No. 1813/ 2/ 2/ 2/ 2/
2/2/2/2/2/2/2/2/2/2/1 vide registered sale deed
No. 1796, dated 28.11.1990 contained in Khata
Khatauni No. 520 min/792 min and as such she is
owner in possession of the and measuring 0310
Bigha. The plaintiff despite the protest has encroached
the land of the replying defendant and this
encroachment was made by the plaintiff in the year
1993. Not only so, the plaintiff had raised
unauthorized construction over the land of the replying
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defendant by making unauthorized encroachment. The
plaintiff has suppressed the true facts and filed the
suit on false and frivolous allegations without having
any cause and suit is just the counter blast to the claim
of the replying defendant. The plaintiff has no legal
right to encroach upon the land of the replying
defendant. Therefore, the replying defendant reserve
her right to claim the possession of the vacant plot by
removing the encroachment by way of demolition of the
construction over dispute . The value of the land which
is unauthorizedly encroached upon by the plaintiff is
Rs.1,00,000/ on which a court fee has been paid.
Cause of action accrued in favour of the replying
defendant firstly in the year 1993 and then on
4.6.2000 when lastly the plaintiff refused to admit the
claim of the replying defendant.
It may be mentioned here that the land in dispute
situated in the Shastri Navar Market on N.H.way 21, it
the same is rented out then it fetch a monthly income of
Rs.1000/ per month and as such the replying
defendant is also entitled for the last 3 year for mesne
profit for use and occupation at the rate of Rs.1000/
per month till the date of vacant possession is
delivered to the replying defendant by removing of the
illegal encroachment made by the plaintiff over the
land of the replying defendant.”
21 It was on the basis of the pleadings of the parties
that the court of the then Senior Sub Judge, Kullu, on
6.10.2000 framed the following issues:
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“1. Whether the plaintiff is entitled for the relief of
permanent prohibitory injunction as prayed for? OPP
2. Whether in the alternative, plaintiff is entitled to the
relief of mandatory injunction as prayed for? OPP
3. Whether the suit is not maintainable in the present
form? OPD
4. Whether the plaintiff has no enforceable cause of
action to file the present suit? OPD
5. Whether the plaintiff has encroached upon the land
of the defendant, if so, its effect? OPD.
6. Relief.”
22 Admittedly, the plaintiff failed to lead any
evidence, and, therefore, the suit was dismissed under Order
XVII Rule 3 on 25.3.2000 by observing as under:
“Heard. I am satisfied that sufficient opportunities have
been afforded to the plaintiff to produce plaintiff’s
evidence but to no avail.
Heard. In view of no evidence on record, the issue No.1
and 2 are decided against the plaintiff and issue No. 3
to 6 are decided against the defendant as having not
pressed. Accordingly, the suit of plaintiff is dismissed
under Order 17 Rule 3 CPC. File, after completion, be
consigned to records.”
23 Failure to adduce the evidence to prove the
allegation of fact has to be held as a dismissal on merits
under Order XVII Rule 3 CPC. The dismissal of the suit for
want of evidence was a judicial order and admittedly, the
same was not assailed in appeal and has, therefore, attained
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finality and cannot be permitted to be reopened and the said
order is binding not only on the parties, but on this court as
well.
24 Order XVII Rule 3 CPC reads as under:
“3 . Court may proceed notwithstanding either party
fails to produce evidence, etc.— Where any party to a
suit to whom time has been granted fails to produce
his evidence, or to cause the attendance of his
witnesses, or to perform any other act necessary to the
further progress of the suit, for which time has been
allowed, the Court may, notwithstanding such default,
(a) if the parties are present, proceed to decide the suit
forthwith, or
(b) if the parties are, or any of them is, absent, proceed
under rule 2].”
25 In Rama Rao vs. Suriya Rao and anr., 1876
I.L.R. (1) Mad. 84, it was observed by the Division Bench of
Madras High Court that where the relief sought for in
respect of certain property in a suit is different from the relief
sought for in respect of the same property in a prior suit
(between the same parties or their privies), but the title on
which the relief sought for is based is the same in both suits,
the dismissal of the formal suit for failure to establish such
title is a bar to the second suit. Dismissal of a claim for
failure on part of plaintiff to produce evidence to substantiate
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it, is of the same effect as a dismissal founded upon
evidence, for the purpose of barring a subsequent suit as res
judicata.
26 In Venkatachalam vs. Mahalakshmamma,
1887 (10) Mad. 272, it was held by another learned Division
Bench of Madras High Court that the plea of res judicata
ordinarily presupposes an adjudication on the merits; but
Section 148 of the Code of Civil Procedure (Act VIII) of 1859
contains a statutory direction that in case the plaintiff
neglects to produce evidence and to prove his claim as he is
bound to do, the Court do proceed to decide the suit on such
material as is actually before it, and that the decision so
pronounced shall have the force of a decree on the merits,
notwithstanding the default on the part of the plaintiff.
27 In Govindoss Krishnadoss vs. Rajah of
Karvetnagar and anr., AIR 1929 Madras 404, the
Hon’ble Madras High Court held as under:
“The question of law that is for decision is whether
already the lower Court has not gone more than once
beyond its jurisdiction in entertaining further petitions
on matters which it had already finally decided. It
appears to me that in this discussion two general
principles have tobe kept in mind; (1) that a party who
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has objections to a proceeding before the Court must
put these forward at the earliest opportunity and must
put all of them forward and not keep back any of them
for subsequent presentation, and (2) that when a Court
of law has, in any proceeding before it, decided upon
evidence or in the absence of evidence, a question of
fact, it is not competent to it to allow that question to be
again reopened except on the very restricted terms laid
down by the provisions for review of judgment. The
learned advocate for respondent 1 argues at large that
since there is no specific provision in the Civil
Procedure Code laying down such principles, these are
not the law. He would and does contend that it is open,
for example, for a judgmentdebtor who has several
objections to the execution of a decree against him to
put forward only one of them at a time and hold the
others in reserve until that one has been disposed of,
then to put forward another, holding the rest again in
reserve and so on. It is a sufficient answer to that
contention to repeat the old principle which Courts of
law are bound to obey and respect, even if parties
before them do not, that there must be an end to
litigation and it is intolerable that a Court should
encourage a judgmentdebtor to protract the execution
of a decree against him in such a fashion. It is a well
recognized principle and settled practice that a party
must put forward his case at the earliest opportunity
and as a whole. All the objections he has to state to a
proceeding against him must be put forward at once on
peril of his being estopped from putting them forward
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at a later stage. A party cannot be allowed to put
forward his case piecemeal. Each party to a legal
proceeding is entitled to have a fair outline of the whole
of his opponent's case at the earliest opportunity, and
is not to be defeated by his opponent withholding part
of it from him in order to bring it forward later. Any
other principle is merely turning the machinery for the
disposal of cases into a machinery for not disposing of
them.”
28 Relying upon the judgment in Govindoss
Krishnadoss’s case supra, the Lahore High Court in Nila
vs. Punun AIR 1936 Lahore 385 observed as under:
“As to the second point, viz. that the decision was not
on merits, the ruling cited by the learned counsel for
the appellant viz. 1929 Mad 404(1), supports his
contention that a decision under O.17 R. 3, Civil.P.C.,
in circumstances like those of the previous suit by
Kartar Singh, is to be deemed on merits, and such a
decision falls within the scope of S.11, Civil. P.C.; ref.
also 40 All 590.”
29 Similar issue came up before the learned Division
Bench of Oudh High Court in Har Dayal vs. Ram Ghulam,
AIR (31) 1944 Oudh 39, wherein the Court was dealing with
a suit that had been dismissed for non payment of costs on
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adjournment and whether the same falls under Order 7 Rule
3 and not Rule 1 and it was observed as under:
“In order that the provisions of R.3 should apply with
full force and effect it is not necessary that there
should be actual decision on the merits. The words “to
comply with any previous order’ in O. 17 Rule 3 are
sufficiently general to include the order for payment of
costs occasioned by an adjournment. An order that
nonpayment of the costs of adjournment (to enable
the plaintiff to implead a certain person as a necessary
party) the suit shall stand dismissed falls within the
purview of O. 17 Rule. 3 and not R. 1. The Court in
dismissing the suit in consequence of that order,must,
therefore, be deemed to have decided it on merits. As
the order falls within O. 17 R. 3, the dismissal of the
suit operates as a bar to the maintainability of the
second suit.”
30 In Bhagwan Dass (Died) through his LRs. vs.
Ramesh Kumar, (20001) 124 P.L.R.110, Punjab and
Haryana High Court was dealing with a case wherein the
eviction petition had been dismissed under Order XVII Rule 3
CPC as the landlord had failed to produce any evidence and
the same was closed. What would be the effect of said order
was duly considered and after relying upon judgments in
Nila and Har Dayal’ cases (supra), it was held as under:
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“7. Learned counsel for the petitioners urged that
earlier also inter se parties an eviction petition was
filed by the respondentlandlord. The ground of eviction
was the same that the property has been sublet by
Bhagwan Dass to his son Raj Kumar. The said petition
for eviction was contested and was dismissed under
Order 17 Rule 3 of the Code of Civil Procedure (for
short "the Code"). According to the learned counsel, the
said decision operates as res judicata and the ground
of subletting is not available to the respondent
landlord.
8. As mentioned above, learned Appellate Authority
expressed the opinion that this is decision was not on
merits and that the provisions of the Code of Civil
Procedure will not strictly apply to these proceedings.
9. To appreciate the said contention, it must be at the
outset restated that the earlier petition for eviction was
dismissed under Order 17 Rule 3 of the Code. It was
respondentlandlord who had failed to produce any
evidence which was closed. Thus, the said decision
had become final inter se parties. When a person is
given an opportunity to lead evidence and he does not
produce any evidence in the Court, it would be taken
as a decision on merits. The learned Appellate
Authority was patently in error in coming to the
conclusion to the contrary.
10. Reference in this connection can well be made to
the decision of the Lahore High Court in the case of
Nila v. Punun, A.I.R. 1936 Lahore 385. It was held that
if the earlier decision is under Order 17 Rule 3 of the
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Code and had been conducted without any negligence
then it is a decision on merits and would operate as
res judicata. Same opinion was expressed by a
Division Bench of Oudh High Court in the case of Har
Dayal v. Ram Ghulam, A.I.R. 1944 Oudh 39. It was
held that once the suit is dismissed under Order 17
Rule 3 of the code, it must be taken to be a decision on
merits.”
31 What would be the effect of dismissal of the suit
under Order XVII Rule 3 CPC is no longer res integra insofar
as this Court is concerned as legal position has been
elaborately dealt with by this Court (Coram: Justice Arun
Kumar Goel, as his Lordship the then was) in Prem Raj
Sharma vs. Baldev Verma, 2002 (2) Shim.LC 74 . The
relevant observation reads as under:
“[17] Before adverting further in the case provisions of
Order 17 Rule 3 and Section 11 of the Code of Civil
Procedure need to be extracted:
Order XVII Rule 3"
3. Court may proceed notwithstanding either party
fails to produce evidence, etc. Where any party to a
suit to whom time has been granted fails to produce
his evidence, or to cause the attendance of his
witnesses, or to perform any other act necessary to the
further progress of the suit for which time has been
allowed, (the Court may, notwithstanding such default,
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(a) if the parties are present, proceed to decide the suit
forthwith; or
(b) if the parties are, or any of them is, absent, proceed
under Rule 2.
Section 11 ResJudicata. 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, II, III, IV xxxxx.
Explanation (V). Any relief claimed in the plaint, which
is not expressly granted by the decree, shall for the
purposes of this section, be deemed to have been
refused.
[23] As per provisions of Order 17 Rule 3(a), trial Court
had no option but for proceeding in accordance with
law when evidence was not produced by the parties
before it. In accordance with the mandate of law, it has
chosen to proceed to decide the suit forthwith. This
resulted in passing of the judgment Ex. PZ. In this
context, it may be noted that provisions' of Order 17
Rule 3 Code of Civil Procedure were amended vide Act
104 of 1976. Defendant, failed to produce his evidence
as was necessary to the further progress of the suit for
which time had been allowed. Had the Court adjourned
the case and/or in case Defendant was not present in
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his suit supra, situation would have been different.
Therefore, there is nothing wrong in the matter having
been decided forthwith. What is the affect of earlier
decision as well as of the provision of Section 11
Explanation (V) Code of Civil Procedure supra will be
dealt with hereinafter.
[24] A plain reading of Explanation (V) extracted above
clearly shows that the relief which was expressly
claimed by the Defendant in the suit filed by him on the
issues whereon they were at variance, relief could be
determined by the Court. It has not been expressly
granted. Thus for the purpose of Section 11 Civil
Procedure Code, the same shall be deemed to have
been refused. In the face of this position, the plea of Mr.
Gupta learned Senior Counsel appearing for the
Defendant that since issue had not been determined on
merits, as such, does not operate as res judicata cannot
be accepted.
[25] In this context, it may be noted that the doctrine of
res judicata is founded on equity, justice, fair play and
good conscience. It is based partly on the maxim of
Roman Jurisprudence "interest reipublicaeut sit finis
litmus", which means that concern the State that there
be an end to law suits; and partly on maxim nemo
debet bix vexari prounaeteadem cause", which means
that no man should be vexed twice over for the same
cause. The principle is founded on ancient precedents,
has been held to have been dictated by the wisdom
and is applicable for all times.
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[26] It may appropriately be observed in this behalf that
besides above, principle of res judicata is based on
public policy also. It is aimed at judicial verdict
attaining finality at some stage.
[27] In case the argument of the learned Senior Counsel
is taken to its logical end then there would be no end to
the litigation and an unsuccessful litigant like
Defendant can keep merrily going on with the filing of
cases one after the other till and so long he is unable to
get desired results. In this behalf, it may also be
appropriately noted that the primary requirement of res
judicata is title to the property. It was a question which
was directly in issue in the suit filed by the Defendant
referred to hereinabove. Court at Solan before whom it
was filed was competent to have adjudicated the same.
Parties were also the same in the earlier suit of the
Defendant as well as the present suit. Thus, simply
because decision on merits had not been given will not
defeat Ex. PZ, whereby the earlier suit of the Defendant
stood dismissed for non production of evidence, this
fact coupled with the Explanation (V) supra, clearly
shows that the relief claimed by the Defendant in his
suit was declined to him.
[28] Needless to point out in this behalf that when
language is simple and meaning is clear nothing needs
to be read down in the provision nor external aids are
required for interpreting such a provision of law. Once
this conclusion is arrived at, what follows is that
Section 11 Explanation (V) of the Code of Civil
Procedure clearly covers the present case.
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[29] On behalf of the Defendant, Mr. Bhupender Gupta,
learned Senior v. Advocate, referred to some
precedents, to which a reference will be made
hereinafter.
[30] First decision relied upon was in case Salo v.
Munshi Ram and Ors., 1985 AIR(HP) 85. What was
held in Paras 17 and 18 in it was in the following
terms:
17. Sheikh Habibulla v. Jamuna Singh, 1958 AIR(Pat)
95 it was 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 resjudicata
essentially arises out of a decision given on merits
while a bar against fresh action is founded on the
provision 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.
18. In Sheodam Singh v. Daryao Kumuar, 1966 AIR(SC)
1332 it was held that if the decision in the former suit
is not on merits, then the case cannot be said to have
been heard and finally decided. The examples of such
cases could be that the former suit was dismissed by
the trial Court for want of jurisdiction, or for default of
Plaintiff's appearance, or on the ground of nonjoinder
of parties or misjoinder of parties or multifarious ness
or on the ground that the suit was badly framed, or on
the ground that a technical mistake, or for failure on the
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part of the Plaintiff to produce probate or letters of
administration or succession certificate when the same
is required by law to entitle the Plaintiff to a decree, or
for failure to furnish security for costs, or on the ground
of improper valuation or for failure to pay additional
court fee on a plaint which was undervalued or for
want of cause of action or on the ground that it is
premature and the dismissal is confirmed in appeal (if
any) the decision not being on the merits would not be
res judicata in a subsequent suit.
This decision does not improve the case of Defendant in
view of the discussion in this judgment.
[31] In Ram Nagendra Tiwary and Ors. v. jagdamba
Ojhian and Ors., 1984 AIR(Pat) 316, plea of res
judicata was negatived because the court trying prior
suit was not competent to try the same, as such it was
held that Section 11 is inapplicable. This is not the
situation in the present appeal. Moreover, such an
argument was not raised on behalf of Defendant.
[32] Similarly, reliance placed on behalf of the
Defendant on State of Maharashtra and Anr. v.
National Construction Company, Bombay and Anr.,
1996 AIR(SC) 2367, is also ill founded. In this case the
suit was filed by the State of Maharashtra invoking the
bank guarantee furnished by National Construction
Company earlier against the Bank only. This was a
short cause suit in the Bombay High Court. This was
dismissed for want of non joinder of party holding that
the contractor was a necessary party. Thereafter, suit
was filed by imp leading the Bank as well as
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Contractor. In this background, after placing reliance on
the decision of Sheodam Singh v. Daryao Kunwar
supra and on Inacio Martins v. Narayan Hari Naik,
1993 3 SCC 123, what was held and is relevant in the
present case is as under para 8.
[33] "This statement of the law by the High Court is,
with respect incorrect of the decision of this Court in
Sheodhan Singh v. Daryo Kunwar, 1966 AIR(SC) 1332
at p. 1336 ; (1966) 3 SCR 300 at 307, where, while
considering the meaning of the words "heard and
finally decided", used in Section 11 of the Code, it was
held:
Wherefor example, the former suit was dismissed by
the trial Court for want of jurisdiction or on the ground
of nonjoinder of parties and the dismissal is confirmed
in appeal (if any), the decision not being on the merits,
would not be res judicata in a subsequent suit.
(Emphasis supplied)
[34] This Court in its recent decision, lilac to Martins v.
Narayan Hari Naik, 1993 3 SCC 123, has reiterated
this propositions. It is, therefore, clear that the
dismissal of the Short Cause Suit and the subsequent
appeal could not have operated as a bar to Spl. Civil
Suit No. 27/83. The plea based on the principle of res
judicata fails."
[35] A reference to this decision clearly shows that it
does not in any manner advance the case of the
Defendant.
35. A case nearer to the facts of the present case is
Chamaru v. Chippal,1973 SLJ 146. In this case order
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passed by the Court in the earlier suit was in the
following terms:
Counsel for the parties present. Neither the Plaintiff nor
his evidence present. Nor any summoned through
Court. The suit is accordingly dismissed under Order
17, Rule 3, Code of Civil Procedure, Announced. The file
after completion be consigned.
Sd/C.S. Sauhta,Sub Judge, 1st Class, Kangra.
In this background, what was held in the second
appeal by this Court was as under:
9. It is next contended by the Appellant that as no
evidence had been led it was not possible to try the suit
on its merits and, therefore, also the suit could not have
been dismissed under Order 17 Rule 3. Now, merely
because the parties have led no evidence in a suit does
not mean that the suit cannot be dismissed. A Plaintiff
may file a suit and then be unable to produce any
evidence in support of his case. It is open to the court to
dismiss the suit on its merits. Dismissal on the merits
impliesin the circumstances, that the allegations
contained in the plaint were not made out, and the trial
Court, therefore, has dismissed the suit.
[36] In case Mahalingeshwara Devaru and Anr. v.
Seetharama Bhatta and Anr., 1978 AIR(Kar) 213, what
was observed and is relevant in the present case is as
under:
The principle of res judicata is not affected by a
subsequent contrary view taken by a superior Court in
any other case. A wrong decision by a Court having
jurisdiction is as much binding between the parties as
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a right one and may be superseded only by appeals to
higher tribunals or other procedure like review which
the law provides. Therefore, even if a decision happens
to be wrong in view of the later judgment of the High
Court, it is binding between the parties and its legal
effect remains the same whether the reason for the
decision was sound or not. , AIR 1966 SC 1061, Rel.
on.
[37] In C. Chennaiya Naidu v. Panchayat Board,
Vennkadathampatti, 1979 AIR(Mad) 135, while
drawing distinction in a order passed under Order 17
Rules 2 and 3, it was held that when both the parties
and their counsel were present in Court. The case was
called. Order 17 Rule 2 Code of Civil Procedure would
not apply and the case would be covered under Order
17 Rule 2 Code of Civil Procedure. In this background,
it was held that the District Judge was right in coming
to the conclusion that the appeal was competent.
[38] In Sushil Kumar Mehta v. Gobind Ram Bohra
(dead) through his L.Rs., 1990 1 SCC 193, it was held
as under:
Thus it is settled law that normally a decree passed by
a court of competent jurisdiction, after adjudication on
merits of the rights of the parties, operates as res
judicata in a subsequent suit or proceedings and binds
the parties or the persons claiming right, title or interest
from the parties. Its validity should be assailed only in
an appeal or revision as the case may be. In
subsequent proceedings its validity cannot be
questioned. A decree passed by a court without
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jurisdiction over the subject matter or on other grounds
which goes to the root of its exercise or jurisdiction,
lacks inherent jurisdiction. It is a coramnonjudice. A
decree passed by such a court is a nullity and is non
est. Its invalidity can be set up whenever it is sought to
be enforced or is acted upon as a foundation for a right,
even at the stage of execution or in collateral
proceedings. The defect of jurisdiction strikes at the
authority of the Court to pass a decree which cannot be
cured by consent or waiver of the party. If the court has
jurisdiction but there is defect in its exercise which does
notgo to the root of its authority, such a defect like
pecuniary or territorial could be waived by the party.
They could be corrected by way of appropriate plea as
its inception or in appellate or revisional forums,
provided law permits. The doctrine of res judicata
Under Section 11 Code of Civil Procedure is founded on
public policy. An issue of fact or law or mixed question
of fact and law, which are in issue in an earlier suit or
might and ought to be raised between the same parties
or persons claiming under them and was adjudicated
or allowed uncontested becomes final and binds the
parties or persons Jaim ing under them. Thus the
decision of a competent court over the matter in issue
may operate as res judicata in subsequent suit or
proceedings or in other proceedings between the same
parties and those claiming under them. But the
question relating to the interpretation of a statute
touching the jurisdiction of a court unrelated to
questions of fact or law or mixed questions does not
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operate "as res judicata even between the parties or
persons claiming under them. The reason is obvious; a
pure question of law unrelated to facts which are the
basis or foundation of a right, cannot be deemed to be a
matter in issue. The principle of res judicata is a facet
of procedure but not of substantive law. The decision on
an issue of law founded on fact in issue would operate
as res judicata. "But when the law has since the earlier
decision been altered by a competent authority or when
the earlier decision declares a transaction to be valid
despite prohibition by law it does not operate as res
judicata. Thus a question of jurisdiction of a court or of
a procedure or a pure question of law unrelated to the
right of the parties founded purely on question of fact in
the previous suit, Vis not res judicata in the
subsequent suit. A question relating to jurisdiction of a
court or interpretation of provisions of a statute cannot
be deemed to have been finally determined by an
erroneous decision of a Court. Therefore, the doctrine of
resjudicata does not apply to a case for decree of
nullity. If the court inherently lacks jurisdiction consent
cannot confer jurisdiction. Where certain statutory
rights in a welfare legislation are created, the doctrine
of waiver also does not apply to a case of decree where
the Court inherently lacks jurisdiction.
[39] It is no body's case that decision in the suit of
Defendant is a nullity. Rather Defendant has given
reasons for not prosecuting the said suit.
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[40] A Full Bench of Kerala High Court in Kadapurath
Mam Khalid v. Beemapura Palamkakkada Sulekha and
Ors., 1986 AIR(Ker) 251, held as under:
To press into service the doctrine of res judicata or
estoppel by record it is enough if the party concerned
shows that the parties to both the suits were the same,
and are persons whose names are on the record at the
time of the decision, even if a party may be a person
who got intervened in the suit.
Where two tarvards were the parties in both the earlier
and subsequent suits the judgment in the earlier suit
will not cease to operate as res judicata merely
because a finding is recorded in the earlier suit that the
power holder of the Karanavan of the tar wad, could \
not have filed the suit on behalf of the tar wad as the
properties did not belong to the tar wad. The parties
being the same the subsequent suit will not be
maintainable.
14 What is required to be proved or established, to hold
that there is bar of res judicata for the subsequent suit,
is that in both the suits, the title of the parties agitated,
is identical, but not the identity of the actual properties
involved in the two litigation. It has been so declared by
the Supreme Court in Ram Lakshmi Dasi v. Banamali
Sen, 1953 AIR(SC) 33. The dictum reads:
The test of resjudicat is the identity of title in the two
litigations and not the identity of the actual property
involved in the two cases.
[41] In Nikunja Bihari Das v. Jatindra Nath Kar and
Ors., 1956 AIR(Cal) 613, while considering Section 11
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of the Code of Civil Procedure, it was observed as
under:
A decision by necessary implication is as much res
judicata as an express decision. That this is so in the
case where Explanation IV of Section 11, Code of Civil
Procedure, has to be considered, there can be no doubt,
but even in other cases where a matter has been raised
in the pleadings but there is no express decision but
there is a decision by necessary implication, the Courts
have, always held that the principle of res judicata is
applicable.
47. Law declared by this judgment squarely covers the
facts of the present case and is thus applicable to all
fours.
A Division Bench of Oudh High Court in Har Dayal v.
Rain Ghulam, 1944 AIR(Oudh) 39, held as under:
In order that the provisions of Rule 3 should apply with
full force and effect it is not necessary that there should
be actual decision on the merits. The words "to comply
with any previous order" in Order 17, Rule 3 are
sufficiently general to include the order for payment of
costs occasioned by an adjournment. An order that
upon nonpayment of the costs of adjournment (to
enable the Plaintiff to implied a certain person as a
necessary party) the suit shall stand dismissed falls
within the purview of Order 17, Rule 3 and not Rule 1.
The Court in dismissing the suit in consequence of that
order, must, therefore, be deemed to have decided it on
merits. As the order falls within Order 17, Rule 3, the
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dismissal of the suit operates as a bar to the
maintainability of the second suit.
48. Examining the present appeal in the light of the
facts as enumerated hereinabove as well as on the
basis of the decisions of different courts including
Supreme Court of India, I am of the considered view
that the relief having been not expressly allowed in the
earlier suit filed by the Defendant shall be deemed to
have been declined to him and thus mere non decision
of all of those issues as was urged on his behalf of the
Defendant does not stop the operation of Section 11
Explanation (V) of the Code of Civil Procedure. Once the
judgment was passed under Order 17 Rule 3 Code of
Civil Procedure particularly when identity of title to
property in both the suits was/is the same, parties
were/are the same and Court was competent to have
adjudicated; then on the basis of the legal position
explained above it can be safely said that the claim of
the Defendant stood negatived in the earlier suit.
Therefore, questions No. 1 and 6 are decided against
the Defendant.”
32 It is, thus, clear from the aforesaid exposition of
law that a decision rendered under the provisions of Order
XVII Rule 3 CPC will operate as res judicata and bar a second
suit for the same relief i.e. mandatory injunction. Therefore,
the suit out of the present appeal emanates clearly not
maintainable and barred by res judicata.
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33 To be fair to the learned counsel for the plaintiff, it
needs to be noticed that in support of his plea that the
present suit is not barred by res judicata has placed reliance
on the following judgments:
(i) Rameshwar Dayal vs. Banda, (1993) 1 SCC
531;
(ii) Krishan Lal vs. State of J & K, (1994) 4 SCC
422 and
(iii) Balraj Taneja vs. Sunil Madan, (1999) 8 SCC
396.
34 In Rameshwar Dayal vs. Banda, (1993) 1 SCC
531, the facts before the Hon’ble Supreme Court were that
the appellant therein claimed to be the owner of 'Gher'
(property in dispute) in the town of Shameili and in that
capacity, according to him, he had let out the property to one
Habib as long ago as in 1966. He had filed suit No. 591/66
against Habib for recovery of rent and the suit was decreed.
According to the appellant, Habib sublet the property to one
Banda. In 1974, the appellant filed a suit for eviction of both
Habib and the subtenant Banda in the Court of Small
Causes. This suit was decreed against both Habib and
Banda. Thereafter, Banda, filed an application for setting
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aside the said decree. His application was dismissed. The
revision filed by him before the Additional District Judge was
also dismissed on 26th September, 1977. Thus, according to
the appellant, the eviction decree against both Habib and
Banda became final on that date. However, Banda filed the
present suit on the basis of his title as the owner of the
property which has given rise to the present appeal. In the
suit, he claimed two reliefs, viz., that the decree passed by
the Small Causes Court in Suit No. 45/1974 was nullity, and
an injunction restraining the defendant in the suit, namely,
Rameshwar Dayal the present appellant, from dispossessing
him of the property. The Trial Court dismissed the suit on
7th May, 1979 by recording a finding that plaintiff Banda was
not the owner but it was the appellant before us, viz.
Rameshwar Dayal who was its owner. In support of its
conclusion, the Trial Court relied on a registered rent deed
dated 7th December, 1956 under which the present appellant
had let out the property in dispute to some other tenant,
earlier. The judgment of the Trial Court was set aside in
appeal by the Civil Judge, District Muzaffarnagar by his
decision dated 13th December, 1985 the effect of which was
to decree the suit filed by the respondent Banda. The second
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appeal filed by the appellant was dismissed by the High
Court by the impugned order.
35 Two contentions were raised before the Hon’ble
Supreme Court. The first was that the decree passed by a
court of competent jurisdiction could not be declared as not
binding on a person who was a party to the suit, and the
second was that the view taken by the lower appellate court
that the judgment of the Small Causes Court did not operate
as res judicata between the parties because the Small Causes
Court had no jurisdiction to decide the title to the suit
property, is erroneous in law.
36 It was in this background that the Hon’ble
Supreme Court observed as under:
“15. We are, therefore, more than satisfied that the bar
of res judicata is not applicable to the determination of
the issue with regard to the title to the property in the
present suit. It is for these reasons that we do not
think it necessary to discuss in detail the decisions
cited on both sides. However, we may refer to a
decision of this Court Gangabai w/o Rambilas Gilda v.
Chhabubai who Pukharajji Gandhi [1982] 1 SCR 1176,
which has a direct bearing on the question as to when
a finding on the question of title to immovable property
rendered by a Small Causes Court would operate as
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res judicata. After discussing various decisions on the
point, this Court has held there as follows :
"when a finding as to title to immovable property is
rendered by a Court of Small Causes res judicata
cannot be pleaded as a bar in a subsequent regular
civil suit for the determination or enforcement of any
right or interest in immovable property. In order to
operate as res judicata the finding must be one
disposing of a matter directly and substantially in
issue in the former suit and the issue should have
been heard and finally decided by the court trying
such suit. A matter which is collaterally or incidentally
in issue for the purpose of deciding the matter which is
directly in issue in the case cannot be made the basis
of a plea of res judicata. A question of title in a Small
Cause suit can be regarded as incidental only to the
substantial issue in the suit and cannot operate as res
judicata in a subsequent suit in which the question of
title is directly raised."
This is a sufficient answer to the contention that when
Small Causes Court incidentally determines the
question of title, it operate as res judicata. The
contention ignores that to operate as res judicata the
first finding must be on an issue which has been
directly and substantially in issue in the former suit. If
the finding is given incidentally while determining
another issue which was directly and substantially in
issue, such finding cannot be said to be on an issue
which was directly and substantially in issue in the
former suit. However, it is not necessary for us to
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discuss this point at length since we have come to the
conclusion that not only the Small Causes Court has
not given any finding on the issue even incidentally, it
has not even referred to the said issue in its socalled
decision.
16. The next question is whether the decision of the
Small Causes Court is binding on the respondent
Banda. In order to be binding, the order of the Court
disposing of the suit must amount to a decree. Section
2 (2) of Code of Civil Procedure (the 'Code') defines
decree as follows :
"(2) 'Decree' means the formal expression of an
adjudication which, so far as regards the court
expressing it, conclusively determines the right of the
parties with regard to all or any of the matters in
controversy in the suit and may be either preliminary
or final...................
17.The definition of 'Order' given in Section 2 (14) of the
Code is as follows:
(14) "Order' means the formal expression of any
decision of a Civil Court which is not a decree."
However, neither the order nor the decree should be
confused with judgment' which is defined by Section 2
(9) of the Code as "the statement given by the Judge of
the grounds of a decree or order'. The definitions of
decree, order and judgment given in the Code show
that decree or order as the case may be, can come into
existence only if there is an adjudication on the
relevant issues, which conclusively determines the
rights of the parties.
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18. We have already pointed out earlier that the Small
Causes Court has not even noticed the matters in
controversy between the appellant and the respondent,
and consequently, there has been no adjudication or
decision on the said matters. There is thus no 'formal
expression of adjudication............. conclusively
determining the rights of the parties with regard
to............. the matters in controversy in the suit".
19. It must be remembered in this connection that
Rules 4 (1) and 5 of order XX of the Code are
applicable to the judgments of the Small Causes Court.
The Rules are as follows :
"4. Judgment of Small Causes Courts (1) Judgments of
a Court of Small Causes need not contain more than
the points for determination and the decision thereon.
(2) Judgments of other Courts Judgments of other
courts shall contain a concise statement of the case,
the points for determination, the decision thereon and
the reasons for such decision."
"S. Court to state Its decision on each issue. In suits in
which issues have been framed, the Court shall state
its finding or decision, with the reasons therefore, upon
each separate issue, unless the finding upon any one
or more of the issue is sufficient for the decision of the
suit."
'Points for determination" referred to in Rule 4(1) are
obviously nothing but 'issues" contemplated by Rules 1
and 3 of Order XIV of the Code. The present decision of
the Small Causes Court which has not even stated the
points for determination and given finding thereon, is
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obviously not a judgment within the meaning of Section
2 (9) of the Code. Since the matters were in controversy
between the parties, it is only a judgment which could
have given rise to a decree. The socalled decision of
the Small Causes Court, therefore, does not amount to
a decree within the me of Section 2 (2) read with
Section 2(9) and Rules 4(1) and 5 of Order XX of the
Code.
20. It is not disputed that in view of the provisions of
Section 17 (1) of the Provincial Small Causes Court Act,
the Code is applicable to Small Causes Court except
where it is otherwise provided either by the Code or
the said Act. Apart from Rules 4 (1) and .5 of Order XX
of the Code, on this count also, it was obligatory for the
Small Causes Court, in the present case, to state the
points for determination and give its finding or decision
on each of the said points. Hence the present decision
of the Small Causes court is not a judgment and a
decree in the eye of law and is, therefore, non est as
far as the respondent is concerned.”
37 The ratio of the aforesaid judgment obviously
cannot be applied to the facts of the instant case as it was
categorically held that the decision of the small causes court
was not a judgment and decree in the eyes of law and,
therefore, non est as far as the respondent therein is
concerned.
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38 In Krishan Lal vs. State of J & K, (1994) 4
SCC 422, the facts before the Hon’ble Supreme Court were
that the appellant therein had filed an appeal by special leave
against the judgment dated 19.4.1990 rendered by the
Jammu and Kashmir High Court, whereby the High Court
allowed the appeal filed by the respondentState and set
aside the judgment of District Munsif, Poonch by which suit
of the appellant challenging his order of dismissal passed on
31.1.1978 had been decreed, which order had come to be
upheld by the District Judge. Thereafter, a separate writ
petition was directly filed before the Hon’ble Supreme Court
regarding grievance of the illegal termination of service and
seeking a declaration that dismissal was void and non est.
The High Court dismissed the suit of the appellant on two
grounds; (1) the civil court has no jurisdiction to entertain
the suit; and (2) the suit was barred by res judicata.
39 It was in this background that the Hon’ble
Supreme Court observed as under:
“5. Let us first deal with the question of jurisdiction. To
decide this reference may be made to skeletal facts.
These are that the. conduct of the appellant while
serving as a clerk in the office of Commandant, Home
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Guards at Poonch came to be enquired in the year
1972 by AntiCorruption Commission setup" under the
provisions of Jammu & Kashmir (Government Servant)
Prevention of Corruption Act, 1962 (hereinafter referred
to as the 'Act'). The Commission vide its order dated
14.3.74, recommended to the Governor the dismissal of
the appellant from service. After receipt of this
recommendation the appellant was called upon on
4.7.74 to show cause as to why he should not be
dismissed from service. By communications of 13.8.74
and 4.1.76 the appellant approached the concerned
officer to supply copy of the proceedings of the inqury
including the report of the Commission to enable him to
submit his explanation. This not having been done, the
appellant challenged the action by approaching the
High Court in W.P. No.413 of 1978 which came to be
disposed of on 15.3.78 with the direction to the
authorities to make available a copy of the proceedings
of the inquiry. Before that order had come to be
passed, the appellant had been dismissed from service
by an order dated 31.1.78 which came to be
challenged in Writ petition No. 23 of 1978. That petition
was dismissed by judgment dated June 1, 1979 on the
ground that a very complicated question of fact was
involved. A Letters Patent Appeal being preferred the
Bench also took the view that "a disputed question of
fact of complicated nature was involved." The Bench,
however, observed that its order will not "prevent the
appellant from pursuing whatever other remedy may
be available to him under law".
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6. Thereafter started the present proceeding, which
consists of filing of a suit by the appellant on 26.7.80
challenging the order of dismissal as void and illegal.
The trial court decreed the suit principally on the
ground that the appellant had not been supplied with a
copy of enquiry proceedings and the dismissal order
was passed in violation of the mandatory provision of
section 17(5) of the Act. The District Judge dismissed
the State's appeal as being barred by limitation. The
High Court dismissed the revision application,
whereupon this Court was approached and it directed
the District Judge to hear the appeal on merits by its
order dated 25.4.85. The District Judge thereafter took
the appeal on his file and upheld the decree of the trial
court on the ground that dismissal order having been
passed in violation of section 17(5) of the Act was null
and void. On the High Court being approached in
second appeal, it allowed the same on the grounds
mentioned above.
7. Let us now examine whether the view taken by the
High Court that civil court's jurisdiction was barred is
tenable. In taking this view the High Court has relied
on section 20 of the Act which has provided that
"Nothing done or purporting to have been done under
this Act shall be called in question in any Court."
8. Shri Mehta urges that the finality given by section
20 of the Act could not have ousted the jurisdiction of
civil court in the present case inasmuch as the
dismissal order being a nullity, court's jurisdiction did
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not get barred because of the aforesaid provision. To
bring home this submission of law, we are referred by
the learned counsel to the Constitution Bench decision
of this Court in Ram Swaup v. Shikar Chand, AIR
(1966) SC 893 in which case the Bench while
considering the effect of section 3(4) of the U.P.
(Temporary) Control of Rent and Eviction Act, 1947
which had provided that "the order of the
Commissioner under subsection (3) shall, subject to
any order passed by the Commissioner under section
7(F), be. final" opined in paragraph 13 that the bar
created by the aforesaid provision would not operate in
cases where the plea raised before the civil court goes
to the root of the matter and this would be so where
the impugned order be a nullity.
9. Shri Mehta contends that as provision of section
17(5) of the Act was held to be mandatory by a Full
Bench of Jammu & Kashmir High Court in State of
Jammu & Kashmirk v. Abdul Ghani Patwari, AIR
(1979) J & K 17, the dismissal order has to be
regarded as nullity. This submission is buttressed by
referring to one of the illustrations given in paragraph
13 of Shikar Chand's case, which is that if a statute
were to grant permission to a landlord to sue tenant
after issuance of notice, nonissuance of the notice
would render the impugned order completely invalid. It
is urged that section 17(5) of the Act having provided:
"After the Commission submits its recommendation and
after the Governor arrives at a provisional conclusion in
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regard to the penalty to be imposed, the accused shall
be supplied with the copy of proceedings of the inquiry
and called upon to show cause by a particular date
why the proposed penalty should not be imposed upon
him.
(Emphasis supplied) the order of dismissal passed
without supplying copy of the proceedings of the
inquiry, which provision was held as mandatory in the
aforesaid Full Bench, has to be regarded a invalid; and
so. because of what was stated by the Constitution
Bench in Ram Swarup's case, civil court' jurisdiction
cannot be held to have been barred.
10. In support of his submission, Shri Mehta has also
relied on Shiv Kumar Chadha v. Municipal Corporation
of Delhi, [1993] 3 SCC 161, in which a threejudge
Bench of this Court speaking through N.P. Singh, J.,
while examining the question of bar of civil courts'
jurisdiction because of the provision contained in Delhi
Municipal Corporation Act, 1957, held that the order
being nullity in the eye of law, the same amounted to
"jurisdictional error" because of which civil courts'
jurisdiction was not barred as the impugned order was
outside the Act.
11. We may not labour much on this point because of
the aforesaid legal proposition and also because of
what was pointed out by a Constitution Bench in
Dhulabhai v. State of MP., AIR (1969) SC 78 that
exclusion of jurisdiction of the civil court should not be
readily inferred. So we agree with Shri Mehta that the
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High Court erred in law in holding that the civil courts'
jurisdiction was barred, in as much there being
violation of man datory provision as contained in
section 17(5) of the Act, it can well be said that the
respondents had no jurisdiction to pass the impugned
order and by doing so they committed a "jurisdictional
error".
12. In so far as the second ground given by the High
Court? the same being bar of resjudicata it clear from
what has been noted above, that there was no decision
on merits as regards the grievance of the appellants;
and so, the principle of resjudicata had no application.
The mere fact that the learned single judge while
disposing of the Writ Petition No. 23 of 78 had
observed that:
"This syndrome of errors, omissions and oddities,
cannot be explained any hypothesis other than the one
that there is something fishy in the petitioner's
version......"
which observations have been relied upon by the High
Court in holding that the suit was barred by
resjudicata do not at all make out a case of
applicability of the principle of resjudicata. The
conclusion of the High Court on this score is indeed
baffling to us, because, for resjudicata to operate the
involved issue must have been "heard and finally
decided". There was no decision at all on the merit of
the grievance of the petitioner in the aforesaid Writ
Petition and, therefore, to take a view that the decision
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in earlier proceeding operated as resjudicata was
absolutely erroneous, not speak of its being
uncharitable.”
40 Obviously, there can be no quarrel with the
exposition of law as aforesaid, however it would be noticed
that the suit filed by the appellant therein had been
dismissed primarily on the grounds that the civil court had
no jurisdiction to entertain the suit and that the suit was
barred by res judicata.
41 Insofar as the first plea was concerned, the
Hon’ble Supreme Court after placing reliance upon the
decision of the Hon’ble Constitution Bench in Dhulabhai vs.
State of M.P. AIR 1969 SC 78 held that the High Court
erred in law in holding that the civil courts’ jurisdiction was
barred. As regards second contention regarding suit being
barred by res judicata,it was clearly held that there was no
decision on merits qua the grievance of the appellant and,
therefore, the principle of res judicata had no application.
Therefore, the aforesaid judgment is clearly distinguished
and is not applicable to the facts of the instant case.
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42 Now, adverting to the judgment passed by the
Hon’ble Supreme Court in Balraj Taneja vs. Sunil Madan,
(1999) 8 SCC 396. The facts therein were that respondent
No.1, Sunil Madan, filed a suit in the Delhi High Court
against the appellants and respondent No.2 for specific
performance of an agreement for sale in respect of property
No.W118, First Floor, Greater KailashII, New Delhi. The suit
was filed in May, 1996. Summons which were issued to the
appellants and respondent No.2 were duly served upon them
and in response thereto, they put in appearance before the
Court on 20
th
September, 1996 and prayed for eight weeks'
time to file written statement which was allowed and the suit
was adjourned to 22
nd
January, 1997. Written Statement was
not filed even on that date and an application was filed for
further time to file the written statement which was allowed
as a last chance and the written statement was directed to be
filed by 7
th
February, 1997. The suit was fixed for 10
th
February, 1997. Since the written statement was still not
filed, the Court decreed the suit for specific performance in
favour of respondent No.1 under Order 8 Rule 10 C.P.C.
Respondent No.1 was directed to deposit a sum of Rs.3 lakhs,
being the balance amount of sale consideration, within six
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weeks and on the amount being so deposited, he was given
the liberty to apply to the court for appointment of a
Commissioner for executing the sale deed in his favour. The
review application filed by the appellants including
respondent No.2 was dismissed by the High Court on 13th of
May, 1997. An appeal, which was filed by the appellants,
including respondent No.2, thereafter, before the Division
Bench (R.F.A.(OS) NO.36/97) was dismissed on 29.4.1998. It
is in these circumstances that the appeal was filed before the
Hon’ble Supreme Court.
43 It was in this background that the Hon’ble
Supreme Court observed as under:
“27. In view of the above, it is clear that the Court, at
no stage, can act blindly or mechanically. While
enabling the Court to pronounce judgment in a
situation where no Written Statement is filed by the
defendant, the Court has also been given the discretion
to pass such order as it may think fit as an alternative.
This is also the position under Order 8 Rule 10 CPC
where the Court can either pronounce judgment
against the defendant or pass such order as it may
think fit.
28. As pointed out earlier, the Court has not to act
blindly upon the admission of a fact made by the
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defendant in his Written Statement nor the Court
should proceed to pass judgment blindly merely
because a Written Statement has not been filed by the
defendant traversing the facts set out by the plaintiff in
the plaint filed in the Court. In a case, specially where
a Written Statement has not been filed by the
defendant, the Court should be a little cautious in
proceeding under Order 8 Rule 10 CPC. Before passing
the judgment against the defendant it must see to it
that even if the facts set out in the plaint are treated to
have been admitted, a judgment could possibly be
passed in favour of the plaintiff without requiring him
to prove any fact mentioned in the plaint. It is a matter
of Court's satisfaction and, therefore, only on being
satisfied that there is no fact which need be proved on
account of deemed admission, the Court can
conveniently pass a judgment against the defendant
who has not filed the Written Statement. But if the
plaint itself indicates that there are disputed questions
of fact involved in the case regarding which two
different versions are set out in the plaint itself, it
would not be safe for the Court to pass a judgment
without requiring the plaintiff to prove the facts so as to
settle the factual controversy. Such a case would be
covered by the expression "the Court may, in its
discretion, require any such fact to be proved" used in
sub rule (2) of Rule 5 of Order 8, or the expression
"may make such order in relation to the suit as it
thinks fit" used in Rule 10 of Order 8.
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41. There is yet another infirmity in the case which
relates to the "judgment" passed by the Single Judge
and upheld by the Division Bench.”
44 It would be noticed that it is on account of non
filing of the written statement despite repeated opportunities
that the suit filed by the plaintiff came to be decreed for
specific performance under Order 8 Rule 10 CPC and against
the said order, a review petition was filed. It was dismissed by
the High Court on 13.5.1997 and the appeal filed before a
Division Bench of the High Court also came to be dismissed
on 29.4.1998. It was against the order of the Division Bench
that the matter was carried to the Hon’ble Supreme Court.
Whereas, in the instant case, the order passed by the then
learned Senior Sub Judge, Kullu, admittedly has attained
finality and cannot, therefore, be reopened either by the
parties or for that matter even by this Court.
The substantial questions of law are answered
accordingly.
45 In view of aforesaid discussion, I find merit in the
instant appeal and the same is accordingly allowed.
Consequently, the impugned judgments and decrees passed
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by both the learned courts below are set aside and the suit
filed by the plaintiff is dismissed. Pending application(s), if
any, also stands dismissed. The parties are left to bear their
own costs.
28.8.2019 (Tarlok Singh Chauhan)
(pankaj) Judge
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