A

B

SULOCHANA AMMA

v.

NARA YANAN NAIR

SEPTEMBER

24, 1993

[K. RAMASWAMY AND N.P.

SINGH, JJ.]

Code of Civil Procedure, 1908: Explanation Vlll to Section I Hntro­

duced l1y the Amending Act of 1976-Explanation to be read harmoniously

with Section 11--0rder or issue arising directly and substantially between

C parties-decided finally by a competent Court or tribunal even of limited

jurisdiction including pecuniary jurisdiction-Subsequent proceeding between

same parties raising issues decided in the earlier suit-Though ti.at Court of

limited jurisdiction or special jurisdiction not competent to try the subsequent

suit the earlier proceedings operate as res judicata.

D Interpretation of Statutes: Explanation to a Section in a statute-Not a

substantive provision by itself· but part and parcel or enactment • to be read

hannoniously with Section to clear any ambiguity.

By virtue of a settlement dftd dated 19.5.1961 one 'K' got life estate

E In respect of bis wife's property and the remainder vested in favour of the

respondenL After her death, 'K' alienated the property in 1972. Respon·

dent med a snit to restrain 'K' from alienating the properties and commit·

ting acts of waste. During the pendency of the suit, appellant purchased

the suit property.

F The trial Court decreed the suit holding that 'K' bad no right to

alienate the lands. Permanent injunction

was issued restraining him from

committing acts of waste. Appeal preferred

by 'K'

was dismissed Since the

appellant was not made a party in the suit, Respondent filed a fresh suit

against 'K' and the appellant for perpetual injunction restraining them

G from committing acts or waste. The suit was decreed, but the validity of

the appellant's title was left open. Respondent filed another suit for

declaration of bis title

and possession against the appellanL The trial

Court decreed the suit and granted mesne profits.

Unable to succeed in

the appeal and second appeal, appellant preferred the present appeal.

H On behalf of the appellant, it was contended that S. 11 CPC and

620

'

)

I

SULOCHANA v. NAIR[RAMASWAMY,J.] 521

Explanation VIII thereof should be read harmoniously; that the Amending A

Act of 1976 made no attempt to delete the words "Court competent to try

such suit" in the main section, which would indicate that the legislature

intended to retain the distinction between judgments of the Court of

limited pecuniary jurisdiction which

will not operate as res judicata to a

later suit laid in a court of unlimited jurisdiction, oli the same issue

between the same parties

or persons under whom they claim title or

litigating under the same title; that Explanation VIII only brought within

· the fold of Section 11, the decree or order of the Courts of special

jurisdiction, like probate Court,

land acquisition Court, rent control Court

B

etc; and that the non-obstante clause incorporated in Explanation VIII

would only be in relation

to such decrees; and that the purpose of the C

explanation was only to remove that anomaly.

Dismissing

the appeal, this Court

HELD: 1.1. A decree in a previous suit will not operate as

res judicata, D

unless the Judge by whom it was made, had jurisdiction to try and decide,

not

that particular suit, but also the subsequent suit itselfin which the issue

ls subsequently raised. This interpretation had consistently been adopted

before the introduction

of Explanation VIII.

So the earlier decree of the

court of a limited pecuniary jurisdiction would not operate as

res judicata

when the same issue is directly and substantially in issue in a later suit filed E

in a court of unlimited jurisdiction. It had, therefore, become necessary to

bring in the statute Explanation VIII. To cull out its scope and ambit, it

must be read along with Section 11, to !ind the purpose it seeks to serve. The

Law Commission in its report recommended to remove the anomaly

and

bring within its fold the conclusiveness of an issue in a former suit decided F

by any court, be it either of limited pecuniary jurisdiction or of special

jurisdiction, like insolvency court, probate court, land acquisition court,

Rent Controller, Revenue Tribunal, etc. No doubt the main body of

Section

11 was not amended, yet the expression "the court oflimite<Jjurisdiction" in

Explanation VIII

ia wide enough to include a court whose jurisdiction is G

subject to pecuniary limitation and other cognate expression analogous

thereto. Therefore,

Section 11 is to be read in combination and harmony

with Explanation VIII. The result

that would flow is that an order or an

issue which

had arisen directly and substantially between the parties or

their

pfivles and decided finally by a competent court or tribunal, though

of limited

or special jurisdiction, which includes pecuniary jurisdiction, will H

-

522 SUPREME COURT REPORTS (1993) SUPP. 2 S.C.R.

A operate as res judicata in a subsequent suit or proceeding, notwithstanding

the fact

that such court of limited or special jurisdiction was not competent

court to

try the subsequent suit. The issue must directly and substantially

arise in a later suit between the same parties

or their privies. This question

is no longer

res integra.

[525·D·H; 526-A, BJ

B 1.2. The decree of the District Munsif, thongb of limited pecuniary

jnrisdiction, would operate as

res judicata in the subsequent suit between

the same parties.

(526-G]

Rai Bajrang Bahadur Singh v. Rai Beni Madho Rakesh Singh & Anr.,

C A.I.R. (1938)

P.C. 210 at 214; Daryao v. State of U.P., (1962] 1 SCR 574 and

Gu/am Abbas v. State or U.P., (1982] 1 SCC 71 relied on.

P.M. Kavade v. A.B. Bold~ AIR (1971) SC 2228, referred to.

2. It is obvions from the objects underlying Explanation VIII, that by

D operation of the non obstante clanse finality is attached to a decree of civil

court of limited pecuniary jnrisdiction also to

put an end to the vexations

litigation

and to accord conclusiveness to the issne tried by a competent

court, when the same issne is

directly and snhstantially in issue in a later

snit between the same parties

or their privies by operation of

Section 11. The

parties are precluded to raise once over the same issne for trial.

(527-D, E]

E

P. V.N. Devoki Amma v. P. V.N. Kunhi Raman, A.I. R. (1980) Kerala

230; Kumarmonisa v. Himachal Sahu, AIR (1981) Orissa 177 and C.

Arumugathan v. S.Muthusamy Naidu, (1991) Law Weekly 63 Madras, ap­

proved.

F Nabin Majhi v. Tele Majh~ AIR (1978) Calcntta 440 and Pramode

Ranjan Baneljee v. Nirpada Mkonde~ AIR (1980) Calcntta 181, overruled.

3. It is settled law that explanation to a section is not a snbstantive

provision

by itself. It is entitled to explain the meaning of the words

G contained in the section or clarify certain ambiguities or clear them np. It

becomes a part and parcel of the enactment. Its meaning must depend

upon its terms. Sometimes, it would

be added to inclnde something within

it or to exclude from the ambit of the main provision or condition or some

words occurring in it. Therefore, the explanation normally shonld be so

read as to harmonise with and to clear up any ambignity in the same

H section.

[527-F]

'

I'

I

I

SULOCHANA v. NAIR [RAMASWAMY, J.) 523

CIVIL APPELLATE JURISDICTION : Civil Appeal No. 5152 of A

i993.

From the Judgment and Order dated 23.11.1992 of the Kerala High

Court in S.A. No. 802 of 1990-D.

S. Sukumaran and N. Sudhakarn for the Appellant.

G. Viswanatha Iyer, P.K. Pillai and Dileep Pillai for the Respondent.

The Judgment of the Court

was delivered by K RAMASWAMY, J. Leave granted.

The conflict of judicial opinion among the High Courts in interpreta­

tion of Explanation VIII to Section

11 of the Code of Civil Procedure, as

introduced by the Code of Civil Procedure (Amendment) Act,

1976, is to

B

c

be resolved in this appeal. Ku tty Amma executed

U dambadi (settlement D

deed ) on May 19, 1961 giving life-estate to her husband Krishnan Nair,

for short 'K', and vested remainder in favour of the respondent. She died

in the year

1971. 'K' alienated the property in 1972 by a registered sale

deed

in favour of Narayanan Nair and Chennan. The respondent filed

O.S.

No. 131 of 1972 in the District Munsif Court to restrain 'K' from alienating

the properties and committing acts of waste. Pending the suit, the appellant

E

purchased the suit property on April 7, 1975 under Ex. B-1 from

Narayanan Nair and Chennan. The trial court, by its judgment and decree,

Ex. A-2 dated November 18, 1975 decreed the suit hQ!ding that 'K' had no

right to alienate the lands and permanent injunction

was issued restraining

him from committing acts of waste. The appeal in

AS. No. 31 of 1976 by F

'K' was dismissed under Ex. A-4 on June 9, 1978. The appellant, being not

a party to the earlier suit, when he

was committing acts of waste the

respondent filed

0.S. No.237 of 1975 against 'K' and the appellant for

perpetual injunction restraining them from committing the acts of waste.

The suit

was decreed under Ex. A-5, on

October 22, 1981. Therein the

validity of the appellant's title

was left open. The respondent filed

O.S. No. G

61 of 1982 in the Court of Subordinate Judge for declaration of his title

and possession against the appellant. The

trial court by judgment and

decree dated

October 14, 1986, decreed the suit and granted mesne profits.

On appeal, it was confirmed. The second appeal was dismissed. Thus this

appeal by special leave.

H

524 SUPREME COURT REPORTS (1993) SUPP. 2 S.C.R.

A The concurrent findings recorded by all the courts are that the

appellant being successor in title and interest of 'K' is bound by the decrees

under

Exs. A-2 to A-5 and did not acquire any title under Ex. B-1. The

transfer

in his favour was only the life-estate 'K' and on his demise the

estate of Kutty Amma stands vested in the respondent. Thus the present

B dispute is concluded by those judgments and decrees by the principle of

res judicata.

The valiant effort of

Sri Sukumaran, the learned senior counsel, in

his effective persuasion and meticulous preparation, is that Section 11 and

Explanation

VIII should be read harmoniously. The Amending Act of 1976

C made no attempt to delete the words

" Court competent to try such" suit

in the main section, which would indicate that the legislature intended to

retain the distinction between judgments of the court of limited pecuniary

jurisdiction,

which will not operate as res judicata to a later suit laid in a

court

of unlimited jurisdiction, on the same issue between the same parties

D or persons under whom they claim title or litigating under the same title.

Explanation

VIII only brings within the fold of Section 11, the decree or

order

of the courts of special jurisdiction, like probate court, land

acquisi­

tion court, rent control court, etc. The non obstante clause incorporated in

Explanation

VIII would be only in relation to such decrees. The purpose

of the explanation, therefore, is only to remove that anomaly. The legisla-

E ture having been aware of the law laid down by courts, that the decree of

a court of limited pecuniary jurisdiction does not operate as res judicata in

a subsequent

suit, did not intend to alter the law by suitable amendment

to the body of Section 11. It was urged that the view of the Calcutta High

Court in Nabin Majhi v.Tele

Majh~ AIR (1978) Calcutta 440 and Pramode

F Ranjan Banerjee v. Nirapada Mkondel, AIR (1980) Calcutta 181, is correct

interpretation and the contra

views of the Kerala High Court in P.

V.N.

Devoki Amma v. P. V.N. Kunhi Raman, AIR (1980) Kerala 230, Orissa High

Court inKumarmoni Sa v. Himacha/ Sahu, AIR (1981) Orissa 177 and C.

Arumugathan v. S. Muthusamy Naidu, 1991 Law Weekly 63 Madras, are

not correct.

G

Section 11 of C.P.C. embodies the rule of conclusiveness as evidence

or bars as a plea as issue tried in an earlier suit founded on a plaint in

which the matter is directly and substantially in issue and became final. In

a later

suit between the same parties or their privies in a competent court

H to try such subsequent suit in

w,hich the issue has been directly and

SULOCHANA v. NAIR [RAMASWAMY, J.] 525

substantially raised and decided in the judgment and decree in the former A

suit would operate as res judicata. Section 11 does not create any right or

interest in the property, but merely operates as a bar to try the same issue

once over. In other words,it aims to prevent multiplicity of the proceedings·

and accords finality to an issue, which directly and substantially had arisen

in the former suit between the same parties or their privies, decided and B

become final, so that parties are not vexed twice over; vexations litigation

would be put to an end and the valuable time of the court is saved. It is

based on public policy, as well as private justice. They would apply there­

fore, to all judicial proceedings whether

civil or otherwise. It equally

applies to quasi-judicial proceedings of the tribunals other than the

civil

courts. c

The words

"competent to try such subsequent suit" have been inter­

preted that it must refer to the pecuniary jurisdiction of the earlier court

to try the subsequent suit at the time when the first suit

was brought. Mere

competency to try the issue raised in the subsequent suit

is not enough. A D

decree in a previous suit will not operate as res judicata, unless the judge

by whom it was made, had jurisdiction to try and decide, not that

particular

suit, but also the subsequent suit itself in which the issue is subsequently

raised. This interpretation had consistently been adopted before the intro­

duction of Explanation VIII. So the earlier decree of the Court of a limited

pecuniary jurisdiction would not operate as res judicata when the same E

issue

is

directly and substantially in issue in a later suit filed in a court of

unlimited jurisdiction, videP.M. Kayade v.A.B. Bokil, AIR (1971) SC 2228.

It had, :therefore become necessary to bring in the statute Explanation VIII.

To cull out its scope and ambit, it must be read along with Section 11, to

find the purpose it seeks to serve. The Law Commission

in its report F

recommended to remove the anomaly and bring within its

fold the con­

clusiveness of an issue in a former suit decided by

any court, be it either

of limited pecuniary jurisdiction or of special jurisdiction, like insolvency

court, probate court,

land acquisition court, Rent Controller, Revenue

Tribunal, etc. No doubt main body of Section

11 was not amended, yet the

expression

"the court of limited jurisdiction" in Explanation VIII is made G

enough to include a court whose jurisdiction

is subject to pecuniary limita-

tion and other cognate expressions analogous thereto. Therefore, Section

11 is to be read in combination and in harmony with Explanation VIII. The

result that would flow is that an order or an issue which had arisen directly

and substantially between the parties or their privies an decided finally be H

526 SUPREME COURT REPORTS [1993] SUPP. 2 S.C.R.

A a competent court or tribunal, though of limited or special jurisdiction,

which includes pecuniary jurisdiction,

will operate as res judicata in a

subsequent suit or proceeding, notwithstanding the fact that such court of

limited or special jurisdiction

was not a competent court to try the sub­

sequent suit. The issue must directly and substantially arise in a later suit

B between the same parties or their privies. This question is no longer res

integra. In Rai Bajrang Bahadur Singh v. Rai Beni Madho Rakesh Singh &

Anr., AIR (1938)

P.C. 210 at 214, the facts were that under U.P. Land

Revenue Act 3 of 1901, the consolidation and partition of the lands were

effected and became final. Thereafter, one of the land-owners claimed title

in a

civil suit for a declaration that he was the superior land-holder. In view

C of Section 233 (K) of the Land Revenue Act, on a divergence of opinion

among Oudh Chief Court and Allahabad High Court, the judicial commit­

tee held at p.214 that if

·a question of title affecting the partition, which

might have been raised in the partition proceedings, was no raised and the

partition

was completed, Section 233(K) debars parties to the partition

D from raising the question of title subsequently in a civil court. The revenue

court

is a court of special jurisdiction, In Daryao v. State of

U.P., (1962) 1

SCR 574, this Court held at p.582 that the doctrine of res judicata is in the

interest of public at large and a finality should be attached to the binding

decision pronounced by courts

of competent jurisdiction, and it is also in

the public interest that individuals should not be vexed twice over with the

E same kind of litigation. In Gulam Abbas v. State of U.P., [1982) 1

SCC 71

at 90, this Court held that the principle of res judicata though technical in

nature,

is founded on considerations of public policy. The technical aspect,

for instance, pecuniary

or subject-wise competence of the earlier forum to

adjudicate the subject matter or to grant reliefs sought in the subsequent

F litigation, should be immaterial when the general doctrine of res judicata

is to be invoked. Explanation VIII, inserted by the Amending Act of 1976,

was intended to serve this purpose and to clarify this position. It, therefore

has to be held that the decree of the District Munsif, though of limited

pecuniary jurisdiction, would operate as

res judicata in the subsequent suit

between the same parties.

G

The Calcutta High Court took a very narrow view limiting the scope

of Explanation VIII to the decisions of the courts of special jurisdiction

like probate, insolvency, land acquisition, courts, Rent Controller, Land

Revenue Tribunal etc. The Kerala, Orissa Madras High Courts have taken

H broader view, which view now stands approved by this Court in the

afores,

SULOCHANA v. NAIR{Rru\.IASWAMY,J.] 527

tated decision. Take an instance, if the scope of Explanation VIII is A

confined to the order and decree of

an insolvency court, the scope of

enlarging Explanation VIII would be defeated and the decree of

civil courts

of limited pecuniary jurisdiction shall stand excluded, while that of the

former would be attracted.

Such an anomalous situation must be avoided.

The tribunal whose decisions were not operating

as res judicata, would be

brought within the ambit of Section

11, while the decree of the Civil Court

of limited pecuniary jurisdiction which

is accustomed to the doctrine of res

judicata, shall stand excluded from its operation. Take for instance, now

the decree of a Rent Controller shall operate

as res judicata, hut a decree

of a District Munsif (Civil Judge) Junior Division, according to the stand

B

of the appellant, will not operate as res judicata, though the same officer C

might have decided both the cases. To keep the litigation unending, suc­

cessive suits could be filed in the first instance in the court of limited

pecuniary jurisdiction and late in a court of higher jurisdiction, and the

same issue shall be subject of trial again, leading to conflict of decisions.

It is obvious from the objects underlying Explanation VIII, that by opera- D

. tion of the non obstante clause finality is attached to a decree of civil court

of limited pecuniary jurisdiction also to put an end to the vexatious litiga-

tion and to accord conclusiveness to the issue tried by a competent court,

when the same issue

is directly and substantially in issue in a later suit

between the same parties or their privies by operation of Section

11. The

parties are precluded to raise once over the same issue for trial.

E

It is settled law that explanation to a section is not a substantive

provision by itself.

It ia entitled to explain the meaning

of the words

contained in the section or clarify certain ambiguities of clear them up. It

becomes a part and parcel of the enactment. Its meaning must depend F

upon its terms. Sometime, it would be added to include something within

it or to exclude from the ambit of the

main provision of some condition or

words occurring in

it. Therefore, the explanation' normally should be so

read as to harmonise with and to clear up any ambiguity in the same

section.

Sri Sukumaran further contended that the remedy of injunction is an

equitable relief and in equity, the doctrine of res judicata cannot be

extended to a decree of a court of limited ·pecuniary jurisdiction. We find

no force in the contention.

It is settled law in a suit for injunction when

G

title is in issue for the purpose of granting injunction, the issue directly and H

528 SUPREME COURT REPORTS (1993) SUPP. 2 S.C.R.

A substantially arises in that suit between the parties. When the same issue

is put in issue in a late suit based on title between the same parties or their

privies in a subsequent

suit the decree in the injunction suit equally

operates as res judicata. In

thls case, when the right and interest of the

B respondent were questioned in hls suit against 'K', the validity of the

settlement deed and

the terms thereof were gone

itito. The civil court found

that 'K' acquired life-estate under the settlement deed executed by hls wife

conferring vested remainder in the respondent and on its basis the respon­

dent was declared entitled to an injunction against 'K' who was prohibited

C not only from committing acts of waste, but also from alienating the

properties

in favour of third parties. The later suit of injunction to which

the appellant was a party also binds the appellant. Therefore, even the

decree founded

on equitable relief in which the issue was directly and

D substantially in issue and decided, and attained finality, would operate as

res judicata in a subsequent suit based on title where the same issue directly

and substantially

arises between the parties. The appellant is deriving title

from 'K' who was a party in the former suit is also hit by the doctrine of

E /is pendens under

Section 52 of the Transfer of Property Act.

Accordingly, we hold that the view of the Calcutta High Court is not

good law and contra view is upheld. The judgments and decrees under Exs.

A-2 to A-5 operate as res judicata against the appellant, who derives his

F title from 'K'. The appeal is accordingly dismissed. The parties are directed

to bear their own costs in this appeal

G.N. Appeal dismissed.

••