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CASE NO.:

Appeal (civil) 2395 of 2000

PETITIONER:

Swamy Atmananda & Ors.

RESPONDENT:

Sri Ramakrishna Tapovanam & Ors.

DATE OF JUDGMENT: 13/04/2005

BENCH:

B.P. Singh & S.B. Sinha

JUDGMENT:

J U D G M E N T

WITH CIVIL APPEAL NO. 3740 OF 2000

S.B. SINHA, J :

The question as to whether the jurisdiction of the Civil Court stands

ousted in terms of Sections 53 and 53A of the Tamil Nadu Recognized

Private Schools (Regulation) Act, 1973 (hereinafter referred to as 'the Act')

falls for consideration in this appeal which arises out of a judgment and

order dated 13.10.1999 passed by a Division Bench of the Madras High

Court in A.S. No.568 of 1998 whereby and whereunder the appeal preferred

by the Appellants herein from a judgment and decree dated 7.8.1998 passed

in O.S. No.1254 of 1994 by the Subordinate Judge, Tiruchirapally decreeing

the plaintiff-Respondents' suit, was dismissed.

BACKGROUND FACTS :

The First Respondent herein (hereinafter referred to as 'Tapovanam')

is a registered Society. It was founded by Swamy Chidbavananda. It has

been functioning since 1942. The said Swamy Chidbavananda used to

propagate the ideals of Swamy Ramakrishna Param Hans and Swamy

Vivekananda. It started functioning at Ooty and later shifted to

Thiruparaithurari. A number of branches were established at various places,

namely, Thiruvedagam, Courtallam, Chitraichavadi, Thirunelveli,

Kodaikanal, Ramanathampuram, Rameshwaram, Salem and Karur.

Educational institutions and ashrams as well as dispensaries were established

at all these places. Swamy Chidbavananda during his life time acquired

various properties by collecting funds from the public, which partook the

character of Trust property.

The First Appellant herein was an employee in a mill at Coimbatore.

He joined 'Tapovanam' as an ordinary member. He became Sanyasi in 1970

whereupon he was assigned a job at Thiruvedagam and later transferred to

Karur in the year 1976. 'Tapovanam' established a number of educational

institutions at Karur from donations collected from the public as also with

the funds available through the trusts called Vairaperumal Trust and

Tathinagireswarar Trust, the object whereof was to dedicate their properties

to Tapovanam to enable it to establish educational institutions.

It is not in dispute that in the year 1987, the First Appellant herein got

a Trust registered known as 'Sri Ramakrishna Ashramam Trust'. A claim

was set up by him to the effect that all the institutions at Karur had been

founded by him from his own money as well as the money collected by him

individually. He filed a suit in the Court of the Subordinate Judge, Karur,

marked as O.S. No.251 of 1991, for a declaration that he along with other

members were the owners as well as founders of the educational agencies of

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the six educational institutions mentioned in the plaint. The said suit was

dismissed as withdrawn whereupon he filed another suit, marked as O.S.

No.1368 of 1990 in the Court of the District Munsif at Karur, which was

subsequently transferred to the Court of Subordinate Judge, Karur and re-

numbered as O.S. No.459 of 1991, the subject-matter whereof was two

educational institutions, namely, Sri Vivekananda Higher Secondary School

for Boys and Sri Sarada Girls Higher Secondary School at

Pasupathipalayam. In the said suit a question arose as regard the status of

the First Appellant vis-`-vis the First Respondent herein (Tapovanam) as

regard 'educational agency' in terms of the provisions of the said Act.

In the said suit the Trial Judge framed the following issues :

(i) Whether the Plaintiff No.1-trust was in management and

whether it was in existence?

(ii) Whether it was legally constituted?

(iii) Whether the plaintiffs were the owners of the suit Schedule

Institutions?

(iv) Whether the Defendant No.1 was not the Educational Agency

of the Plaint Schedule Schools?

(v) Whether the Plaintiff No.2 functioned as an agent of the

Defendant No.1?

(vi) Whether the Defendant No.1 had no right over the Plaint

Schedule Schools?

(vii) Whether the suit was maintainable?

(viii) Whether the Plaintiffs were entitled to the declaration prayed

for?

(ix) To what relief the Plaintiffs were entitled to?

The said suit was dismissed by a judgment and order dated 30.4.1992,

by the Court of Subordinate Judge, Karur, inter alia, holding :

(i) The Appellant No.2 Trust was not legally constituted and was

never in existence.

(ii) The Appellant No. 1 was an agent of Tapovanam and

Tapovanam was the owner and Educational Agency of the

Schools in question.

The Appellants preferred an appeal thereagainst in the Court of the

District Judge, Trichirapally, which was marked as A.S. No.288 of 1992.

The said appeal was also dismissed by a judgment and order dated

17.2.1993, inter alia, on the following findings :

(i) Defendants 3 and 4, were misguided by 2nd Plaintiff in forming

the 1st Plaintiff Trust.

(ii) The Trust deed, Ext. A-1 was not proved, not genuine and did

not come into existence.

The Appellant Nos. 1 and 2 preferred a Second Appeal thereagainst

in the High Court of Madras which was also dismissed by a judgment and

order dated 28.4.1997, holding :

(i) Appellant No.1 herein was only an agent of Tapovanam.

(ii) Appellant No.2 herein did not come into existence.

A Review Petition filed thereagainst was also dismissed by an order

dated 13.9.1999.

During the pendency of the said proceeding before the High Court,

Tapovanam filed a suit in the Court of Sub Judge, Karur, marked as O.S.

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No. 273 of 1992 on or about 6.7.1992, which was subsequently transferred

to the Court of Subordinate Judge, Trichirapally and renumbered as O.S.

No.1254 of 1994, against the Appellants and 13 others for a declaration

that it was the absolute owner of the suit properties more fully and in details

described in Schedule-A therein, and furthermore it was the educational

agency in respect of the institutions mentioned therein. The Appellants

herein in their written statement, inter alia, contended that the Appellant

Nos. 2 and 3 were independent trusts and no money in relation thereto was

contributed by Tapovanam for establishing the institutions and furthermore

the Appellant No.1 herein was not its agent.

In said suit filed before the learned Subordinate Judge, Trichirapally,

the following issues were framed :

"(i) Whether the Plaintiff is entitled for declaration and

possession as prayed for?

(ii) Whether the Plaintiff is entitled for an injunction as

against the 1st defendant from projecting himself as the

Secretary and Correspondent?

(iii) Whether the Plaintiff is entitled for accounting relief?

(iv) Whether assignment deeds dated 22.5.1987 and

15.7.1989 are enforceable against the Plaintiff?

(v) Whether the Plaintiff is the owner of the B-Schedule

properties or any other properties acquired by the 1st

defendant?

(vi) To what relief?

(vii) Whether the suit claim had been valued properly and

whether correct Court fee had been paid on the Plaint?"

The said suit filed by Tapovanam was decreed, inter alia, on the

premise that the finding in the earlier suit the First Appellant herein having

been held to be an agent of Tapovanam being binding upon the Appellants,

the same would attract the principle of res judicata. An appeal preferred by

the Appellants before the High Court of Madras, marked as A.S. No.568 of

1998 was dismissed by the impugned judgment holding :

(i) The earlier judgment is O.S. No.459 of 1991 confirmed in A.S.

No.288 of 1992 and Second Appeal No.604 of 1993 constituted

res judicata.

(ii) In view of Rule 3 of the Rules of Tapovanam the properties

belonged to the Appellant Nos. 2 and 3 automatically became

the property of Tapovanam.

(iii) The suit could not be dismissed for non-compliance with Order

31 Rule 2 CPC since the same was not raised before the trial

court.

The Appellants are, thus, before us.

SUBMISSIONS :

Mr. K. Sukumaran, the learned Senior Counsel appearing on behalf of

the Appellants, would principally raise two contentions in support of this

appeal. Firstly, relying on V. Rajeshwari (Smt.) vs. T.C. Saravanabava

[(2004) 1 SCC 551], the learned counsel contended that no issue as regard

applicability of the principle of res judicata having been framed by the Trial

Court, the impugned judgment is vitiated in law. Secondly the jurisdiction

of the Civil Court being barred in view of Sections 53 and 53A of the Act,

the judgment and decree passed in the earlier suit being a nullity, the

principle of res judicata will have no application. Reliance, in this behalf,

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has been placed on Mohanlal Goenka vs. Benoy Krishna Mukherjee and

Others [(1953) SCR 377].

Mr. L. Nagheshwar Rao, the learned Senior Counsel appearing on

behalf of the Respondents, on the other hand, would support the judgment

under appeal contending that although no issue as regard res judicata was

framed, the parties proceeded at the trial knowing fully well that such an

issue is involved and in fact all the relevant documents pertaining to the

earlier suit were brought on record and in that view of the matter, the

Appellants cannot be said to have been prejudiced thereby.

The learned counsel would urge that the findings of the learned

Subordinate Judge in the instant case would come within the purview of the

exception carved out by this Court in V. Rajeshwari (supra). It was

submitted that Section 53A of the Act being an exception to Section 53

thereof, the Civil Court had the necessary jurisdiction to determine the issue

as to whether the plaintiffs or the defendants were the educational agencies

in terms of the provisions of the said Act.

RES JUDICATA :

O.S. No.1368 of 1990 was filed by the Appellant Nos. 1 and 2 against

Tapovanam and three others, namely, Swamy Bodhananda Swamy

Guhananda and Swamy Amalananda.

In the said suit, it was accepted that the First Appellant was a disciple

of Swamy Chidbhavananda. It was claimed that the six educational

institutions, namely Vivekananda Primary School having standard 1 to 5 in

Pasupathipalayam, Karur Taluk; (2) Vivekananda English School having

standard 1 to 5 at Pasupathipalayam, Karur Town, Karur Taluk; (3)

Vivekananda Higher Secondary School (Boys); (4) Vivekananda

Matriculation Higher Secondary School at Pasupathipalayam, Kaur Taluk;

(5) Sri Saratha Girls Higher Secondary School at Pasupathipalayam, Karurn

Taluk, and (6) Sri Saratha Nikathan College of Science for Women at Sri

Sarathapuri, Karur, were founded by the First Appellant herein alleging that

the funds for the educational institutions and ashrams were raised from

donations of the devotees and general public. He stated that he was a

Correspondent and Secretary of the educational institutions ever since they

were established. It was contended that Tapovanam neither established nor

administered the said institutions, nor contributed any money for the

establishment thereof. It was alleged that the Trust had been founded to

manage the Ashrams, temples, schools and colleges by the First Appellant

herein and Tapovanam had no right, title or interest over the ashrams and the

educational institutions established by him. The said suit was filed on the

premise that Tapovanam had been claiming to be the educational agency of

the schools. The cause of action for the said suit is said to have arisen on the

dates of establishment of plaintiff's ashram and on various dates when all

the educational institutions were established as also on 17.11.1990 when the

defendants threatened to interfere with the administration of educational

institutions.

Tapovanam in its written statement not only denied and disputed the

said claim of the Appellants but set up a title over the properties involved

therein in itself. It was averred that Tapovanam was the educational agency

in respect of these institutions.

The parties, therefore, in the aforementioned suit litigated, inter alia,

on the question of existence of the trust said to have been founded by the

First Appellant as also right of the parties to act as educational agency of the

schools. The High Court in its judgment dated 28.4.1997 passed in Second

Appeal No.604 of 1993 noticed all the contentions of the parties and

recorded that a concession had been made by the Appellants herein that

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Tapovanam was the educational agency in respect of the educational

institutions and all the documents stood in its name. The plea of the

Appellants herein that the documents were created in the name of

Tapovanam by the Appellant No.1 out of respect and his closeness with its

founder Swamy Chidbhavananda, was negatived.

In the Second Appeal, the High Court furthermore noticed that a

concurrent finding of fact had been arrived at to the effect that the schools in

question were recognized in the name of Tapovanam and even for the

recognition in the name of its officer, necessary application was filed by the

First Appellant herein, who was then the Correspondent-cum-Secretary of

the Schools, holding :

"\005It was also admitted that all the official records stand

in the name of the first defendant, and even the

correspondence for the same was taken only by the

second plaintiff. It is also not disputed that second

plaintiff was acting as Correspondent cum Secretary of

these educational institutions. The schools have been

constructed in a lease hold premises, and the lease deed

was also taken in the name of the first defendant. It is in

this background, we have to consider how far the

plaintiffs' case could be sustained in this case."

The High Court noticed the provisions of the Act as also those of the

Trust Act and in particular Section 88 thereof, and opined :

"\005If the person is bound to protect the interest of

another and gains any advantage, that advantage also

must go to the persons whose interest he is bound to

protect. So, even if by chance second plaintiff can

contend that he is the owner, since he was acting

throughout only as an agent of the first defendant-society,

his claim for ownership cannot be put forward."

The Court negatived the contention of the Appellants herein as regard

title in respect of the schools in question observing :

"Courts below have rightly come to the conclusion

that the second plaintiff has no claim as put forward and

as a Sanyasi, he should not have put forward such a

claim. A person who is bound to promote the interest of

the Ashramam and who says that he was brought to this

world by his Guru, is now acting against its own interest.

The confidence reposed on the second plaintiff has really

been misused by him. The courts below have rightly

dismissed his claim."

In its plaint, Tapovanam extensively referred to the factum of

institution of the earlier suit and also the concession of the First

Appellant herein to the effect that all the documents stood in its name.

It was categorically stated that all the contentions of the Appellants had

been rejected holding that Tapovanam alone was the owner, founder

and educational agency in respect of all the educational institutions and

the First Appellant herein was only its agent, correspondent and person

in charge. The purported assignment made by the First Appellant

herein in favour of the other Appellants in relation to certain lands were

questioned, inter alia, on the premise that in the earlier suit such

assignments had been found to be invalid and the First Appellant herein

had been acting on behalf of Tapovanam in the fiduciary capacity and

had no independent right in himself. In the said suit, the following

reliefs were claimed :

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(a) Holding that the plaintiff is the absolute

owner of the suit properties and educational agency

with respect to the suit institutions described in

Schedule A and the properties in Schedule B and for

a consequential relief of possession and directing the

first defendant to hand over charge relating to the suit

institutions and properties described in Schedule A

and B.

(b) Directing the first defendant to render a

true and proper accounts with regard to the income

from the suit properties for the last three years and till

he actually hands over charge.

(c) Granting a permanent injunction

restraining the first defendant from interfering with

the right of the plaintiff to manage the suit

institutions and properties described in Schedule A

and B or collecting any amounts for and on behalf of

the suit institutions either projecting himself as the

founder, secretary or correspondent or in any other

capacity.

(d) Granting such further or other reliefs as

this Hon'ble Court may deem fit and proper in the

circumstances of the case and render justice.

The fact giving rise to the cause of action for the said suit is

stated in paragraph 19 of the plaint and one of the facts constituting

cause of action was said to be the dismissal of the earlier suit and on

subsequent dates when the First Appellant refused to hand over the

collections made illegally in respect of the suit institutions in spite of

the judgment of the court.

Osborn's Concise Law Dictionary defines 'cause of action' as the fact

or combination of facts which give rise to a right or action.

In Black's Law Dictionary it has been stated that the expression cause

of action is the fact or facts which give a person a right to judicial relief.

In Stroud's Judicial Dictionary a cause of action is stated to be the

entire set of facts that give rise to an enforceable claim; the phrase comprises

every fact which, if traversed, the plaintiff must prove in order to obtain

judgment.

A cause of action, thus, means every fact, which, if traversed, it

would be necessary for the plaintiff to prove in order to support his

right to a judgment of the Court. In other words, it is a bundle of facts

which taken with the law applicable to them gives the plaintiff a right

to relief against the defendant. It must include some act done by the

defendant since in the absence of such an act no cause of action can

possibly accrue. It is not limited to the actual infringement of the right

sued on but includes all the material facts on which it is founded.

The status of the First Appellant vis-`-vis Tapovanam was, thus,

the subject matter of determination in the earlier suit. A finding as

regard relationship between the parties rendered in the said suit is

binding upon the First Appellant herein. Similarly, the finding to the

effect that the Second Appellant was constituted illegally and did not

derive any right, title or interest over any property standing in its name

is also binding upon the Appellants.

The object and purport of principle of res judicata as contended

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in Section 11 of the Code of Civil Procedure is to uphold the rule of

conclusiveness of judgment, as to the points decided earlier of fact, or

of law, or of fact and law, in every subsequent suit between the same

parties. Once the matter which was the subject-matter of lis stood

determined by a competent court, no party thereafter can be permitted

to reopen it in a subsequent litigation. Such a rule was brought into the

statute book with a view to bring the litigation to an end so that the

other side may not be put to harassment.

The principle of res judicata envisages that a judgment of court of

concurrent jurisdiction directly upon the point would create a bar as

regard a plea between the same parties upon some other matter directly

in question in another court and that the judgment of the court of

exclusive jurisdiction direct in point.

The doctrine of res judicata is conceived not only in larger public

interest which requires that all litigation must, sooner than later, come

to an end but is also founded on equity, justice and good conscience.

In Sulochana Amma vs. Narayanan Nair [(1994) 2 SCC 14], it

was held :

"5. Section 11 of CPC 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

court competent to try such subsequent suit in which the

issue has been directly and substantially raised and

decided in the judgment and decree in the former 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, been decided and became

final, so that parties are not vexed twice over; vexatious

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, therefore, to all

judicial proceedings whether civil or otherwise. It equally

applies to quasi-judicial proceedings of the tribunals

other than the civil courts."

The Appellants did not object to the raising of the said plea by

Tapovanam in the suit. As the said plea had adequately been raised in

the plaint, in relation whereto the Appellants herein had adequate

opportunity to traverse and furthermore both the parties having brought

on records all the relevant documents the Appellants herein cannot be

said to have been prejudiced in any manner by reason of non-framing

of the issue as regard res judicata.

We have noticed hereinbefore that Tapovanam in its suit

extensively referred to the lis between the parties and the findings of

the court in the earlier proceedings. The First Appellant herein in his

written statement, inter alia, contended that the matter was subjudice as

the Second Appeal was then pending adjudication. It was specifically

stated :

"This defendant has filed the 2nd appeal S.A.

No.604/93 on the file of the High Court of Judicature

at Madras against the judgment and decree in A.S.

No.288/92. The 2nd appeal is pending adjudication.

It is therefore, clear that the entire matter is

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subjudice\005"

It was urged that no relief would be granted with regard to the A

schedule properties unless and until an adjudication is made in Second

Appeal No. 604 of 1993. Tapovanam, therefore, in its written

statement did not deny or dispute that the issues which were germane

for determination of the suit filed by Tapovanam arose for

consideration in the earlier suit. It reiterated its claim that the

properties in suit were being held by him as the managing trustee of the

Appellants which plea, as noticed hereinbefore, had subsequently been

rejected by the court of competent jurisdiction. The Trial Court while

determining the issues took into consideration the fact that the

documents mostly relied upon by the parties in the previous

proceedings had been reproduced and marked as exhibits in the said

suit also. It was held :

"\005The deeper probe and study of the bolts and nuts

of these material and vital documents, unequivocally

points to one and the only conclusion that from out of

the nucleus of the plaintiff-Tapovanam, rather from

out of the seeds sown by the plaintiff-Tapovanam, all

these suit properties have emanated and emerged out,

of course with the each and every nerve of pain and

strain of the 1st defendant, as its member servant."

The Court found the evidence of Appellant No. 1 herein as

unconvincing. It observed that the entire case was a shallow. The Court

took note of Clause 3(b) of Memorandum of Association of the First

Respondent which is as under:

"Monastic members shall not own personal

properties. All properties gifted to them

automatically become the property of the

TapovanaM."

The Court furthermore considered the matter on merits holding

that the First Appellant has failed to prove his case.

In V. Rajeshwari (supra), this Court while emphasizing the need

of raising the relevant plea as well as framing appropriate issues,

observed :

"12. The plea of res judicata is founded on proof of

certain facts and then by applying the law to the facts so

found. It is, therefore, necessary that the foundation for

the plea must be laid in the pleadings and then an issue

must be framed and tried. A plea not properly raised in

the pleadings or in issues at the stage of the trial, would

not be permitted to be raised for the first time at the stage

of appeal [see (Raja) Jagadish Chandra Deo Dhabal Deb

v. Gour Hari Mahato, Medapati Surayya v. Tondapu

Bala Gangadhara Ramakrishna Reddi and Katragadda

China Anjaneyulu v. Kattaragadda China Ramayya].

The view taken by the Privy Council was cited with

approval before this Court in State of Punjab v. Bua Das

Kaushal. However, an exception was carved out by this

Court and the plea was permitted to be raised, though not

taken in the pleadings nor covered by any issue, because

the necessary facts were present to the mind of the parties

and were gone into by the trial court. The opposite party

had ample opportunity of leading the evidence in rebuttal

of the plea. The Court concluded that the point of res

judicata had throughout been in consideration and

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discussion and so the want of pleadings or plea of waiver

of res judicata cannot be allowed to be urged."

(Emphasis supplied)

This is, therefore, not a case where there was not adequate

pleadings. On the other hand, it is a case where the documents as also

the judgment produced in the previous suit were brought on record. The

judgment contained extensive details of statement of pleadings and

issues which could be taken as enough to prove the plea of res judicata.

Furthermore, the First Appellant in his written statement by necessary

implication accepted that the plea as regard title over the properties as

described in Schedule A of the plaint as also other issues raised by the

Tapovnam in his suit would depend upon the findings of the High

Court in the Second Appeal which was then pending.

One of the facts which was necessary to be pleaded and proved

relates to the relationship between the parties i.e. First Appellant was

agent of the First Respondent or he was acting of his own. Such a

question was raised and answered in the suit filed by the First

Appellant herein. His plea that he collected donations and also

invested his money in acquiring the properties albeit in the name of the

First Respondent was negatived.

Thus, the finding arrived at in the earlier suit, inter alia, was that

the First Respondent herein was not the benamidar of the First

Appellant but in effect and substance was its agent.

This Court recently in Bhanu Kumar Jain vs. Archana Kumar and

Another, [AIR 2005 SC 626], while drawing a distinction between the

principles of 'res judicata' and 'issue estoppel' noticed the principle of

cause of action estoppel in the following terms :

"There is a distinction between 'issue estoppel'

and 'res judicata' [See Thoday vs. Thoday \026 1964 (1)

All. ER 341]

Res judicata debars a court from exercising its

jurisdiction to determine the lis if it has attained finality

between the parties whereas the doctrine issue estoppel is

invoked against the party. If such an issue is decided

against him, he would be estopped from raising the same

in the later proceeding. The doctrine of res-judicata

creates a different kind of estoppel viz Estoppel By

Accord.

xxx xxx xxx

The said dicta was followed in Barber vs.

Staffordshire Country Council, (1996) 2 All ER 748. A

cause of action estoppel arises where in two different

proceedings identical issues are raised, in which event,

the latter proceedings between the same parties shall be

dealt with similarly as was done in the previous

proceedings. In such an event the bar is absolute in

relation to all points decided save and except allegation

of fraud and collusion. [See C. (a minor) Vs. Hackney

London Borough Council, (1996) 1 All ER 973].

If the parties went to the trial knowing fully well the real issues

involved and adduced evidence in such a case without establishing

prejudice, it would not be open to a party to raise the question of non-

framing of particular issue.

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In Nedunuri Kameswaramma vs. Sampati Subba Rao [AIR 1963

SC 884], it was observed :

"No doubt, no issue was framed, and the one,

which was framed, could have been more elaborate;

but since the parties went to trial fully knowing the

rival case and led all the evidence not only in support

of their contentions but in refutation of those of the

other side, it cannot be said that the absence of an

issue was fatal to the case, or that there was that mis-

trial which vitiates proceedings. We are, therefore, of

opinion that the suit could not be dismissed on this

narrow ground, and also that there is no need for a

remit, as the evidence which has been led in the case

is sufficient to reach the right conclusion. Neither

party claimed before us that it had any further

evidence to offer\005."

It is, however, beyond any doubt or dispute that if a court lacks

inherent jurisdiction, its judgment would be a nullity and, thus, the

principle of res judicata which is in the domain of procedure will have

no application. [See Mohanlal Goenka (supra), Ashok Leyland Ltd. vs.

State of Tamil Nadu and Another, (2004) 3 SCC 1 and Management of

M/s Sonepat Cooperative Sugar Mills Ltd. vs. Ajit Singh, 2005 (2)

SCALE 151 : 2005 (3) SCC 232].

In Ishwardas Vs. the State of Madhya Pradesh and others [AIR 1979

SC 551], this Court held:

"\005In order to sustain the plea of res judicata it is

not necessary that all the parties to the two

litigations must be common. All that is necessary

is that the issue should be between the same parties

or between parties under whom they or any of

them claim\005"

We may now consider some of the decisions cited by Mr. Sukumaran.

M/s. R.N. Ganekar & Co. Vs. M/s. Hindustan Wires Ltd. [AIR 1974

SC 303] relates to a reference under Arbitration Act. The said decision is an

authority for the proposition as regard the interpretation of Section 33 of the

Arbitration Act, 1940. In that case, the Court was concerned with the

validity of arbitration clause contained in a contract if the contract itself is

found to be illegal.

In The Vulcan Insurance Co. Vs. Maharaj Singh and another [AIR

1976 SC 287], this Court was again concerned with the question as to

whether in view of the repudiation of liability by the Appellant therein under

Clause 13 of the insurance policy, a dispute could be referred to arbitration.

The decisions referred under Industrial Disputes Act or the Arbitration

Act will, thus, have no application in the instant case.

JURISDICTION OF CIVIL COURT :

Sections 53 and 53A of the Act read as under :

"53. No Civil court shall have jurisdiction to

decide or deal with any question which is by or under

this Act required to be decided or dealt with by any

authority or officer mentioned in this Act."

53A. (1) Notwithstanding anything contained

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in section 53, whenever any dispute as to the

constitution of any educational agency, or as to

whether any person or body of persons, is an

educational agency, in relation to any private school,

or as to the constitution of a school committee, or as

to the appointment of secretary of the school

committee, arises, such dispute may be referred by

the persons interested or by the competent authority

to the civil court having jurisdiction, for its decision.

(2) Pending the decision of the civil court on a

dispute referred to it under sub-section (1), or the

making of an interim arrangement by the civil court

for the running of the private school, the Government

may nominate an officer to discharge the functions of

the educational agency, the school committee or the

secretary, as the case may be, in relation to the

private school concerned."

Indisputably a dispute with regard to the title over immovable

property will have to be adjudicated in the Civil Court alone. Section

53 merely postulates that the Civil Court will have no jurisdiction to

decide or deal with any question which is by or under the said Act

required to be decided or dealt with by any authority or officer

mentioned in the said Act. Section 5 of the Act whereupon reliance has

been placed by Mr. Sukumaran for advancing the contention that the

matter relating to recognition of schools is required to be decided by an

authority created thereunder cannot be accepted. Section 5 lays down a

procedure as regard necessity to file an application and the contents

thereof for permission to run such schools. Section 4 of the Act

prohibits every person from establishing any school without obtaining

permission of the competent authority save and except in accordance

with the terms and conditions specified in such permission.

A dispute as to who is the real educational agency in relation to a

private school is not a matter which in terms of the provisions of the

said Act would be determined by an authority under the provisions of

the said Act. Section 53A of the Act carves out an exception to Section

53 thereof. In terms of the said provision any dispute as to the

educational institution is to be determined by a Civil Court having

jurisdiction for its decision. The submission of Mr. Sukumaran,

however, is that the jurisdiction of the Civil Court is required to be

invoked in such matters specified therein by way of reference by the

persons interested or by the competent authority. Mr. Sukumaran

would contend that such a reference would be akin to a dispute pending

under the Industrial Disputes Act. We cannot accept the said

contention. A party to a dispute may not join the other in referring the

same to the Civil Court. The party may agree or may not agree

therefor. A person having a grievance as against other must have a

remedy. The maxim 'ubi jus ibi remedium' is not an empty formality.

The jurisdiction of the Civil Court exemplifies the said doctrine. The

jurisdiction of the Civil Court cannot be held to have been ousted

unless it is so, expressly or by necessary implication, stated in the

statute. In terms of Section 53A of the Act, a dispute as to educational

agency is concededly required to be decided by a Civil Court. How the

jurisdiction of the Civil Court is required to be invoked is a matter to

be examined by the Civil Court. Unlike a private tribunal or a statutory

tribunal which would not derive a jurisdiction unless a reference in

terms of the provisions of the Act is made to it, the Civil Court enjoys a

plenary jurisdiction. Furthermore, if and when a dispute arises before

the competent authority as regard entitlement of an educational agency

in relation to educational institutions, the same must also be referred to

the Civil Court. Statutory authority in terms of Section 5 of the Act

cannot be said to have any jurisdiction to determine such a dispute. A

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statute, as is well-known, must be read in such a manner so as to give

effect to the provisions thereof. It must be read reasonably. A statute

must be construed in such a manner so as to make it workable. The

wordings "referred by the persons interested" would, thus, mean a

person who has a grievance as regard claim of other side relating to

educational agency of the educational institutions. It can be done by

filing a suit before the Civil Suit. The term "persons" which is plural

has been used having regard to the fact that educational agency need

not be a person alone but would also include a society registered under

the Societies Registration Act or a body corporate in terms of the

Companies Act. In any event, if such a dispute within the

contemplation of Section 53A has to be decided by a civil court, it will

not attract the bar under Section 53 which applies only to a question

which is required to be dealt with or decided by any authority or officer

mentioned in the Act.

We may notice that after the Second Appeal was dismissed, the

Appellants herein sought to raise additional grounds in their review

application, as regard the lack of jurisdiction in a Civil Court. The said

plea was negatived.

In Principles of Statutory Interpretation, by G.P. Singh, Ninth

Edition, page 630, it is stated :

"As a necessary corollary of this rule

provisions excluding jurisdiction of civil courts and

provisions conferring jurisdiction on authorities and

tribunals other than civil courts are strictly construed.

The existence of jurisdiction in civil courts to decide

questions of civil nature being the general rule and

exclusion being an exception, the burden of proof to

show that jurisdiction is excluded in any particular

case is on the party raising such a contention. The

rule that the exclusion of jurisdiction of civil courts is

not to be readily inferred is based on the theory that

civil courts are courts of general jurisdiction and the

people have a right, unless expressly or impliedly

debarred, to insist for free access to the courts of

general jurisdiction of the State. Indeed, the principle

is not limited to civil courts alone, but applies to all

courts of general jurisdiction including criminal

courts\005"

In Dhulabhai and Others vs. The State of Madhya Pradesh and

Another [(1968) 3 SCR662], Hidayatullah, CJ summarized the

following principles relating to the exclusion of jurisdiction of civil

courts :

(a) Where the statute gives a finality to the orders of the special

tribunals, the civil court's jurisdiction must be held to be

excluded if there is adequate remedy to do what the civil courts

would normally do in a suit. Such provision, however, does not

exclude those cases where the provisions of the particular Act

have not been complied with or the statutory tribunals has not

acted in conformity with the fundamental principles of judicial

procedure.

(b) Where there is an express bar of the jurisdiction of the court, an

examination of the scheme of the particular Act to find the

adequacy or the sufficiency of the remedies provided may be

relevant but is not decisive to sustain the jurisdiction of the Civil

Court.

Where there is no express exclusion, the examination of the

remedies and the scheme of the particular Act to find out the

intendment becomes necessary and the result of the inquiry may

be decisive. In the latter case, it is necessary to see if the statute

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creates a special right or a liability and provides for the

determination of the right or liability and further lays down that

all questions about the said right and liability shall be determined

by the tribunals so constituted, and whether remedies normally

associated with actions in Civil Courts are prescribed by the said

statute or not.

(c) Challenge to the provisions of the particular Act as ultra vires

cannot be brought before tribunals constituted under that Act.

Even the High Court cannot go into that question on a revision or

reference from the decision of the tribunals.

(d) When the provision is already declared unconstitutional or the

constitutionality of any provision is to be challenged, a suit is

open. A writ of certiorari may include a direction for refund if

the claim is clearly within the time prescribed by the Limitation

Act but it is not a compulsory remedy to replace a suit.

(e) Where the particular Act contains no machinery for refund of tax

collected in excess of constitutional limits or illegally collected, a

suit lies.

(f) Questions of the correctness of the assessment, apart from its

constitutionality, are for the decision of the authorities and a civil

suit does not lie if the orders of the authorities are declared to be

final or there is an express prohibition in the particular Act. In

either case, the scheme of the particular Act must be examined

because it is a relevant enquiry.

(g) An exclusion of the jurisdiction of the civil court is not readily to

be inferred unless the conditions above set down apply.

[See Rajasthan State Road Transport Corporation and Another vs.

Krishna Kant and Others \026 (1995) 5 SCC 75, Dwarka Prasad Agarwal

vs. Ramesh Chand Agarwal - (2003) 6 SCC 220, Sahebgouda vs.

Ogeppa (2003) 6 SCC 151 and Dhruv Green Field Ltd. vs. Hukam

Singh (2002) 6 SCC 416].

This case does not fulfil the said conditions and the jurisdiction

of the Civil Court was not excluded by reason of Sections 53 and 53A

of the Act.

The reliance placed by the Appellant on the decision of this Court in

Math Sauna and others Vs. Kedar Nath alias Uma Shankar and others [AIR

1981 SC 1878] is wholly erroneous. In that case the Court had held that the

question whether properties in possession of a mahant were math or personal

was to be decided on the basis of facts and circumstances of the case.

For the reasons aforementioned, we do not find any merit in this

appeal, which is dismissed accordingly. However, in the facts and

circumstances of the case, there shall be no order as to costs.

CIVIL APPEAL NO. 3740 of 2000

This appeal has been filed against certain observations made by the

High Court in paragraph 50 of its judgment. In view of the dismissal of

Civil Appeal 2395 of 2002, this appeal also fails and is dismissed

accordingly.