DADU DAYALU MAHASABHA, JAIPUR (TRUST) v. MAHANT RAM NIWAS AND ANOTHER

Citation: [2008] 8 S.C.R. 237

Court: Supreme Court of India

Bench: S.B. SINHA, P.P. NAOLEKAR

Case summary

DADU DAYALU MAHASABHA, JAIPUR (TRUST) v. MAHANT RAM NIWAS AND ANOTHER.pdf

Judgment text

[2008] 8 S. C. R. 237 -.. -Ir DADU DAYALU MAHASABHA, JAIPUR (TRUST) v. MAHANT RAM NIWAS AND ANOTHER (Civil Appeal No. 3495 Of 2008) MAY 12, 2008 [S. B. SINHA AND P. P. NAOLEKAR, JJ. ] .... ,. - Code of Civil Procedure, 1908; Order 2 Rule 2 and S. 11 " Principles of res judicata - Applicability of - Issues in suit for entitlement of Gaddi of a religious trust dete_rmined finally by Supreme court in first round of litigation - Respondent No. 1 filed suit claiming possession of certain property in terms of directions of Supreme Court - Cause of action in subsequent suit whether same as in the earlier suit - Prin- 4. ciples of res judicata - Applicability of - Held: Respondent's suit for possession was premised on legal entitlemenf - Appellants and respondents both claimed their right over the Gaddi of the trust in question in first round of litigation - Supreme Court finally decided the case holding that respondent No.

1 was not in possession of the suit property and he was given liberty to file suit for possession - Observation made by Supreme Court is not binding, what would be binding is the ratio of the decision - Thus, finding arrived at by Supreme /' Court, attained finality - Hence, issues so determined in the + first suit become binding on the parties - Once the issue of entitlement to Gaddi as raised by respondent No. 1 and a plea contra thereto as raised by appellants, determined, the same would operate as res judicata - Hence s. 11 of CPC attracted. Principles/Doctrines: Principles of estoppel, waiver & res judicata ~ Applica- .... bility of. Words & Phrases: )...... ! Cause of action' - Meaning of Appellant is a registered Public Trust. One 'S' was allegedly holding the Gaddi of the said trust. In the first round of litigation, first respondent filed a suit claiming himself to be the Pota Chela of the holder of the Gaddi. Another person filed a suit for grant of permanent injunction.

Appellant-Trust claimed its entitlement to the man- 1'- .... override the law, and give to parties indulgencies which the law of procedure does not sanction. " "It cannot for a moment be argued that, as the law stood in 1857, a Plaintiff was at liberty to claim a non-suit if, after the issues were recorded, be neglected to supply evidence in support of his case, and we are of opinion that the law and practice of the Courts there was to act upon the maxim 'De non aparentibus et non existentibus eadum est ratio' (a); and if evidence was wanting, to dismiss the claim for want of -~· proof. Such order is in reality a decision on the merits, just as much ~s if Plaintiff had produced evidence which the Court considered inadequate as proof, and dismissed it upon that ground. " 25. The Privy Council In Fateh Singh and others vs. Jagannath ·Baksh Singh and another : AIR 1925 PC !

;i5 observed:- " When the plaintiffs brought their first suit, they had to show their title to impeach the widow's gift. For this purpose they had to show either that they were some at least of the nearest reversionary heirs, or that the only nearer reversionary heir had colluded with the widow. In their plaint they did not rely on collusion, which they only introduced in their replication. Taking, however, that view of the pleadings which -is most favourable to them and treating them as relying equally on both grounds of claim, it is now clear that they can only make out a claim to be some of the next feversioners on the footing of the family custom, and that the allegation of that custom therefore was· an allegation which " migh·t and ought to have been made" within the meaning of Explanation 4. Or, to put it in another way.

One of the alternative cases on which they were basing their title to sue was their nearness of kin, and to prove their nearness of kin it was essential to aver the family custom. They claimed as next heirs, and their claim was dismissed. They cannot fight it over again. But, as the Judges in the Court of the Judicial Commissioner have observed, some complication was introduced by the language of the Judge who tried the first case and by his expressing himself as if he had power to give leave to bring a fresh suit. It was contended on behalf of the plaintiffs that in so expressing himself he was purporting to exercise the powers given to the Court by Order 23, which allows the Court in certain cases to grant the plaintiff permission to withdraw from a suit with liberty to issue a fresh suit, in which case the bar against a fresh suit which is otherwise imposed on a plaintiffwho abandons his first suit is removed. " It was furthermore observed:- "...

There was no application for leave to withdraw the suit; nor was it withdrawn : it was dismissed and the power of the learned Judge ceased upon this dismissal. It may have been unfortunate for the plaintiffs that the learned Judge thought that he had a power which he did not possess, but happily, as the Judges on the appeal observed, it is improbable that there was substance in the claim which they have been prevented from further prosecuting. " 26. The above observation of Privy Council came up for consideration before this Court in Shiv Kumar Sharma vs. Santosh Kumari: (2007) 8 SCC 600, when this Court observed :- "21. If the respondent intended to claim damages and/or mesne profit, in view of Order 2 Rule 2 of the Code itself, he could have done so, but he chose not to do so. For one reason or the other, he, therefore, had full knowledge about his right. Having omitted to make any claim for damages, MAHANT RAM NIWAS AND ANOTHER [S. B. SINHA, J.

] ~ + in our opinion, the plaintiff cannot be permitted to get the same indirectly. 22. Law in this behalf is absolutely clear. What cannot be done directly cannot be done indirectly. " 27. The question which was posed by the Privy Council was:- , ~ "Be that, however, as it may, the first question is, whether the High Court was right in holding that, notwithstanding the reservation contained in the decree dismissing the suit of 1856, the question was to be treated as res judicata. " The Court noticed that at that point there was no authority which sanctioned the exercise by the Country Courts of India of that power which Courts of Equity in that Country occasionally .. ,.. , exercise, of dismissing a suit with liberty to the plaintiff to bring a fresh suit for the same matter. 28. Having noticed the effect of a stray observation made by a superior court viz-a-viz applicability of the principle of res judicata we may also notice the applicability of the principle of issue estoppel.

In Sheodan Singh vs. Daryao Kunwar: [1966] 4 SCR 300, this Court laid down the ingredients of Section 11 of the Code ~ of Civil Procedure stating :- ~ "9. A plain reading of Section 11 shows that to constitute a matter res judicata, the following conditions must be satisfied, namely- (i) The matter directly and substantially in issue in the subsequent suit or issue must be the same matter which was directly and substantially in issue in the former suit; (ii) The former suit must have been a suit between the same parties or between parties under ~ ' whom they or any of them claim; (iii) The parties must have litigated under the same title in the former suit; (iv) The court which decided the former suit must be a court competent to try the subsequent suit or the suit in which such issue is subsequently -;. . raised; and (v) The matter directly and substantially in issue in the subsequent suit must have been heard and finally decided by the court in the first suit.

Further Explanation 1 shows that it is not the date on which the suit is filed that matters but the date on which the suit is decided, so that even if a suit was filed later, it will be a former suit if it has been decided earlier. In order •• therefore that the decisior in the earlier two appeals dismissed by the High Court operates as res judicata it will have to be seen whether all the five conditions mentioned above have been satisfied. " The question which is, thus, required to be posed is what was in issue in the earlier suit. The issue indisputably was the claim of entitlement to ~ Gaddi by the first respondent and a plea contra thereto raised by the appellants. Once the issue of entitlement stood determined, the same would operate as res judicata. We may notice some precedents for appreciating the underlying principles thereof. Section 11 of the Code, thus. in view of the issues involved in the earlier suit, the provisions thereof shall apply. ,_. 29. In State of UP vs.

Nawab Hussain : (1977) 2 SCC 806 this Court held :- "3. The principle of estoppel per rem judicatam is a rule of evidence. As has been stated in Marginson v. Blackbum MAHANT RAM NIWAS AND ANOTHER [$. 8. SINHA, J. ] . ~ Borough Councill, it may be said to be "the broader rule of evidence which prohibits the reassertion of a cause of action". This doctrine is based on two theories: (1) the finality and conclusiveness of judicial decisions for the final termination of disputes in the general interest of the community as a matter of public policy, and (i1) the interest 8 of the individual that he should be protected from ;. multiplication of litigation. It therefore serves not only a .... public but also a private p1:1rpose by obstructing the reopening of matters which have once been adjudicated upon.

It is thus not permissible to obtain a second judgment for the same civil relief on the same cause of action, for otherwise the spirit of contentiousness may give rise to conflicting judgments of equal authority, lead to multiplicity of actions and bring the administration of justice into disrepute. It is the cause of action which gives rise to an action, and that is why it is necessary for the courts to ~ recognise that a cause of action which results in a judgment must lose its identity and vitality and merge in the judgment when pronounced. It cannot therefore survive the judgment, or give rise to another cause of action on the same facts. This is what is known as the general principle of res judicata.

" Noticing that the same set of facts may also give rise to two causes of actions, it was held:- ~ >- "That, in turn, led the High Court to the conclusion that the principle of constructive res judicata could not be made applicable to a writ petition, and that was why it took the view that it was competent for the plaintiff in this case to raise an additional plea in the suit even though it was available to him in the writ petition which was filed by him earlier but was not taken. As is obvious, the High Court went wrong in taking that view because the law in regard to the applicability of the principle of constructive res judicata having been clearly laid down in the decision in Devi/al Modi case, it was not necessary to reiterate it in Gu/abchand case as it did not arise for consideration ----· there. The clarificatory observation of this Court in Gulabchand case was thus misunderstood by the High Court in observing that the matter had been "left open" by this Court. " 30.

Yet again in Home Plantations Ltd. vs. Talaku Land Board, Peermada and another : (1999) 5 SCC 590. . ~ "An adjudication is conclusive and final not only as to the actual matter determined but as to every other matter which the parties might and ought to have litigated and have had it decided as incidental to or essentially connected with the subject-matter of the litigation and every matter coming within the legitimate purview of the original action both in respect of the matter of claim or defence. The principle underlying Explanation IV is that where the parties have had an opportunity of controverting a matter that should ..... be taken to be the same thing as if the matter had been actually controverted and decided. It is true that where a matter has been constructively in issue it cannot be said to have been actually heard and decided. It could only be deemed to have been heard and decided. The first reason, therefore, has absolutely no force. " It was furthermore opined :- "26.

It is settled law that the principles of estoppel and res judicata are based on public policy and justice. Doctrine + of res judicata is often treated as a branch of the law of estoppel though these two doctrines differ in some essential particulars. Rule of res judicata prevents the parties to a judicial determination from litigating the same question over again even though the determination may even be demonstratedly wrong. When the proceedings have attained finality, parties are bound by the judgment and are estopped from questioning it They cannot litigate again on the same cause of action nor can they litigate any issue which was necessary for decision in the earlier MAHANT RAM NIWAS AND ANOTHER [S. S. SINHA, J. ] . ~ litigation. These two aspects are "cause of action estoppel" and "issue estoppel". These two terms are of common law origin.

Again, once an issue has been finally determined, parties cannot subsequently in the same suit advance arguments or adduce further evidence directed to showing that the issue was wrongly determined. Their 8 only remedy is to approach the higher forum if available. ;. 4- The determination of the issue between the parties gives rise to, as noted above, an issue estoppel. It operates in any subsequent proceedings in the same suit in which the issue had been determined. It also operates in subsequent suits between the same parties in which the same issue arises. Section 11 of the Code of Civil Procedure contains provisions of res judicata but these are not exhaustive of the general doctrine of res judicata. Legal principles of estoppel and res judicata are equally applicable in -~ proceedings before administrative authorities as they are based on public policy and justice. " This Court opined that the Law of England as enunciated by the House of Lords in Arnold vs.

National Westiminster Bank Pie. : (1991) 2 AC 93 =(1991) 3 All ER 41, HL to hold that the said principle will have no application in India stating:- .. • "30. Mr Salve's assertions based on the aforesaid decision of the House of Lords may be valid to an extent ~ but then in view of the principles of law laid down by this + Court on the application of res judicata and estoppel and considering the provisions of Section 11 of the Code, we do not think there is any scope to incorporate the exception to the rule of issue estoppel as given in Arnold v. National 3 Westminster Bank Pie. 31. Law on res judicata and estoppel is well understood in India and there are ample authoritative pronouncements by various courts on these subjects. As noted above, the plea of res judicata, though technical, is based on public policy in order to put an end to litigation. It is, however, different if an issue which had been decided in an earlier _...

' litigation again arises for determination between the same parties in a suit based on a fresh cause of action or where there is continuous cause of action. The pa~ies then may not be bound by the determination made earlier if in the meanwhile, law has changed or has been interpreted differently by a higher forum. But that situation does not exist here. Principles of constructive res judicata apply • with full force. It is the subsequent stage of the same ~ proceedings. If we refer to Order XLVll of the Code (Explanation to Rule 1) review is not permissible on the ground "that the decision on a question of law on which the judgment of the Court is based has been reversed or modified by the subsequent decision of a superior court in any other case, shall not be a ground for the review of such ~ judgment". 31. Principle of issue estoppel and constructive res judicata had also been discussed at some length by this Court in Bhanu Kumar Jain (supra) to hold:- "29.

There is a distinction between "issue estoppel" and "res judicata". (See Thoday v. Thoday) 30. 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 latter proceeding. The doctrine of res judicata creates a different kind of estoppel viz. estoppel by accord. " 32. Yet again in Annaimuthu Thevar (Dead) by Lrs. vs. V. ~ Alagammal and others : (2005) 6 SCC 202 a Division Bench of this Court held :- MAHANT RAM NIWAS AND ANOTHER [S. B. SINHA, J. ) . ,. ,. ,;. _ "27. The next question that arises is whether the issue of ownership and title in the suit house was directly and substantially in issue in the former suit or not.

In the subsequent suit undoubtedly the foundation of claim is title acquired by the present appellant under registered sale deed dated 28-2-1983 from Muthuswami. " • 33. Even in a case of title, Explanation IV to Section 11 + would apply. (See also Su/ochana Amma vs. Narayanan Nair : 1994 (2) sec 14). 34. Furthermore in terms of Section 5·of the Specific Relief Act, 1963 a suit for possession must be filed having regard to the provisions of the Code of Civil Procedure. If the statute provides for the applicability of the Code of Civil Procedure, there cannot be any doubt whatsoever that all the relev. a_nt pro- _,. _ visions thereof shall apply. (See Shamsu Suhara Beevi vs. G. Alex. and another . (2004) 8 SCC 569) & Hardesh Ores (P) Ltd. vs. Hede and Company :2007 (5) SCC 614). 35. We have, therefore, no hesitation to hold that the impugned judgment cannot be sustained. The same is set aside. The appeal is allowed with costs. Counsel's fee assessed at Rs.

25,000/- (Rupees Twenty Five Thousand only). 36. We, however, do not find any specific ground to initiate contempt proceedings against the respondent at this stage. Contempt Petition is dismissed accordingly. + S. K. S. Appeal allowed and Contempt Petition dismissed.