Ami Chand and Others vs Krishni Devi and Others

Kamlesh Sharma, J.—This appeal u/s 100, CPC is directed against the decree and judgment dated 22-8-1989, passed by Additional District Judge, Bilaspur. whereby the appeal of Respondents-Defendants No. 1 to 3 was accepted and decree and judgment dated 21-8-1985 passed by Sub-Judge 1st Class, Ghumarwin was set aside and the suit of the Appellants-Plaintiffs was dismissed holding it barred under the principle of res judicata. The Sub-Judge 1st Class had decreed the suit of the Appellants-Plaintiffs for possession of the land in dispute comprised in Khasra No. 413, measuring 8-6 bighas situated at Mauza Sandhyar, Pargana Sunhani, Tehsil Ghumarwin, District Bilaspur, rejecting the defence of the Respondents-Defendants No. 1 to 3 that they are in possession of the land in dispute as tenants.

This case has a chequered history. In the earlier suit filed by predecessor-in-interest of Appellants-Plaintiffs against Babu Ram, father and predecessor-in-interest of Respondents-Defendants No. 1 to 3 Sub-Judge 1st class Ghumarwin, by his judgment dated 31-5-1979, Ext. DW-1/A, District Bilaspur had returned the plaint under Order 7, Rule 10 for filing the same before the Collector holding that Civil Court had no jurisdiction. The issue of jurisdiction was decided as preliminary issued on the basis of pleadings of the parties without holding any trial. Thereafter, the predecessor-in-interest of Appellants-Plaintiffs presented the plaint in the Court of Assistant Collector 1st Grade, Ghumarwin, District Bilaspur, who with constrained to pass an order for the reason that he had no jurisdiction as under Sub-section (5) of Section 58 of Himachal Pradesh Tenancy and Land Reforms Act, it was the Collector who could entertain such a case. The order dated 22nd April, 1981 of Assistant Collector 1st Grade, Ghumarwin, District Bilaspur, is on record as Ext PC.

Instead of either approaching the Collector or the higher revenue authorities to challenge the order Ext. PC, the Appellants-Plaintiffs filed Civil Suit in the Court of Sub-Judge 1st Class, Ghumarwin out of which the present appeal has arisen. The suit was tried on all the issues including the issue that it was barred by principle of res judicata which was answered in negative holding that in the judgment Ext. DW-1/A the matter, which is directly and substantially in issue, that the Respondents-Defendants were tenants of Appellants-Plaintiffs, was not decided by it. These findings have been upset by the District Judge by placing reliance on the judgment of Supreme Court in Avtar Singh and Others Vs. Jagjit Singh and Another, hence the present appeal.

This Court has heard the learned Counsel for the parties and gone through the record learned Counsel for the Appellants-Plaintiffs has urged that law laid down in Avtar Singh''s case (supra) has not been regarded as good law by Supreme Court in its later judgment in Smt. Isabella Johnson Vs. M.A. Susai, Therefore, the impugned decree and judgment deserves to be set aside learned Counsel has also referred to a judgment of Bombay High Court in Anusaya Bai and Ors. v. Union of India 1993 (2) CCC 167 , to urge that decision on the question of jurisdiction is not res judicata in the subsequent suit or its proceeding. Another latest judgment of Supreme Court cited by learned Counsel is in State of Maharashtra and another Vs. M/s. National Construction Company, Bombay and another, to urge that the matter directly or substantially in issue m the later suit was not decided by the judgment, Ext. DW-1/A. as such, it cannot be res judicata. On the other hand, Shri Bhupender Gupta, learned Counsel appearing for the Respondents-Defendants No. 1 to 3 has supported the impugned decree and judgment and has argued that the judgment Ext. DW 1/A has become final between the parties as the Appellants Plaintiffs failed to challenge it in the higher Courts, as such, it will be res judicata for filing Anr. suit on the sause of action. It is also urged by learned Counsel that since the Appellants Plaintiffs have failed to present their plaint before the competent authority under the Himachal Pradesh Tenancy and Land Reforms Act after it was returned to them by Sub Judge 1st Class, Ghumarwin, they cannot take benefit of their own wrong They have also failed to challenge the order of Assistant Collector 1st Grade before the higher revenue authorities if they thought it wrong. Learned Counsel has further tried to show that in fact the judgment, Ext DW-1/A, is correct and the Civil Court does not have jurisdiction to try the dispute in respect of relationship of landlord and tenant between the parties.

After giving its best consideration, this Court finds substance in the submissions made by learned Counsel appearing for Appellants-Plaintiffs. The perusal of impugned judgment shows that it is solely based on law laid down by Supreme Court in the case of Avtar Singh (supra) in which, in almost similar facts, the learned Judges have held that either the Appellants "ought to have followed the matter in the First Civil Court and insisted upto the end that the suit was triable by a Civil Court, or, they could have taken the matter further before the higher authorities and Court from the order of the Revenue Court and persisted that the matter whether the Civil Court had jurisdiction to decide the dispute between the parties or not was res judicata; the Revenue Court had no jurisdiction to go behind the decision of the Civil Court. The Appellants did neither. It is unfortunate that due to the wrong paths which they followed under wrong advice they have ultimately to fail on the technical ground of res judicata but there is no way out" Law laid down in the case of Avtar Singh (supra) has not been held as good law in Smt. Isabella Johnson Vs. M.A. Susai, The learned Judges considered the earlier judgments and opined that, "a Court which has no jurisdiction in law cannot be conferred with the jurisdiction by applying principles of res judicata. It is well settled that there can be no estoppel on a pure question of law and the question of jurisdiction is a pure question of law "According to the learned Judges, the basic authority on the point is Mathura Prasad Bajoo Jaiswal and Others Vs. Dossibai N.B. Jeejeebhoy, wherein it is held by a larger Bench of three Judges of Supreme Court that decision on the question of jurisdiction of the Court on right of the parties through a previous suit is not res judicata in the subsequent suits Learned Judges observed at page 2359 that:

But the doctrine of res judicata belongs to the domain of procedure, it cannot be exalted to the status of a legislative direction between the parties so as to determine the question relating to the interpretation of enactment affecting the jurisdiction of a Court finally between them, even though no question of fact or mixed question of law and fact and relating to the right in dispute between the parties has been determined thereby A decision of a competent Court on a matter in issue may be res judicata in Anr. proceeding between the same parties: the "matter in issue" may be an issue of fact, an issue of law, or one of mixed law and fact An issue of fact or an issue of mixed law and fact decided by a competent Court is finally determined between the parties and cannot be reopened between them in Anr. proceeding. The previous decision on a matter in issue alone is res judicata: the reasons for decision are not res judicata A matter in issue between the parties is the right claimed by one parry and denied by the other, and the claim of right from its very nature depends upon proof of facts and application of the relevant law thereto. A pure question of law unrelated to facts which give rise to a right, cannot be deemed to be a matter in issue. When it is said that a previous decision is res judicata, it is meant that the right chimed has been adjudicated upon and cannot again be placed in contest between the same parties. A previous decision of a competent Court on facts which are the foundation of the right and the relevant law applicable to the determination of the transaction which is the source of the right is res judicata. A previous decision on a matter in issue is a composite decision: the decision on law cannot be dissociated from the decision on facts on which the right is founded. A decision on an issue of law will be as res judicata in a subsequent proceeding between the same parties, of the cause of action of the subsequent proceeding be the same as in the previous proceeding, but not when the cause of action is different, nor when the law has since the earlier decision been altered by a competent authority, nor when the decision relates to the jurisdiction of the Court to try the earlier proceeding. nor when the earlier decision declares valid a transaction which is prohibited by law

The view taken by learned Judges of Supreme Court in Mathura Prasad Sarjoo Jaiswal and Ors. v. Dossibai N.B. Jeejeebhoy (supra) has been re (SIC) in Sushil Kumar Mehta v. Govind Ram Bohra (dead) though his L.Rs. (1996) 1 SCC 193 . The same view has been further affirmed in the latest judgment of Supreme Court in State of Maharashtra and another Vs. M/s. National Construction Company, Bombay and another, that if the former suit is dismissed without any adjudication on the matter in issue merely on a technical ground that cannot operate as res judicata. The doctrine of res judicata provides that any matter which might or ought to have been made a ground for defence or attack in the former suit shall be deemed to have been a matter directly and substantially in issue in such suit. Further from the words "has been heard and finally decided" used in Section 11, Code of Civil Procedure, it is clear that the bar of res judicata applies only if the matter directly and substantially in issue in the former suit has been heard and finally decided by a Court competent to try such suit. That clearly means that on the matter or issue in question there has been an application of the judicial mind and a final ajdudication made. If the former suit is dismissed without any adjudication on the matter in issue merely on a technical ground of non-joinder, that cannot operate as res judicata. The learned Judges have referred to an earlier judgment in Sheodan Singh Vs. Smt. Daryao Kunwar, whereby considering the meaning of words "heard and finally decided" used in section 11 of the CPC it was held:

Where, for example, the former suit dismissed by the trial Court for want of jurisdiction, or for default of Plaintiff''s appearance, or on the ground of non joinder of parties or mis-joinder of parties or multifariousness, or on the ground that the suit was badly framed, or on the ground of a technical mistake, or for failure on the part of the Plaintiff to produce probate or letter 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.

In Anusaya Bai and Ors. v. Union of India, (supra), the learned Judge of Bombay High Court relying upon the case of Mathura Prasad Sarjoo Jaiswal and Ors. (supra) has further elaborated that procedural laws are only a means to do justice/remove injustice and is not an end in itself and a party cannot be made remediless and to suffer not for his mistake but for the mistake of the Court. The learned Judge was dealing with a case in which a plaint was returned for presentation to the proper Court on the ground that Motor Accident Claims Tribunal stood constituted u/s 110-F of Motor Vehicles Act, 1939 but when it was presented to the said Tribunal it also returned the same for presentation to the proper Court en the ground that the suit was filed before constitution of the Tribunal and Section 110-F of the Motor Vehicles Act did not apply retrospectively, therefore, it had no jurisdiction Thereafter, the plaint was again filed before the Civil Court which had dismissed the suit holding it barred by principle of res judicata by referring to the first order of return of the plaint. Relying upon judgments of Mathura Prasad Sarjoo Jaiswal and Ors. (supra); Jaisingh Jairam Tyagi and Others Vs. Mamanchand Ratilal Agarwal and Others, and Supreme Court Employees'' Welfare Association and Others Vs. Union of India (UOI) and Another, the learned Judges set aside the order of dismissal of the suit. In Supreme Court Employee''s Welfare Association (supra), the learned Judges have observed:

Thus, a decision on an abstract question of law unrelated to facts which give rise to a right cannot operate as res judicata. Nor also can a decision on the question of jurisdiction be res judicata in a subsequent suit nr proceeding. Put, if the question of law is related to the feet in issue, an erroneous decision on such a question of law may operate as res judicata between the parties in a subsequent suit or proceeding, if the cause of action is the same.

Applying the ratio of law laid down by Supreme Court in above referred judgments to the facts of the present case, this Court has no hesitation to hold that the earlier decision Ext DW 1/A was on the pure legal issue, whether the Civil Court has jurisdiction to try the suit, which was decided on the basis of pleadings of the parties at the very threshold of the trial Referring to Section 58 of the H.P. Tenancy and Land Reforms Act, the trial Court has held that the Respondents-Plaintiffs had claimed dispossession of the Appellants-Defendants who in defence had claimed themselves to be tenants over the land in dispute which issue is triable by the Revenue Court had not by (he Civil Court. Therefore it is clear that the matter which was directly or substantially in issue in the said suit was whether the Respondents-Defendants were in permissive possession of the land in dispute, as alleged by Appellants Plaintiffs or the tenants, as claimed by them which was not heard and finally decided.

Therefore, this appeal is accepted and impugned decree and judgment dated 22-8-1989 is set aside and the case is remanded to District Judge, Bilaspur for restoring the appeal to its original number and disposing it of within a period of four months from the date of record of the record as it pertains to the year 1985.

Learned Counsel for the Appellants-Plaintiffs have further argued, referring to the observations made in Para 5 of the impugned judgment, that their suit deserves to be decreed as the Respondents-Defendants did not assail the findings of the trial Court on the question of limitation, jurisdiction and on the point that they were not tenants over the disputed land. This Court does not find any substance in this submission as these observations are to be read in the context these were made. The findings of the trial Court on all the issues, which were held against Respondents-Defendants, who were Appellants before the 1st appellate Court, were assailed in the grounds of appeal but these were not pressed as learned Counsel appearing for them was confident that in view of the law laid down by Supreme Court in the case of Avtar Singh (supra), which was the latest judgment at that point of time, he would definitely succeeded and he need not assail the findings on other issues. Since the law laid down in the case of Avtar Singh (supra) has not been held to be good law in the later judgment, as discussed hereinabove, it will not be fair to set aside the impugned decree and judgment on the point of res judicata and decree the suit on the findings of the trial Court on other issues without affording an opportunity to the Respondents-Defendants to assail them before the 1st appellate Court Hence, the remand order, as made hereinabove, will meet the ends of justice Parties are directed to appear before the District Judge, Bilaspur on 21-4-1997.

No costs.