Dinesh Kumar vs Gopal

The substantial question of law involved, formulated and to be answered in this second appeal preferred by the appellants/plaintiffs is as under:Â​

“Whether both the Courts are justified in dismissing the suit of the plaintiffs invoking Order 7 Rule 11 of the CPC holding that the suit is barred by

the principle of resÂ​judicata, by recording finding which is perverse and contrary to the record ?â€​

[For the sake of convenience, the parties would be referred hereinafter as per their status shown and ranking given in the suit before the trial Court].

Two plaintiffs filed a suit for declaration of title and permanent injunction stating interÂalia that defendant No.9ÂLakhan is not legal heir of Sudhan

@ Ronha and he has no right and title over the suit property, as such, he be restrained from interfering with right and title over the suit property

mentioned in Schedule “A†appended with the plaint. During pendency of the suit, defendant No.9 filed an application under Order 7 Rule 11 of

the CPC stating interÂalia that the suit is barred by principle of resÂjudicata as earlier the plaintiffs father filed a suit bearing Civil Suit No.72A/90

against defendant No.9. The trial Court granted that application and dismissed the suit holding the suit to be barred by principle of resÂ​judicata, against

which, the plaintiffs preferred first appeal. The first appellate Court while affirming the judgment and decree of the trial Court dismissed the appeal.

Questioning the judgment and decree of the first appellate Court, this second appeal under Section 100 of the CPC has been filed by the

appellants/plaintiffs, in which one substantial question of law has been formulated, which have been setÂout in the opening paragraph of this judgment

for sake of completeness.

Mr.Anurag Singh, learned counsel for the appellants/plaintiffs, would submit that both the Courts below are absolutely unjustified in dismissing the

suit holding it to be barred by principle of res judicata overlooking the fact that plea of res judicata is mixed question of law and fact which can be

adjudicated only after framing the issue, as such, the judgment and decree of both the Courts below deserve to be setÂ​aside.

None present for respondents No.1, 7(A) and 9 though served.

Mr.Harish Khuntia, learned counsel for respondents No.2 to 5 and 8, would submit that they are formal parties.

I have heard learned counsel for the parties, considered their rival submissions made hereinÂabove and also went through the records with utmost

circumspection.

The plaintiffs suit for declaration of title and permanent injunction was dismissed by the trial Court invoking Order 7 Rule 11 of the CPC holding that

the suit is barred by principle of resÂ​judicata, which has been affirmed by the first appellate Court.

The plea of res judicata only bars investigation and decision on merits finally decided between parties earlier if the defendant omits to plead the plea

of res judicata and prove the same and the Court investigates and decides matters on merits. Such a decision would not be bad for want of jurisdiction.

Plea of res judicata is one which might and ought to have been raised as a defence and established in order to operate as a bar in exercise of

jurisdiction to try and dispose of the matter subsequently otherwise the latter decision will prevail and plea of res judicata itself will be barred by

constructive res judicata and latter decision overlooking the bar of res judicata alone will prevail.

In Madhukar D. Shende v. Tarabai Aba Shedage (2002) 2 SCC 85, the Supreme Court held that res judicata is a mixed question of law and fact

and if the plea has not been raised by filing pleadings and the issues have not been framed, such a plea cannot be permitted to be raised for the first

time. The Supreme Court held as under:Â​

“14…….. Res judicata is a mixed question of fact and law. We do not find the plea of res judicata having been raised in the plaint. Copies of

pleadings and issues framed in the earlier suit have not been tendered in evi dence and we do not find any issue on res ju dicata having been

framed and tried between the parties in the present suit. No submis sion raising the plea of res judicata was made before any of the courts below or

the High Court. We do not think such a plea can be permitted to be raised before this Court for the first time and at the hearing………â€​

In Sheodan Singh v. Darhyao Kunwar AIR 1966 SC 1332, Their Lordships of the Supreme Court laid down the law relating to the essential

elements that need to be satisfied before a plea of res judicata can be raised by party. It was held as under:Â​

“(9) A plain reading of S. 11 shows that to constitute a matter res judicata, the following conditions must be satisfied, namelyÂ(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 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 I shows that it is not 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 decision 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.â€​

Principles of law laid down in Sheodan Singh (supra) has been followed and restated very recently by the Supreme Court in the matter of City

Municipal Council Bhalki by its Chief Officer v. Gurappa (dead) by legal representatives and another (2016) 2 SCC 200.

In a recently pronounced judgment in the matter of Vaish Aggarwal Panchayat v. Inder Kumar & others AIR 2015 SC 3357, Their Lordships of

the Supreme Court have held in no uncertain terms that plea of res judicata involves mixed question of law and fact and it requires evidence to be

recorded and it cannot be a ground to reject plaint under Order 7 Rule 11(d) of the CPC. Their Lordships relied upon the earlier decision of the

Supreme Court rendered in the matter of V. Rajeshwari v. T.C. Saravanabava (2004) 1 SCC 551, which held as under:Â​

“11. The rule of res judicata does not strike at the root of the jurisdiction of the court trying the subsequent suit. It is a rule of estoppel by judgment

based on the public polÂ​ icy that there should be a finality to litiÂ​ gation and no one should be vexed twice for the same cause.

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, there fore, necessary that

the foundation of 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 per mitted to be raised for the first time at the stage of appeal [see (Raja) Jagadish Chan dra Deo

Dhabal Deb v. Gour Hari Mahato (AIR 1936 PC 258), Medapati Surayya v. Tondapu Bala Gangadhara Ramakrishna Reddi (AIR 1948 PC 3) and

Katragadda China Anjaneyulu v. KatÂ​ taragadda China Ramayya (AIR 1965 AP 177)]. After so stating, the Court further observed that:Â​

'Not only the plea has to be taken, it has to be substantiated by producing the copies of the pleadings, issues and judgment in the previous case.

Maybe, in a given case only copy of judgment in pre vious suit is filed in proof of plea of res judicata and the judgment contains exhaustive or in

requisite details the statement of pleadings and the issues which may be taken as enough proof. But as pointed out in Syed Mohd. Salie Labbai v.

Mohd. Hanifa (1976) 4 SCC 780 the ba sic method to decide the question of res judicata is first to determine the case of the parties as put forward

in their respective pleadings of their previous suit and then to find out as to what had been decided by the judgment which oper ates as res

judicata.â€​

Following the principle of law laid down by the Supreme Court in the aboveÂstated judgments (supr), it is quite vivid that since plea of resÂ‐

judicata is a mixed question of law and fact and it could not have been adjudicated without framing an issue & without recording evidence and thereby

the trial Court committed error which has been perpetuated by the first appellate Court. Therefore, both the Courts below have committed legal error

in entertaining a plea of resÂ​judicata without framing an issue in that regard.

Accordingly, the judgment and decree passed by both the Courts below are hereby setÂaside. The substantial question of law is answered in

favour of the plaintiffs and against the defendants. The matter is remitted to the trial Court to proceed in accordance with law and decide the issue of

res judicata along with other issues. The trial Court is directed to decide the suit within three months from the date of receipt of a copy of this

judgment.

The second appeal is allowed to the extent indicated hereinabove. No order as to cost(s).