Ghasilal vs Kashi Bai and Others

N.K. Mody, J.

Being aggrieved by order dated 28-8-2001 passed by Civil Judge, Class-I, Raghogarh, District Guna in Civil Suit No. 104-A/98 whereby the preliminary issue relating to resjudicata has been decided against the petitioner, the present revision is filed.

The short facts of the case are that respondent No. 1 filed a suit for declaration and possession against the petitioner and rest of the respondents. The suit was opposed by the petitioner on various grounds including on the ground that on earlier occasion, the respondent No. 1 filed a suit for the same relief which was numbered as Civil Suit No. 18-A/2001 and which was djsposed of vide order dated 4-12-1981 therefore the order passed in the earlier suit is having the force of res judicata. It was prayed by the petitioner that Suit be dismissed on this ground alone.

Learned Counsel below framed the issues and issue No. 10 is that "Whether earlier suit No. 18-A/2001 is having a force of res judicata ? By the impugned order learned Court held that the order passed in C.S. No. 18-A/2001 is not having the force of res judicata. Learned Counsel for the petitioner submits that the learned Court below committed error in deciding the issue against the petitioner. Section 11 of the CPC reads as under :-

Res judicata.-- No Court shall try any suit or issue in which the matter directly and substantially in issue has been directly and substantially in issue in a former suit between the same parties, or between parties under whom they or any of them claim, litigating under the same title, in a Court competent to try such subsequent suit or the suit in which such issue has been subsequently raised, and has been heard and finally decided by such Court.

Learned Counsel for the petitioner submits that since the earlier suit was withdrawn by the respondent No. 1 therefore for all practical purposes it could be treated that earlier suit was heard and finally decided by the Court. Reliance was placed by the learned Counsel for the petitioner on the decision in the matter of Munnalal v. Balchand reported in 1961 JLJ 230, wherein the Hon''ble Division Bench has held that fact that previous decree was founded on a compromise would not make it less effective for the purpose of Section 11 of the Code of Civil Procedure. It was also observed that in the earlier suit for rent, which was decreed, the existence or non-existence of relationship of landlord and tenant and the nature of tenancy were directly and substantially to issue and the decree in that suit operates as res judicata. Further reliance was placed on the decision of the Supreme Court in the matter of Byram Pestonji Gariwala Vs. Union Bank of India and others, , wherein the Hon''ble Supreme Court has held that the compromise having been found not to be vitiated by fraud, misrepresentation, misunderstanding or mistake, the decree passed thereon has the binding force of ''res judicata''.

Learned Counsel for respondents submits that since the earlier suit was withdrawn and no decree was passed, therefore it can not be said that rights of the parties have been finally adjudicated between the litigants. Learned Counsel places reliance on a decision in the matter of Rahana Parveen (Smt.) v. Naimuddin reported in 1999 (2) MPWN SN 115, wherein this Court has held that previous suit decided on compromise will not bar the subsequent suit which has been filed in substantially changed circumstances. Reliance was further placed in the matter of Dayachand v. Kerabai reported in 2000 (2) MPWN SN 31. Reliance is also placed on the decision of this Court in the case of Jagdamba Prasad Soni v. State and Ors. reported in 2003(5) M.P.H.T. 281, wherein the Division Bench of this Court has held that case dismissed in default or for want of prosecution does not operate as resjudicata. For the applicability of the doctrine of resjudicata, the matter must have been adjudicated in "Stricto sensu" in earlier litigation.

In the present case from the perusal of the order dated 4-12-1981, it is evident that suit was withdrawn on the ground that some compromise has taken place within the Court. In view of this it can not be said that right of the parties were decided by the Court in the earlier suit. In the circumstances no illegality has been committed by the Court below in passing the impugned order.

In view of this, revision fails and is dismissed. No orders as to costs.