Kishore Raikwar vs Gopal Raikwar

Sanjay Yadav, J—Shri Mohd. Aadil Usmani, learned counsel for the petitioner.

Shri Mukund Agrawal, learned counsel for the respondent. With consent of learned counsel for the parties the matter is finally heard.

Order dated 13.7.2012 passed in Civil Suit No. 424-A/2009 is being questioned vide present writ petition, whereby, an application preferred by the petitioner defendant under Section 11 of the Code of Civil Procedure, 1908 read with Section 40 of the Evidence Act,1982 for dismissal of suit by the respondent was rejected. The petitioner sought dismissal of suit on the ground of being barred by res judicata.

Petitioner had earlier filed Civil Suit No. 342-A/2009 for declaration that in absence of renewal the agreement dated 22.11.2001 in respect of house bearing no.22/1 admeasuring 375 Sq.ft be declared void and for demolition of the construction raised thereover and for possession. The suit was decreed on 10.1.2012 in the following terms:

That the respondent herein has preferred a First Appeal forming subject matter of F.A. No.217/2012 which is pending in the High Court.

That during pendency of the Civil Suit 342-A/2009 respondent herein brought a civil suit for specific performance of agreement dated 22.11.2001 wherein the petitioner who is defendant in the suit filed an application for stay of suit on the ground of res judicata.

It is this application which is being rejected by the impugned order, holding the relief sought for in both the suits are different.

Doctrine of res judicata contains the rules of conclusiveness of the judgment and that no man should be vexed twice over the same cause.

In Raj Lakshmi Dasi and Others Vs. Banamali Sen and Others, AIR 1953 SC 33 : (1953) 4 SCR 154 it has been held by their Lordships

"15......... the rule of res judicata, while founded on ancient precedents, is dictated by a wisdom which is for all time..... Though the rule of the Code may be traced to an English source, it embodies a doctrine in no way opposed to the spirit of the law as expounded by the Hindu commentators. Vijnanesvara and Nilakantha include the plea of a former judgment among those allowed by law, each citing for this purpose the text of Katyayana, who describes the plea thus: ''If a person though defeated at law, sue again, he should be answered, ''''''''you were defeated formerly". This is called the plea of former judgment.''... And so the application of the rule by the courts in India should be influenced by no technical considerations of form, but by matter of substance within the limits allowed by law'''' (Sheoparsan Singh Case, IA pp. 98-99)"

(emphasis in original)

In Hope Plantations Ltd. Vs. Taluk Land Board, Peermade and Another, (1998) 7 JT 404 : (1998) 6 SCALE 19 : (1999) 5 SCC 590 : (1998) 2 SCR 514 Supp it has been held:

"17... One important consideration of public policy is that the decisions pronounced by courts of competent jurisdiction should be final, unless they are modified or reversed by appellate authorities; and the other principle is that no one should be made to face the same kind of litigation twice over, because such a process would be contrary to considerations of fair play and justice"

"................ Rule of res judicata prevents the parties to a judicial determination from litigating the same question over again even though the determination may even he 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 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 issue was wrongly determined. their only remedy is to approach the higher forum if available. 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 operated 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.

In Dr. Subramanian Swamy Vs. State of Tamil Nadu and Others, AIR 2015 SC 460 : (2014) AIRSCW 6893 : (2014) 1 JT 590 : (2014) 1 SCALE 79 : (2014) 5 SCC 75 it is held:

It is a settled legal proposition that the ratio of any decision must be understood in the background of the facts of that case and the case is only an authority for what it actually decides, and not what logically follows from it. "The court should not place reliance on decisions without discussing as to how the factual situation fits in with the fact-situation of the decision on which reliance is placed."

Even otherwise, a different view on the interpretation of the law may be possible but the same should not be accepted in case it has the effect of unsettling transactions which had been entered into on the basis of those decisions, as reopening past and closed transactions or settled titles all over would stand jeopardized and this would create a chaotic situation which may bring instability in the society.

The present case when tested on the anvil of principle of law borne out of Section 11 of the CPC, it leaves no iota of doubt that the suit filed and decreed qua agreement dated 22.11.2001 having been adjudicated in a Civil Suit No. 342-A/2009, incumbent it was upon the Trial Court to stay further proceedings of Civil Suit No. 424-A/2009 as the said suit was for specific performance of agreement dated 22.11.2001 which met Waterloo in judgment decree dated 10.1.2012 passed in Civil Suit No. 342- A/2009 therefore, while setting aside the impugned order further proceedings in Civil Suit No. 424-A/2009 in the Court of 8th Civil Judge Class II Bhopal is stayed till final out come of the decision in First Appeal No. 217/2012 which arises out of judgment and decree passed in 342- A/2009.

Petition is allowed to the extent above. There shall be no costs.