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Judgment
Shaji P. Chaly, J.
This appeal is filed by the writ petitioners in W.P.(C) No. 13106 of 2010, challenging the judgment of the learned single Judge dated 09.10.2019 in the aforesaid writ petition. The said writ petition was disposed of by a common judgment, with R.F.A. Nos. 86 and 211 of 2012 and W.P.(C) No. 14854 of 2010.
The issue involved in the aforesaid litigation is in respect of the construction of a multi storied building allegedly with certain violations of the Kerala Municipality Building Rules, 1999 and also the completion plan submitted before the Corporation. The dispute is by and between the first appellant builder and others on the one side, and the occupiers of the multi-storied apartment through the Association.
According to the Apartment Owners’ Association, the violations relate to the non-providing ‘recreation area’ and a ‘car parking area.’ The parties to the litigation are the builder— the first appellant, owner of the land, the Apartment Owners’ Association, the son of the Managing Director of the first appellant company, to whom the disputed recreation area and the car parking area have been alienated under Exhibit A4 sale deed. The Secretary of the Kochi Municipal Corporation on the basis of the application submitted by the builder along with a completion plan, regularized the construction and issued occupancy certificate.
Thereafter, it was noticed by the Secretary that the area earmarked for recreation and parking in the completion plan, were converted by the builder for other purposes. Thereupon, proceedings were issued under Section 406 of the Kerala Municipality Act 1994, dealing with illegal constructions, and a notice with a provisional order was also issued. Later, after completing the formalities, a final order was passed directing the first appellant to remove the illegal constructions carried out encroaching into the recreation and the car parking area. Though the said order was challenged before the Tribunal for Local Self Government Institutions, the Tribunal dismissed the said appeal and the same was under challenge in the writ petition in question.
Admittedly, an extent of 51.152 cents of property over which the building in question is constructed, belonged to the 5th defendant in O.S 648 of 2005 on the files of the Subordinate Judges' Court, Ernakulam, a suit by and between the second appellant Sri. Vinu Koshy Abraham, and the Apartment Owners' Association and others, which is an undisputed fact. The owner of the property executed a power of attorney dated 07.06.1996 to the builder, and consequent to which the multi storied commercial cum residential apartment was constructed in the property.
The second appellant namely Vinu Koshy Abraham, who is the son of the Managing Director of the first appellant, the assignee of the office premises in the first floor of the building, has filed O.S. No. 648 of 2005 before the Subordinate Judges’ Court, Ernakulam for a decree of permanent prohibitory injunction restraining the Association and the Secretary of the Association from obstructing the legal right of the second appellant for drawing the electric line to the Panel Board for providing the power supply to the tenant in the first floor.
According to the appellants, the above suit filed by the second appellant became infructuous by passage of time. However, the Additional Subordinate Judges’ Court allowed the counter-claim filed in the said suit by the Apartment Owners’ Association and the Secretary of the Association, and declared Exhibit A4 sale deed executed in favour of the second appellant by the appellant company as sham, null and void and not binding on the second respondent- Owners' Association. Challenging the decree, in the counter-claim and the dismissal of the suit, the second appellant has filed RFA Nos. 86 and 211 of 2012.
The learned single Judge has partly allowed the First Appeals and modified the decree and judgment passed by the court below in O.S.No. 648 of 2005 by declaring that the area earmarked in Exhibit B5 completion plan as recreation area and car parking area is liable to be maintained as such. In fact, the learned single Judge, after rendering the findings so in the common judgment, has dismissed the writ petition filed by the appellants challenging the judgment of the Tribunal for Local Self Government Institutions. It is, thus, challenging the legality and correctness of the judgment in the writ petition alone, the instant appeal is preferred.
In the writ appeal, a preliminary objection is raised by the second respondent Apartment Owners’ Association concerning the maintainability of the appeal on two grounds; (i) under Section 5 of the Kerala High Court Act, 1958, an appeal can be preferred only against original proceedings; and (ii) given the findings and the judgment in the First Appeal which has become final and conclusive, the writ appeal is barred by the principles of res judicata.
Heard learned Senior Counsel for the appellants Sri N. Nandakumara Menon assisted by Adv Smitha Pillai, and Sri P.k. Suresh Kumar assisted by Adv Sandeep Ankarath, and perused the pleadings and material on record.
Before proceeding further, it is placed on record that even though the appellants have preferred a Special Leave Petition before the Apex Court against the common judgment in the First Appeals, it was withdrawn by the second appellant. Section 5 of the Kerala High Court Act, 1958 deals with ‘appeal from the judgment or order of the single Judge', which inter alia specifies that an appeal shall lie to a Bench of two Judges from a judgment or order of a single Judge in the exercise of original jurisdiction.
Therefore, the contention advanced by the Apartment Owners’ Association is that the judgment is not rendered by the learned single Judge exercising the power under the original jurisdiction.
In our considered view, insofar as the principles of res judicata is concerned, the findings are rendered by the learned single Judge taking into account the judgment rendered in the civil suit as per the counter-claim raised by the Apartment Owners’ Association and also taking into account the correctness of the order passed by the Tribunal for Local Self Government Institutions. Fundamentally, the deliberation made above would make it clear that the civil proceedings and the subject matter of the writ petition are closely intertwined regarding the area to be set apart for car parking and recreation area for the benefit of the owners of the apartment.
There is no dispute at all that the findings are rendered by the learned single Judge in common, in the First Appeals and the writ petition; and therefore if any interference is made with the judgment in the writ petition in question, it would definitely interfere with the findings rendered by the learned single Judge in R.F.A Nos. 86 and 211 of 2012, since the findings are intrinsically woven. To put it otherwise, the issues were substantially common, and the findings are also common; and finally a modified judgment and decree was passed in the First Appeals, which is not a subject matter before us. Therefore the question is whether the principles of res judicata hit the writ appeal. The issue is no more res integra.
In Narayana Prabhu Venkateswara Prabhu v. Narayana Prabhu KrishnaPrabhu [1977) 2 SCC 181], the Apex Court was considering a question with respect to a decree passed in a partition suit and a money suit and the consequential effect of non filing of an appeal against judgment and decree of the High Court in the money suit, and it is held as follows:
As the defendant-appellant did not seek leave to file any appeal against the High Court's judgment and decree in the money suit and there is no appeal before us against the decree in the money suit, a preliminary objection is taken on the ground that the defendant's appeal now before us is barred by res judicata.
Learned counsel for the defendant-appellant urges that the two suits were different in nature and were filed in different courts originally so that the court trying the partition suit and the court in which the money suit was triable were not courts of coordinate jurisdiction. It was also objected that the partition suit was earlier and the money suit having been filed sixteen days later could not be deemed to be a suit decided earlier. Furthermore, it was pointed out that the judgment was common. It was also urged that all the four brothers were parties to the partition suit but the money suit was only between two brothers.
It is true that the appeals against both the decrees of the trial court were heard together in the High Court, and, although the appeal in the money suit is decided under a separate heading and the short judgment in it appears to be practically consequential on the judgment in the partition suit, yet, the judgments in the two appeals decide a common issue and resulted in two decrees.
It is urged that, whereas the defendant-appellant had filed an appeal on the strength of a certificate granted to him as a matter of right, following upon the modification of the decree of the trial court by the High Court, the defendant-appellant had no such right of appeal in this Court. Hence, it was submitted that neither in law nor in equity could the defendant-appellant be barred from putting forward his objections to the decree in the partition suit.
Certain decisions were relied upon by learned counsel for the defendant-appellant Venkateswara in support of the contention that the plea of res judicata is not available as a preliminary objection to the respondent to the hearing of the appeal before us in the circumstances of this case. We proceed to consider these cases.
10.Narhari v. Shankar [1950 SCC 668 : 1950 SCR 754 : AIR 1953 SC 419] is no doubt the judgment of the Supreme Court of India, although it was, if one may so put it, “the Hyderabad wing” of it in a transitional period when a learned Judge of this Court, Mr Justice Mehr Chand Mahajan, presided over a Bench of which the other two members were formerly members of His Exalted Highness the Nizam's Judicial Committee. Technically, however, it was this Court's judgment. In that case, Naik, J. had followed a decision of the Judicial Committee of the Hyderabad State and held that, when there was only one suit and the appeals had been disposed of by the same judgment, it was not necessary to file two separate appeals. It elaborated the ratio of the decision as follows (at p. 757-58):
“It is now well settled that where there has been one trial, one finding, and one decision, there need not be two appeals even though two decrees may have been drawn up. As has been observed by Tek Chand, J. in his learned judgment in Lachmi v. Bhuli [AIR 1927 Lah 289] mentioned above, the determining factor is not the decree but the matter in controversy. As he puts it later in his judgment, the estoppel is not created by the decree but it can only be created by the judgment. The question of res judicata arises only when there are two suits. Even when there are two suits, it has been held that a decision given simultaneously cannot be a decision in the former suit. When there is only one suit, the question of res judicata does not arise at all and in the present case, both the decrees are in the same case and based on the same judgment, and the matter decided concerns the entire suit. As such, there is no question of the application of the principle of res judicata. The same judgment cannot remain effective just because it was appealed against with a different number or a copy of it was attached to a different appeal. The two decrees in substance are one.”
It seems to us that to be fair to confine the ratio decidendi of the Hyderabad case to cases where there is only one suit. In the case now before us, not only were the decrees different but the suits were different. The mere fact that the judgment in the two suits were given together or in continuation did not matter. In fact, even in form, the judgment in the appeal relating to the money suit was separate from the rest of the judgment. And, in any case, there were two separate decrees.
We think that Section 11 of the Civil Procedure Code enables the party to raise the statutory plea of res judicata if the conditions given therein are fulfilled. The principle embodied in the statute is not so much the principle of “estoppel by record”, which the British courts apply, as one of public policy, based on two maxims derived from Roman jurisprudence: firstly, interest reipublicae ut sit finis litium — it concerns the State that there be an end to law suits; and, secondly, nemo debet bis vexari pro una et eadem cause — no man should be vexed twice over for the same cause.
12.Sir Lawrence Jenkins pointed out, in Sheoprasan Singh v. Ramar nandan Prasad Narayan Singh [AIR 1916 PC 78 : 43 IA 91 : 43 Cal 694] , that the rule of res judicata “while founded on ancient precedent, is dictated by a wisdom which is for all time”. Litigation which has no end or finality defeats its very object. This object is decision of disputes or an end to each litigation. But, if there is no finality to it, the dispute cannot be said to be really decided at all. It is the duty of the State to see that disputes brought before its judicial organs by citizens are decided finally as early as possible. Hence, Section 11 of our Civil Procedure Code contains in statutory form, with illuminating explanations, a very salutary principle of public policy. An “estoppel”, even if it be “by record”, rests on somewhat different grounds. Even such an estoppel savours of an equity or justice created by actions of parties the results of which have become recorded formally behind which they are not allowed to go.
Reliance was also placed on Govind Bin Lakshmanshet Anjor-lekar v. Dhondba ‘Ra’ v. Bin Ganbaf ‘Ra’ v. ‘T’ Mbye [ILR Vol. XV Bombay 104] , on behalf of the appellant. Here, it was held that decisions in previous suits of the nature of small cause suits in which there was no right of second appeal could not operate as res judicata in suits before courts in which questions were elaborately litigated and decided in cases which could go to the High Court in second appeal. We were also referred to a Full Bench decision of the Madras High Court in Avanasi Gounden v. Nachammal [ILR 29 Madras 195 : 17 MLJ 374] , where it was similarly held that: “A decision in a previous suit of a small cause nature, in which no second appeal is allowed by law, is no bar to a subsequent suit, in the same court, which, not being of a small cause nature, is open to second appeal.” We have to remember that small cause jurisdiction is a limited one exercisable only in specified matters. Decisions given beyond jurisdiction to try an issue cannot operate as res judicata.
Our attention was drawn to Explanation II of Section 11, on behalf of the respondents. It reads:
“Explanation II.—For the purposes of this section, the competence of a court shall be determined irrespective of any provision as to a right of appeal from the decision of such court.”
It seems to us that Section 11 itself refers to a Court which actually tries the two suits. We think that, in the circumstances of the case before us, the incompetence of the Court, in which the money suit was initially filed, to try the partition suit did not matter when the actual hearing of both the cases took place in the same Court. That Court was, obviously, competent to try both the suits. After the money suit had been transferred from the Court of the Munsif, the Second Additional Sub Judge actually tried and decided both of them. This was enough to make the difference in the jurisdictions of the Courts, in which the suits were initially filed, quite immaterial. Similarly, the High Court was competent to hear appeals from judgments in both. It heard and decided the two appeals together.
So far as the question of appeal to this Court is concerned, it is true that no appeal lay as a matter of right against the judgment in the appeal in the money suit, but, we think that the learned counsel for the respondents is correct in submitting that the question whether there is a bar of res judicata does not depend on the existence of a right of appeal of the same nature against each of the two decisions but on the question whether the same issue, under the circumstances given in Section 11, has been heard and finally decided. That was certainly purported to be done by the High Court in both the appeals before it subject, of course, to the rights of parties to appeal. The mere fact that the defendant-appellant could come up to this Court in appeal as of right by means of a certificate of fitness of the case under the unamended Article 133(1)(c) in the partition suit, could not take away the finality of the decision so far as the High Court had determined the money suit and no attempt of any sort was made to question the correctness or finality of that decision even by means of an application for special leave to appeal.
Learned counsel for the respondents appears to us to have rightly relied upon Bhugwanbutti Chowdhrani v. A.H. Forbes [ILR 28 Cal 78 : 5 CWN 483], where it was held that “in order to make a matter res judicata it is not necessary that the two suits must be open to appeal in the same way”. He also relied on Lonankutty v. Thomman [(1976) 3 SCC 528] , a recent decision of three Judges of this Court, where Chandrachud, J. observed (at p. 534, para 19):
“Respondents did not file any further appeal against the decree passed by the District Court in the appeals arising out of their suit. They filed a second appeal in the High Court only as against the decree passed by the District Court in AS 66 of 1958 which arose out of the decree passed by the trial court in the appellant's suit. Thus, the decision of the District Court rendered in the appeal arising out of the respondent's suit became final and conclusive.”
It was also observed there (para 19):
“The decision of the District Court was given in an appeal arising out of a suit which, though instituted subsequently, stood finally decided before the High Court disposed of the second appeal. The decision was, therefore, one in a ‘former suit’ within the meaning of Section 11, Explanation I of the Civil Procedure Code.”
The expression “former suit”, according to Explanation I of Section 11 of the Civil Procedure Code, makes it clear that, if a decision is given before the institution of the proceeding which is sought to be barred by res judicata, and that decision is allowed to become final or becomes final by operation of law, a bar of res judicata would emerge. This, as learned counsel for the respondents rightly submits, follows from the decision of this Court in Lonankutty case [(1976) 3 SCC 528] .
The only other point which we need consider is whether the fact that the money suit was only between the defendant-appellant and one of his brothers, who was also a respondent in the partition suit makes any difference to the applicability of the principle of res judicata in this case. Learned counsel for the appellant submits that the defendant-appellant could not come within the ambit of Explanation VI of Section 11 of the Civil Procedure Code which provides as follows:
“Where persons litigate bona fide in respect of a public right or of a private right claimed in common for themselves and others, all persons interested in such right shall, for the purposes of this section, be deemed to claim under the persons so litigating.”
On the other hand, learned counsel for the respondent submits that the case of the respondents is fully covered by this Explanation and relies on Kumaravelu Chettiar v. T.P. Ramaswami Ayyar [AIR 1933 PC 183 : 60 IA 278 : 143 IC 665] where it was held:
“Explanation 6 is not confined to cases covered by Order 1, Rule 8 but extends to include any litigation in which, apart from the Rule altogether, parties are entitled to represent interested persons other than themselves.”
We think that the submission made by the learned Counsel for the respondents is sound. In a partition suit each party claiming that the property is joint, asserts a right and litigates under a title which is common to others who make identical claims. If that very issue is litigated in another suit and decided we do not see why the others making the same claim cannot be held to be claiming a right “in common for themselves and others”. Each of them can be deemed, by reason of Explanation VI, to represent all those the nature of whose claims and interests are common or identical. If we were to hold otherwise, it would necessarily mean that there would be two inconsistent decrees. One of the tests in deciding whether the doctrine of res judicata applies to a particular case or not is to determine whether two inconsistent decrees will come into existence if it is not applied. We think this will be the case here.”
Again, the question was considered in Premier Tyres Ltd. v. Kerala State Road Transport Corpn. [1993 Supp. (2) SCC 146] in regard to the effect of non-filing of appeal against a judgment or decree, and it is held as follows:
Although none of these decisions were concerned with a situation where no appeal was filed against the decision in connected suit but it appears that where an appeal arising out of connected suit is dismissed on merits the other cannot be heard, and has to be dismissed. The question is what happens where no appeal is filed, as in this case from the decree in connected suit. Effect of non-filing of appeal against a judgment or decree is that it becomes final. This finality can be taken away only in accordance with law. Same consequences follow when a judgment or decree in a connected suit is not appealed from.
Mention may be made of a Constitution Bench decision in Badri Narayan Singh v. Kamdeo Prasad Singh [AIR 1962 SC 338 : (1962) 3 SCR 759 : 23 ELR 203] . In an election petition filed by the respondent a declaration was sought to declare the election of appellant as invalid and to declare the respondent as the elected candidate. The tribunal granted first relief only. Both appellant and respondent filed appeals in the High Court. The appellant's appeal was dismissed but that of respondent was allowed. The appellant challenged the order passed in favour of respondent in his appeal. It was dismissed and preliminary objection of the respondent was upheld. The Court observed,
“We are therefore of opinion that so long as the order in the appellant's Appeal No. 7 confirming the order setting aside his election on the ground that he was a holder of an office of profit under the Bihar Government and therefore could not have been a properly nominated candidate stands, he cannot question the finding about his holding an office of profit, in the present appeal, which is founded on the contention that that finding is incorrect.”
Thus the finality of finding recorded in the connected suit, due to non-filing of appeal, precluded the court from proceeding with appeal in other suit. In any view of the matter the order of the High Court is not liable to interference.”
In Sri. Gangai Vinayagar Temple v. Meenakshi Ammal [(2015 3 SCC 624] also, the question of res judicata in respect of a common judgment was considered and it is held as follows:
“24. We must additionally advert to a four-Judge Bench decision in Sheodan Singh v. Daryao Kunwar [Sheodan Singh v. Daryao Kunwar, AIR 1966 SC 1332 : (1966) 3 SCR 300] , in which this Court has lucidly enumerated five constituent elements of Section 11, namely: (AIR p. 1334, para 9)
“(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 I 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.”
The conundrum in Sheodan Singh [Sheodan Singh v. Daryao Kunwar, AIR 1966 SC 1332 : (1966) 3 SCR 300] was only marginally different to what has arisen before us. The appellate court was confronted with five appeals from five different suits between the same parties in which the issues were common. Two of the appeals were dismissed, albeit, not on merits. It was in those premises argued and accepted by this Court that the principles of res judicata became operational with regard to the decrees passed in the two suits in respect of which the appeals filed thereagainst had been dismissed. It was pithily observed that otherwise: (AIR pp. 1336-37, para 13)
“13. … all that the losing party has to do to destroy the effect of a decision given by the trial court on the merits is to file an appeal and let that appeal be dismissed on some preliminary ground, with the result that the decision given on the merits also becomes useless as between the parties.”
Sheodan Singh [Sheodan Singh v. Daryao Kunwar, AIR 1966 SC 1332 : (1966) 3 SCR 300] took note of several judgments of the High Courts, which preferred to overlook procedural technicalities ostensibly in the interests of the merits of the matter, but did not state its final opinion, which has propelled us to do so in order so that the divergent opinions be interred and dissonance be removed.
On the issue of applicability of res judicata in cases where two or more suits have been disposed of by one common judgment but separate decrees, and where the decree in one suit has been appealed against but not against the others, various High Courts have given divergent and conflicting opinions and decisions. The High Court of Madras and the erstwhile High Courts of Lahore, Nagpur and Oudh have held that there could be no res judicata in such cases whereas the High Courts of Allahabad, Calcutta, Patna, Orissa and the erstwhile High Court of Rangoon have taken contrary views. It should also be noted that there are instances of conflicting judgments within the same High Court as well. The decision of Tec Chand, J. in Full Bench judgment of the Lahore High Court in Lachhmi v. Bhulli [AIR 1927 Lah 289] and Full Bench judgment of the Madras High Court in Panchanada Velan v. Vaithinatha Sastrial [ILR (1906) 29 Mad 333] and of the Oudh High Court in B. Shankar Sahai v. B. Bhagwat Sahai [AIR 1946 Oudh 33] appear to be the leading decisions against the applicability of res judicata. Without adverting to the details of those cases, it is sufficient to note that the hesitancy or reluctance to the applicability of the rigours of res judicata flowed from the notion that Section 11 of the Code refers only to “suits” and as such does not include “appeals” within its ambit; that since the decisions arrived in the connected suits were articulated simultaneously, there could be no “former suit” as stipulated by the said section; that substance, issues and finding being common or substantially similar in the connected suits tried together, non-filing of an appeal against one or more of those suits ought not to preclude the consideration of other appeals on merits; and that the principle of res judicata would be applicable to the judgment, which is common, and not to the decrees drawn on the basis of that common judgment.
On the other hand, the verdict of Full Bench of the Allahabad High Court in Zaharia v. Debia [ILR (1911) 33 All 51] and decisions of the Calcutta High Court in Isup Ali v. Gour Chandra Deb [37 Cal LJ 184 : AIR 1923 Cal 496] and of the Patna High Court in Gertrude Oates v. Millicent D'Silva [ILR (1933) 12 Pat 139 : AIR 1933 Pat 78] are of the contrary persuasion. These decisions largely proceeded on the predication that the phraseology “suit” is not limited to the court of first instance or trial court but encompasses within its domain proceedings before the appellate courts; that non-applicability of res judicata may lead to inconsistent decrees and conflicting decrees, not only due to multiplicity of decrees but also due to multiplicity of the parties, and thereby creating confusion as to which decree has to be given effect to in execution; that a decree is valid unless it is a nullity and the same cannot be overruled or interfered with in appellate proceedings initiated against another decree; that the issue of res judicata has to be decided with reference to the decrees, which are appealable under Section 96 CPC and not with reference to the judgment (which has been defined differently), but with respect to decrees in CPC; that non-confirmation of a decree in appellate proceedings has no consequence as far as it reaching finality upon elapsing of the limitation period is concerned in view of Explanation II of Section 11, which provides that the competence of a court shall be determined irrespective of any provisions as to right of appeal from the decision of such court; and that Section 11 CPC is not exhaustive of the doctrine of res judicata, which springs up from the general principles of law and public policy.
Procedural norms, technicalities and processual law evolve after years of empirical experience, and to ignore them or give them short shrift inevitably defeats justice. Where a common judgment has been delivered in cases in which consolidation orders have specifically been passed, we think it irresistible that the filing of a single appeal leads to the entire dispute becoming sub judice once again. Consolidation orders are passed by virtue of the bestowal of inherent powers on the courts by Section 151 CPC, as clarified by this Court in Chitivalasa Jute Mills v. Jaypee Rewa Cement [(2004) 3 SCC 85] . In the instance of suits in which common issues have been framed and a common trial has been conducted, the losing party must file appeals in respect of all adverse decrees founded even on partially adverse or contrary speaking judgments. While so opining we do not intend to whittle down the principle that the appeals are not expected to be filed against every inconvenient or disagreeable or unpropitious or unfavourable finding or observation contained in a judgment, but that this can be done by way of cross-objections if the occasion arises. The decree not assailed thereupon metamorphoses into the character of a “former suit”. If this is not to be so viewed, it would be possible to set at naught a decree passed in Suit A by only challenging the decree in Suit B. Law considers it an anathema to allow a party to achieve a result indirectly when it has deliberately or negligently failed to directly initiate proceedings towards this purpose. Laws of procedure have picturesquely been referred to as handmaidens to justice, but this does not mean that they can be wantonly ignored because, if so done, a miscarriage of justice inevitably and inexorably ensues. The statutory law and the processual law are two sides of the judicial drachma, each being the obverse of the other. In the case in hand, had the tenant diligently filed an appeal against the decree at least in respect of OS No. 5 of 1978, the legal conundrum that has manifested itself and exhausted so much judicial time, would not have arisen at all.
Adverting in the impugned judgment to the decision of this Court in Sajjadanashin Sayed v. Musa Dadabhai Ummer [(2000) 3 SCC 350] , the Division Bench delineated the distinction between an aspect of the litigation that is collaterally and incidentally, as against one that is directly and substantially focal to the question the determination of which is the immediate foundation of the decision. Reference was also drawn to enunciation of what constitutes res judicata in Hoag v. New Jersey [2 L Ed 2d 913 : 356 US 464 (1958)] , namely, that this important legal principle is attracted;
“if the record of the formal trial shows that the judgment could not have been rendered without deciding the particular matter, it will be considered as having settled that matter as to all future actions between the parties”. (Sajjadanashin Sayed case [(2000) 3 SCC 350] , SCC p. 359, para 17) (emphasis in original)
The Division Bench also garnered guidance from the observations of this Court in Isher Singh v. Sarwan Singh [AIR 1965 SC 948] requiring the examination of the pleadings and the issues in order to ascertain whether the question was directly and substantially litigated upon. The Division Bench also considered Asrar Ahmed v. Durgah Committee [AIR 1947 PC 1] and Pragdasji Guru Bhagwandasji v. Ishwarlalbhai Narsibhai [(1952) 1 SCC 323 : AIR 1952 SC 143] , before concluding that Issue 2 framed in OS No. 5 of 1978 was wholly unnecessary and faulty. The Division Bench held that the findings on that issue were unnecessary, did not constitute the minimum foundation for the ultimate decision and, therefore, would not constitute res judicata.
We have already indicated above that, in our opinion, if OS No. 5 of 1978 was merely a suit for injunction simpliciter, since the defendants therein (both the trustees as well as the transferees) had posited in their respective written statements that they had no intention to dispossess the plaintiff tenant, that suit ought not to have been dismissed but should have been decreed. We have also laid emphasis on the fact that the tenant had made a specific and pointed assertion in the plaint that the transfer of the demised land by the Trust to the transferees was not in consonance with Section 26 of the Puducherry Hindu Religious Institutions Act, 1972. We have also noticed the fact that this was an important objection raised by the tenant in their written statement in OS No. 6 of 1978 and OS No. 7 of 1978. It seems to be incongruous to us to consider ownership of the demised premises to be irrelevant in OS No. 5 of 1978 but nevertheless constitute the kernel or essence or fulcrum of the disputes in OS No. 6 of 1978 and OS No. 7 of 1978. The dialectic adopted by the Court must remain steadfastly constant—if title was irrelevant so far as a claim for injunction simpliciter, it was similarly so in relation to the party having the advantage of Section 116 of the Evidence Act in respect of its claim for arrears of rent from its tenant.”
As we have pointed out above, the findings rendered by the learned single Judge are closely interconnected in respect of the Regular First Appeals and the writ petition and they are not separate or distinct at all. That said, now as per the modified decree in the First Appeals which has become final, the Owners' Association is entitled to execute the same. Therefore, the judgment rendered in common in the Regular First Appeals and the writ petition would be a clear res judicata to consider the writ appeal on its merit.
It is an admitted fact that even though a Special Leave Petition was filed against the judgment in the Regular First Appeals, admittedly they were withdrawn. Which thus means, the judgment rendered in the Regular First Appeals by the learned single Judge has become final, which cannot be re-opened in a writ appeal filed against the common judgment in the writ petition in question and connected cases. We say so for the basic reason that, if we attempt to interfere with the findings in respect of the judgment in the writ petition in question, it would be nothing but an interference with the common findings rendered by the learned single Judge in the Regular First Appeals.
So also, there is force in the contention advanced by the learned Senior counsel for the Apartment Owners’ Association that in view of the common judgment, it cannot be said that the appeal preferred by the appellant is from an original jurisdiction exercised by the learned single Judge, due to the very fact that the Regular First Appeals were the continuation of the proceedings from the judgment of the Subordinate Judges’ Court in the civil suit in question.
Therefore, assimilating the factual and legal situations, we are of the definite opinion that writ appeal filed against the judgment in W.P.(C) No. 13106 of 2010, which is a common judgment rendered by the learned single Judge along with the Regular First Appeals, is not maintainable under law, being barred by the principles of res judicata.
Needless to say, writ appeal fails and accordingly, it is dismissed for the aforesaid reasons.