Punjab Singh and others vs Teju and Ors.

Masud Hasan, J.—The plaintiff's first appeal arising out of a suit for possession.

2, The plaintiff claimed to be the reversionary heirs of one piara who died heirless, Tn the array of defendants were impleaded the other

reversionary heirs as well as one Teju son of one of such reversioners. It appears that this Teju was represented to have been adopted by Piara as

long ago as 1976 The plaintiff claimed 3/4th share of the property amtnounting to 433 kanals and 10 marlas of land leaving the remaining l/4th as

the shara of the remaining reversionary heirs.

The defendants pleaded that the plaintiffs were not entitled to inherit anything from Piara as the latter had adopted Teju who was in possession

of the property and in whose favour mutation had been effected on the basis of an adoption deed. They also pleaded that there had been an earlier

suit between the parties which operated as resjudicafa between the parties. The trial court, namely, the subordinate judge of Jammu, framed a

number of issues relating to the factum of adoption and the question of res]udicata and estoppel, arrived at a finding in favour of the defendants and

considered it unnecessary to take up the question of adoption

To appreciate the plea of resjudicata a few facts may be stated. It appears that in 1976 when the adoption deed in favour of Teju was executed

some of the present plaintiffs and the predecessors in interest of the other filed a suit against some of the defendanis and some others in terms of

Section 39 of the Specific Relief Act to have the deed of adoption adjudged void against them and cancelled, It further appears that the suit after a

chequered career of adjournments was eventually dismissed for default, the operative order being : None of the plaintiffs is present today. The case

is consigned to the Records for default

5 Now in terms and sprit this is nothing but disposal under order 17, rule 2. The Court did not chose to proceed under Rule 3 to decide the suit

but consigned the case to the record room for default.

6, The learned trial Court in this case interpreted this order to be one under Order 17 Rule 3 and held it to be resjudicata The learned Court has

cited a number of Rulings without discussing any and we totally fail to see on what reasoning has it arrived at a finding that this order should be

interpreted to be one under order 17 Rule 3, There is no doubt that if the earlier suit had been decided in terms of order 17 Rule 3, i.e. if the issues

involved in that case had been tried and decided inspite of the default of the plaintiffs in producing evidence or discharging the onus that lay upon

them the question of resjudicata may conceuably, have arisen in this case But we find that that case was not at all decided on merits and was

consigned to the record room in default. We should here point out that it is very unsatisfactory way of deciding a case to just mention a number of

Rulings without discussing them and without showing as to what extent they are applicable to the facts of case in hand. The practice leaves this

court without any indication whether the courts below have tried to appreciate the Rulings cited and applied their minds to the question decided

therein.

Now none of these Rulings are quit pertinent to the question before us. We have looked into such of these rulings as have been correctly cited

by the court below and are not wholy irrelvant. Nila V. Punu and and other 1936 PLR 803 lays down that an order under Order 17 Rule 3 is

resjudicata. Gobind Lal Vs Baldeo Singh 12 P. R 1915, lays down that plea? not raised in an earlier suit between the same parties with regard to

the same subject matter can not be raised in a subsequent suit because of Sec. 11 of the Code of Civil Procedure. Venkatachalam Vs

Mahalakshman ILR ? Madras 272, lays down that a decree pasffd on material existing on the recode notwithstanding the default made by the

plantiif in rreducing evidence on his behalf will act as resjudicata. The remaining Rulings have no bearing on the matter barker us With the

propositions adumberated in these rulings there need be no quarrel but the proposition before us is quite different. It is whether the judgment

between the parties dated 3lst Baisakh 1978 can be interpreted to be an order on merits under order 17 Rule 3. It is obvious that to attract the full

force of sec. 11 of the code of Civil Procedure it the principle of ' resjudicata"" the iss es in the earlier case should have 'been heard and finally

decided by such Court"". If this was not done there can be no ''resjudicata"" and there can be no order under order 17, Rule 3. The principle of

resjudicata cannot be invoked without producing the matter decided. Now the court ""which disposed of the earlier suit did not only not pretend to

decide it but said in so many words that the file be consigned to the Record Room for default There is here no question of an order under Order

17 Rule 3.

We find that the learned trial court has totally misconceved the position. We should therefore, set aside the judgment of the lower court, allow

this appeal with costs and send the case back to the trial court for decision according to law.

NoteLawyers for their own interests are requested to see, before citing this authority, whether this authority is still a good law.