Shanmughasundaram vs Janagarajan

P.R. Gokulakrishnan, J.—The first defendant in O.S. No. 294 of 1972, on the file of the Court of the District Munsif of Udumalpet, is the

petitioner herein. The suit has been filed for a declaration that the plaintiff is the cultivating tenant of the suit property and for the consequential relief

of permanent injunction against the defendants in order to restrain them from in any way interfering with the peaceful possession and enjoyment of

the suit ''property by the plaintiff. Apart from various other contentions, the first defendant put forth the contention that the suit claim is barred by

resjudicata in view of the decision in O.S. No. 919 of 1970, on the file of the Court below, and as such the suit is not maintainable. The trial Court

framed as many as six issues and took up for decision, as a preliminary issue; issue No. 1, as to whether the suit is barred by res judicata. The trial

Court, after elaborately discussing the facts of the case, gave the finding that the suit is not barred by res judicata. Aggrieved by the said decision,

the first defendant has preferred the present civil revision petition.

It is clear from the facts of the case that the plaintiff bad filed O.S. No. 919 of 1970 to get himself declared as the cultivating tenant and for

consequential relief. In that suit, a compromise was effected between the parties and the plaintiff agreed to vacate the suit land within six months

from the date of the compromise if the defendant paid him a sum of Rs. 5,000 towards cultivation expenses. Since the compromise did not come

into effect due to the failure of the first defendant to pay the agreed amount, the plaintiff continued to be in possession and enjoyment of the suit

property as tenant. In view of this, the first defendant raised the plea of res judicata.

From Exhibits B-2 and B-3 it is clear that the suit O.S. No. 919 of 1970 was dismissed as settled out of Court and that half of the court-fee

paid on that plaint was refunded. Exhibit B-4 shows that consequent to such dismissal of the suit,, the ad interim injunction granted in favour of the

plaintiff was vacated on the date of the dismissal of the suit. No written. statement had been filed by the defendant in O.S. No. 919 of 1970 either

denying or admitting the plea put forth by the plaintiff. It cannot therefore be said that the matter in issue in the present case was directly and

substantially in issue in the former suit. The Court below has correctly observed that in view of the fact that the former suit was dismissed as

settled, out of Court on an alleged compromise between the parties it cannot be said that, the Court had opportunity to apply its mind to an issue

that could have been raised in that suit, even though it can be said that the parties had applied their mind to that matter between themselves.

Thiru T. Rangaswami Ayyangar,, the learned Counsel appearing for the petitioner, submitted that the doctrine of estoppel by resjudicata will

apply to the facts of the present case. In support of his contention, he cited the decision in. Subbathal Vs. Kittammal, and Mahanth Girjanand

Bhagat and Another Vs. Bhagwan Bhagat and Others, . I have been taken through the judgments in those citations. The facts; in those decisions

are not similar to those in the present one. In the present case, no written statement was filed by the first defendant in O.S. No. 919 of 1970. apart

from the fact of that suit having, been dismissed as settled out of Court. Such is not the case in the above two decisions.

Thiru Palaniswami, the learned. counsel appearing for the plaintiff-respondent cited the decision in Pulavarthi Venkata Subba Rao and Others

Vs. Valluri Jagannadha Rao and Others, , wherein it has been stated:

A compromise decree is not a decision by, the Court. It is the acceptance by the Court of something to which the parties had agreed. A

compromise decree merely sets the seal of the Court on the agreement of the parties. The Court does not decide anything. Nor can it be said that

a decision of the Court was implicit in it. Only a decision by the Court can be res judicata, whether statutory u/s 11 of the Code of Civil

Procedure, or constructive as 3 matter of public policy on which the entire doctrine rests. Such a decree cannot strictly be regarded as decision on

a matter which was heard and finally decided and cannot operate as res judicata. Such a decree might create an estoppel by conduct between the

parries, but such an estoppel must be specifically pleaded.

It is submitted by Thiru Palaniswami that there is no such specific pleading of estoppel in the present case.

The next case cited by Thiru Palaniswami is Sheodan Singh Vs. Smt. Daryao Kunwar, . The Supreme Court held in that case:

Where the trial Court has decided two suits having common issues on the merits and there are two appeals therefrom and one of them is dismissed

on some preliminary ground, like limitation or default in printing, with the result that the trial Court''s decision stands confirmed, the decision of the

appeal Court will be res judicata and the appeal Court must be deemed to have heard and finally decided the matter. In such a case the result of

the decision of the appeal Court is to confirm the decision of the trial Court given on merits, and if that is so, the decision of the appeal Court will

be res judicata.

As far as the present case is concerned, the matter was not finally heard or decided in the prior suit on merits excepting that the Court dismissed

that suit as settled out of Court even before the defendant filed the written statement. It is clear from the above two Supreme Court decision that

there cannot be any res judicata if the former suit had been dismissed as settled out of Court. The Court below has correctly appreciated the facts

and has held that the suit is not barred by res judicata. There is absolutely no question of jurisdiction involved in the civil revision petition for me to

interfere with the decision arrived at by the Court below.

The civil revision petition is dismissed. No costs.