Vishwanath v. Municipal Board — 1959 DIGILAW 203 (ALL)

JUDGMENT S.S. Dhavan, J. - This second appeal raises an important question which may be stated thus: does the judgment of the High Court in Second Appeal operate as res judicata against a person who was not a party to the suit nor in the subsequent appeal before the lower appellate court, but who, after the filing of the Second Appeal in the High Court, applied to be added as a co-Appellant on his own application if so, to what extent? It is necessary; to state in detail the facts which have led to this appeal. The present Plaintiff Appellant mortgaged the plot of land in dispute to a man called Dwarka Dass who became the usufructuary mortgagee. He filed a suit against the Municipal Board, Mathura for possession alleging that the Board had constructed an unauthorised tin-shed and 'Kha ranja' over the plot. The owner-mortgagor was not made a party to the suit. One of the issues framed by the trial court in that suit was whether the land in dispute belonged to the Plaintiff and another whether the property in the land vested in the Defendant Municipal Board. It held, after an assessment of such evidence as was led before it, that the property in the land vested with the Municipal Board and that the Municipal Board had the authority to raise structures on the land which was held to be a public street. On appeal by the usufructuary mortgagee the District Judge confirmed the finding that the land in dispute was a public street and therefore vested in the Municipal Board. It further held that u/s 116 of the Municipalities Act all public streets vested in the Board which had every right to raise structures in dispute. He accordingly dismissed the appeal. The mortgagee filed a second appeal to the High Court. During the pendency of the appeal, the owner-mortgagor (the present Plaintiff-Appellant) redeemed the mortgage, with the result that the interest of the mortgagee in the land in dispute was extinguished. He then took a step which as events subsequently turned out, proved to be ill-advised. He made an application in the High Court for being added as Appellant No. 2 in the second appeal which was pending. He then took a step which as events subsequently turned out, proved to be ill-advised. He made an application in the High Court for being added as Appellant No. 2 in the second appeal which was pending. In his affidavit supporting this application he stated that the mortgage in favour of the mortgagee-Appellant had been redeemed by him, that he had obtained possession of the entire mortgaged property and that it was therefore necessary that his name should be added as an Appellant. This application was allowed by this Court. Subsequently, the second appeal itself was dismissed by a Division Bench of this Court by their order dated 12-3-1945. It was held that the finding of the court below that a portion of plot No. 564 had been used by the public as a Rasta-Am must be accepted and therefore this portion was a "public street" within the meaning of Section 2(19) of the UP Municipalities Act and the Municipal Board were entitled to raise the structures complained of. The appeal was dismissed. The judgment is a very brief one and the array of parties at the head of it is described as Dwarka Dass Plaintiff-Appellant v. The Municipal Board Mathura Defendant-Respondent. As the entire case of the Defendants in the present appeal on the question of res judicata is based on this judgment, it is necessary to quote it verbatim. Their Lordships observed: Having heard learned Counsel for the parties, we have come to the conclusion that there is no force in this appeal. The suit was brought by the Appellant for the demolition of a structure which the Municipal Board have put up on a portion of a plot which has been described as plot No. 564. It has been found by both the courts below that the Plaintiff is, or was at the time of the suit, a usufructuary mortgagee of the plot in question. Both the courts have, however, found that a portion of this plot, namely, an area of 36 acre, lying outside a grove or garden which has been described as a Baghichi and which is enclosed within a boundary wall, has been used as a Rasta-Am by the public. Both the courts have, however, found that a portion of this plot, namely, an area of 36 acre, lying outside a grove or garden which has been described as a Baghichi and which is enclosed within a boundary wall, has been used as a Rasta-Am by the public. The courts below, further, agreed in finding that this portion of plot No. 564 namely the area of 36 lying outside the Baghichi--was a "public street" within the meaning of that expression as defined in Section 2(19) of the UP Municipalities Act (II of 1916). It appears to us that this finding must, in 11 the circumstances for this case, be accepted. That being so, the Municipal Board were entitled to put up the structure complained of, which is a tin-shed designed to afford shelter to conveyances on that and neighbouring roads. It is sufficient, in our opinion, to refer to the decision of their Lordships of the Privy Council in Man Singh of Sewai Jaipur His Highness Maharaja v. Arjun Lal and Ors. (1937) AWR 829. The question whether this tin-shed will at various times be used for the most part by traffic passing, along one road or another is, in our opinion, immaterial. In our judgment the decision at which the courts below have arrived is correct. The appeal is without force and is dismissed with costs. Dated: 12-2-1945. 2. Several features of this judgment are noteworthy. The Appellant is described as "a usufructuary mortgagee of the plot in question". The name of the owner-mortgagor (the present Appellant) does not figure in the judgment at all. It does not appear from this judgment that the owner-mortgagor was in the mind of the High Court at all at the time of delivering this judgment in S.A. No. 1624 of 1940 Dwarka Dass v. The Municipal Board, Mathura. In any case the Appellant had no opportunity at the hearing of the suit to rebut the evidence of the Municipal Board nor to impugn before the appellate court the trial court's assessment of this evidence. 3. On or about, 19-2-1946 the owner-mortgagor Badri Das (the Plaintiff-Appellant in the present second appeal) filed his suit against the Municipal Board, Mathura for possession over the same land in dispute. 3. On or about, 19-2-1946 the owner-mortgagor Badri Das (the Plaintiff-Appellant in the present second appeal) filed his suit against the Municipal Board, Mathura for possession over the same land in dispute. In it he alleged that he had previously mortgaged the plot to Dwarka Dass who instituted a suit for possession of the land under tin shed only...in paragraph 8 of his plaint he alleged that the aforesaid mortgagee Dwarka Dass "colluded with the Defendant No. 1 (The Municipal Board) and in consequence grossly neglected the conduct of the case with the result that the suit was ultimately dismissed". The Municipal Board contested the suit and as regards the plot in dispute, set up the judgment in the previous second appeal as res judicata against the present Appellant. The learned Munsif upheld this plea on the ground that the Plaintiff was a party to the previous suit. In describing him as "a party", he obviously relied upon the fact that the Plaintiff-Appellant had been added as an Appellant at the second appeal stage. He therefore held that the decision in the previous suit barred the present suit in respect of the tin-shed and the 'Kharanja' constructed by the Municipal Board. On appeal the learned Second Additional Civil Judge Mathura, upheld the findings of the trial Court and held that the decision in the previous suit operated as res judicata against the Plaintiff-Appellant in the present dispute. He observed, inter alia, The broad point is--whether an appeal is included in the word used in Section 1 Code of Criminal Procedure or not. The learned Counsel for the Appellant argued out that the word used in Section 11 is suit not an appeal, hence the decision in an appeal against a person who was not party to the original suit should not operate as res judicata. He has, however, not been able to cite any direct authority on this proposition, it should be noted matter the redemption of the mortgage deed Lala Dwarka Dass had left no interest in the property in dispute and all his interest in the Second Appeal was in respect of the cost of the litigation. Therefore, the second appeal must have failed on merits, if Badri Dass would not have been allowed to prosecute it. Therefore, the second appeal must have failed on merits, if Badri Dass would not have been allowed to prosecute it. Lala Dwarka Dass was prosecuting the appeal, or for the matter of that, the suit No. 209 of 1938, in his capacity as mortgagee. Lala Badri Dass prosecuted the second appeal as the proprietor of the property. The right of a full proprietor consisted in that case of the equity of redemption and the right of a mortgagee. Therefore, Lala Badri Dass possessed in him all the rights which Dwarka Dass had possessed plus the right to the equity of redemption. It will thus follow that Badri Dass was prosecuting the second appeal in the same capacity in which Dwarka Dass was conducting it, though it is true that Badri Dass had larger rights than those of Dwarka Dass. I am therefore not prepared to accept the contention of learned Counsel for the Appellant that Badri Dass prosecuted the second appeal in a capacity different than the capacity in which he has filed this suit. In my opinion, the decision in the second appeal in suit No. 209 of 1938 operates as res judicata against the Plaintiff so far as the tin shed and the pucca Kharanja are concerned. I therefore agree with the finding of the lower court on this point. In view of the above conclusion the major portion of the land goes out of dispute.... 4. He accordingly dismissed the Plaintiff Appellant's suit with costs. Aggrieved by the decision of the courts below he has come to this Court in second appeal. 5. The only point urged before me on behalf of the Appellant is that the previous decision does not operate as res judicata and that the finding of the courts below to the contrary is erroneous. On the other hand, it was contended by learned Counsel for the Respondents that the previous decision does operate as res judicata and the Plaintiff-Appellant is bound by it. Learned Counsel for the Appellant as well as the Respondents cited a large number of authorities on the question whether the doctrine of res judicata applies or not to decisions in appeal. The lower appellate as well as the trial court have also proceeded as if this is the real question in issue. This, however, is not the correct approach. 6. The lower appellate as well as the trial court have also proceeded as if this is the real question in issue. This, however, is not the correct approach. 6. It was argued by learned Counsel for the Respondents that if a person chooses, on his own initiative to be made a party to a dispute at a stage of second appeal, he must be deemed to have accepted the finding of the lower courts as binding on him. No authority was cited in support of this broad assertion and in my view, it does not state the law on the question of res judicata correctly. 7. The principles which form the foundation of the doctrine of res judicata are well-known. The basic principle is that there should not be a multiplicity or repetition of litigation between the same parties over the same dispute and that, as a matter of public policy, there should be an end of litigation after it has been fought out between the parties. Every suit is based on a cause of action, but if the Plaintiff has already filed a suit on the same cause of action against the same Defendant and lost it, it may be said that there is no cause of action to sustain the second suit of the same Plaintiff against the same Defendant. There are different ways of expressing the principle of res judicata. The difficulty, however, arises in the application of the general principle to the facts of each case. It must, however, be noted that the doctrine of res judicata is not a technical rule. It does not lay down that a party is not entitled to raise a dispute merely because it was on record as a party in a previous suit. The mere fact that a person is a party in one suit will not prevent him from tiling another suit in his own right unless it can be shown that he, or if he be a privy, his predecessor-in-interest, had the opportunity of lighting out the same cause of action in the previous litigation. For a plea of res judicata to succeed, it must be shown that the same point has actually been decided between the parties in the previous litigation or would have been put for the omission of the party to raise it. 8. For a plea of res judicata to succeed, it must be shown that the same point has actually been decided between the parties in the previous litigation or would have been put for the omission of the party to raise it. 8. The argument that the mere presence of a person as a party in the suit is enough to invoke the doctrine of res judicata against him in any subsequent litigation was negatived by a decision of this Court in Malhi Kunwar v. Imam-Ud-Din ILR 27 All. 59. In that case certain persons were made parties in a suit after issues had been framed but no relief was asked against them. The Plaintiff in that suit prayed for the recovery of possession over certain mortgaged property alleging that the mortgage had been discharged by payment of half the amount to certain persons and the other half to certain others. "These others" were made parties in the suit alter the framing of the issues but, as stated above, no relief was claimed against them. 1 he trial court held that the payment of half the amount "to these others" was not sufficient to redeem the mortgage as they were not entitled to receive any part of the mortgage money. The Plaintiff was therfore required to pay the entire amount to the person entitled to receive it before he could redeem the mortgage. He did so. Subsequently he brought a suit against "These others" for the recovery of the amount paid to them on the ground that they had been held not entitled to receive the amount the Defendants contested the suit and the Plaintiff invoked the finding of the court in the previous suit as res judicata against the Defendants. Rejecting this plea, the High Court (Knox and Aikman, JJ.) held that no relief had been asked against the Defendants in the previous suit though they were made parties. As no relief had been asked against them, they had no right of appeal against the finding of the court that they were not entitled to receive the mortgage money. Moreover the Defendants were impleaded after the issues had been framed and therefore had no say in their framing. As no relief had been asked against them, they had no right of appeal against the finding of the court that they were not entitled to receive the mortgage money. Moreover the Defendants were impleaded after the issues had been framed and therefore had no say in their framing. The learned Judges observed, It is quite clear from the judgment in that suit that the present Appellants could have had no right of appeal against that decision and it would be an extraordinary thing to hold that where a party to a suit has no right of appeal the decision in that suit should operate as res judicata against them. 9. As I interpret it, this decision is an authority for two principles first, that the mere presence of a party on record is not sufficient to invoke the principle of res judicata against him secondly, if a party has had no right of appeal against an appealable decision, that decision should not operate as res judicata against him. It follows that a decision cannot be invoked as res judicata unless it is shown that he has had an opportunity, or would have had it, but for his negligence, to exercise all his rights as Plaintiff or Defendant at all stages of the previous litigation. 10. The principle laid down in 27 All. 59(2) was allowed with approval by the Madras High Court in Kumarappa Chetti and Others Vs. Muthuvijaya Raghunatha Muthukumara Vanangamudi Valuvatti Thevar (dead) represented by Thangammal Aeeyar, AIR 1932 Mad 207 in which it was held that if the decree is wholly in favour of the Defendant, no issue decided against him can operate as res judicata so as to bind him in a subsequent suit for he cannot appeal from a finding on any such issue. It was further held that mere presence of a party on record is not decisive of the question whenever the doctrine of res judicata is raised. 11. In both these decisions the authority of an earlier decision of a Full Bench of the Calcutta High Court in Brojo Behari Mitter v. Kedar Nath Mazumdar ILR 12 Cal. 580 was relied upon. In that case A brought a suit against B, claiming certain property as tenant of C, who was also made a Defendant in the suit. 11. In both these decisions the authority of an earlier decision of a Full Bench of the Calcutta High Court in Brojo Behari Mitter v. Kedar Nath Mazumdar ILR 12 Cal. 580 was relied upon. In that case A brought a suit against B, claiming certain property as tenant of C, who was also made a Defendant in the suit. This suit was decided on merits against A and in favour of B. G then brought a suit against B for possession of the same property. B invoked the doctrine of res judicata against C on the ground that he had been a party in the suit brought by A against him (B). The Frill Bench rejected this plea and observed as follows: In our opinion this suit is not barred u/s 13, Code of Criminal Procedure. No doubt in the former suit the matter now in issue was also in issue and was formally determined, but that suit was not between the same parties as this suit or between the parties under whom the parties in this suit claim. The Plaintiff is the landlord of the Plaintiff in the former suit and cannot be barred by the decision of that suit, which was between his tenant a third party, because he was joined as a Defendant with that party. It is sufficient to point out that the conduct of the suit was not in his hands and if it had been abandoned by the Plaintiff so as to cause it to be dismissed it could not reasonably be held that this suit was barred. If this were possible, a person in the position of the Plaintiff would De helpless, for he would not be able to reopen the case or to contest the order passed by appeal to a higher Court. 12. A somewhat similar principle was laid down by the Bombay High Court in Ram Das v. Wazir Saheb ILR 25 Bom. 589 in which it was held that the principle of res judicata could not be invoked against the party merely on the ground that he was a party to a previous suit, if no relief was asked or granted against him in that suit. 589 in which it was held that the principle of res judicata could not be invoked against the party merely on the ground that he was a party to a previous suit, if no relief was asked or granted against him in that suit. The facts of that case are clear from the Head Note which is as follows: A sued B as his agent and trustee in possession of certain lands, complaining that B had been dealing with the lands as if he (B) were the owner and had mortgaged them to C. C was made a Defendant in the suit. B pleaded that he was the owner of the land and not merely agent of A. C also pleaded that B was owner and he produced the mortgage deed and stated that if he were paid his debt he would not dispute A's claim. J he terms in C's mortgage deed was one year, at the end of which if the debt were not paid C was to be at liberty to enforce his charge. A prayed merely for possession and no issue was raised or relief asked in respect of C's mortgage. The Court held that B was agent, not owner and gave A a decree for possession. Subsequently, on the expiration of the year allowed in the mortgage deed, C sued A and B to enforce his mortgage, alleging that even though B might not be owner A had allowed B to deal with the land and to hold himself out as owner and that thus the mortgage was valid. Both the lower courts held that the suit was res judicata under Exp. II of Section 13 Code of Criminal Procedure, on the ground that C's present claim might and ought to have been made a ground of defence in the former suit brought by A. 13. The decision of the subordinate courts was reversed by the Bombay High Court which held that the previous suit did not operate as res judicata against C. They observed, "...C was not a necessary party to A's suit as framed. He could have been dismissed from the suit. He was not a Defendant in possession defending "his title". He was a third party molding a hypothecation-bond from the person in possession. Though he was made Defendant by A, no relief was sought against him. He could have been dismissed from the suit. He was not a Defendant in possession defending "his title". He was a third party molding a hypothecation-bond from the person in possession. Though he was made Defendant by A, no relief was sought against him. The initial mistake was made by A, who, though he joined G as a Defendant, asked for no relief against him and made it no ground of attack that the hypothecation was invalid, notwithstanding Section 41 of the Transfer of Property Act. If A is harassed by this litigation he was only himself to blame". 14. The principle that the mere presence of a party is not enough to make the decision in the suit to operate as res judicata against him was laid down by the Calcutta High Court in a comparatively recent case Joy Chand Seraogi and Another Vs. Dole Gobinda Das and Others, AIR 1944 Cal 272 in which it was held that there should be no res judicata between a Defendant and a proforma Defendant in the same suit. 15. None of the authorities discussed above was cited at the Bar but they are relevant in consideration of the question whether in the present case, the decision in the previous Second Appeal No. 1624 of 1940 to Warka Dass v. Municipal Board Mathura operates as res judicata against the plff.-Appellant in the present dispute. It is true that he was made a party in the Second Appeal on his own initiative but the question is whether this ill-advised and somewhat foolish step taken by him entitles the Respondent Municipal Board to invoke the decision in the appeal as res judicata against him. According to Section 11, this principle will apply if the matter directly and substantially in issue in a suit has been directly and substantially in issue ia a former suit between the same parties or their privies. Now the previous suit was filed by the then usufructuary mortgagee. He led evidence which was not believed. His appeal too was dismissed. After the disposal of the appeal, all questions of fact which were in issue between the parties were finally and conclusively decided. The present Plaintiff Appellant was not party to these decisions. Now the previous suit was filed by the then usufructuary mortgagee. He led evidence which was not believed. His appeal too was dismissed. After the disposal of the appeal, all questions of fact which were in issue between the parties were finally and conclusively decided. The present Plaintiff Appellant was not party to these decisions. In second appeal, the usufructuary mortgagee acquired the right to assail the decree of the courts below on the limited ground permitted by Section 100, Code of Criminal Procedure. During the pendency of this appeal, the mortgage was redeemed by the present Plaintiff Appellant who was added as a co-Appellant on his own application. What rights did he acquire by taking this step? He could not assail any finding of fact by the courts below and argue that the finding that the other side was in possession of the property in dispute was erroneous. He had had no opportunity of assailing the findings of the trial court in appeal. He merely acquired the limited right of pointing out any legal flaws in the judgments of the courts below. The seriousness of this handicap is aggravated by the fact that he had no hand in the manner in which the suit was fought out--in the drifting of the plaint, in the framing of the issues, in the selection and leading of the evidence on his own side and in the cross-examination of the witnesses of the other side and lastly in addressing arguments, at the conclusion of the evidence. He had had no opportunity of showing that the decision of the two courts below and their assessment of evidence, particularly on the vital question of possession of the plot in dispute was erroneous. To apply the doctrine of res judicata against him in these circumstances is to extend the salutary principle of finality of litigation beyond its legitimate frontier. Res judicata is based on the principle of public policy that there should not be a repetition of litigation between the same parties. In other words, if the parties (including their privies) have already fought out the matter, neither of them can claim a second inning. Res judicata is based on the principle of public policy that there should not be a repetition of litigation between the same parties. In other words, if the parties (including their privies) have already fought out the matter, neither of them can claim a second inning. But the law cannot say to a litigant; it is true that after you had become a party in the previous second appeal, we did not permit you to fight the case on merits or to raise any objection except questions of law against the judgments of the lower court; yet in the present dispute we shall treat you as a person who has had the fullest opportunity to fight the case on merits from the very beginning. This would be converting the doctrine of res judicata into a weapon of inequity and injustice. 16. Learned Counsel for the Respondent contended that the Appellant must be deemed to have accepted the findings of the lower appellate court as binding on him. This argument would have been considered if the Appellant derived his title from the usufructuary mortgagee. But he is the owner of the property who, after redeeming the mortgage, asserted his own rights as owner. It is difficult to see how he is bound by the findings of the lower appellate court in the previous suit, particularly when he has alleged in the present suit that the mortgagee colluded with the Municipal Board in the earlier suit. 17. For reasons given above, I hold that the decision in Suit No. 209 of 1938 Dwarka Dass v. The Municipal Board Mathura or in the second appeal No. 1624 of 1940, Dwarka Dass v. The Municipal Board Mathura does not operate as res judicata in the present suit filed by Badri Dass against the Municipal Board. I therefore reverse the finding of the courts below on this point. 18. I, therefore, allow this appeal and remand this case to the lower appellate court to decide the case on merits in accordance with the decision of this Court. If, however the learned Judge cannot decide any particular issue on the ground that there is not sufficient material on the record he shall send the case to the trial Court for the decision of that particular point in issue after giving an opportunity to the parties to lead evidence. If, however the learned Judge cannot decide any particular issue on the ground that there is not sufficient material on the record he shall send the case to the trial Court for the decision of that particular point in issue after giving an opportunity to the parties to lead evidence. It is made clear that this judgment does not affect the decision of the lower appellate court--regarding the other parts of the land in dispute which are admittedly not covered by the doctrine of res judicata but were decided by the courts below on merits. That part of the decree of the appellate court is confirmed. The Appellant shall get the costs of this appeal from the Respondent Board but the costs in the suit and the appeal before the learned Judge shall abide the ultimate result.