Salig Ram v. Ganga Dei — 1979 DIGILAW 384 (ALL)

ORDER P.N. Goel, J. - In this appeal by Salig Ram, defendant against the judgment and decree dated 15-11-1967 passed by 1st Additional District Judge, Allahabad in first Appeal No. 275 of 1955 arising out of suit No. 85 of 1948 decided on 31-1-1955 by Additional Civil and Small Cause Court Judge, Moradabad, the learned counsel for the appellant raised two points: (1) The plea of res judicata was not properly raised in the case; and (2) The Additional District Judge was in error in holding that the decision in suit No. 7 of 1957 operated as res judicata in appeal No. 275 of 1955 preferred by the defendant-appellant. 2. For a proper appreciation of the two points raised, it is necessary to set out the facts of the case. The dispute relates to a shop. One Puranmal was undisputedly the original owner of the shop. Puranmal executed a gift deed of the shop in favour of his daughter Smt. Pirani, who was married to Phool Chand. Smt. pirani had a daughter Smt. Gangs Dei, who was married to Umed Rai. In her lifetime Smt. Pirani mortgaged the shop on 15-12-1945 in favour of Umed Rai. This shop was in occupation of one Shy am Lal as tenant. In the year 1945 Umed Rai brought suit No. 415 of 1945 against Shyam Lal for possession etc. On 28-2-1946 the suit was decreed. Thereafter Umed Rai moved execution application. In the execution, Salig Ram appellant filed objection on 22-9-1947 that he was the adopted son of Puranmal, that he was adopted on 29-11-1937, that Puranmal had no right to give the shop to his daughter Smt. Pairani, that Shyam Lal was in fact his tenant and as such Umed Rai who was successor is interest of Smt. Pirani had no right to eject Shyam Lal and take possession of the shop. His objection was allowed on 22-9-1947. Umed Rai filed a revision against this order which was dismissed on 15-10-1947. Thereafter Umed Raf filed suit No. 85 of 1948 against Salig Ram under O. 21, R. 103, C. P. C. In this suit he challenged the adoption of Salig Ram by Puranmal. His suit was decreed by the Additional Civil and Small Cause Court Judge on 31-1-1955. Against this decree Salig Ram filed first Appeal No. 275 of 1955. 3. Thereafter Umed Raf filed suit No. 85 of 1948 against Salig Ram under O. 21, R. 103, C. P. C. In this suit he challenged the adoption of Salig Ram by Puranmal. His suit was decreed by the Additional Civil and Small Cause Court Judge on 31-1-1955. Against this decree Salig Ram filed first Appeal No. 275 of 1955. 3. Salig Ram and Brij Mohan, real brothers are sons of one Gokul Chand. Gokul Chand and Puranmal were cousins. Smt. Nemwati is widow of Brij Mohan. 4. In the decree of Suit No. 85 of 1948 against Salig Ram, Umed Rai was awarded costs. Umed Rai put his decree for costs into execution. Some property said to be belonging to Salig Ram was attached. Smt. Nemwati filed objection against the attachment on the ground that the attached property belonged to her husband Brij Mohan and that Salig Ram had no interest thereof because he had been adopted by Puranmal. Her objection was rejected. Then she filed suit No. 7 of 1957 against Umed Rai and Salig Ram. The suit was contested by Umed Rai. Salig Ram did not contest the suit. He, however, appeared as a witness on behalf of Smt. Nemwati. In this case it was held that Salig Ram was not adopted by Puranmal. 5. In First Appeal No. 275 of 1955 it was contented on behalf of Umed Rai who was respondent in the appeal that the decision in Original Suit No. 7 of 1957 operated as res judicata and as such the appeal filed by Salig Ram was liable to be dismissed. This point found favour with the Additional District -Judge and consequently the Additional District Judge dismissed the appeal. 6. On the first point, -the contention "Of the appellants counsel is two fold: -(a) The Additional District Judge should not have entertained the plea of res judicata because it was not raised in 'the pleadings and no issue was framed and decided by the Additional Civil - Judge, and (b) the plaintiff-respondent had not filed copies of the plaint and written statement of suit No. 7 of 1957. 7. In support of his first contention 'the learned counsel for the appellant referred to the cases cited below; Jagadish Chandra Deo v. Gour Hari Mahato, AIR 1936 PC 258 . 7. In support of his first contention 'the learned counsel for the appellant referred to the cases cited below; Jagadish Chandra Deo v. Gour Hari Mahato, AIR 1936 PC 258 . In this case the High Court did not permit the appellant to raise the question of res judicata because it had not been properly raised by the pleadings or in the issues. The Privy Council observed that the High Court was justified in its view. It will be noticed that a judgment passed in a suit of 1900 was said to operate as res judicata in a suit filed about 30 years later; Surayya v. Tondapu Bala Gangadhara Ramakrishna, AIR 1948 PC 3 : (1947 All LJ 620). In this case the question of res judicata was not argued before the High Court or the trial court. It was raised before the Privy Council. 'The Privy Council held that it could not be entertained for the first time; Anjaneyulu v. Pamayya, AIR 1965 Andh Pra 177 (FB). In this case it was held that the principle of res judicata meant an investigation into the facts bearing upon several aspects, contemplated by Sec. 11, that it was not a pure question of law which could be debated at any stage, and that as the plea of res judicata was not put forward in the plaint and did not form the subject of an issue and it was not debated either in the trial Court or the Division Bench, it could not be permitted to be urged before the Full Bench to which the appeal had been referred by the Division Bench. Katta Subbarao v. Pokuri Sri Ramalu, AIR 1970 Andh Pra 258. In this case the plea of res judicata was not raised in the written statement. No issue was framed in the case. It was held that the High Court was justified in declining to allow the appellant to go into the question of res judicata; Ramesh Chand v. Board of Revenue, AIR 1973 All 120 : (1972 All LJ 925) (FB). In this case it was observed that before the plea of res judicata could be considered, it must be pleaded at the proper stage. It was further observed that in order to establish such a plea of res judicata the copy of the judgment and decree must be filed. In this case it was observed that before the plea of res judicata could be considered, it must be pleaded at the proper stage. It was further observed that in order to establish such a plea of res judicata the copy of the judgment and decree must be filed. It was held that it was not feasible to entertain such a plea. 8. The cases cited above are not applicable to the present case because suit No. 7 of 1957 was filed after the decision of O. S. No. 85 of 1948 (giving rise to this appeal) by the Additional Civil Judge. This suit was decided during the pendency of First Appeal No. 275 of 1955 against the decree in O. S. No. 85 of 1948. Therefore, the plaintiff-respondent could not have raised the plea of res judicata even by means of a replication in the original suit. Obviously, therefore, the trial Court could not have framed an issue and could not have decided it. The plea of res judicata in the instant case could only be raised in appeal No. 275 of 1955 before the District Judge. The result is that the case mentioned above do not help the appellant. 9. With regard to the second contention the appellants counsel referred to the case of Durga Prasad v. Sadasib Biswal, AIR 1969 Orissa 171. In this case it was held that the defendant who had set up the plea of res judictata, should have filed the plaint as well as the .judgment of the earlier suit instead of remaining content only by filing a copy of the written statement and decree and that in the absence of proof of the pleadings and judgment in the previous suit, the plea of res judicata could not be accepted. The contention of the appellants counsel is that the respondent should have been made to file copies of the pleadings of the parties to suit No. 7 of 1957. 10. It may be indicated here that in the case of Ramesh Chand v. Board of Revenue cited above (1972 All LJ 925) (FB) it was observed that in order to establish a plea of res judicata copy of the judgment and decree ought to be filed. Thus if the facts given in the pleadings can be ascertained from the judgment, copy of the judgment would serve the purpose. Thus if the facts given in the pleadings can be ascertained from the judgment, copy of the judgment would serve the purpose. In the present case Umed Rai moved an application under Order 41, Rule 27, C.P. C. supported by an affidavit that copy of the judgment of original suit No. 7 of 1957 be admitted as additional evidence. His application was allowed. The copy of judgment gives the facts alleged by the parties in their pleadings. In view of this, it is not correct to urge that copies of the pleadings of the parties should have been got filed by the Additional District Judge before proceeding to decide the question of res judicata. 11. The learned counsel for the respondent pointed out that all facts were given in the application under Order 41, Rule 27, C. P. C. as well as in the affidavit of Umed Rai given in support of the application and that the appellant did not file any counter affidavit and as such the facts given in the application and the affidavit should be taken as correct. Reliance was placed on the case of Juggi Lal Kamla Pat v. Ram Janki Gupta, AIR 1962 All 407 : (1962 All LJ 495). In this case there was an application under Order 9, Rule 9, C. P. C. for setting aside the order of dismissal. The application was supported by an affidavit which indicated reasons for the absence. The defendant did not file any counter affidavit. It was held that as no counter affidavit was filed it was not open to disbelieve the version of the plaintiff given in the application and affidavit given in support thereof. This ease is not of help. An application cannot take the place of pleadings and judgment required to decide the plea of res judicata. 12. However, in the present ease there was copy of the judgment of suit No. 7 of 1957 before the lower appellate court and from this judgment the facts alleged in the pleadings could easily be gathered. Therefore, it is not correct to urge that because the respondent had not filed copies of the plaint and the written statement of suit No. 7 of 1957, the plea of res judicata should not have been entertained by the Additional District Judge. 13. Therefore, it is not correct to urge that because the respondent had not filed copies of the plaint and the written statement of suit No. 7 of 1957, the plea of res judicata should not have been entertained by the Additional District Judge. 13. In this connection, the appellants counsel has urged that plea of res judicata cannot be taken by means of an application. This is true. But in the present case, this plea was not raised by an application. The respondent filed application under Order 41, Rule 27, C.P.C. with a view to file judgment of suit No.. 7 of 1957 as additional evidence. This piece of evidence was taken. At the hearing of the appeal, the respondent pressed the plea of res judicata as a preliminary objection. It appears that the Additional District Judge felt that the defence of Salig Ram in suit No. 85 of 1948 was barred by the rule of res judicata and, therefore, his appeal No. 275' of 1955 was not liable to be heard oa merits, so, he, in order to enable him to-pronounce judgment in the appeal, not only admitted- copy of the judgment of suit No. 7 of 1957, but also allowed the respondent to raise the preliminary objection. This procedure does not appear bad in law. 14. Plea of res judicata is a mixed question of facts and law. Facts can be gathered from the pleadings or the judgment, if it gives full facts stated in the pleadings. Then the Court has to determine if the ingredients of Sec. 11 were made out or not. In the present case, there was copy of judgment from which facts could be gathered. 15. For all what has been discussed above, in the special circumstances of the case, it is not correct to urge that the Additional District Judge should not have entertained the plea of res judicata. 16. On the second point whether decision in suit No. 7 of 1957 operated as res judicata against the appellant, the learned counsel has referred to the cases-dealt with below: (1) K. Narasimhachariar v. R. Padayachi, AIR 1945 Mad 333 (FB). (2) Radhabhai v. Kadar Ali, AIR 1957 Madh B 159. In these cases the operation of See. 11 C. P. C. was not under consideration. (2) Radhabhai v. Kadar Ali, AIR 1957 Madh B 159. In these cases the operation of See. 11 C. P. C. was not under consideration. In these case it was simply held that an order under Order 21, Rule 58, C. P. C. or a decree in a suit under Order 21, Rule 63, C. P. C. did not go beyond the execution of the particular decree. These cases are of no avail to the appellant. (3) Mangru Mahto v. Thakur Taraknathji, AIR 1967 SC 1390 . This case also is of no help to the appellant because in this case it was held that an order under Order 21, Rule 58, C. P. C. did not operate as res judicata because such a proceeding was not a suit. (4) Chimpiramma v. P. Subramanyam, AIR 1957 Andh Pra 61 (FB). In this case the question was whether an order made in an application under Order 21, Rule 58 to which the judgment-debtor was not made a party or to whom notice was not given, would bind the auction purchaser in a court sale held in execution of a money decree. The Full Bench answered the question in the negative. On facts, this case is not applicable to the facts of the instant case. (5) Gita Ram Kalsi v. S. Prithvi Singh, AIR 1956 Punj 129 (FB). In this case Gita Ram plaintiff filed suit for demolition of structures made by Arjan Singh defendant No. 1. Defendants 2 to 7 were impleaded because they were joint owners along with the plaintiff of the land on which structures were made. Defendants 2 to 7 did not contest the suit. The suit was decreed. Plaintiff filed execution application. Defendants 6 and 7 filed objection that the structures belonged to them and were not liable to be demolished. It was held that in view of Explanation IV of Section 11, their objection was barred and that they should have raised the objection at the trial of the suit, despite the fact that no relief was claimed against them in the suit and that in the plaint they were arrayed as pro form a parties because they were joint owners of the land. In this ease it was held that a party could scape the binding force of a former adjudication between the same parties if he satisfied the court that he had no right to be heard in the earlier case or that he had no control over the proceedings. At this stage, it is sufficient to say that the facts of this case are not parallel to the facts of the present case. (6) Dhan Singh v. Joint Director of Consolidation, AIR 1973 All 283 . Two principles were laid down in this case, (a) res judicata is applicable, even though the party did not enter appearance or contest the issue. But the party must have notice of the said question, and (b) if the suit was dismissed against all the defendants, a finding against one of the co-defendants would not operate as res judicata in subsequent suit because the co-defendant had no right of appeal in the earlier suit. 17. On the basis of the last two-cases, it was urged on behalf of the appellant that before applying the principle of res judicata, the Additional District Judge should have found that Salig Ram appellant had control over suit No. 7 of 1957, that he had notice of the pleas raised by Umed Rai in the Said-suit and that as a co-defendant, Salig Ram had a right of appeal against the decision in suit No. 7 of 1957. 18. It may be stated at once that the-Additional District Judge simply gave out the essentials of the principle of res, judicata between co-defendants and that he did not record any findings on any oil the points mentioned in the just preceding paragraph. 19. The learned counsel for the respondent urged that on the facts and circumstances of the case, Salig Rami would be deemed to have notice of the-contention of Umed Rai in his written statement of suit No. 7 of 1957 regarding his non-adoption by Puran Mai and that he had a right of appeal against the-decision in the said suit. It is undisputed that in suit No. 85 of 1948 giving rise to this appeal, the Additional Civil Judge decided inter partes that Salig Ram was not the adopted son of Puran Mai and as such decreed the suit oi Umed Rai under Order 21, Rule 103, C. P. C. with costs. It is undisputed that in suit No. 85 of 1948 giving rise to this appeal, the Additional Civil Judge decided inter partes that Salig Ram was not the adopted son of Puran Mai and as such decreed the suit oi Umed Rai under Order 21, Rule 103, C. P. C. with costs. Umed Rai, in execution, attached half interest of Salig. Ram in the property of his father Gokul Chand. Smt. Nemwati widow of Brij Mohan filed objection under Order 21,. Rule 58. Her objection was rejected. The respondents counsel has not pointed out that Salig Ram was arrayed as a party in this objection. A copy of her objection was not filed by the respondent before the lower appellate court. Then she filed suit No. 7 of 1957 under' Order 21, Rule 63, C. P. C. impleading Salig Ram and Umed Rai as defendants. Salig Ram must have received copy of her plaint in which it was asserted that Salig Ram was adopted bv Puran Mai. Correctly speaking this was his assertion: in suit No. 85 of 1948. Hence Salig Ram did not file written statement contesting the case set up by Smt. Nemwati. Umed Rai filed written statement challenging the adoption of Salig Ram. There is nothing on record to show that a copy of the written statement was given to Salig Ram. No copy of the written statement was filed by the respondent before the lower appellate -court to indicate that its copy was given to Salig Ram. No assertion to this effect was made by the respondent in his application under Order 41. Rule 27, C. P. C. filed before the lower appellate court. There was no other material before the lower appellate court to indicate that Salig Ram had knowledge/notice of the contentions in the written statement of Umed Rai. Smt. Nemwati and Umed Rai led oral evidence in the suit in support of their respective cases. Smt. Nemwati examined Salig Ram as her witness. On this basis, it was urged by the respondents counsel that Salig Ram should/would be deemed to have notice of the contention of Umed Rai. The respondents counsel has not cited any case or provision in which it was laid down that a witness in a case would be deemed to have knowledge/notice of the allegations of the parties made in their pleadings. The respondents counsel has not cited any case or provision in which it was laid down that a witness in a case would be deemed to have knowledge/notice of the allegations of the parties made in their pleadings. In Section 3 of the Transfer of Property Act, it has been provided that a person is said to have notice of a fact when he actually knows that fact or when, but for wilful abstention from an inquiry or search which he ought to have made, or gross negligence, he would have known it. It is {patent that there is no obligation on a i witness to find out the allegations contained in the pleadings. In the present case, Salig Ram was not claiming any interest in the property of his father. Therefore, he was quite indifferent whether the attached property was sold or released in the suit brought by Smt. Nemwati. In these circumstances, the mere fact that Salig Ram appeared as a witness for Smt. Nemwati cannot attribute notice/knowledge to him of the contention raised in the written statement of Umed Rai. Nor he can be attributed knowledge of the points at which the parties were at issue. It will be laying down too broad a principle that a witness would be deemed to have knowledge of the contentions contained in the parties pleadings or of the points at issue between them. 20. The respondents counsel urged -that notice was a question of fact, that Salig Ram did not plead before the lower appellate court that he had no notice and that he did not mention in the grounds of this appeal that he had no notice. The respondent gave application under Order 41, Rule 27, C. P. C. before the lower appellate court for admitting copy of the judgment of suit No. 7 of 1957. The respondent did not give any application before the lower appellate court that the defence of Salig Ram in the suit was barred by res judicata and as such his appeal was liable to be dismissed. Record shows that the plea of res judicata was taken as a preliminary objection at the time of the hearing of the appeal. Salig Ram got no opportunity to assert that he had no notice. Moreover, the plea of res judicata was taken by the respondent. Record shows that the plea of res judicata was taken as a preliminary objection at the time of the hearing of the appeal. Salig Ram got no opportunity to assert that he had no notice. Moreover, the plea of res judicata was taken by the respondent. He should have shown to the court below that Salig Ram had knowledge of his contentions and the issues framed in the case. The lower appellate court should have recorded a finding to that effect while dealing with the question of res judicata. As stated above, the lower appellate court did not record such a finding. 21. In the grounds of appeal, the appellant challenged the finding of the lower appellate court on the question of res judictata. It was not necessary for him to expressly say therein that he had no notice. 22. The above discussion leads to the conclusion that Salig Ram did not have notice of the contention of Umed Rai and the issues in Original Suit No. 7 of 1957. Therefore, the plea of res judicata should not have been accepted by the lower appellate court. In view of this, it is unnecessary to find whether Salig Ram had control over the proceedings of suit No.7 of 1957 or not, and whether he had a right of appeal or not against the judgment and decree in suit No. 7 of 1957. 23. In this aspect of the matter, it is not necessary to deal with the following cases cited by the learned counsel for the respondent which relate to the principle of res judicata between co-defendant : - Munni Bibi v. Triloki Nath, AIR 1931 PC 114 : (1931 All LJ 453); Mohammad Hasan v. Mehdi Hasan, AIR 1946 All 399 : (1946 All LJ 97); Iftikhar Ahmed v. Syed Meharban Ali, AIR 1974 SC 749 ; Chandu Lal v. Bibi Khatemonnessa, AIR 1943 Cal 76; Hafis Mohd. v. Firm Swarup Chand Hukum Chand, AIR 19442 Cal 1; Hirendra Chandra Chakravarty v. Chanda Singh, AIR 1958 Assam 179; Koodi v. Baboo, AIR 1959 Rai 127; B. P. Ramireddi v. Tagaram Bichalu, AIR 1952 Mad 837 . 24. It is also unnecessary to refer to the cases of Kanthammal v. D. V. Reddiar, AIR 1968 Mad 362 , Ahmad Ali Khan v. Bhanguluru Veeralla, AIR 1959 Andh Pra 280 and Sanyasi Behera v. Onarasi, AIR 1969 Orissa 16. 25. 24. It is also unnecessary to refer to the cases of Kanthammal v. D. V. Reddiar, AIR 1968 Mad 362 , Ahmad Ali Khan v. Bhanguluru Veeralla, AIR 1959 Andh Pra 280 and Sanyasi Behera v. Onarasi, AIR 1969 Orissa 16. 25. The respondents counsel pointed (out that this appeal had abated against the heirs of Srimati Pirani Devi deceased respondent No. 2 for they were not substituted in this appeal and as such this appeal abated against the successor of deceased Umed Rai. This contention is without force. On behalf of Umed Rai only, plea of res judicata was raised as a preliminary objection before the lower appellate court. The lower appellate court decided this point only and did not decide the appeal on merits. By the setting aside of the judgment and decree of the lower appellate court, the case will go to it for deciding appeal No. 275 of 1955 on merits. In these circumstances, abatement of this second appeal against the heirs of Srimati Pirani Devi does not have the effect of its abatement against the heirs of the real contesting persons Umed Rai. 26. In view of what has been found above, the appeal is allowed and the judgment and decree dated 15-11-1967 passed by the 1st Additional District Judge, Allahabad in First Appeal No. 275 of 1955 are set aside. The case shall go back to the 1st Additional District Judge, Allahabad for deciding first Appeal No. 275 of 1955 on merits. In the circumstances of the case, the appellant will get half of his costs incurred in this Court from respondents l/l and .