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1999 DIGILAW 169 (GAU)

H. Dwijasekhar Sharma v. H. Dwijamani Sharma

1999-05-18

P.C.PHUKAN

body1999
I have heard Mr. N. Kerani Singh, learned senior counsel for the petitioner/ defendant assisted by the learned counsel Mr. N. Kumarjit. Singh as well as Mr. I. Lalitkumar Singh, learned counsel for the opposite party/plaintiff. I have also considered the records of the case. 2. This civil revision is directed against the order dated 29.8.92 passed by the learned Sub Judge I, Manipur East at Lamphel in Judicial Misc Case No. 13 of 1991 arising out of OS No.59/83/145/90. The impugned order reads as under: “29.8.92 : Parties are present. This is an application of the defendant praying for dismissal of the suit under section 11, CPC on the ground that in OS No. 2 of 1986, the learned Munsiff, Imphal, vide his judgment dated 30.1.90 and decree dated 2.4.90 has decided the same issues involved in this case in respect of the same land in question as the suit land is a part and parcel of the defendant's one-sixth share of the entire Ingkhol under Patta No. 89/505 (New) IWT. He files certified copy of the judgment to support his argument On the other hand the plaintiff files written objection stating that the provisions of law contemplated under section 11 CPC can not be invoked in the present case because the subject matter is not directly and substantially in issue in the subsequent suit being Original Suit No.2 of 1986 of the learned Munsiff. After hearing both the parties and on perusal of the records, it is found that this suit is filed on 3.10.1983 by the plaintiff prior to Original Suit No. 2 of 1986 and that the subject matter involved in the suit is not directly and substantially in issue in the subsequent suit. Hence, the provision of section 11 CPC can not be attracted in the suit. So it is ordered that the prayer of the defendant to dismiss the suit under section 11 CPC is rejected.” 3. In the last but one para of the above order, learned Sub-Judge observed that the Original Suit No.59 of 1983 renumbered as 145 of 1990 was filed on 3.10.83 prior to the Original Suit No.2 of 1986. So it is ordered that the prayer of the defendant to dismiss the suit under section 11 CPC is rejected.” 3. In the last but one para of the above order, learned Sub-Judge observed that the Original Suit No.59 of 1983 renumbered as 145 of 1990 was filed on 3.10.83 prior to the Original Suit No.2 of 1986. This observation gives clue to the learned counsel for the petitioner defendant to argue that the learned Sub Judge solely on the basis of the date of the institution held that Original Suit No.2 of 1986 is not a 'former suit' within the meaning of section 11(1) CPC and hence, Original Suit No.59/83/145/90 cannot be dismissed under section 11 CPC on the ground that in Original Suit No. 2 of 1986 learned Munsiff vide his judgment and decree dated 30.1.90 decided the same issues in respect of the same land. Learned counsel for the petitioner defendant asserts that Original Suit No.2 of 1986 is the 'former suit' inasmuch as it had been decided on 30.1.90 prior to Original Suit No.59/83/145/90 although it was not instituted prior to Original Suit No.59/83/145/90. Learned counsel submits that learned Sub Judge misconceived the provisions of section 11 CPC by overlooking the Explanation I thereto which says "The expression former suit shall denote a suit which has been decided prior to the suit in question, whether or not it was instituted prior thereto." However, from the reading of the impugned order, it cannot be said that the learned Sub-Judge rejected the petition under section 11 CPC on the ground that the Original Suit No.2 of 1986 is not a 'former suit'. Learned Sub Judge held. 'The subject matter involved in the suit is not directly and substantially in issue in the subsequent suit. Hence, the provision of section 11 CPC cannot be attracted in the suit." There is, however, another aspect which requires consideration. Admittedly, an appeal has been filed long back against the judgment and decree dated 30.1.90 passed by the learned Munsiff in Original Suit No. 2 of 1986. Learned District Judge, Manipur East, in his order dated 28.4.97 in Judicial Misc Case No. 99/90/ 30/94/43/96 said, inter alia. Admittedly, an appeal has been filed long back against the judgment and decree dated 30.1.90 passed by the learned Munsiff in Original Suit No. 2 of 1986. Learned District Judge, Manipur East, in his order dated 28.4.97 in Judicial Misc Case No. 99/90/ 30/94/43/96 said, inter alia. 'This appeal has been pending since 6.9.90 for one reason or another." That being the position, learned counsel for the opposite party plaintiff submits, the principle of res judicata as envisaged in section 11 CPC is not applicable in the instant case and refers to the decision in K. Muthuswami Gounder's case reported in (1998) 7 Supreme Court Cases 327 (333) wherein it has been held : “When the entire matter was still in appeal and any part of the finding could be varied by the appellate Court, it is idle to contend that the same had become final. So also when the matter had not attained finality and was still in dispute, the principle of res judicata could not arise.” 4. Learned counsel for the petitioner defendant argues that since the appeal has not been admitted as yet, it cannot be said that any appeal is pending and hence non application of the principle of res judicata cannot be pleaded on the ground of pendency of appeal. Learned counsel for the opposite party plaintiff assails this argument by contending that even though the appeal is yet to be admitted, the matter is pending at admission stage and the execution of the decree has been stayed. A certified copy of the order dated 19.11.90 passed by the learned Munsiff in Execution Case No. 1 of 1990 arising out of Original Suit No. 2 of 1986 has been furnished. The order reads : “19.11.90. Case is stayed under order dated 5.10.90 of DJE/Manipur Case No.JM101/190.” 5. A certified copy of the order dated 19.11.90 passed by the learned Munsiff in Execution Case No. 1 of 1990 arising out of Original Suit No. 2 of 1986 has been furnished. The order reads : “19.11.90. Case is stayed under order dated 5.10.90 of DJE/Manipur Case No.JM101/190.” 5. Learned counsel for the opposite party plaintiff further relies on the decision in Lonakutty vs. Thamman reported in (1976) 3 Supreme Court Cases 528 (535) wherein it has been held : “The failure of the respondents to challenge the decision of the District Court in so far as it pertained to their suit attracts the application of section 11 because to the extent to which the District Court decided issues arising in the respondent's suit against them, that decision would operate as res judicata since it was not appealed against.” In the instant case, the decision of the learned Munsiff in Original Suit No. 2 of 1986 would not operate as res judicata since there was no failure on the part of the opposite party plaintiff to challenge that decision and since the said decision has been appealed against and such appeal has not been dismissed, and what it more, the execution of the decree has been stayed. 6. In any view of the matter, the prayer of the petitioner defendant to dismiss the opposite party plaintiffs suit under section 11CPC could not have been allowed. In the result, this civil revision stands dismissed. No costs.