Devaki v. State of Kerala — 1999 DIGILAW 520 (KER)

Judgment :- K.A. Abdul Gafoor, J. Defendants 4 to 6 are the appellants in this appeal. They are faced with a concurrent decree. The plaintiff was granted a declaration that Ext. A13 was not binding. Ext. A13 is dated 30.7.1973 where as the suit was instituted in the year 1988. It was contended by defendants 4 to 6 that the suit was belated and beyond the period provided for in Art.58 of the Limitation Act. That contention was negatived. It was also contended that as Ext. A13 had been challenged in O.P. 7073/82 by the plaintiff himself and failed, the suit was hit by the principles of res judicata. That was also not accepted. Therefore, this second appeal mainly raising substantial questions of law centered around limitation and the plea of res judicata. 2. Few facts are necessary to decide the questions of law in one way or other. The plaintiff was a kudikidappukaran under the predecessor in interest of defendants 4 to 6. This is an admitted fact. The predecessor in interest will be described as landlord herein-after and the plaintiff will be described as kudikidappukaran. The kudikidappukaran is no more. His legal representatives are on record and they are also respondents herein along with the State of Kerala and its officers. The landlord did have only less than one acre of land when Act 35 of 1969 amending the Kerala Land Reforms Act was brought into force. The landlord did have a privilege to shift the kudikidappu by resorting for acquisition often cents of land as provided for in S.75(3) of the Kerala Land Reforms Act, 1963. Such an application was made by the landlord and that was allowed by Ext. A13. This Order was passed by the R.D.O.On the basis of Ext. A13, the landlord deposited the necessary amount for acquisition of land. The land was acquired. After the completion of land acquisition proceedings, a notice was issued on 3.7.81 to the kudikidappukaran asking him to shift to the new-site acquired. At that time the kudikidappukaran filed O.P.No. 7073/82 before this Court. In the meantime this Court had in the judgment reported in George v. State of Kerala (1981 KLT 224) held that as per S.75(3) only Government can consider an application for shifting and not a Revenue Divisional Officer. At that time the kudikidappukaran filed O.P.No. 7073/82 before this Court. In the meantime this Court had in the judgment reported in George v. State of Kerala (1981 KLT 224) held that as per S.75(3) only Government can consider an application for shifting and not a Revenue Divisional Officer. Earlier than that there was another pronouncement by this Court in Sathi Bai Kamath v. Sub Collector, Tellichery (1977 KLT 644) that RDO could have ordered shifting. In this case, the shifting was ordered on 30.4.73, when there was no doubt as to the competence of the RDO. Inspite of that the kudikidappukaran challenged Ext. A13 order dated 30.4.73 only when a notice was issued on 3.7.81. This Court as per Ext. B1 judgment repelled the challenge holding that "the petitioner had not raised the question of jurisdiction before the Revenue Divisional Officer at any time before the passing of Ext. P1 order. Ext. P1 is nothing other than Ext. A13 herein this Court also noticed that there was consistent precedents that a person who fails to raise the question of jurisdiction before a quasi judicial authority and tries to take the chance of obtaining a favourable decision from that authority cannot later turn round and urge, in proceedings under Art.226 at least, that authority had no jurisdiction. This Court also, after noticing the decision in George's case held that; "except in exceptional cases where the petitioner had failed to raise the question of jurisdiction before the appropriate tribunal, there could be no interference by this Court under Art.226. The exceptional circumstance noticed in the aforesaid decision was that there was a decision of this Court reported in 1977 that the RDO had the jurisdiction to pass a shifting order. After such a decision rendered by this Court in 1977 it was probably excusable for the petitioner in George v. State of Kerala not to have attempted to re-agitate the question before the Tribunal. But that cannot be said about Ext. P1 here because the decision was rendered in 1973, long before the 1977 decision referred to in George's case". Thus the matter was considered on merit with respect to that aspect as well and the challenge against Ext. A13 was repelled. That was on 1.6.87 kudikidappukaran did not challenge Ext. B1 in a Writ Appeal. He allowed to settle the matter in terms of Ext. BI judgment. Thus the matter was considered on merit with respect to that aspect as well and the challenge against Ext. A13 was repelled. That was on 1.6.87 kudikidappukaran did not challenge Ext. B1 in a Writ Appeal. He allowed to settle the matter in terms of Ext. BI judgment. Obviously the notice dated 3.7.81 which was also under challenge in that OP was pursued and a new notice was issued. That is Ext. Al dated 15.12.87. In the first paragraph of Ext. Al it is stated that "the O.P. filed against this office notice A.2986/ 77 dated 3.7.81 before Hon'ble High Court of Kerala is dismissed in O.P. 7073/87 dt.1.6.87. "The notice also reads that "you are therefore hereby required to obtain possession of the land from the Revenue Inspector, Kasara god and shift the kudikidappu to the new site." Thus Ext. Al is a continuation of the notice dated 3.7.81 which was under challenge in the O.P. which resulted in Ext. B1 judgment. When Ext. Al was issued on 15.12.87, the kudikidappukaran filed the present suit seeking a declaration that Ext. A13 dated 30.4.73 was not binding on him. That suit was instituted on 18.8.88. The suit was decreed and the judgment was confirmed rejecting the plea of limitation based on Art.58 of the Limitation Act and also the plea of res judicata on the basis of Ext. B1 judgment. It is in the above circumstances this Second Appeal has been filed. 3. Art.58 of the Limitation Act, 1963 reads as follows: "to obtain any other declaration-three years-when the right to sue first accrues". The suit is for declaration that Ext. A13 dated 13.4.73 is not binding. Necessarily the time limit as provided for in Art.58 of the Limitation Act is three years from the date "when the right to sue first accrues". Ext. A13 is dated 30.4.1973. Merely because of passing of such order, perhaps the plaintiff could have contended that he is not affected thereby, unless he is directed to shift. Anyhow that notice has been given on 3.7.1981. Therefore, that shall be the date when the right to sue first accrued, so far as the plaintiff was concerned. It is true that the suit is within three years from the date of Ext. Al. As already mentioned above, Ext. Anyhow that notice has been given on 3.7.1981. Therefore, that shall be the date when the right to sue first accrued, so far as the plaintiff was concerned. It is true that the suit is within three years from the date of Ext. Al. As already mentioned above, Ext. Al is only a follow up to the notice dated 3.7.81 which was under challenge in the O.P. which resulted in Ext. BI judgment. During the pendency, naturally that notice was under stay. When the OP was dismissed as per Ext. B1 judgment, the notice was pursued and it was in that circumstances referring to the dismissal of the OP and the notice dated 3.7.81 that Ext. Al was issued. So the date of Ext. Al cannot be said to be the date when the cause of action first accrued. So the suit ought to have been filed within three years from 3.7.1981, the date when the cause of action first accrued' so far as the plaintiff was concerned. So the suit was hopelessly belated being one filed on 1.8.88. 4. With regard to the accrual of cause of action and application of Art.58 a Division Bench of this Court in Premier Cable Co. Ltd. v. Government of India (1990 (2) KLT 477) comparing corresponding Art.20 of the 1908 Act, held as follows: "Even then, that Article had received judicial interpretation, indicating that limitation would start from the date of the first accrual of the cause of action. (Vide Rukhmabai v. Laxminarayanan, AIR 1960 SC 335, Maharajah of Pithapuram v. Venkataraju, AIR 1949 Mad. 542, and in particular, the sentence reading; "It is undoubtedly true that if a trespass or a similar negation of a person's rights took place at a particular date and that trespass or denial of rights continued from that date, the date from which limitation runs is the date when that right was first denied or the trespass took place...." It is difficult to assume that Ext. B5 order would not furnish a cause of action. That order had all the power and potency to invade the plaintiffs rights. Such an invasion can be treated as the sine qua non of a cause of action. Doubtless, a cause of action arose on that date in that view of the matter". The notice dated 3.7.1981 has all the attributes of Ext. B5 referred to therein. 5. That order had all the power and potency to invade the plaintiffs rights. Such an invasion can be treated as the sine qua non of a cause of action. Doubtless, a cause of action arose on that date in that view of the matter". The notice dated 3.7.1981 has all the attributes of Ext. B5 referred to therein. 5. It is contended before me that the order Ext. A15 dated 13.4.73 is a nullity and therefore, it could have been avoided and he need challenge it only when it is enforced finally. Relying on the decision in Kiran Singh & Ors. v. ChamanPaswan & Ors. (AIR 1954 SC 340) it was contended by the respondents that "a decree passed by a Court without jurisdiction is a nullity, and that its invalidity could be set up whenever and wherever it is sought to be enforced or relied upon, even at the stage of execution and even in collateral proceedings. "This decision could not help the respondents on several reasons. One is that Art.58 as now contained in the Limitation Act of 1963 is legislated far latter than the date of said decision. Yet another reason is that the point of enforcement was the date of first notice, namely 3.7.81 and the second notice Ext. Al was only follow up action after disposal of the OP. So the point of time whenever and wherever it was sought to be enforced was the date of the first notice namely on 3.7.1981. The plaintiff cannot contend otherwise before me because he was aware of the adversities arising out of Ext. A13 when he challenged it in O.P. 7073/82 and failed. Thus the suit was beyond the period of limitation in terms of Art.58 of the Limitation Act, 1963. 6. Now I will consider the question raised on res judicata. The Supreme Court in State of Kerala v. M.K. Kunhikannan Nambiar (1996 (1) SCC 435) held that: "In our opinion, even a void order or decision rendered between parties cannot be said to be non-existent in all cases and in all situations. Ordinarily, such an order will, in fact, be effective inter partes until it is successfully avoid of challenged in a higher forum. Ordinarily, such an order will, in fact, be effective inter partes until it is successfully avoid of challenged in a higher forum. Mere use of the word Void' is not determinative of its legal impact." In this case also the parties were, as in that case, before this Court and obtained a judgment against the plaintiff. So in the light of the inter-parte judgment confirming Ext. A13, the plaintiff could not have avoided Ext. A13 by any means contending that it was a nullity. So even if Ext. A13 can be styled as a nullity, the plaintiff cannot avoid Ext. A13, when there was a binding judgment between the parties as revealed by Ext. B1. When there is an inter parte judgment as revealed by Ext. B1, he cannot challenge Ext. B13 in a suit. The Supreme Court in Ashok Kumar Srivastav v. National Insurance Co. Ltd. (1998 (4) SCC 361) held as follows: "It is well-nigh settled that a decision on an issue raised in a Writ Petition under Art.226 or Art.32 of the Constitution would also operate as res judicata between the same parties in subsequent judicial proceedings. The only exception is that the rule of res judicata would not operate to the detriment or impairment of a fundamental right. A Constitution Bench of this Court has considered the applicability of the rule of res judicata in writ proceedings under Art.32 of the Constitution in Daryao v. State of U.P. and it was held that the basis on which the rule rests is found on consideration of public policy and it is in the interest of the public at large that a finality should attach to the binding decision pronounced by a Court of competent jurisdiction and it is also in the public interest that individuals should not be vexed twice over in the same kind of litigation." It was also held in Home Plantation Ltd. v. Taluk Land Board, Peerumade & Ann (1999 (5) SCC 590) as follows: "S.11 CPC contains provisions of res judicata but these are not exhaustive of the general doctrine of res judicata. Legal principles of estoppel and res judicata are equally applicable in proceedings before administrative authorities as they are based on public policy and justice." The Court also held that: "The plea of res judicata, though technical, is based on public policy in order to put an end to litigation. Legal principles of estoppel and res judicata are equally applicable in proceedings before administrative authorities as they are based on public policy and justice." The Court also held that: "The plea of res judicata, though technical, is based on public policy in order to put an end to litigation. It is however, different if an issue which had been decided in an earlier litigation again arises for determination between the same parties in a suit based on a fresh cause of action or where there is continuous cause of action. The parties when they may not be bound by the determination made earlier if in the meanwhile, law has changed or has been interpreted differently by a higher forum. But that situation does not exist in the present case. Principles of constructive res judicata apply with full force." Therefore, Ext. B1 judgment stared at the plaintiff when he filed the suit as it was hit by the principles of re judicata. So the substantial questions of law raised in the appeal stand answered in favour of the appellants. Consequently the appeal is allowed and the suit stands dismissed. There will be no order as to costs.