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2000 DIGILAW 746 (BOM)

Bhaskar Baraku Tahsildar & others v. Gangaram Supadu Tahasildar & others

2000-10-10

R.M.S.KHANDEPARKAR

body2000
JUDGMENT - R.M.S. KHANDEPARKAR, J.:---The judgment in Regular Civil Suit No. 36/ 1973 passed by the trial Court dismissing the suit of the respondent plaintiff on the ground of applicability of principle of res judicata and bar of limitation has been set aside by the lower Appellate Court by the common order dated 23-1-1984 in Civil Appeals Nos. 56/1980 and 170/1980 and the matter is remanded for deciding the suit on merits. The appellants aggrieved by the same, has preferred the present appeals which involve common questions of law and facts and, therefore, were heard together and are being disposed of by this common judgment. 2. The Regular Civil Suit No. 95/1963 filed by one Dagubai claiming 1/6th share in her husband's property was decreed by the trial Court and during the pendency of the Appeal No. 181/1964 arising from the said decree of the trial Court said Dagubai expired. The appellants herein claimed to be the legal representatives of Dagubai by virtue of Will stated to have been executed by said Dagubai in their favour and, therefore, they were brought on record in place of Dagubai during the pendency of the said appeal. The said appeal was dismissed on 31-8-1965 and the Second Appeal against the same was also dismissed by this Court on 27-2-1971. Thereafter, the respondent No. 1, herein filed Regular Civil Suit No. 36/1973 challenging the said Will on the ground that the same was obtained by the appellants herein from Dagubai by taking undue advantage of the circumstances prevailing then. The appellants while denying the claim of the respondent, raised two issues, to be tried as preliminary issues, regarding the non-maintainability of the suit on the ground of applicability of principle of res judicata and bar of limitation and secured favourable judgment on both the issues from the trial Court which has been reversed by the lower Appellate Court by the impugned order. 3. 3. As regards the applicability of the principle of res judicata the contention of the appellants is that during the pendency of earlier Appeal No. 181/1964, when Dagubai expired, pursuant to the claim of the appellants herein to the legal heirship of Dagubai based on the Will in question, the lower Appellate Court had occasion to decide the point about the legality and validity of the said Will while deciding the matter under Order XXII, Rule 5 of the Code of Civil Procedure, 1908, in the said appeal, to which the respondent No. 1 who is plaintiff in the present proceedings, was a party and the decision was not interfered with by the High Court in the Second Appeal and, therefore, the said decision on the said point has attained finality and is binding upon the parties. Being so, it is the contention of the appellant that, it cannot be reopened on any ground whatsoever in view of the provisions contained in section 11 of the Code of Civil Procedure. 4. On the other hand, it is submitted on behalf of the respondent that the decision in the enquiry under Order XXII, Rule 5 of the Code of Civil Procedure, being of summary nature, the findings therein do not attend finality besides being the fact that the issue regarding the validity and the legality of the said Will did not arise in those proceedings and, therefore, the principle of res judicata has no application to the matter in question. The reliance is sought to be placed by the learned Advocate for the respondent, in support of his contention, in the matters of (Shivraj Ramji Paul Shete v. Prayagbai w/o Mahadu Shete since deceased through L.Rs. and another)1, 1994(1) Bom.C.R. 561 : 1994 Mh.L.J. 295, (Hayatuddin Haji Shujauddin v. Abdul Gani Abdul Hafiz and others)2, 1975 Mh.L.J. 345, (Mst. Deu and others v. Laxmi Narayan and others)3, 1998(8) S.C.C. 701 , and in the matter of (Naraindas Lilaram Adnani v. Narsingdas Naraindas Adnani and others)4, A.I.R. 1995 S.C. 763. 5. In fact, Order XXII deals with the detail procedure to be followed in case of death of any party to the proceedings in a civil suit. Rule 1 thereof provides the death of a party to the suit shall not cause the suit to abate if the right to sue survives. 5. In fact, Order XXII deals with the detail procedure to be followed in case of death of any party to the proceedings in a civil suit. Rule 1 thereof provides the death of a party to the suit shall not cause the suit to abate if the right to sue survives. Rule 2 provides for the procedure to be followed where one of several plaintiffs or defendants dies and right to sue survives. It states that where there are more plaintiffs or defendants than one, and any of them dies, and, where the right to sue survives to the surviving plaintiff or plaintiffs alone or against the surviving defendant or defendants alone, the Court shall cause an entry to that effect to be made on the record, and the suit shall proceed at the instance of the surviving plaintiff or plaintiffs, or against the surviving defendant or defendants. Rule 3 deals with the procedure in case of death of one of several plaintiffs or of sole plaintiff. Rule 4 provides procedure in case of death of one of several defendants or of sole defendant. Order XXII, Rule 5 of the Civil Procedure Code provides that where a question arises as to whether any person is or is not the legal representative of a deceased plaintiff or a deceased defendant, such question shall be determined by the Court. Rule 9 of Order XXII provides that where a suit abates, no fresh suit shall be brought on the same cause of action. Sub-rule (2) thereof provides that the person claiming to be the legal representative of a deceased plaintiff or the assignee or the receiver in the case of an insolvent plaintiff may apply for an order to set aside the abatement; and if it is proved that he was prevented by any sufficient cause from continuing the suit, the Court shall set aside the abatement upon such terms as to costs or otherwise as it thinks fit. Rule 10 of the said Order provides that in cases of an assignment, creation or devolution of any interest during the pendency of a suit, the suit may, by leave of the Court, be continued by or against the person to or upon whom such interest has come or devolved. 6. Rule 10 of the said Order provides that in cases of an assignment, creation or devolution of any interest during the pendency of a suit, the suit may, by leave of the Court, be continued by or against the person to or upon whom such interest has come or devolved. 6. On plain reading of the various provisions contained in said Order XXII of the Civil Procedure Code, it is clear that the issue which arises for determination in a proceedings under Order XXII, Rule 5 of the Civil Procedure Code is whether the person stated to be or claiming to be the legal representative of the deceased party to the suit is entitled to prosecute or defend the cause in the suit in place of the deceased party to the suit. The enquiry, therefore, is necessarily restricted to the said limited point under Order XXII, Rule 5 of the Civil Procedure Code. It cannot be forgotten that it is not full-fledged trial on the disputed questions regarding the right to the property but it is restricted for the purpose of considering whether the person claiming or claimed to have right to represent the estate of the deceased for the purpose of lis has sufficient interest in carrying on the litigation in place of the deceased and in case of rival claims, it may also decide as to who is really the person entitled to represent the estate of the deceased for the purpose of prosecuting or defending the proceedings. Certainly it does not deal with the enquiry into the right to succeed, to the property of the deceased and such rights are to be decided by an independent proceedings in accordance with the law. 7. It cannot be disputed that the decision, on the question, whether the person should be allowed to continue the proceedings as the legal representative of the deceased party is not an issue which arises in the main proceedings. On the contrary, the substitution of the deceased by his legal representatives being limited for the purpose of carrying on the proceedings, any decision in that regard pursuant to the enquiry, under Order XXII, Rule 5 of the Civil Procedure Code cannot confer any right or claim in relation to any estate of the deceased party. On the contrary, the substitution of the deceased by his legal representatives being limited for the purpose of carrying on the proceedings, any decision in that regard pursuant to the enquiry, under Order XXII, Rule 5 of the Civil Procedure Code cannot confer any right or claim in relation to any estate of the deceased party. In that context, the learned Advocate for the respondent is fully justified in placing reliance upon the judgment in the matter of Hayatuddin Haji Shujauddin v. Abdul Gani Abdul Hafiz and others (cited supra), as well as in the matter of Shivraj Ramaji Paul Shete v. Prayagbai w/o Mahadu Shete since deceased through L.Rs. and another (cited supra). The earlier decision is on the point that if no finding is given on an issue in the previous suit, then the said judgment cannot operate a res judicata on the ground that the finding must be assumed to have been given as an inference. The later decision is on the point that the enquiry under Order XXII. Rule 5 is of summary nature to determine as to who is to substitute the deceased for prosecuting the proceedings. The decision of the Apex Court in the matter of Naraindas Lilaram Adnani v. Narsingdas Naraindas Adnani and others (cited supra) is of no assistance in the case in hand as the same was given in a totally different set of facts and on totally different point of law. 8. At this stage, one can advantageously refer to recent decision of the Apex Court in the matter of (Madhvi Amma Bhawani Amma and others v. Kunjikutty Pillai Meenakshi Pillai and others)5, 2000(6) S.C.C. 301 . The Apex Court, therein has held thus :- In order to apply the general principle of res judicata the Court must first find, whether an issue in a subsequent suit, was directly and substantially in issue in the earlier suit or proceedings, was it between the same parties, and was it decided by such Court. Thus there should be an issue raised and decided, not merely any finding on any incidental question for reaching such a decision. So if no such issue is raised and if on any other issue, incidentally any finding is recorded it would not come within the periphery of the principle of res judicata . 9. Thus there should be an issue raised and decided, not merely any finding on any incidental question for reaching such a decision. So if no such issue is raised and if on any other issue, incidentally any finding is recorded it would not come within the periphery of the principle of res judicata . 9. Yet another decision which deals with the scope of section 11 of the Civil Procedure Code by the Apex Court is in the matter of (Sajjadanashin Sayed Md. B.E. Edr. (D) by L.Rs. v. Musa Dadabhai Ummer and others)6, A.I.R. 2000 S.C. 1238. Therein the Apex Court has held thus :- "It will be noticed that the words used in section 11, Civil Procedure Code are directly and substantially in issue". If the matter was in issue directly and substantially in a prior litigation and decided against a party then the decision would be res judicata in a subsequent proceeding. Judicial decisions have however held that if a matter was only collaterally or incidentally in issue and decided in an earlier proceeding, the finding therein would not ordinarily be res judicata in a latter proceeding where the matter is directly and substantially in issue. As pointed out in Halsbury's Laws of England (Vol. 6 para 1538) (4th Ed.), the fundamental Rule is, that a judgment is not conclusive if any matter came collaterally in question (R. v. Knaptoft Inhabitants)7, 1824(2) B. C. 883, (Heptulla Bros v. Thakore)8, 1956(1) W.L.R. 289(P.C.); or if any matter was incidentally cognizable (Sunders (otherwise Saunders v. Sanders (otherwise Saunders))9, 1952(2) All.E.R. 767 at 771." A collateral or incidental issue is one that is ancillary to a direct and substantive issue, the former is an auxiliary issue and the latter the principal issue. The expression collaterally or incidentally in issue implies that there is another matter which is directly and substantially. In issue (Mulla, C.P.C. 15th Ed., p. 104). It is further held by the Apex Court therein : "If the issue was 'necessary' to be decided for adjudicating on the principal issue and was decided, it would have to be treated as 'directly and substantially' in issue and if it is clear that the judgment was in fact based upon that decision, then it would be res judicata in a latter case." 10. Considering the law laid down by the Apex Court, it is clear that a mere finding on a matter even on the point which is collaterally or incidentally in issue may not amount to res judicata in a subsequent proceedings, in order to apply the principle of res judicata, the point has necessarily to be directly and substantially in issue in the matter. As already seen above, enquiry to find out whether the person is, or not, a legal representative of the deceased party being restricted to decide the rights of the parties to prosecute or defend the cause in the suit in place of the deceased party and that being not related to the point directly or substantially in issue in the main proceedings, any decision in the enquiry Order XXII, Rule 5 cannot be considered as res judicata in a subsequent proceedings in a relation to the rights of the parties to any property. 11. Applying the law laid down by the Apex Court to the facts in the case in hand, it is clear that the decision in Civil Appeal No. 181/1984 in an enquiry under Order XXII, Rule 5 of the Civil Procedure Code being related to the rights of the appellants to continue to prosecute or defend the proceedings in place of Dagubai, and the same not being an issue regarding the validity or legality of the Will in question, any finding or observation incidentally given or made while deciding the rights of the appellants to continue to prosecute or defend the cause therein, cannot be construed as a bar for maintainability of the present suit by applying the principle of res judicata and, therefore, no fault can be found with the order of the lower Appellate Court setting aside the judgment, of the trial Court on the said point. The first ground of challenge to the impugned order, therefore, fails. 12. The second ground of challenge relates to the bar of limitation. The suit is for declaration that the Will dated 15-6-1964 executed by Dagubai is null and void. Dagubai expired on 15-11-1964. The suit has been filed on 19th February, 1973. The cause of action for filing the suit is stated to have arisen on 15-8-1972 when the respondent i.e. plaintiff claims to have learnt about the circumstances under which the appellant got the Will executed by Dagubai. Dagubai expired on 15-11-1964. The suit has been filed on 19th February, 1973. The cause of action for filing the suit is stated to have arisen on 15-8-1972 when the respondent i.e. plaintiff claims to have learnt about the circumstances under which the appellant got the Will executed by Dagubai. According to the respondent No. 1, the appellants and their father obtained the thumb impression of Dagubai by deceit and without letting her know the contents of the Will and this fact was learnt by the respondent No. 1 only on 15-8-1972 from one of the witnesses to the execution of the said Will. In other words, though the Will is of the year 1964, and even though Dagubai expired in the year 1964, and the respondent No. 1 had full knowledge of the Will since then, still he was not aware of the alleged deceit played by the appellant and the circumstances under which the said Will was alleged to have been executed by Dagubai and, therefore, the suit having been filed within 3 years from the date of knowledge about the alleged facts, the same is within the period of limitation. 13. It is the contention of the appellants that the suit having been filed beyond the period of 3 years from the date of the Will or at least from the date of death of Dagubai, the same is barred by the law of limitation and, therefore, the lower Appellate Court erred in interfering with the order of the trial Court in that regard. On the other hand, the learned Advocate, for the respondent relying on the decision in the matter of (Usha Sales Ltd. v. Malcolm Gomes and others)10, 1983(2) Bom.C.R. 612 , and in the matter of (Lufthansa German Airlines v. Vij Sales Corporation)11, 1998(8) S.C.C. 623 , submitted that the trial Court had erred in deciding the issue of limitation as preliminary issue and, therefore, no fault can be found with the order of the lower Appellate Court remanding the matter to decide the same along with other issues. 14. 14. As regards the decision of the Apex Court, in the matter of Lufthansa German Airlines v. Vij Sales Corporation (cited supra), as rightly submitted by the learned Advocate for the appellants, it does not lay down any ratio on the point as to whether the point of limitation can be decided as a preliminary issue or not and the decision therein was based on the peculiar facts of the said case. It was observed therein :- "After hearing learned Counsel for the parties, we are of the opinion that the present case was not one of such suits which should have been disposed of on the preliminary issues." Apparently the decision was based on the facts of the said case. 15. In the matter of Usha Sales Ltd. v. Malcolm Gomes and others (cited supra), the learned Single Judge of this Court has held that there is an obligation cast upon the Court that even though a case may be disposed of on a preliminary issue, the Court shall subject to the provision of sub-rule (2) pronounce judgment on all issues, and that the obligation to decide a question of law as a preliminary issue even when the decision can dispose of the case or part of the case is no longer there. It has been further held that the Court may try an issue regarding jurisdiction of the Court or to the legal bar to the suit as a preliminary issue but this more in the nature of a discretion rather than a duty and the Court is not bound to try any issue as the preliminary issue despite the provision contained in sub-rule (2) of Rule 2 of Order 14 of the Code. Stress is led on the expression "it may try" in the said Rule while deciding the said case. 16. Indeed, Rule 2 of Order XIV of the Civil Procedure Code provides that notwithstanding that a case may be disposed of on a preliminary issue, the Court shall, subject to the provisions of Sub-Rule (2), pronounce judgment on all issues. Stress is led on the expression "it may try" in the said Rule while deciding the said case. 16. Indeed, Rule 2 of Order XIV of the Civil Procedure Code provides that notwithstanding that a case may be disposed of on a preliminary issue, the Court shall, subject to the provisions of Sub-Rule (2), pronounce judgment on all issues. Sub-rule (2) thereof provides that if the issues both of law and of fact arise in the same suit, and the Court is of opinion that the case or any part thereof may be disposed of on an issue of law only, it may try that issue first if that issue relates to either the jurisdiction of the Court or a bar to the suit created by any law for the time being in force, and for that purpose may, if it thinks fit, postpone the settlement of the other issues until after that issue has been determined, and may deal with the suit in accordance with the decision on that issue. In other words, the provision of law contained in Rule 2 of Order XIV makes it abundantly clear that unless the issue relates to the jurisdiction or a bar to the suit created by law for the time being in force, no issue can be considered as a preliminary issue. 17. In the case in hand, the suit has been filed for setting aside the Will and for declaration that the same is null and void on the ground that it was obtained by the appellants without allowing Dagubai to know the contents thereof and that the said fact was learnt by the respondent No. 1 on 15-8-1972 for the first time. On the face of the plaint itself, it is apparent that the suit has been filed within a period of 3 years from 15-8-1972, the day on which the cause of action is stated to have arisen for filing the suit. However, the allegations in the plaint regarding the alleged deceit being played by the appellants have been denied by the appellants, it would be necessary for the respondent No. 1 to establish his claim regarding the allegations of deceit being played by the respondent No. 1 as well as acquisition of knowledge thereof on 15-8-1972 by adducing necessary evidence in that regard after an issue being framed in respect thereof. Apparently, therefore, the point of limitation could not have been decided as a preliminary issue without affording opportunity of leading evidence in respect thereof. Hence, the learned Advocate for the respondent is justified in contending that no fault can be found with the order of the lower Appellate Court while setting aside the decision of the trial Court on the point of limitation and remanding the matter to enable the parties to lead evidence on the said issue of limitation. 18. In the circumstances, therefore, there is no justification for interference in the impugned judgment of the lower Appellate Court. However, the fact remains that the suit relates to the year 1973 and in relation to a Will stated to have been executed in the year 1964. It is, therefore, necessary for the trial Court to expedite the hearing of the matter and to dispose of the suit as expeditiously as possible and, in any case, within a period of one year from today. The trial Court shall, therefore, dispose of the suit accordingly and file the compliance report with the Additional Registrar of this Court in the first fortnight of December 2001. The Registrar to intimate this order to the concerned Court forthwith. With the above observations, the appeals are dismissed with no order as to costs. Appeal dismissed. -----