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2001 DIGILAW 48 (HP)

TEKU RAM v. STATE OF H. P.

2001-03-29

K.C.SOOD

body2001
JUDGMENT Kuldip Chand Sood, J.—This second appeal is directed against the judgment and decree of the learned District Judge, Kinnaur at Rampur dated 1st June, 2000. 2. Having heard the parties, the appeal was admitted on the following substantial questions of law: Whether the Courts below were justified in dismissing the suit of the plaintiff on the ground that the suit was barred by the principles of res judicata without framing any issue and giving an opportunity to the parties to lead evidence in support of their rival contentions? 3. In order to appreciate the controversy, undisputed facts, for the purpose of the disposal of this appeal, may be noticed thus: 4. Plaintiff-appellant. Teku Ram, is resident of village Chuha Bag, P.O. Khaneri in Tehsil Rampur of District Shimla. He purchased some land in mauza Racholi and constructed a house on it. Municipal Council, Rampur levied certain taxes, under the H.P. Municipal Act, 1994 on the houses falling within (urban area) of Municipal Council, Rampur. 5, The plaintiff filed a suit for declaration that Khasra number 234, on which the house of the plaintiff is located, is not within the Municipal Limits of Rampur Bushahr and the entry to the contrary in the revenue record is illegal, null and void. Restrain was also sought on the Municipal Council, Rampur, for realizing the taxes in respect of the house of the plaintiff on khasra number 234, which khasra number is reflected within the municipal limits in the revenue record. 5. The defendants, State of H.P. and Municipal Council, Rampur, resisted the suit on the grounds, amongst others, that the suit is barred by the principles of res-judicata under Section 11 of the Code of Civil Procedure ("the Code" for short). The plea of the defendants-respondent was that plaintiff in an earlier suit No. 123/1 of 1994 raised the same question as in the present suit. That suit was dismissed and appeal carried by the plaintiff before the learned District Judge too was dismissed. Another suit No. 205/1 of 1985 involving the same question, was also dismissed. Learned trial Judge dismissed the suit without framing any issue or giving an opportunity to the parties concerned to lead evidence on the ground that the suit is barred by the principles of res-judicata by a cryptic order which reads: 1.5.2000 : Present : Mr. Y.T. Deshta, Advocate, for the plaintiff. Mr. Learned trial Judge dismissed the suit without framing any issue or giving an opportunity to the parties concerned to lead evidence on the ground that the suit is barred by the principles of res-judicata by a cryptic order which reads: 1.5.2000 : Present : Mr. Y.T. Deshta, Advocate, for the plaintiff. Mr. Ramesh Negi, Advocate, for the defendant No. 2. Mr. Y.S. Negi, learned A.D.A. for defendant No. 1. Learned Counsel for defendants stated that the plaintiff had earlier filed the suit qua the same cause of action and for the same subject matter and between the same parties and placed on record the earlier judgment 205/1 of 85 decided on 30 Dec, 1987 which was dismissed by this Court. Keeping in view the judgment, suit of the plaintiff is barred by principles of resjudicata and hence this suit is dismissed. File after completion be consigned to record. Announced 1.5.2000 Sd/- Sub Judge Rampur 6. As noticed earlier, the appeal filed by the plaintiff-appellant was too dismissed by the impugned judgment and decree holding that the suit indeed is barred by the principles of res-judicata. 7. Learned District Judge noticed that "the plaintiff had instituted two suits for permanent injunction for restraining the defendant No. 2 from levying the house tax on the four storeyed building of the plaintiff situated in Khasra No. 234. Both the suits for permanent injunction of the plaintiff had been dismissed. Learned Counsel for the plaintiff had argued that the suit out of which appeal under consideration had arisen was entirely different from the suit so instituted earlier by the plaintiff." 8. Learned District Judge then proceeded to discuss suit No. 201/1 of 1985 filed by the plaintiff decided on 30.12.1987 by the learned Sub Judge 1st Class, Rampur Bushahr holding that khasra number 234 (new) of the house of the plaintiff was situated within the Municipal Limits of Rampur. Learned District Judge further proceeded to say that instead of filing any appeal against the judgment, the plaintiff chose to institute another suit No. 127/1 of 1994 in which the plaintiff had sought the relief that defendants may be directed to effect necessary correction in the revenue entries pertaining to the boundary of the plaintiff in conformity with the notification of the Government. Learned District Judge found that this suit too was dismissed on the ground that it was barred by the principles of res-judicata. Learned District Judge found that this suit too was dismissed on the ground that it was barred by the principles of res-judicata. 9. I have heard Shri G.D. Verma, learned Senior Counsel for the appellant and Shri K.D. Batish, learned Advocate General for respondent No. 1 as also learned Counsel for respondent No. 2. 10. Admittedly, there was no material before the learned Sub Judge in terms of evidence or issues to hold that the suit was barred by the principles of res-judicata. 11. Order 14 of "the Code" provides for the settlement of issues and determination of suit on issues of law or on issues agreed upon by the parties. Rule 1 of Order 14 of the Code stipulates that at the first hearing of the suit, the Court shall, after reading the plaint and written statement, if any, and after examination of the parties under Rule 2 of Order X and after hearing the parties or their pleaders, ascertain as to what material propositions of fact or law the parties are at variance, and shall thereupon proceed to frame and record the issues on which the right decision of the case appears to depend. Under sub-rule (i) of Rule 1 of Order 14, issues arise when a material proposition of fact or law is affirmed by one party and denied by another party. Sub- rule (3) mandates that every material proposition affirmed by one party and denied by the other, shall form subject matter of distinct issue. 12. Under sub-rule (i) of Rule 1 of Order 14, issues arise when a material proposition of fact or law is affirmed by one party and denied by another party. Sub- rule (3) mandates that every material proposition affirmed by one party and denied by the other, shall form subject matter of distinct issue. 12. In the present case, as material proposition that the suit is barred by the principles of resjudicata, was affirmed by the defendant-respondents and indeed denied by the plaintiff and, therefore, it was the duty of the trial Court to have settled issue regarding the suit being barred by the principles of res-judicata.- Though, it was open to the learned trial Court to have decided this issue as preliminary issue after giving an opportunity, to the parties, of leading evidence and hearing them in terms of Rule 2 of Order 14 which stipulates that the case or any part thereof can be disposed of on an issue of law only, it may try that issue first if that issue relates to: (a) the jurisdiction of the court, or (b) 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. 13. Learned trial Judge in disregard to the provision of law, noticed above, without considering/hearing on the question of suit being barred by the principles of res-judicata, proceeded to record that as the counsel for the defendants had represented that the plaintiff had earlier filed the suit in respect of the same cause of action and the same subject matter between the same parties and had also placed on record the judgment in civil suit No. 201/85 which was dismissed on 13.12.1987. Therefore, the suit of the plaintiff is barred by the principles of res-judicata. Such an order is not sustainable in law. 14. Therefore, the suit of the plaintiff is barred by the principles of res-judicata. Such an order is not sustainable in law. 14. Learned District Judge, on his part, instead of remanding the case to the learned Sub Judge for settling proper issue and giving its findings after affording an opportunity to the parties to lead evidence, took upon himself to return the findings that suit was barred by the principles of resjudicata after going through copies of the two judgments in civil suit No. 205 of 1985 and Civil Suit No. 127 of 1984. Needless to say that these judgments did not form part of the record as they had not been tendered in evidence nor there was any occasion for any of the parties to have tendered the judgment in evidence. 15. In the present case, as record shows, the case was fixed for replication to enable the plaintiff to answer the allegations of the defendant that suit is barred by the principles of res-judicata. The plaintiff was not even given opportunity to deny that allegation. The plaintiff, in the circumstances, was prejudiced. The judgment and decree of the learned trial Judge is against the principles of natural justice. 16. This apart, Order 20 unambiguously mandates that the Court shall pronounce the judgment in the open Court only after the case has been heard. Therefore, a judgment which is delivered without having hearing the case fully is nullity. Hearing of a suit includes production of evidence as well as arguments. Order 18 provides for the hearing of a suit. Order 18 Rules 1 and 2 may be reproduced : "Rule 1 Right to begin,—The plaintiff has the right to begin unless the defendant admits the facts alleged by the plaintiff and contends that either in point of law or on some additional facts alleged by the defendant the plaintiff is not entitled to any part of the relief which he seeks, in which case the defendant has the right to begin.” Rule-2 Statement and production of evidence.— (1) On the day fixed for hearing of the suit or any other day to which the hearing is adjourned, the party having the right to begin shall state his case and produce his evidence in support of the issues which he is bound to prove. (2) The other party shall then state his case and produce his evidence (if any) and may then address the Court generally on the whole case. (3) The party beginning may then reply generally on the whole case. (4) Notwithstanding anything contained in this rule, the Court may, for reasons to be recorded, direct or permit any party to examine any witness at any stage. 17. Bare reading of Rule 2 of Order 18 shows that the party having a right to begin shall state his case and produce evidence in support of the issues and the burden of proving lies on it. The other party shall then state his case and produce his evidence and address the court generally. The party beginning may then reply generally on the whole case. Order 20, Rule-1 reads: R. 1. Judgment when pronounced.—(1) The Court, after the case has been heard, shall pronounce judgment in open Court either at once or, as soon thereafter as may be practicable, on some future day; and when the judgment is to be pronounced on some future day, the Court shall fix a day for that purpose, of which due notice shall be given to the parties on their pleaders: Provided that where the judgment is not pronounced at once, every endeavour shall be made by the Court to pronounce the judgment within fifteen days from the date on which the hearing of the case was concluded but, where it is not practicable so do so, the Court shall fix a future day for the pronouncement of the judgment, and such day shall not ordinarily be a day beyond thirty days from the date on which the hearing of the case was concluded, and due notice of the day so fixed shall be given to the parties or their pleaders: Provided further that, where a judgment is not pronounced within thirty days from the date on which the hearing of the case was concluded, the Court shall, record the reasons for such delay and shall fix a future day on which the judgment will be pronounced and due notice of the day so fixed shall be given to the parties or their pleaders. (Emphasis supplied) 18. A careful reading of these provisions clearly shows that case can only be decided and judgment delivered after parties have been given opportunity to lead appropriate evidence and address arguments. (Emphasis supplied) 18. A careful reading of these provisions clearly shows that case can only be decided and judgment delivered after parties have been given opportunity to lead appropriate evidence and address arguments. Once a party files a written statement, making certain allegations, the Court is bound to hear both the parties. It is open to the Court to reject the case of a party but it is not within the jurisdiction of the Court to say that the party is not entitled to hearing as the identical matter had been decided by a previous order. As pointed out in Sarat Chandra Dev v. Bichitranada Sahu, (51) AIR 1951 Orissa 212, it is not open to the trial Court, without hearing both the parties which included opportunity of leading evidence and address arguments, to say that the matter was decided by a previous order and, therefore, the point raised cannot be re-agitated. I am fortified in my view by the judgment of Full Bench of Andhra Pradesh High Court in Aziz Ahmed Khan v. LA. Patel, AIR 1974 Andhra Pradesh 1. 19. For the reasons recorded above, I am of the view that the courts below were not justified in dismissing the suit of the plaintiff on the ground that suit was barred by the principles of res-judicata without framing appropriate issue and giving opportunity to the parties to lead evidence in support of their rival contentions. The question is accordingly answered. 20. In result, appeal is accepted, impugned judgment and decree of learned District Judge dated 1st June, 2000 and that of the trial Court dated 1.5.2000 are set-aside. The case is remanded back to the learned Sub Judge with the direction to try and dispose of the suit in accordance with law and in the light of the observations made hereinabove, 21. Parties shall to appear before the learned Sub Judge 1st Class, Rampur Bushar on 29,3.2001 for further proceedings. Appeal allowed.