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2002 DIGILAW 1916 (RAJ)

Bast Pal v. Bal Kishan

2002-12-03

B.S.CHAUHAN

body2002
JUDGMENT 1. - This revision has been filed against the order dated 3.1.1996, by which the learned trial Court has allowed the application dated 3.11.1995 filed under Order 13, Rule 2 of the Code of Civil Procedure, 1908 (for short `the Code') and directed to produce the record of Criminal Case No. 33 of 1973, Bal Kishan v. Bast Ram , judgment in the criminal case dated 11.11.1979, copy of the FIR and the complaint filed in the Court of Chief Judicial Magistrate, Jaisalmer. Subsequent thereto the application filed by the plaintiff-petitioner for water connection in the PHED, Jaisalamer, his statement made in Civil Suit dated 13.8.1972 and 14.10.1972, consumer and delivery book of the RSEB for the period of October 1972 to October 1973, the documents of the Office of the Sub-Registrar, Jaisalmer for the period of September, 1972 and the register of Consumers Co-operative Store, Jaisalamer dated 13.8.1972. The learned trial Court had allowed the application only on the ground that prima facie it was of the view that the documents asked by the defendant/non- petitioner were relevant to the deposition of the plaintiff- petitioner. Hence this revision. 2. Firstly, the application has been allowed on a wrong premises. The Court should not only be prima facie satisfied but it must record the finding as how the documents are relevant to determine the controversy. 3. Secondly, it is settled legal proposition that the proceeding in a criminal case or judgment therein etc., cannot be seen in a civil case. 4. In Anil Behari Ghosh v. Smt. Latika Bala Dassi, AIR 1955 SC 566 , the Supreme Court considered a case : whether previous judgment of a criminal Court, convicting the son of the testator for murder, can have relevancy in the subsequent proceedings for revocation of grant of probate under the provisions of Section 43 of the Act. 4. In Anil Behari Ghosh v. Smt. Latika Bala Dassi, AIR 1955 SC 566 , the Supreme Court considered a case : whether previous judgment of a criminal Court, convicting the son of the testator for murder, can have relevancy in the subsequent proceedings for revocation of grant of probate under the provisions of Section 43 of the Act. The Court held that where, in a proceeding for revocation of grant of probate under section 263 of the Indian Succession Act, the question is : whether the son of the testator murdered him, it cannot be assumed, on the basis of a previous judgment of a criminal Court convicting the son for murder of his father and sentencing him for the same that the son was the murderer of the testator, for the reason that the judgment of the criminal Court is relevant only to show that there was such a trial resulting in the conviction and sentence of the son, but it cannot be the evidence of the fact that the son was the murderer of the testator and that question is to be decided on evidence in the pending proceedings. 5. In M/s. Karam Chand Ganga Prasad & Anr. v. Union of India & Ors., AIR 1971 SC 1244 , the Supreme Court held that the decisions of the civil Court are binding on criminal Courts but converse is not true, though the cases in civil and criminal Courts may be between the same parties. 6. Thirdly, the learned trial Court has rejected a similar application vide order dated 7.1.1989, wherein the same documents had been summoned by making an observation that the documents had been summoned only to cause delay, therefore, the application was not maintainable. The application under Order 13, Rule 2 of the Code had been dismissed by the learned trial Court on 1.1.1989. The question of entertaining the second application could not arise as it is barred by the principle of constructive res-judicata. 7. It is settled legal proposition that even an erroneous decision on a question of law is res-judicata between the parties to it. The correctness or otherwise of a judicial decision has no bearing upon the question whether or not it operates as res- judicata. (Vide Shivraj Gopalji v. Aiyassa Bi, AIR 1949 PC 302 and Mohanlal Goenka v. Benoy Kishna Mukherjee & Ors., AIR 1953 SC 65 . The correctness or otherwise of a judicial decision has no bearing upon the question whether or not it operates as res- judicata. (Vide Shivraj Gopalji v. Aiyassa Bi, AIR 1949 PC 302 and Mohanlal Goenka v. Benoy Kishna Mukherjee & Ors., AIR 1953 SC 65 . In such an eventuality, re-agitation of an issue is barred by the principle of constructive res- judicata. [Vide Mohanlal Goenka (supra); Ushadevi Balwant v. Devidas Shridhar, AIR 1955 Bom. 239 ; Benaras Ice Factory Ltd. v. Sukhlal Ainarchand Vadnagra, AIR 1961 Cal. 422 ; Jasraj Multan Chand & Anr. v. Kamruddin & Ors., AIR 1971 MP 184 ; and Puthen Veettil Nolliiyodan Devoki Amma & Ors. v. Puthen Veettil Nolliyodan Kunhi Raman & Ors., AIR 1980 Ker. 230 . 8. Undoubtedly, the doctrine of res-judicata is applicable where earlier the suit had been decided. Though the doctrine may not be attracted in different proceedings at different stages in the same suit but the principle enshrined therein is, undoubtedly, applicable. 9. In Satyadhyan Ghosal & Ors. v. Smt. Deorajin Deb & Anr., AIR 1969 SC 941 , the Supreme Court considered the applicability of the doctrine in the proceedings at different stages in the same suit and held as under : "The principle of res-judicata is based on the need of giving a finality to judicial decision. What it says is that once a res - judicata (sic res judicata), it shall not be adjudged again. Primarily, it applies as between past litigation and future litigation ..... This principle of res-judicata is embodied in relation to suits in Section 11 of the Code of Civil Procedure; but even where Section 11 does not apply, the principle of res-judicata has been applied by Courts for the purpose of achieving finality in litigation ..... The principle of res-judicata applies also as between two stages in the same litigation to this extent that a Court, whether the trial Court or a higher Court, having, at an earlier stage, decided a matter in one way, will not allow the parties to re-agitate the matter again at the subsequent stage of the same proceedings." This view has consistently been approved and followed by the Hon'ble Supreme Court in large number of cases. In Arjun Singh v. Mohindra Kumar, AIR 1964 SC 993 , the Hon'ble Apex Court observed as under : "......... In Arjun Singh v. Mohindra Kumar, AIR 1964 SC 993 , the Hon'ble Apex Court observed as under : "......... though Section 11 of the Code of Civil Procedure clearly contemplates the existence of two suits and the findings in the first being res-judicata in the later suit, it is well (sic well) established that the principle underlying it is equally applicable to the case of decision rendered at successive stages of the same suit or proceeding. But where the principle of res-judicata is involved in the case at the different stages of proceedings in the same suit, the nature of the proceedings, the scope of the inquiry which the adjectivle (sic adjec tive) law provides for decision being reached as well as the specific provisions made on matters touching decision are some of the mate- rial and relevant factors to be considered before the principle is held applicable." Similar view has been reiterated by the Hon'ble Supreme Court in L.R. Ganapathi Thevar (dead) by his legal representatives v. Sri Navaneethaswara-swami Devasthanam, AIR 1969 SC 764 . 10. In view of the above, it becomes crystal clear that the principle enshrined in the doctrine of res-judicata is attracted even in the different stages of the same litigation if the issue had earlier been adjudicated upon and decided on merit. 11. Thus, in view of the above, as the earlier application under Order 13, Rule 2 for summoning the same record had been rejected by the trial Court, the second application was not maintainable. Moreso, the Court has not recorded any finding as how the documents were relevant to the case and the proceedings in a criminal case or judgment therein cannot be seen in a civil proceeding, I am of the considered opinion that the learned trial Court has committed material irregularity in exercise of its jurisdiction. 12. The revision is allowed. The order dated 3.1.1996 passed by the Court below is set aside. Interim order passed earlier stands vacated. The trial Court is requested to conclude the trial of the suit taking it day by day as the suit is pending before the Court below for last eighteen years.Revision Petition Allowed. *******