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2002 DIGILAW 990 (PNJ)

Joginder Kaur alias Jogindero v. Mehar Singh

2002-09-25

M.M.KUMAR

body2002
JUDGMENT M.M. Kumar, J. - This revision petition filed under Section 115 of the Code of Civil Procedure, 1808 (for brevity "the Code") is directed against the order dated 17.5.1995 passed by the Sub Judge 2nd Class, Amritsar dismissing the application filed by the defendant-petitioner in which a preliminary objection was raised that the Civil Suit No. 964 of 1994 instituted on 14.10.1994 (for brevity "the present suit") is barred by the principles of res judicata/i> as envisaged by Section 11 and Order 2 Rule 2 of the Code. 2. Facts necessary for deciding the legal controversy raised in the present revision petition are that on an earlier occasion defendant-petitioner had filed Civil Suit No. 568/82/84 instituted on 3.9.1982/23.8.1984 (for brevity the previous suit) decided on 1.6.1985 to which plaintiff-respondent was a party. The suit was decreed on 1.6.1985 after the plaintiff-respondent was proceeded ex-parte. It was further averred that against the judgment and decree dated 1.6.1985 an appeal was filed by the defendant-petitioner being C.A. No. 146 of 1986 for modifying the judgment and decree. A declaration was given in favour of the defendant-petitioner that she was owner in possession of 37/96th share in the land measuring 289 kanals 10 marlas to the exclusion of four persons namely Mohindero, Veero, Guro daughters of Bela Singh and Jito d/o Piaro d/o Bela Singh. It is pertinent to mention that Mohindro, Veero, Guro and Piaro were real sisters of the defendant-petitioner. The defendant- petitioner was given the consequential relief of restraining them from interfering in her lawful possession. 3. It is pertinent to point out that the plaintiff-respondent Mehar Singh was although impleaded as a party before the civil judge as well as before the first appellate court yet no relief was claimed against him. The averments made in the plaint, certified copy of which has been placed on record as Annexure P.4 with Civil Misc. No. 12473-CII of 1996 specifically avers that the name of the plaintiff-respondent was impleaded as a performa-defendant along with some others with a view to avoid any complication later. It was also averred that no relief was claimed against them. Therefore, he did not appear and along with others was proceeded ex-parte. Consequently, a decree against the afore mentioned four persons was passed. 4. It was also averred that no relief was claimed against them. Therefore, he did not appear and along with others was proceeded ex-parte. Consequently, a decree against the afore mentioned four persons was passed. 4. Plaintiff-respondents has filed the present suit under Section 45 of the Punjab Land Revenue Act, 1887 to the effect that record of rights i.e. Jamabandi for the year 1986-87 had been wrongly prepared and was liable to be corrected by incorporating that plaintiff-respondent along with Wasakha Singh, Hazura Singh and Shangara Singh were the owner and co-sharer in possession of the suit land to the extent of 1/3rd share and defendant-petitioner is also owner to the extent of 1/3rd share. It was further claimed that three other persons namely Baj Singh, Karaj Singh and Surain Singh were owner and co- sharer to the extent of 1/3rd share of the land measuring 289 kanals 10 marlas. The consequential relief of permanent injunction of staying the partition proceedings which were pending before the Assistant Collector 1st Grade, Amritsar filed by the defendant-petitioner was also sought till the final decision of the present suit. It was in this suit that defendant- petitioner raised objection that when she filed previous suit, the plaintiff- respondent was a party, albeit proforma, yet he was bound by the decree and therefore the suit filed by him was barred by the principles of res judicata. In order to appreciate the factual matrix it would be appropriate to make a reference to the pedigree table which is as under : 5. A persual of the pedigree table shows that out of five sons of Ram Singh, Khushal Singh, Jaimal Singh, Nihal Singh and Nand Singh had further sons namely Jiwan Singh, Bela Singh, Bhagat Singh and Sawan Singh respectively. Bhagat Singh had died issueless and without wife. In other words, Jiwan Singh, Bela Singh and Sawan Singh were left to succeed the property. The earlier suit filed by the defendant-petitioner was by one Jogindro who is daughter of Bela Singh seeking a declaration against her sister Mohindro, Veero, Guro ds/o Bela Singh and Jito d/o Piaro d/o Bela Singh. As has already been mentioned in the above paras, no relief was claimed against the sons of Jiwan Singh i.e. plaintiff-respondent Mehar Singh and others. As has already been mentioned in the above paras, no relief was claimed against the sons of Jiwan Singh i.e. plaintiff-respondent Mehar Singh and others. The present suit from which this revision petition has arisen has been filed by the afore-mentioned Mehar Singh for correction of the record of rights. Defendant-petitioner Jogindro his moved an application in the present suit claiming that principles of res judicata/i> as envisaged by Section 11 and Order 2 Rule 2 of the Code are attracted and the suit cannot proceed as the matter directly and substantially in issue in the present suit had been directly and substantially in issue in the previous suit between the same parties and also claimed that plaintiff-respondent ought to have raised all these issues in the earlier suit and having failed to do so, all pleas are deemed to have been raised and decided against him. 6. The Civil Judge dismissed the application vide his order dated 17.5.1995 after framing preliminary issue. The principal reason given by the Civil Judge for dismissing the application is that no relief was claimed by the defendant-petitioner in her previous suit against the plaintiff-respondent who were proceeded ex-parte and the matter directly and substantially in issue before the Court in the previous suit was to see the legality and validity of the will dated 15.1.1957 executed by the father of the defendant-petitioner in her favour to the exclusion of her other sisters namely Mohindero, Veero, Guro ds/o Bela Singh and Piaro d/o Bela Singh. As the revenue authorities have sanctioned mutation in the name of the all the sisters in equal share the necessity of filing the suit had arisen. Therefore, the Civil Judge held that the matter directly and substantially in issue in the previous suit was distinct and not similar to the matter directly and substantially in issue in the present suit. Therefore, the present suit would not be hit by the principles of res judicata as envisaged by Section 11 and Order 2 Rule 2 of the Code. The order passed by the Civil Judge reads as under : "A careful persual of the copy of the plaint of the previous suit led (placed ?) on record by the relying defendants reveals that Joginder Kaur @ Jogindero has claimed relief against her four sisters namely Mohinder Kaur, Veero, Gura and Jito @ Piaro. The order passed by the Civil Judge reads as under : "A careful persual of the copy of the plaint of the previous suit led (placed ?) on record by the relying defendants reveals that Joginder Kaur @ Jogindero has claimed relief against her four sisters namely Mohinder Kaur, Veero, Gura and Jito @ Piaro. The remaining defendants including the present plaintiff were impleaded as proforma defendants and no relief was claimed against them. The copy of subsequent judgment dated 1.6.1985 which was passed by Shri M.S. Chawla, the then Addl. Senior Sub Judge, Amritsar goes to show that earlier suit instituted by the present defendant Jogindero was contested by his sisters Mohinder Kaur and Veero alone. The remaining defendants were proceeded against ex-parte. The matter in dispute in that case was the legality and validity of the Will dated 15.1.1957 executed by Bela Singh, the father of the defendant in her favour. As the revenue authority has sanctioned the mutation for 5/32 shares of Bhagat Singh, deceased one of co- sharer who has expired, in the name of all the sisters in equal shares. Form the copy of judgment dated 13.6.1986, passed in an appeal against the decision of the above case by the present defendant by Shri J.P. Gupta, the then Addl. District Judge, Amritsar, it emerges out that the plaintiff was held to be owner to the extent of 37/96 shares in the suit property on the basis of above said will inspite of it, the plaintiff has challenged that the defendant is not entitled to more than 1/3rd share in the entire suit property. It is the case of the plaintiff that the property left by Bhagat Singh has been inherited by the replying defendant to the extent of 1/3rd shares and that the replying defendant is a legal heir of Bela Singh. Therefore, the will executed by Bela Singh in favour of the replying defendant is not in issue nor the share of Bhagat Singh inherited by the replying defendant is challenged by the plaintiff. As such the matter in dispute is quite distinct and dis- similar from the matter in controversy in the earlier suit. Therefore, the will executed by Bela Singh in favour of the replying defendant is not in issue nor the share of Bhagat Singh inherited by the replying defendant is challenged by the plaintiff. As such the matter in dispute is quite distinct and dis- similar from the matter in controversy in the earlier suit. I am of the view that where no relief is claimed against the proforma defendants and it is not identical or causes of action has arisen as a consequence of the decision of the first suit then the second suit is not hit by principles of res judicata/i> as envisaged in Section 11 CPC. It is so because a party may be joined as a defendant in a suit merely because its presence is necessary in order to enable the Court to effectively and completely adjudicate upon the question involved in the suit. In such a case, no relief is sought against the proforma defendants and the matter in issue is not a issue between the proforma defendants and the plaintiffs. The defendant has brought on record a copy of order passed in the Court of Shri S.S. Gupta, Ld. SJIC, Amritsar by which the suit filed by the plaintiff was dismissed for want of prosecution. A careful persual of the order goes to show that the suit was dismissed after pleading of no instructions by the Ld. counsel for the plaintiff. In order to attract the bar of Section 11 CPC it is necessary that earlier suit must have been dismissed on merits and the matter cannot be said to have been heard and finally decided in case the suit is dismissed in default." 7. I have heard Shri Suvir Sehgal, learned counsel for the defendant- petitioner and Mr. R.K. Joshi, learned counsel for the plaintiff-respondent. 8. Shri Suvir Sehgal has argued that the subject matter of the present suit is identical to the subject matter of the previous suit which was filed by the defendant-petitioner. According to the learned counsel the interest of the parties in the property representing the share of Nihal Singh and his son Bhagat Singh, who had died issueless and without wife, was determined in the earlier proceedings which are sought to be reopened by filing the present suit. According to the learned counsel the interest of the parties in the property representing the share of Nihal Singh and his son Bhagat Singh, who had died issueless and without wife, was determined in the earlier proceedings which are sought to be reopened by filing the present suit. Therefore, the learned counsel has argued that the proposition of law which requires consideration of this Court is whether a proforma party like the plaintiff-respondent is bound by the judgment and decree passed by the Civil Appeal Court. According to the learned counsel the answer to that question has to be in affirmative because this view has been taken by a Full Bench of this Court in Gita Ram v. Prithvi Singh, AIR 1956 P&H 129. The learned counsel has placed reliance on paragraphs 15 and 16 of the judgment. 9. Shri R.K. Joshi, learned counsel for the plaintiff-respondent has argued that the suit filed by the plaintiff-respondent is not hit by the provisions of Section 11 read with Order 2 Rule 2 of the Code because in para 8 of the earlier suit the averment was made that the plaintiff-respondent was being impleaded as a proforma defendant in order to avoid complications otherwise no relief was claimed against them. According to the learned counsel in that suit it was conceded that the centre of controversy in the previous suit was the Will dated 15.1.1957 executed by the father of the defendant-petitioner Bela Singh in her favour. Therefore, the matter directly and substantially in issue in the previous suit could not be considered to be the same matter as is directly and substantially in issue in the present suit so as to attract the bar created by Section 11 read with Order 2 Rule 2 of the Code. In support of his submission, the learned counsel has relied upon judgments of the Supreme Court in the cases of Mysore State Electricity Board v. Bangalore Woollen, Cotton and Silk Mills and others, AIR 1963 SC 1128; Lonakutty v. Thoman and another, AIR 1978 SC 1645; Mahboob Sahib v. Syed Ismail and others, (1995) 3 SCC 693 and Osman Umar v. Malal Alibhai Nathu, (1996) 7 SCC 531. 10. 10. After hearing the learned counsel for the parties and persual of the record, I am of the considered view that the order passed by the Court below does not suffer from any legal infirmity warranting interference of this Court. A copy of the plaint filed in the previous suit No. 568/82/84 has been placed on record. The relevant portion of the prayer clause and the averments made in para 8 of the plaint reads as under : "Suit for declaration to the effect that plaintiff is owner in possession of 5/96 share of land measuring 289 kanals 10 marlas bearing killa No........as entered in jamabandi for the year 1976-77, situated in village Ranike, Tehsil and District Amritsar with consequential relief restraining the defendant Nos. 1 to 4 from interfering in the lawful possession of the plaintiff, or in the alternative, suit for decree of joint possession of 5/96 share of land measuring 289 kanals 10 marls, detail of which has been given above." "8. That the defendant No. 5 to 11 have impleaded as proforma defendants in order to avoid complication, otherwise, no relief is claimed against them." A persual of averments made in para 8 of the plaint would reveal that no relief was claimed by defendant-petitioner against plaintiff-respondent in the previous suit. On the contrary in para 8 it was categorically averred that no relief is being claimed against defendant Nos. 5 to 11 who were Wasakha Singh, Hazara Singh, Mehar Singh son of Jiwan Singh (Plaintiff-respondent), Dara Singh, Karj Singh, Baj Singh and Surain Singh. A persual of the averments made further shows that names of the plaintiff-respondents alongwith others had been impleaded as proforma defendants with the object of avoiding any complication. Even in prayer clause the claim made was that four persons namely Mohindro, Veero, Guro and Jito d/o Piaro who were the daughters of Bela Singh be restrained from interfering in the lawful possession of the defendant petitioner. It is also pertinent to mention that the controversy revolved around a Will dated 15.1.1957 executed by the father of the defendant- petitioner to the exclusion of her other sisters namely Mohindro, Veero, Guro and Piaro. It is further pertinent to mention that there is no issue between the defendant-petitioner and plaintiff-respondents. It is also pertinent to mention that the controversy revolved around a Will dated 15.1.1957 executed by the father of the defendant- petitioner to the exclusion of her other sisters namely Mohindro, Veero, Guro and Piaro. It is further pertinent to mention that there is no issue between the defendant-petitioner and plaintiff-respondents. In any case no such issue could have been framed once in para 8 of the plaint the defendant-petitioner had herself pleaded that no relief is being claimed against the plaintiff- respondent. 11. It is well settled that to succeed on the plea of res-judicata or the principles laid down in Order 2 Rule 2 of the Code some essential conditions are required to be satisfied. In the case of Lonakutty (supra), the Supreme Court has observed that until and unless alleallegations are made by one party making averment in the plaint which are either denied or admitted either expressly or by necessary implication the principles of res judicata would not be applicable. The observations of their Lordship in this regard read as under : "This contention is well founded and must be accepted. By Section 11 Code of Civil Procedure, in so far as relevant, no court shall try any suit or issue in which the matter directly and substantially in issue has been directly and substantially in issue in a former suit between the same parties and has been heard and finally decided. Explanation I to the section provides that 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. The only other aspect of the rule of res judicata which on the facts before us must be borne in mind is that it is not enough to constitute a matter res judicata that it was in issue in the former suit. It is further necessary that it must have been in issue directly and substantially. And a matter cannot be said to have directly and substantially in issue in a suit unless it was alleged by one party and denied or admitted, either expressly or by necessary implication, by the other." It is also well settled that in order to apply the principles of res judicata the Court must examine the nature of litigation in the earlier suit, issue raised and decision given. A Constitution Bench in the case of Mysore State Electricity Board (supra) expressed its opinion on this aspect and observed as under : "... It is well settled that in order to decide whether a decision in an earlier litigation operates as res judicata, the Court must look at the nature of the litigation, what were the issue raised therein and what was actually decided in it....." Similar observations have been made by the Supreme Court in Osman Umars case (supra). 12. When the principles laid down in the afore-mentioned judgments of the Supreme Court are applied to the facts of the present case, it becomes evident that the defendant-petitioner and plaintiff-respondents were not at issue in the previous suit because the defendant-petitioner herself has made averment stating that no relief has been claimed against the plaintiff-respondent in her suit. Even the prayer clause was directed against the right of the sisters of the defendant-petitioner. Still further, there was no issue framed which may show that any right of the defendant-petitioner and that of plaintiff-respondent was to be decided. Therefore, it cannot be concluded that the matter directly and substantially in issue in the earlier suit has been the matter directly and substantially in issue in the present suit and hence the revision petition is liable to be dismissed. 13. The argument of the learned counsel that Full Bench judgment of this Court in the case of Gita Ram (supra) is applicable to the case of the defendant-petitioner has not impressed me because in that judgment a proforma party has been held bound to the result of a litigation if such a party had right of hearing or it has control over the proceedings. It is true that a proforma party is impleaded in order to adjudicate the rights of the parties as their assistance is considered necessary. However, in the present case, the plaintiff-respondent was made a party not for the purpose of seeking assistance for adjudication of the issue involved but in order to avoid complications. The defendant-petitioner had further averred that otherwise no relief was claimed against the plaintiff-respondent. In such a situation, it cannot be said that the plaintiff-respondent would have availed any right of hearing or could exercise any control over the proceedings. The defendant-petitioner had further averred that otherwise no relief was claimed against the plaintiff-respondent. In such a situation, it cannot be said that the plaintiff-respondent would have availed any right of hearing or could exercise any control over the proceedings. In any case, the parties were not at issue, no relief was claimed against the plaintiff- respondent and the object of impleading the plaintiff-respondent in the previous suit was only by way of an abundant caution. Therefore, the judgment of the Full Bench in Gita Rams case (supra) has no application to the facts of the present case and hence I have no hesitation in rejecting this argument. For the reasons recorded above, this petition fails and the same is dismissed. Petition dismissed.