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2004 DIGILAW 1587 (RAJ)

Amarit Lal v. Ram Pyari

2004-10-29

DINESH MAHESHWARI

body2004
Honble MAHESHWARI, J.–This revision petition is directed against the order dated 6.10.1999 passed by the Civil Judge (Sr. Division), Jodhpur in Civil Suit No. 62/98 whereby the learned Civil Judge rejected the application under Order 7 Rule 11 read with Section 11 of the Code of Civil Procedure (CPC) filed by the defendant petitioner. (2). The civil suit for recovery of an amount of Rs. 50,000/- of damages has been filed by the plaintiff-non-petitioner with the averments in the plaint, inter alia, that the plaintiff was residing in a house at Gancha Gali, Mirchi Bazar, Jodhpur since the time of her birth and was sole heir of the parents and residing in the house as exclusive owner. According to the plaintiff, she was intentionally got entangled in the litigation by the defendant in respect of the said house by alleging herself to be a tenant and further falsely imputed taking of a loan of Rs. 300/- by her father. The notice dated 16.5.1995 got served by the defendant was adequately replied on 23.5.1995 and damages for serving a false notice to the tune of Rs. 10,000/- were claimed. According to the plaintiff, despite receiving reply to the notice and despite being aware of the correct facts, the defendant filed a suit on 3.8.1995 before the District Judge, Jodhpur for recovery of possession of the house. Summons for appearance in the suit were received by her from the Court of Addl. District Judge No. 3, Jodhpur which caused her mental and physical agony. She was under serious tension on reading the averments in the plaint. A baseless application seeking temporary injunction was also filed without any reasonable cause. In order to continue to pressurize her, application for appointment of Commissioner was also made and when she was making preparations for the marriage of her son and the house was being repaired and renovated, the work was got stayed by obtaining injunction. The written statement to the aforesaid false, malafide and baseless suit was filed and damages were claimed to the tune of Rs. 30,000/-. The plaintiff non-petitioner has averred that the false suit filed by the defendant (petitioner) was ultimately dismissed on 12.5.1997 on account of counsel for the present defendant (plaintiff in the said suit) pleading no instructions. The plaintiff has claimed damages for defending the baseless suit and for mental agony. (3). 30,000/-. The plaintiff non-petitioner has averred that the false suit filed by the defendant (petitioner) was ultimately dismissed on 12.5.1997 on account of counsel for the present defendant (plaintiff in the said suit) pleading no instructions. The plaintiff has claimed damages for defending the baseless suit and for mental agony. (3). It appears that in this suit for damages filed by the plaintiff-non-petitioner, the defendant put in appearance on 24.7.1998 and after taking six adjournments for filing written statement, an application was filed on 15.5.1999 on behalf of the petitioner by his counsel contending that the compensation was claimed by the present plaintiff in the earlier suit and injunction application filed by the present defendant. According to the petitioner, in those cases, despite demand by the present plaintiff, the court has not passed any direction for awarding any compensation and this amounts to refusal of the relief in terms of Explanation-V of Section 11 CPC. The petitioner has contended that those decisions have not been challenged in any court and the same have attained finality, and therefore , present suit was barred by law under Sec. 11 CPC. On these contentions, the plaint was prayed to be rejected. In the reply to the said application, it has been submitted, inter alia, that the claim of compensation was never disallowed by the court and the same was to be decided at the time of final decision of the suit but the same was got dismissed on the counsel for the defendant (plaintiff in the said suit) pleading no instructions. The dismissal of suit could not have been challenged by the present plaintiff and her right of compensation remains intact. It was not in dispute that the claimed compensation in the earlier suit and a separate issue was framed but the same was never decided. (4). The learned Civil Judge after hearing the parties has rejected the application by the impugned order dated 6.10.1999 and agreed with the submissions of learned counsel for the plaintiff that Section 11 CPC could be applied only when the rights between the parties are finally decided by the court. It was not so in the present case as the earlier suit was dismissed for no instructions. The applications was therefore, dismissed with costs. (5). It was not so in the present case as the earlier suit was dismissed for no instructions. The applications was therefore, dismissed with costs. (5). Learned counsel for the petitioner has vehemently contended with reference to the plattings in the written statement filed in the earlier suit that compensatory costs were claimed by the present plaintiff and even compensation was claimed in the application for temporary injunction which was also not granted. A specific Issue No. 7 was framed in the earlier suit on the question of compensatory costs but the same was never decided in favour of present plaintiff. Learned counsel has contended with reference to Explanation-V of Section 11 CPC that when the compensation was specifically claimed and was not granted the prayer would be deemed to have been refused and the present suit was not maintainable for the same relief. Learned counsel has also referred to provisions of Order 2 Rule 2 CPC and has relied on the decisions in the case of Mohamed Amin vs. Jogendra Kumar Bannerjee and Others (1); Bhupendra Nath Chatterjee and Others vs. Smt. Trinayani Devi (2); Lala Bhatwati Deen vs. Mohd. Ismail (3) and Ramdas vs. Mohammed Faqir (4). (6). Per contra, learned counsel for the non-petitioner has defended the impugned order and has submitted that the earlier suit was dismissed for no instructions on the part of plaintiff therein and the question of damages cannot be deemed to have been heard and finally decided within the meaning of Section 11 CPC. (7). Having heard learned counsel for the parties and having perused the record of the case, this court is clearly of the opinion that present revision is devoid of substance and deserves to be dismissed. (8). The learned Civil Judge has dealt with the question involved in the application filed by the non-petitioner and has come to the conclusion that so far the subject matter of present case is concerned, the rights of parties regarding claim of damages cannot be deemed to have been heard and finally decided so as to attract the provisions of Sec. 11 CPC. (9). (9). It is required to be noted in the first place that the principles of res judicata in an abstract manner and form cannot be invoked for the purposes of Order 7 Rule 11 (d) of the Code of Civil Procedure so as to suggest that the suit itself is ``barred by law. The Honble Apex Court has explained the rule of res judicata in V. Rajeshwari vs. T.C. Saravanabava (5), thus:- ``11. The rule of res judicata does not strike at the root of the jurisdiction of the court trying the subsequent suit. It is a rule of estoppel by judgment based on the public policy that there should be a finality to litigation and no one should be vexed twice for the same cause. (10). In the suit of present nature, even otherwise, the bar of res judicata does not appear to be applicable, but in any case, it could not have been raised for invoking Clause (d) of Rule 11 of Order 7 for asking that the plaint itself be rejected. The bar of res judicata as explained by the Honble Apex Court does not strike at the root of jurisdiction of the court and as is apparent from Section 11 itself, the bar is on the court not to try the suit in which matter directly and substantially in issue has been directly and substantially in issue in a former suit. As explained by the Honble Apex Court in the same decision of V. Rajeshwari (supra), the plea of res judicata is founded on proof of certain facts and then by applying the law to the facts so found. It is, therefore, necessary that foundation for the plea must be laid in the pleadings and then an issue to that effect be framed and tried. It is a different matter that in a given case, may be, this issue could be tried as a preliminary issue of law, but it cannot be asserted as a matter of right that even before the written statement is put up, the plaint itself is required to be rejected. The application filed by the petitioner was wholly misconceived. (11). It is to be imbibed that bar of res judicata on the court not to try the suit is specifically based on principle that no person should be vexed twice for the same cause. The application filed by the petitioner was wholly misconceived. (11). It is to be imbibed that bar of res judicata on the court not to try the suit is specifically based on principle that no person should be vexed twice for the same cause. It has no application to the claim of present nature. Section 11 and Explanation-V thereto could be quoted hereunder:- ``11. Res judicata-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, or between parties under whom they or any of them claim, litigating under the same title, in a Court competent to try such subsequent suit or the suit in which such issue has been subsequently raised, and has been heard and finally decided by such Court. xxx xxxx xxx Explanation-V Any relief claimed in the plaint, which is not expressly granted by the decree, shall, for the purposes of this section, be deemed to have been refused. (other explanations omitted) (12). A bare look at Section 11 and Explanation-V makes it apparent that the words ``relief claimed in Explanation-V could only refer and apply to a relief which a party may claim as a matter of right and it cannot apply to the reliefs which the court may in exercises of its discretion grant or refuse. (13). In view of the facts of the present case, it is apparent that the earlier suit was got dismissed by the petitioner (present defendant) by himself not proceeding with the same. There was no occasion for the learned Trial Court to deal with the issue regarding compensatory costs. Moreover, even if, there was any such occasion, granting of such costs or compensatory costs was within the discretion of the court and to a limited extent only. The claim of damages as made in the present suit could not even have been asked as a matter of right in the earlier suit not even compensatory costs could have been granted beyond the statutory limit. Such a prayer, even if made in the earlier written statement, the same cannot be treated to be a ``relief claimed for the purposes of Explanation-V to Section 11 CPC. (14). Such a prayer, even if made in the earlier written statement, the same cannot be treated to be a ``relief claimed for the purposes of Explanation-V to Section 11 CPC. (14). So far the compensatory costs for false or vexation claims are concerned, the provisions of Section 35A CPC as explained by this Court in Daya Ram vs. Ganesh Ram (6), make it clear that not only there is not bar to the maintainability of such a suit but sub-section (4) of Section 35A makes it clear that such a suit is maintainable and the amount of compensation, if awarded under Section 35A shall be taken into account in the subsequent suit for damages or compensation in respect of claim for false or vexatious claims or defence. The judgment sought to be relied upon by the learned counsel for the petitioner in the case of Mohamed Amin vs. Jogendra Kumar Bannerjee and Others (supra), has been extensively dealt with and explained by the learned Single Judge of this Court that the said decision was not an authoritative pronouncement on the maintainability of a civil suit for damages for false and vexatious civil proceedings at the Privy Council was only meeting with an argument that when such a suit cannot lie in respect of civil proceedings how could it be maintained in respect of criminal proceedings? The learned judge has also observed that there appears to be one more reason which was not present before the Privy Council for upholding the maintainability of the civil suit of such nature, i.e. limitation of the amount of compensation as placed by Section 35-A of CPC. In the face of decision of this Court in the case of Daya Ram (supra), the contention by learned counsel for the non- maintainability of the action for recovery of damages for false and vexatious civil proceedings remains totally devoid of substance and deserves to be rejected. It may be pointed out that the other decisions relied upon by learned counsel for the petitioner also do not refer to the question of damages and compensation in respect of false or vexatious civil proceedings on the anvil of Section 35-A CPC. It may be pointed out that the other decisions relied upon by learned counsel for the petitioner also do not refer to the question of damages and compensation in respect of false or vexatious civil proceedings on the anvil of Section 35-A CPC. In view of the law explained by this Court in Daya Rams case (supra), the other decisions relied upon by learned counsel for the petitioner are of no avail nor could be read as authority that a civil suit for recovery of damages or compensation would not lie. (15). As a result of aforesaid, the present revision is totally devoid of any merit and is dismissed. (16). The civil suit filed by the plaintiff as back as on 11.5.1998 is already over six years old. The petitioner shall file written statement positively within thirty days from today and the learned Trial Court shall proceed with the matter expeditiously curbing against any unnecessary adjournments. Record of the Trial Court be immediately returned.