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2005 DIGILAW 1084 (MP)

JAGJEET SINGH v. BHOPAL VIKAS pradhikaran

2005-10-20

K.K.LAHOTI, S.S.DWIVEDI

body2005
( 1 ) THIS revision is directed against award dated 30-7-1999 by M. P. Arbitration Tribunal, Bhopal in reference No. 50/1994 by which the reference application filed by the petitioner under Section 7 of M. P. Madhyastham Adhikaran Adhiniyam, 1983 (hereinafter referred to as 'adhiniyam' for short) has been dismissed on the ground of limitation. The Tribunal found that the application was barred by limitation as provided under Section 7-B of the Adhiniyam and dismissed it. ( 2 ) THIS order has been assailed by the petitioner on following grounds :- (i) That the Tribunal erred in considering the question of limitation while the said question was considered and decided by the tribunal by order dated 28-10-1994 by which the Tribunal held that the application is not barred by limitation and rejected the objection of respondents. Once the question was heard and decided it ought not to have been reconsidered by the Tribunal. (ii) That the order dated 28-10-1994 was having res judicata between the parties as the matter agitated by the respondents was decided on merits by the Tribunal. Thus the principle of res judicata applies and the same question ought not to have been permitted to be raised by the Tribunal to the respondents. Reliance is placed to the Apex court decision in Mohanlal Goenka v. Benoy kishna Mukherjee and others, AIR 1953 SC 65 , Satyadhyan Ghosal and others v. Smt. Deorajin Debi and another, AIR 1960 SC 941 , Arjun Singh v. Mohindra Kumar and others, AIR 1964 SC 993 . ( 3 ) LEARNED counsel for respondents supported the order on the ground that there was erroneous decision on the question of law that the Tribunal wrongly interpreted section 7-B of the Adhiniyam and without considering sub-section (2) of Section 7-B has decided the matter. In these circumstances, the Tribunal has rightly rectified the error by passing impugned order and has rightly rejected the application as barred by time. Reliance is placed to Apex Court judgment Mathura Prasad Sarjoo Jaiswal and others v. Dossibai N. B. Jeejeebhoy, AIR 1971 SC 2355 and submitted that this revision may be dismissed. ( 4 ) AS the controversy involved is short one and it is not necessary to go into merits of the case, as the matter is to be decided purely on the question of law. ( 4 ) AS the controversy involved is short one and it is not necessary to go into merits of the case, as the matter is to be decided purely on the question of law. The question is whether the Tribunal which decided the question of limitation by order dated 28-10-1994 was having jurisdiction to reconsider the question of limitation in the matter ? The another question is whether the order dated 28-10-1994 is having effect of res judicata between the parties in the same proceedings or not ? ( 5 ) THE M. P. Madhyastham Adhikaran adhiniyam, 1983 has been enacted on 12-10-1983 by which the Tribunal has been established to arbitrate in disputes to which the State Government or a Public Undertaking is a party. Under Section 3 of the adhiniyam, the State Government by notification constituted an Arbitration Tribunal for resolving all such disputes or differences pertaining to works contract or arising out of or connected with execution, discharge or satisfaction of any such works contract. Under Section 7 of the Adhiniyam, either party to a works contract shall irrespective of the fact whether the agreement contains an arbitration clause or not, refer in writing the dispute to the Tribunal. Section 20 of the Adhiniyam bars the jurisdiction of the civil Court after constitution of Tribunal and no civil Court is having jurisdiction to entertain and decide any dispute of which cognizance can be taken by the Tribunal under the Adhiniyam. The aforesaid Tribunal has been constituted to decide all the disputes in respect of which the Civil Court was having jurisdiction prior to coming into force of aforesaid Adhiniyam. ( 6 ) THIS Tribunal is functioning to decide the aforesaid dispute between private persons and the State Government or a public undertaking in respect of work contract, and vested with the powers of Civil Court under section 12 of the Act. In the aforesaid circumstances, the provision of res judicata are applicable in the proceedings before the Tribunal. See K. V. George v. Secretary to Government, (1989) 4 SCC 595 : ( AIR 1990 SC 53 ). ( 7 ) SECTION 7-B of the Adhiniyam provides limitation. In the aforesaid circumstances, the provision of res judicata are applicable in the proceedings before the Tribunal. See K. V. George v. Secretary to Government, (1989) 4 SCC 595 : ( AIR 1990 SC 53 ). ( 7 ) SECTION 7-B of the Adhiniyam provides limitation. For ready reference Section 7-B reads thus :-"7-B. Limitation - (1) The Tribunal shall not admit a reference petition unless - (a) the dispute is first referred for the decision of the final authority under the terms of the works contract; and (b) the petition to the Tribunal is made within one year from the date of communication of the decision of the final authority : provided that, if the final authority fails to decide the dispute within a period of six months from the date of reference to it, the petition to the tribunal shall be made within one year of the expiry of the said period of six months. (2) Notwithstanding anything contained in sub-section (1), where no proceeding has been commenced at all before any Court proceeding the date of commencement of this Act or after such commencement but before the commencement of the Madhya pradesh Madhyastham Adhikaran (Sanshodhan) Adhiniyam, 1990, a reference petition shall be entertained within one year of the date of commencement of Madhya Pradesh madhyastham Adhikaran (Sanshodhan)Adhiniyam, 1990 irrespective of the fact whether a decision has or has not been made by the final authority under the agreement. 2-A. Notwithstanding anything contained in sub-section (1), the Tribunal shall not admit a reference petition unless it is made within three years from the date on which the dispute arises. " ( 8 ) IN this case the dispute was referred to the Tribunal on 14-6-1994 in respect of works contract which was (sic) in April, 1984. On 27-1-1987 the respondents issued a letter to petitioner to deposit Rs. 1,49,992. 15 p. Thereafter petitioner filed a civil suit against the respondent challenging the aforesaid recovery. On 25-11-1987 a temporary injunction was issued by the civil Court restraining the respondent to affect the aforesaid recovery. On 18-6-1993, the civil suit was dismissed on the statement of respondents that no recovery shall be made against the petitioner without following due process of law. Thereafter respondents issued a letter by which again the aforesaid recovery was sought against the petitioner on 10-2 1994. On 18-6-1993, the civil suit was dismissed on the statement of respondents that no recovery shall be made against the petitioner without following due process of law. Thereafter respondents issued a letter by which again the aforesaid recovery was sought against the petitioner on 10-2 1994. The petitioner referred the matter to Superintending Engineer for decision, but no decision was taken by Superintending Engineer in this regard. Thereafter on 14-6-1994 this reference was filed before the Tribunal. On notice the respondent filed an application under Section 7-B of the Adhiniyam that the reference application is barred by limitation as it was not filed within the time period prescribed under Section 7-B of the Adhiniyam. The tribunal after hearing both the parties by a reasoned order dated 28-10-1994 rejected the preliminary objection filed by the respondent, and the objection that reference application is barred by time was rejected. It appears that after the aforesaid decision the respondents filed written statement in which the same plea of limitation was agitated and the Tribunal while deciding the matter on merits considered the question of limitation as preliminary point and by the impugned order considered the merits of the case in respect of limitation and found that the reference application is barred by limitation under Section 7-B of the Adhiniyam and dismissed without considering the case on merits. ( 9 ) NOW the question arises is that the question which was decided on an application filed by the respondent could have been reagitated or reconsidered by the Tribunal. In this regard the law laid down by the Apex court in Mohanlal Goenka, AIR 1953 SC 65 (supra), may be seen in which the Apex court considering the controversy held (Paras 23 and 24) :"there is ample authority for the proposition that even an erroneous decision on a question of law operates as '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'. A decision in the previous execution case between the parties that the matter was not within the competence of the executing Court even though erroneous is binding on the parties : See abhoy Kanta v. Gopinath Deb, AIR 1943 Cal 460. A decision in the previous execution case between the parties that the matter was not within the competence of the executing Court even though erroneous is binding on the parties : See abhoy Kanta v. Gopinath Deb, AIR 1943 Cal 460. The learned Chief Justice concedes that the principle of 'res judicata' applies to the execution proceedings but he refused to apply it to the present case on the ground that there was lack of inherent jurisdiction in the execution Court to proceed with the execution. He relied upon - Ledgard v. Bull, 13 Ind App 134 (PC ). This case is distinguishable upon the facts. This was a suit instituted before the Subordinate Judge for infringement of certain exclusive rights secured to the plaintiff by three Indian patents. Under the Patents Act the suit could be brought only before the District Judge. The defendant raised an objection to the jurisdiction of the Court. It appears that subsequently the defendant joined the plaintiff in petitioning the District Judge to transfer the case to his own Court. This was done. The suit was transferred under S. 25, Civil p. C. It was admitted that the suit could not be transferred unless the Court from which the transfer was sought to be made had jurisdiction to try it. The defendant adhered to the plea of jurisdiction throughout the proceedings but it was urged that by his subsequent conduct he had waived the objection to the irregularity in the institution of the suit. Their Lordships held that although a defendant may be barred by his own conduct from objecting to the irregularity in the institution of the suit, yet where the Judge had no inherent jurisdiction over the subject-matter of the suit, the parties cannot by their mutual consent convert it into a proper judicial process. This decision has no bearing upon the present case as no question of constructive 'res judicata' arose in that case. "in Satyadhyan Ghosal, AIR 1960 SC 941 para 7 and 8 (supra) the Apex Court has held thus :-"the principle of res judicata is based on the need of giving a finality to judicial decisions. What it says is that once a res judicata, it shall not be adjudged again. Primarily it applies as between past litigation and future litigation. "in Satyadhyan Ghosal, AIR 1960 SC 941 para 7 and 8 (supra) the Apex Court has held thus :-"the principle of res judicata is based on the need of giving a finality to judicial decisions. What it says is that once a res judicata, it shall not be adjudged again. Primarily it applies as between past litigation and future litigation. When a matter-whether on a question of fact or a question of law - has been decided between two parties in one suit or proceeding and the decision is final, either because no appeal was taken to a higher court or because the appeal was dismissed, or no appeal lies, neither party will be allowed in a future suit or proceeding between the same parties to canvass the matter again. This principle of res judicata is embodied in relation to suits in S. 11 of the code of Civil Procedure; but even where S. 11 does not apply, the principle of res judicata has been applied by Courts for the purpose of achieving finality in litigation. The result of this is that the original Court as well as any higher Court must in any future litigation proceed on the basis that the previous decision was correct. 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 early stage decided a matter in one way will not allow the parties to re-agitate the matter again at a subsequent stage of the same proceedings. Thus this however mean that because at an earlier stage of the litigation a Court has decided an interlocutory matter in one way and no appeal has been taken therefrom or no appeal did lie, a higher Court cannot at a later stage of the same litigation considered the matter again ?" ( 10 ) RESPONDENT has placed reliance to mathura Prasad Sarjoo, AIR 1971 SC 2355 para 5 (supra) wherein the Apex Court considering the question of res judicata held :"a previous decision of a competent Court on facts which are the foundation of the right and the relevant law applicable to the determination of the transaction which is the source of the right is res judicata. A previous decision on a matter in issue is a composite decision : the decision on law cannot be dissociated from the decision on facts on which the right is founded. A decision on an issue of law will be as res judicata in a subsequent proceeding between the same parties, if the cause of action of the subsequent proceeding be the same as in the previous proceeding, but not when the cause of a'ction is different, nor when the law has since the earlier decision been altered by a competent authority, nor when the decision relates to the jurisdiction of the Court to try the earlier proceeding, nor when the earlier decision declares valid a transaction which is prohibited by law. " ( 11 ) IN view of aforesaid settled law there is no iota of doubt that if the issue decided between the parties in proceedings, it is having effect of res judicata and such issue cannot be reopened by the party at a later stage in the same proceedings. However, the party against whom the issue is decided can challenge the same before the higher forum or after the decision if advised so may agitate in appeal, but in the same proceedings against whom the question has been decided cannot in any manner reagitate the matter. In those proceedings the issue decided between the parties is having the effect of res judicata and cannot be permitted to be reagitated. In view of aforesaid circumstances, the Tribunal erred in reconsidering the question of limitation at the time of decision of the case. When the question of limitation was considered by the Tribunal and vide order dated 28-10-1994, it was decided in favour of the applicant, the Tribunal erred in reconsidering and deciding the same in favour of respondents. ( 12 ) IN view of aforesaid, order dated 30-7-1999 passed by the Tribunal cannot be sustained under law. Accordingly, it is set aside. As the matter has not been decided on merits by the Tribunal, the matter deserves to be remitted back to the Tribunal for a fresh decision on merits. The parties present herein are directed to remain present before the Tribunal on 5th December, 2005, for which date no notice is necessary to the parties. The petitioner shall be entitled for costs of litigation, counsel fee rs. 1,000/- (Rupees one thousand only), if certified. Order accordingly. .