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2005 DIGILAW 1095 (MP)

Ambika Prasad Bakshi v. Prabhudayal Mali

2005-10-21

A.M.NAIK

body2005
JUDGMENT 1. With the consent of the parties, the appeal has been heard finally because the same has been admitted on a short following substantial question of law : "Whether the Courts below are justified in dismissing the suit by applying section 11 of Civil Procedure Code." 2. The plaintiff-appellant has instituted a suit for perpetual injunction simplicitor on the ground that one Sirdar Bahu widow of Gokul Prasad was owner and occupant of the suit land who resided with the plaintiff-appellant who was real nephew of Sirdar Bahu. Sirdar Bahu was admittedly issueless. The plaintiff resided with her from his childhood and used to perform agricultural operations. As claimed by the plaintiff, the suit land developed upon him after the death of Sirdar Bahu. It is further averred in the plaint that there was long drawn litigation between Gokul Prasad, husband of Sirdar Bahu and defendants No.1 to 3. This litigation was initiated at the instance of Gokul Prasad which ultimately terminated in dismissal by the Hon'ble Supreme Court of India on 8.12.1990. It is stated that the defendant-respondents No.1 to 3 did not obtain decree for restoration of possession in respect of suit land. Plaintiff contended that he has been continuously in cultivating possession of the disputed land in a peaceful and open manner. The defendant-respondents no.1 to 3 rried to forcibly dispossess him on 18.4.2003. Hence, the suit for perpetual injunction for restraining the defendants from dispossessing the plaintiff over the suit land. 3. The defendant-respondents No.1 to 3 submitted an application under section 9 of Code of Civil Procedure without filing their written statement. They contended that the earlier civil suit bearing number 76-A/61 was between the common parties and was in respect of the same suit property. This suit according to the defendants was dismissed ultimately by Hon'ble Supreme Court of India and the decision rendered in that suit operates as res judicata. Accordingly, the defendant-respondents No.1 to 3 prayed for dismissal of the suit on the ground of res judicata. The plaintiff submitted his reply to the said application. He stated the he has been in possession of the suit land and in the absence of the decree for possession in favour of the defendant-respondents No.1 to 3, they cannot be legally permitted to forcibly dispossess the plaintiff-appellant. The plaintiff submitted his reply to the said application. He stated the he has been in possession of the suit land and in the absence of the decree for possession in favour of the defendant-respondents No.1 to 3, they cannot be legally permitted to forcibly dispossess the plaintiff-appellant. It is further averred that the suit for prepetual injunction is on the basis of alleged threat on 18.8.2003. It is also averred in the reply that the application submitted by the plaintiff is not liable to be decided without filing of the written statement. The plaintiff-appellant prayed for dismissal of the said application. The application was allowed by the learned trial Judge vide order dated 17.11.2003. Civil Appeal No.6-A/04 preferred against the same was also dismissed. 4. The contentions of the learned counsel for the appellant was as under: (1) Section 11 of Code of Civil Procedure has no application because requisites under the said section are not proved to exist. (2) Plea of res judicata cannot be entertained without filing of the written statement. (3) Plea of res judicata cannot be decided in the absence of pleadings and judgment of the earlier litigation. 5. Learned counsel for the appellant drew my attention to the orders passed by this Court in LPA No.260/2003 and contended that the Division Bench of this Court has clearly observed in paragraph 24 that if a civil suit is filed by Ambika Prasad, the civil Court shall not be influenced by the observation made by the learned Division Bench. 6. Shri Arvind Chouksey, learned counsel for the respondent submitted that there is sufficient material on record to decide the applicability of section 11 of Civil Procedure Code and in view of the predecessor of the appellant having lost from the Supreme Court of India, the present suit has been rightly dismissed as barred by principle of res judicata. 7. Considered the submissions in the light of the record. 8. As regards contention No.2 learned counsel for the appellant heavily relied upon this Court's decision in State of M.P. and another v. Babulal and another reported as 1992 JLJ 25 , wherein it is observed: "The plea of bar of res judicata can be considered only after the defendants filed their written statement in defence of the suit. " 9. As regards contention No.2 learned counsel for the appellant heavily relied upon this Court's decision in State of M.P. and another v. Babulal and another reported as 1992 JLJ 25 , wherein it is observed: "The plea of bar of res judicata can be considered only after the defendants filed their written statement in defence of the suit. " 9. While deciding this objection, this Court is required to look into the object of the principle of res judicata which is embodied in section 11 of Code of Civil Procedure. The basis on which the said rule rests is founded on consideration of public policy. It is in the interest of public at large that the finality should attach to the Courts at large and decree also in the public interest and individuals should not be fixed again, in the same kind of litigation. If foundation for these two principles can be established from the material on record application of section 11 of Code of Civil Procedure is not liable to be deferred merely for want of written statement. This provision has already been held mandatory by the Privy Council in Talluri Venkata Seshayya and others v. Thadikonda Kotiswara Rao and others reported as AIR 1937 PC 1. In the decision reported in 1992 JLJ 25 the point for consideration was whether the application under Order 7 Rule 11 of Code of Civil Procedure may be decided before filing of the written statement. The point was decided by this Court with affirmation. Question whether the plea of bar of res judicata can be considered before filing of the written statement was not an issue in that case. Therefore, this authority cannot be treated as a precedent for the question involved herein. In order to ascertain the application of section 11 of Code of Civil Procedure, there must be sufficient material on record to examine the identities as to : (1) Parties to the suit; (2) Subject matter of the suit; (3) Jurisdiction of the Courts. In the present case, there is no dispute about the identity as to jurisdiction. 10. As regards the identity of the parties, it may be seen that section 11 of Code of Civil Procedure applies when the subsequent litigation is between the same parties or between parties under whom they or any of them claim litigating under the same title. In the present case, there is no dispute about the identity as to jurisdiction. 10. As regards the identity of the parties, it may be seen that section 11 of Code of Civil Procedure applies when the subsequent litigation is between the same parties or between parties under whom they or any of them claim litigating under the same title. Earlier suit (Civil Suit No.76-A/1961) was instituted as mentioned in paragraph 5 of the plaint by Babu Gokul Prasad against Laxman and Jairam Mali. This suit was dismissed on 10.8.1962 and the defendants were held to be shikmi with respect to the suit land. Although, this decree was set aside by this Court in Second Appeal No.1034/1965 on 18.7.1972, but the matter was ultimately decided by the apex Court and the judgment of the trial Court and first appellate Court were maintained vide order dated 18.12.1990 of the apex Court. Consequently, the relief of possession was denied to Babu Gokul Prasad. It is seen from the averments contained in the plaint that after the death of Babu Gokul Prasad the name of his widow Sirdar Bahu was substituted in his place in the revenue record. Thus, according to the plaint averments. Sirdar Bahu succeeded to Gokul Prasad who lost the suit for possession finally from Hon'ble Supreme Court of India. She was thus, obviously bound by the judgment and decree passed against her husband. In paragraph 2 of the plaint, the plaintiff has clearly pleaded that the suit property was acquired by him by virtue of inheritance from Sirdar Bahu. Thus, the plaintiff is litigating in the present suit under the title of Sirdar Bahu. The title of the suit land was not found with Gokul Prasad finally by the Hon'ble Supreme Court of India. It may further be seen that the suit filed by Gokul Prasad against Jairam Mali and Laxman, son of Gopal was for recovery of possession and mesne profits on the ground that aforesaid Jairam Mali and Laxman had forcibly taken possession of the suit land in the year 1958. Final dismissal on 18.12.1990 of this suit filed by Gokul Prasad clearly goes to show that the possession was admitted to be of the• defendants therein whose legal heirs are arrayed in the present suit as defendants. Learned counsel for the appellant submits that as per the plaint averments. Final dismissal on 18.12.1990 of this suit filed by Gokul Prasad clearly goes to show that the possession was admitted to be of the• defendants therein whose legal heirs are arrayed in the present suit as defendants. Learned counsel for the appellant submits that as per the plaint averments. Jairam Mali had removed his possession from the suit land and had executed a receipt in favour of Gokul Prasad on 16.6.1960. Had this been so Gokul Prasad would not have continued with the earlier litigation and could have easily withdrawn the litigation. Moreover, explanation 4 of section 11 of Code of Civil Procedure lays down that any matter which might or ought to have been made ground of defence or attack in such earlier suit shall be deemed to be the matter directly and substantially in issue in such suit. Earlier suit was registered as Civil Suit No.76-A/1961 and was decided against Gokul Prasad on 10.8.1962. Thus, the alleged receipt dated 16.6.1960 ought to have been made a ground of attack against Jairam Mali in the earlier suit. Although, the institution of the earlier suit is not pleaded by the plaintiff, but in any case, the dismissal of this suit was ordered 10.8.1962, i.e., obviously after the alleged surrender of possession and execution of the alleged receipt dated 16.6.1960. This alleged receipt is stated to have been executed in favour of Gokul Prasad who was predecessor of the present plaintiff. Thus, by virtue of explanation 4 of section 11, the averments made in the plaint about acquiring the possession by Gokul Prasad on 16.6.1960 shall be deemed to have been directly and substantially in issue in Civil Suit No. 76-A/1961. The disputed land is admitted by the learned counsel for the appellant to be the subject matter of the earlier Civil Suit. Thus, all the three necessary limbs requisite for application of section 11 of Code of Civil Procedure are found to exist and the facts pertaining to them were available in the trial Court either in the form of pleadings or in the form of various documents available on record with the trial Court itself. If the facts requisite for applicability of the section 11 of Code of Civil Procedure are available on record, application of principles of res judicata can very well be considered by the trial Court even before filing of the written statement. If the facts requisite for applicability of the section 11 of Code of Civil Procedure are available on record, application of principles of res judicata can very well be considered by the trial Court even before filing of the written statement. Any contrary view may defeat the object and purpose of section 11 of Code of Civil Procedure which has been enacted to avoid frivolous repeated litigation between the common parties for parties litigating under them). Consequently, the substantial question of law is decided against the appellant. 11. In the result, the second appeal is dismissed hereby with a cost quantified to Rs.5,000/-. The cost has been imposed intentionally to curb out the tendency to litigate even after the matter has been finally concluded in the first round and specially in the present case when the earlier litigation attained finality before Hon'ble Supreme Court of India.