Research › Search › Judgment

Calcutta High Court · body

2010 DIGILAW 156 (CAL)

Sk. Manzoor v. Abdus Salam

2010-02-18

TAPAN KUMAR DUTT

body2010
JUDGMENT 1. THIS Court has heard the learned advocates for the respective parties. One Md. Sakil filed Tile Suit No. 146 of 1980 against Musst. Rausan Begum and Abdus Salam for recovery of khas possession in respect of the suit property involved in the said suit. The case of the plaintiff in the said suit was that the defendant occupied the suit property as a licensee but after the licence was revoked, the defendent did not vacate the suit property and hence such suit was filed. The said Musst. Rausan Begum contested the said suit by filing written statement denying the material allegations made in the plaint in the said suit. The said Musst. Rausan Begum claimed that she along with her sons and daughters became the co-sharers in respect of the said property and the said Musst. Rausan Begum had the full right, title and interest in the suit property and as such she could not be dispossessed from the suit properly by the plaintiff in the said suit. The said suit came up for hearing and the learned trial Court by its judgment and decree dated 30th May, 1983 dismissed the said suit upon finding that the sons and daughters of the said defendant No. 1 along with the said defendant No. 1 have right, title and share in the suit property and that the said defendant No. 1 has been in possession of the suit property for last 35 years. The learned trial Court disbelieved the case of licence sought to be made out by the plaintiff in the said suit. The plaintiff in the said suit filed Title Appeal No. 582 of 1983 challenging the aforesaid judgment and decree of the learned trial Court. The learned Addl. District Judge, 4th Court, Alipore (24 Parganas) by his judgment and decree dated August 14, 1984 dismissed the said appeal by observing that he did not find any infirmity in the judgment of the learned trial Court. 2. SUBSEQUENTLY, the plaintiff in the said T.S. No. 146 of 1980 along with the proforma defendant in the said T.S. No. 146 of 1980 filed a subsequent, suit being T.S. No. 505 of 1984 praying for a declaration of title and also recovery of possession in respect of the said property that was involved in the earlier suit. 2. SUBSEQUENTLY, the plaintiff in the said T.S. No. 146 of 1980 along with the proforma defendant in the said T.S. No. 146 of 1980 filed a subsequent, suit being T.S. No. 505 of 1984 praying for a declaration of title and also recovery of possession in respect of the said property that was involved in the earlier suit. The subsequent suit being T.S. No. 505 of 1984 was also filed against the said "Musst. Rausan Begum and others. The plaintiffs have alleged in the subsequent suit that the defendants in the subsequent suit are trespassers and the plaintiffs are the owners of the suit property. The defendants contested the said suit by filing written statement denying the material allegations made in the plaint and took the stand that the subsequent Title Suit No. 505 of 1984 is not maintainable as it is barred under section 11 of the Code of Civil Procedure. According to the defendants the question which has been raised in the present suit i.e. T.S No. 505 of 1984 has already been decided in the earlier suit and was affirmed by the learned lower appellate Court, as aforesaid, and the findings of the said learned Courts still stand. It appears that the plaintiffs and the proforma defendant in the earlier suit are the plaintiffs in the subsequent suit and the defendant No. 1 in the earlier suit is also a party-defendant in the subsequent suit. The suit property remains to be the same. However, the said T.S. No. 505 of 1984 came up for hearing and the learned trial Court by its judgment and decree dated 29.11.2000 dismissed the said suit. The learned trial Court found that the judgment and decree passed in T.S No. 146 of 1980 is binding upon the plaintiffs in the subsequent suit and the question of title with regard to the said property has already been decided in the earlier "suit. The learned trial Court found that there is no scope to reopen the matter any further and the subsequent suit is hit by the principles of res judicata. The learned trial Court accordingly, dismissed the suit. The learned trial Court found that there is no scope to reopen the matter any further and the subsequent suit is hit by the principles of res judicata. The learned trial Court accordingly, dismissed the suit. An appeal was preferred by the plaintiffs being Title Appeal No. 14 of 2001 and the learned lower appellate Court by the impugned judgment and decree dated July 28, 2005 allowed the said appeal and sent the suit back on remand to the learned trial Court by directing the learned trial Court to adjudicate the issue in accordance with law after hearing the argument of the parties on the basis of evidence already on record and in the light of the observations made by the learned lower appellate Court except the issues which have been decided by the learned lower appellate Court. Challenging such impugned judgment and decree passed in the said T.ANo. 14 of 2001, the appellants have moved the present appeal. This Court has heard the learned advocates for the respective parties. 3. THE learned advocate for the appellants has submitted that the T.S. No. 505 of 1984 was filed by the plaintiffs in such suit on the same allegation as those made in T.S. No. 146 of 1980 and the question of title has already been decided in the earlier suit and, therefore, the subsequent suit is barred by principles of resjudicata. He has submitted that the learned lower appellate Court was not correct in holding that the incidental finding in T.S. No. 146 of 1980 cannot operate as resjudicata. He has also submitted that the learned lower appellate Court was also not correct in holding that that the matter directly and substantially in issue in the subsequent suit was either actually nor constructively in issue in the earlier suit. THE appellants have challenged the finding of the learned lower appellate Court on the point of res judicata. It appears from the impugned judgment that the learned lower appellate Court observed that the decision of the learned trial Court in T.S. No. 146 of 1980 as regards the claim of title over the property was a matter which was collaterally or incidentally in issue in the earlier suit, but the same was neither actually or constructively in issue in the earlier suit. THE learned lower appellate Court found that such incidental finding in the earlier suit cannot or does not operate as res Judicata. It further appears from the perusal of the impugned judgment that the learned lower appellate Court also observed that it is true that there is some ingredients of res judicata in the present case but the most important and vital ingredient i.e. with regard to the question of a matter being directly or substantially in issue having been finally decided is absent in the present case. 4. THERE is no dispute with regard to the fact that the plaintiff in the earlier suit is also a plaintiff in the subsequent suit and the proforma defendant in the earlier suit, is also a plaintiff in the subsequent suit. Thus both the plaintiffs in the subsequent suit were parties in the earlier suit. The defendant No. 1 in the subsequent suit was also a defendant in the earlier suit and contested the earlier suit whole-heartedly. The learned advocates for the respective parties do not dispute the fact that the suit property in both the suits are the same. The learned advocate for the appellants has cited a judgment reported at AIR 1994 Rajasthan 11 [Maghraj Calla v. Kajodi Mal) and referred to paragraph 20 of the said reports. The Hon'ble Court in the said reports- observed that the subject matter of grant of reliefs or the nature of proceedings, in two proceedings need not be same, that is to say, even if the subject matter and the relief sought for are not the same, yet if there is a final decision on an issue arising in the former proceedings, and the same issue arises in the subsequent proceedings, may be as an ancillary of main relief, which was not the subject matter of earlier proceedings, still the findings on issue in the former proceedings will operate as res judicata, so far as the decision on that particular issue is concerned in the subsequent proceedings. 5. HE cited another decision reported at AIR 2005 Supreme Court 454 (Commissioner of Endowments and others v. Vittal Rao and others) and referred to paragraph 24 of the said reports. The Hon'ble Supreme Court in the said reports was pleased to observe that failure to frame a formal issue by the Court would not invalidate the findings of the binding judgment between the parties. The Hon'ble Supreme Court in the said reports was pleased to observe that failure to frame a formal issue by the Court would not invalidate the findings of the binding judgment between the parties. The Hon'ble Supreme Court was further pleased to observe that the findings against the appellants in the said reported case could neither dilute nor deprive their binding character merely, because specific issue was not raised in the suit. 6. THE next decision cited by the said learned advocate is the one reported at (2002) 2 SCC 686 (P. Purushottam Reddy and another v. Pratap Steels Ltd.) and reference was made to paragraphs. 11 and 12 of the said reports. THE said decision was referred to by the said learned advocate in support of his, contention that when the parties go to trial with the knowledge that a particular question is in issue and adduce evidence relating to such issue, any finding by the learned Court concerned on such issue would be binding upon the parties even though a formal issue in this regard is not framed by such Court. The said learned advocate refer to a decision reported at AIR 1957 Calcutta 128 [Kumar Pashupati Nath Malla and another v. Sri Sankari Prosad singh Deo and others) and referred to paragraph 20 of the said reports wherein the Hon'ble Court has been pleased to hold that it is undoubtedly true that if the parties and the Court have dealt with a particular issue as a direct and necessary issue, the decision would be resjudicata and would bind the parties even if the issue may, on proper examination, be found to have been unnecessary and/or incidental and the position would be the same if the parties invite and take decision from the Court. 7. THE learned advocate appering on behalf of the respondents in this regard has cited a judgment reported at AIR 1982 Supreme Court 20 and referred to paragraph 9 of the said reports. In paragraph 9 of the said reports the Hon'ble Supreme Court was pleased to observe that when a finding as to title to immovable property is rendered by a Court of Small Causes res judicata cannot be pleaded as a bar in a subsequent regular civil suit for the determination or enforcement of right or interest in immovable property. In paragraph 9 of the said reports the Hon'ble Supreme Court was pleased to observe that when a finding as to title to immovable property is rendered by a Court of Small Causes res judicata cannot be pleaded as a bar in a subsequent regular civil suit for the determination or enforcement of right or interest in immovable property. It will further appear that the Hon'ble Supreme Court was so pleased to observe that a question of title in a Small Cause suit can be regarded as incidental only to the substantial issue in the suit and cannot operate as resjudicata in a subsequent suit in which the question of title is directly raised. With regard to the proposition of law laid down by the Hon'ble Courts as indicated above, there cannot be any dispute but it appears that the facts of the case reported in AIR 1982 SC 20 were quite different. In the said case the question was with regard to a decision on the question of title by a Small Causes Court. In the present case, the earlier decision was by a regular Civil Court in a civil suit and thus it is difficult to see as to how the decision in the said case reported at AIR 1982 SC 20 can be of assistance to the respondant in the present case. On the other hand, the decisions cited by the learned advocate for the appellants clearly show that even though the decision of the learned trial Court in the earlier suit was incidenital yet such decision remains to be binding upon the parties. In the earlier suit the prayer was for recovery of possession by eviction of licensee and in order to decide such suit it became necessary for the learned trial Court concerned to decide the question of title. THE parties did not object in adducing their respective evidences with regard to the issue of title even though such issue was not formally framed. THE parties invited the decision on such issue from the learned trial Court concerned and the learned trial Court decided such issue. It will not be proper at this stage to allow a party to say that since there was no formal issue on the question of title, there cannot be any res judicata. On the point of res judicata, this Court finds that there is substance i.. It will not be proper at this stage to allow a party to say that since there was no formal issue on the question of title, there cannot be any res judicata. On the point of res judicata, this Court finds that there is substance i.. the submissions made by the learned advocate for the appellants and the learned trial Court was right in holding that the present i.e. the subsequent suit is barred by the principles of resjudicata. 8. THE learned lower appellate Court found that the subsequent suit is not barred by the provisions of Order 2 Rule 2 CPC. THEre is no dispute that Md. Sakil who is the plaintiff No. 2 in the present suit was the sole plaintiff in the earlier suit and the plaintiff No.1 in the present suit was a proforma defendant in the earlier suit. THE question whether the plaintiff No. 1 in the present suit will be prevented from filing the subsequent suit under the provisions of Order 2 Rule 2 CPC is now not a very material one in view of the fact that this Court is of the view that the subsequent suit is barred by the principles of res judicata. THEre is no dispute that both the plaintiffs in the subsequent suit were parties in the earlier suit and, therefore, the judgment in the earlier suit is binding on both the plaintiffs in the present suit. The learned advocate for the respondents has referred to a decision reported at AIR 1989 Karnataka 50 (Narashalli Kernpanna and others v. Narasappa and others) in support of his contention that in order to be hit by the provisions of Order II Rule 2 CPC there must be complete identity of cause of action in both the suits. It has already been noted earlier that the earlier suit was for recovery of possession and the subsequent suit is also for recovery of possession but upon declaration of title. It has already been discussed earlier that the question of title became important in the earlier suit also and the learned trial Court was invited to give a decision on such issue even though such issue was not formally framed. Parties had also led evidence in the earlier suit on such issue with regard to title. It has already been discussed earlier that the question of title became important in the earlier suit also and the learned trial Court was invited to give a decision on such issue even though such issue was not formally framed. Parties had also led evidence in the earlier suit on such issue with regard to title. However, it is not necessary for this Court to go further into this question in view of the finding of this Court on the point of res judicata. 9. IT further appears that the learned lower appellate Court found logic behind the submissions of the learned advocate appearing on behalf of the plaintiffs/appellants before the learned lower appellate Court that in the earlier Title Appeal No. 582 of 1983 leave was granted to the plaintiffs in the said suit to file a fresh suit. IT appears to this Court that the learned lower appellate Court misconstrued the observations of the learned lower appellate Court in T.A No. 582 of 1983. The learned lower appellate Court in the earlier title appeal observed that the prayer for sending the suit back on remand for retrial afresh cannot be allowed since in order to sue the defendant No. 1 in the earlier suit in the proper manner for recovery of possession the entire plaint had to be changed introducing a totally new case. Such observations of the learned lower appellate Court in the earlier title appeal, obviously, cannot mean that any leave was granted to the plaintiffs in the subsequent suit to file the subsequent suit. Thus, the learned lower appellate Court was also in error in finding substance in the argument an behalf of the respondents in the present appeal that any such leave was granted to them to file the subsequent suit. 10. THE learned advocate for the appellants cited a decision reported at (2003) 11 SCC 584 (Ashwani Kumar Singh v. U.P. Public Service Commission and others) and referred to paragraph 10 of the said reports wherein the Hon'ble Supreme Court was pleased to observe that observations of Courts are not to be read as Euclid's theorems nor as provisions of the statute and such observations must be in the context in which they appear. He has also referred to a judgment reported at AIR 2005 SC 1646 [State of West Bengal v. Kesoram Industries Ltd.) and referred to paragraph 57 of the said reports wherein the Hon'ble Supreme Court was pleased to observe that a doubtful expression occurring in a judgment apparently by mistake for inadvertence, ought to be read by assuming that the Court had intended to say only that which is correct according to the settled position of law, and the apparent error should be ignored, far from making any capital out of it, giving way to the correct expression which ought to be implied or necessarily read in the context, also having regard to what has been said a little before and a little after. The learned advocate for the appellants submitted that the learned lower appellate Court should not have remanded the matter to the learned trial Court. He referred to a decision reported at AIR 1999 SC 1125 and referred to paragraph 7 of the said reports wherein the Hon'ble Supreme Court was pleased to observe that the High Court should not ordinarily remand a case under Order 41 Rule 23, CPC to the lower Court merely because it considered that the reasoning of the lower Court in some respects was wrong. The said learned advocate referred to another decision reported at (2008) 12 SCC 372 and referred to paragraphs 10 and 11 of the said reports in support of his contention that in order to bring an application of Order 41, Rule 25 CPC the appellate Court will have to come to a conclusion that the lower Court had omitted to frame any issue or had failed to determine any question of fact which in the opinion of the appellate Court are essential for the right decision of the suit on merits. According to the said learned advocate no condition existed before the learned lower appellate Court for sending the suit back on remand in the facts and circumstances of the present case. 11. According to the said learned advocate no condition existed before the learned lower appellate Court for sending the suit back on remand in the facts and circumstances of the present case. 11. THE learned advocate for the respondents cited a decision reported at AIR 1977 Allahabad 236 and referred to paragraph 14 of the said reports in support of his contention that if the learned lower appellate Court had allowed the parties to adduce evidence on additional issues before itself then in that event the parties would be shut out from having a chance of appeal on a question of fact and the provisions of Order 41, Rule 25 has to be seen from this angle. It appears to this Court that the learned lower appellate Court ran into error on a very basic point. THE learned lower appellate Court, in the facts and circumstances of the case as already discussed above, should have held that the subsequent suit brought by the plaintiffs/respondents was barred by the principles of res judicata. In view of such finding, the question of remanding the suit back to the learned trial Court does not arise. THE learned trial Court was right in dismissing the suit as being barred by the principles of res judicata. 12. IN view of the discussions made above, the present appeal is disposed of by setting aside the impugned judgment and decree passed by the learned lower appellate Court and by restoring the judgment and decree passed by the learned trial Court. Let the lower Court records, if any, along will a copy of this judgment be sent down to the learned Court below concerned by a special messenger at the cost of the appellants and such special messenger cost shall be put in by the appellants within one week from this date. Urgent Xerox certified copy of this judgment, if applied for, shall be given to the parties as expeditiously as possible on compliance of all necessary formalities. Appeal disposed of.