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2012 DIGILAW 757 (BOM)

Saji Jaggu Saunto v. Vithal Anant Saunto

2012-04-09

F.M.REIS

body2012
JUDGMENT Per F.M. Reis, J. - Heard Shri C.A. Coutinho, the learned Counsel appearing for the appellants, Shri A.F. Diniz, the learned Counsel appearing for the respondents No.1(a), 2, 3, 4, 6(a), 6(b) and 6(c) and Shri Ranjit Satardekar, the learned Counsel appearing for respondents No.6 and 8(a). 2. The above appeal challenges the judgment passed by the learned Additional District Judge, North Goa, Panaji in Regular Civil Appeal No. 325/2010 dated 31/01/2011 whereby an appeal preferred by the respondents was partly allowed and the judgment and decree passed by the learned trial Judge dated 21/04/2007 was quashed and set aside and. the suit was remanded to the learned Civil Judge. Senior Division, Ponda to rehear the arguments and pass a fresh judgment within a period of six months. 3. The respondents filed the suit on the ground that late Vitola Balu Saunto is the husband of Satiabami Vitoba Saunto also known as Sorospoti Vitola Saunto and who owned specific property namely 1/5th of the property known as "Madlem Piguim" situated in the village of Talaulim. Ponda Taluka and surveyed under No. 51/5, 52/6, 52/7, 54/4, 55/7, 56/7 and 41/4 of village of Talaulim besides another property being 1/5th of the property called "Madlem Poiquim Baboni Daba Saunto Babat" described in the Land Registration Office of Panaji under No. 12485 and enrolled in Taluka Revenue office under Nos.227. 230, 335, 337 and 347. The respondents claiming a right to the said property and had sought different reliefs including relief for declaration of their title and for consequential relief of restoration of possession in the alternative and relief for injunction, etc. 4. The appellants disputed the exclusive ownership of the respondents and inter alia pointed out that suit properties belong in common to the appellants and the respondents having half share each. The appellants further pointed out that there were earlier proceedings initiated by the respondents wherein they had sought for permanent injunction against the appellants and that such suit based on the same title came to be dismissed. It is further their contention that an appeal preferred by the respondents against the said judgment and decree also came to be dismissed by the learned District Judge. It is further their contention that an appeal preferred by the respondents against the said judgment and decree also came to be dismissed by the learned District Judge. The appellants further contend that in view of the findings arrived at in the earlier proceedings between the same parties and/or parties litigating under the same title the suit is barred by res judicata or constructive res judicata in terms of Section 11 and Order 2 Rule 2 of the Civil Procedure Code. 5. The learned Civil Judge. Senior Division at Ponda after framing of issues and recording of evidence and appreciating the material adduced by the parties by judgment and decree dated 21/04/2007 dismissed the suit filed by the respondents. The learned Judge inter alia held that the suit was barred by the principles of res judicata. The remaining issues framed by the learned Judge also came to be decided after appreciating the evidence on record. Being aggrieved by the said judgment and decree the respondents preferred an appeal before the learned Additional District Judge, North Goa at Panaji. By the impugned judgment and decree dated 31/01/2011 the learned Judge came to the conclusion that the issue of res judicata was wrongly answered in favour of the appellants and as such, remanded the matter for fresh hearing before the learned trial Judge. Being aggrieved by the said judgment remanding the suit to the learned trial Judge the appellants have preferred the above appeal. 6. Shri C.A. Coutinho. the learned Counsel appearing for the appellants has assailed the impugned judgment essentially on the ground that the learned lower Appellate Court whilst disposing of the appeal has not at all scrutinized the material on record nor the pleadings or findings in the earlier proceedings to come to the conclusion that the suit filed by the respondents was not barred by the principles of res judicata. The learned Counsel has taken me through the impugned judgment and pointed out that the predicates which are essential to decide as to whether the suit is barred by the principles of res Judicata has not at all been considered by the lower Appellate Court while passing the impugned judgment. The learned Counsel has further pointed out that the plaintiffs in the second suit are according to him the legal representatives of the plaintiff No.1 in the earlier suit. The learned Counsel has further pointed out that the plaintiffs in the second suit are according to him the legal representatives of the plaintiff No.1 in the earlier suit. The learned Counsel further pointed out that the plaintiff No.2 is the defendant No.7 in the second suit and the plaintiff No.3 in the earlier suit is the defendant No.8 in the present suit. The learned Counsel further pointed out the identity of the defendants in the present suit with the parties in the earlier suit. The learned Counsel, as such, submits that as the parties to the earlier proceedings and the parties in the present suit are litigating under the same title the suit filed by the respondents was barred by res judicata. The learned Counsel further pointed out that the learned Judge whilst passing the impugned judgment has also not considered that the learned trial Judge whilst disposing of the suit filed by the respondents had also decided the issues "framed in the suit independently. As such, according to the learned Counsel there is, total miscarriage of justice committed by the lower Appellate Court whilst passing the impugned judgment. The learned Counsel further pointed out that the effect of the findings of the lower Appellate Court that the suit filed by the respondents is not barred by res judicata would imply that the issue on res judicata which was issue No. 8 would stand deleted and the appellants would not be in a position to point out to the learned trial Judge that the suit filed by the respondents was barred by res judicata. The learned Counsel further pointed out that though the earlier suit was for injunction simpliciter but however considering that the issue of title has been decided in the earlier suit the findings rendered therein would be binding on the parties as according to him the plaintiffs are litigating a under the same title. The learned Counsel further pointed out that the lower Appellate Court has not at all applied the mind to the well settled principles of law to consider as to whether the suit filed by the respondents was barred by res judicata and as such the impugned judgment deserves to be quashed and set aside. The learned Counsel, as such. The learned Counsel further pointed out that the lower Appellate Court has not at all applied the mind to the well settled principles of law to consider as to whether the suit filed by the respondents was barred by res judicata and as such the impugned judgment deserves to be quashed and set aside. The learned Counsel, as such. submits that considering that the lower Appellate Court has not at all applied the mind with regard to the findings on the other issues arrived at by the learned trial Judge the matter be remanded to the lower Appellate Court to decide the appeal afresh after hearing the parties in accordance with law. 7. On the other hand, Shri A.F. Diniz, the learned Counsel appearing for the respondents has supported the impugned judgment. The learned Counsel has pointed out that according to the respondents the parties in the earlier suit are different from the parties in the present suit. The learned Counsel further pointed out that the principles of res judicata are not applicable to the subsequent suit as according to him the earlier suit was for injunction simpliciter in which the issue of title decided therein was only incidental and. as such, the findings cannot bind the subsequent suit filed by the respondents for declaration of title and other consequential substantive reliefs. The learned Counsel further pointed out that it is well settled that in a suit for permanent injunction the only issue to be considered is with regard to possession and any finding with regard to title are incidental which do not bar the parties to file a suit based on title for substantial reliefs. The learned Counsel further pointed out that the suit filed by the respondents is inter alia also for restoration of possession and for claiming such substantive relief the bar on account of res judicata is not appreciable as the earlier suit was for permanent injunction simpliciter. The learned Counsel, as such submits that no interference is called for in the impugned judgment and consequently the appeal preferred by the appellants deserves to be rejected. 8. Shri Satardekar, the learned Counsel .appearing for the respondents No.6 & 8(a) supports and adopts the submissions of Shri Diniz, the learned Counsel appearing for the respondents. 9. I have carefully considered the submissions of the learned Counsel appearing for the respective parties. 8. Shri Satardekar, the learned Counsel .appearing for the respondents No.6 & 8(a) supports and adopts the submissions of Shri Diniz, the learned Counsel appearing for the respondents. 9. I have carefully considered the submissions of the learned Counsel appearing for the respective parties. I have gone through the pleadings of the parties in the present proceedings. I have also perused the impugned judgments passed by the lower Appellate Court as well as the judgment of the learned trial Judge. On perusal of the judgments of the lower Appellate Court which is assailed in the present appeal. I find justification in the contention of Shri C.A. Coutinho, the learned Counsel appearing for the appellants, that the lower Appellate Court has not at all considered the predicates required to decide as to whether the subsequent suit is barred by res judicata. Considering the view I propose to take in the present appeal I shall not deal the said aspect on merits raised by the learned Counsel of the parties. 10. Be that as it may. I find that the learned lower Appellate Court has by a very summary manner decided the issue of resjudicata without at all applying the well settled principles of law in that direction. It is to be noted that the principle of res judicata is based on the need of giving finality to judicial decisions. Once a dispute is decided it cannot be readjudicated and it applies as between past litigation and future litigation. For applying the principles of res judicata the following conditions are required to be satisfied: (i) the matter directly and substantially in issue in the subsequent suit or issue must be the same matter which was directly and substantially in issue either actually or constructively in the former suit, (ii) the former suit must have been a suit between the same parties or between parties under whom they or any of them claim, (iii) such parties must have been litigating under the same title in the former suit, (iv) the matter directly and substantially in issue in the subsequent suit must have been heard and finally decided by the Court in the former suit. All these conditions have to be satisfied in order that the Court can come to the conclusion that the suit is barred by res judicata. All these conditions have to be satisfied in order that the Court can come to the conclusion that the suit is barred by res judicata. The Apex Court in the judgment reported in 2008 (11) SCC 753 in the case of Dadu Dayalu Mahasabha, Jaipur (Trust) v. Mahant Ram Niwas has held at paras 24, 25, 27 & 28 thus: 24. Section 11 of the Code not only recognises the general principle of res judicata, it bars the jurisdiction of the Court in terms of Section 12 thereof. 25. Explanation IV of Section 11 of the Code extends the principle of res judicata stating that the reliefs which could have been or ought to have been prayed for even if it was not prayed for would operate as res judicata. Section 12 thereof bars filing of such suit at the instance of a person who is found to be otherwise bound by the decision in the earlier round of litigation and in a case where the principle of res judicata shall apply. 27. However, once it is held that the issues which arise in the subsequent suit were directly and substantial in issue in the earlier suit, indisputably Section 11 of the Code would apply. 28. Similarly the provisions of Order 2 Rule 2 bars the jurisdiction of the Court in entertaining a second suit where the plaintiff could have but failed to claim the entire relief in the first one. We need not go into the legal philosophy underlying the said principle as we are concerned with the applicability thereof. But however, considering that even the judgment passed by the learned trial Judge has not correctly appreciated the said well settled principles with regard to the said aspect. I find it appropriate that all the issues framed by the learned trial Judge are to be decided afresh after hearing the parties and reassessing the evidence on record. Shri Diniz, the learned Counsel appearing for the respondents fairly concedes that even the issue of res judicata may be decided again by the learned trial Judge whilst deciding the suit afresh. Considering the said contention of Shri Diniz, I find that the apprehension of Shri C.A. Coutinho to the effect that issue of res judicata being issue No.8 stands deleted in view of the impugned judgment passed by the lower Appellate Court does not survive. 11. Considering the said contention of Shri Diniz, I find that the apprehension of Shri C.A. Coutinho to the effect that issue of res judicata being issue No.8 stands deleted in view of the impugned judgment passed by the lower Appellate Court does not survive. 11. Considering the facts and circumstances of the case and without going into the rival contentions of both the parties. I find it appropriate in the interest of justice that the learned trial Judge be directed to decide the suit filed by the respondents afresh on all the issues framed including issue No.8, after healing the parties in accordance with law. It is further clarified that in case any of the parties hereto desire to lead further evidence liberty is given to both the parties to file an appropriate application to that effect and the same shall be considered by the learned Judge in accordance with law. Needless to say in case any parties are permitted to lead further evidence liberty to lead rebuttal evidence to the other parties is also to be considered in the circumstances of the case. 12. In view of the above, I pass the following order: ORDER (i) The appeal is partly allowed. (ii) The impugned judgment and decree passed by the lower Appellate Court is modified and the learned Civil Judge Senior Division at Ponda is directed to decide Special Civil Suit No. 16/1983 afresh in the light of the observations made herein above in accordance with law. (iii) The parties are directed to appear before the learned Judge on 12/06/2012 at 10.00 a.m. and abide by its further directions. Appeal partly allowed.