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2012 DIGILAW 866 (CAL)

Shanta Singh Sidhu v. Gurudwara Dr. Diwan Singh

2012-09-14

JAYANTA KUMAR BISWAS

body2012
Judgment :- Jayanta Kumar Biswas, J. Shanta, the sole defendant in an OS No.14 of 1998 dismissed on contest by the Civil Judge (Senior Division), South Andaman District at Port Blair, was the appellant in this SAT. He died during pendency of the SAT and his heirs were substituted for him pursuant to an order dated September 19, 2011. The SAT is against a decree of the Additional District Judge, A & N Islands, Port Blair. The decree was passed in an OA No.3 of 2010 filed by Gurudwara and Hargovind, the respondents in the SAT, who had filed the OS praying, inter alia, for a decree for Shanta’s eviction from the suit property. The Additional District Judge reversed the decision of the Civil Judge (Senior Division) and passed the decree granting the reliefs sought in the OS. The second issue framed in the OS was the following:- “ 2. Is the suit barred by the principles of res judicata in view of decree passed by the Court of Sub Judge, South Andaman, Port Blair in O.S.1 of 1994 brought by the plaintiff against the defendant over the same subject matter?” The Civil Judge (Senior Division) dismissing the OS answered the second issue saying as follows:- “In this present suit the parties are same, issues are same which has already been decided by competent court of law. So, this suit is obviously barred by the Principle of Res judicata. So, this issue is decided in favour of the defendant.” The Civil Judge (Senior Division) did not answer the other issues framed in the OS on the grounds that he answered the second issue in the affirmative, and that the suit being barred by res judicata was liable to be dismissed. Before the Additional District Judge while counsel for Gurudwara and Hargovind argued that the Civil Judge (Senior Division) was wrong in holding that the OS was barred by res judicata, counsel for Shanta argued that the Civil Judge (Senior Division) had rightly held that the OS was barred by res judicata. Hence the Additional District Judge was under an obligation to answer whether the OS was barred by res judicata. Hence the Additional District Judge was under an obligation to answer whether the OS was barred by res judicata. Shanta took a specific ground in the SAT that instead of deciding the issue whether the OS was barred by res judicata, the Additional District Judge decided whether the decision of the First Appellate Court in the former OA arising out of the former OS No.1 of 1994 was a valid decision. By an order dated June 08, 2011 the SAT was admitted saying that the following substantial question of law was involved in it:- “ …Whether the Ld. Appellate Court while deciding the issue of resjudicata can interfere with the decision rendered in the earlier suit by holding the decision to be illegal and nullity without having the jurisdiction to sit over an appeal on the judgement of the Ld. District Judge in O.A. No.2 of 1996 (here in this case OS No.01 of 1994 and O.A. No.2 of 1996) instead of comparing the two suits (here in this case OS No.01 of 1994 and OS No.14 of 1998 ) in terms of parties, issues and the relief?” After hearing Ms.Nag appearing for Shanta’s substituted heirs and Mr.Bahadur appearing for Gurudwara and Hargovind, I am of the view that the substantial question of law that was formulated at the time of admission of the SAT should be re-formulated. In my view, the substantial question of law that is involved in the SAT is the following:- Whether the Additional District Judge could dispose of the OA without deciding the res judicata issue, and, on the contrary, deciding the validity of the decision in the former OA arising out of the former OS (on the basis whereof Shanta took the plea that the OS of Gurudwara and Hargovind was barred by res judicata), -a non-issue. In view of the re-formulated substantial question of law, it is to be examined whether the Additional District Judge decided the res judicata issue, or any non-issue, or both. Ms. Nag placing the whole of the impugned judgment has submitted that instead of deciding the res jujdicata issue, the Additional District Judge illegally decided the validity of the decision in the former OA arising out of the former OS, -a non-issue both in the OS and the OA. Ms. Nag placing the whole of the impugned judgment has submitted that instead of deciding the res jujdicata issue, the Additional District Judge illegally decided the validity of the decision in the former OA arising out of the former OS, -a non-issue both in the OS and the OA. Mr.Bahadur has strenuously argued that the decision in the former OA arising out of the former OS between the parties was not a valid decision. As noted hereinbefore, the second issue in the OS was whether the decision in the former OA arising out of the former OS No.1 of 1994 between the same parties would operate as res judicata in the OS. The Civil Judge (Senior Division) dismissed the OS on the grounds that the decision in the former OA arising out of the former OS No.1 of 1994 between the same parties would operate as res judicata in the OS. I have gone through the entire judgment of the Additional District Judge and I have not found anything wherefrom I can say that the Additional District Judge decided the res judicata issue. The Additional District Judge was under an obligation to decide the res judicata issue; for the OS had been dismissed only on the grounds that it was barred by res judicata. He could not dispose of the OA without deciding the res judicata issue and giving an answer thereto. By disposing of the OA without deciding the res judicata issue he has committed a serious error of law. In my view, on this ground alone the impugned decree is liable to be set aside. It is now to be examined whether the Additional District Judge decided any non-issue in the OA. In connection with the res judicata issue the Additional District Judge, though he did not decide the issue, made repeated references and comments. On p.25 of his judgement he commented as follows:- “ Ld. Court of O.A. No. 2/96 admittedly did not send O.S. 1/94 on remand for being contested and decided on merit. Thus it is coming out that Ld. On p.25 of his judgement he commented as follows:- “ Ld. Court of O.A. No. 2/96 admittedly did not send O.S. 1/94 on remand for being contested and decided on merit. Thus it is coming out that Ld. Court of O.A. No.2/96 made out a third case in deciding O.A.2/96 in holding that, that plaintiff was required to be registered and it was not wanted admittedly by any of the parties in the suit of O.S. 1/94.” Then the Additional District Judge held as follows:- “Thus when this is the position of evidences and at the same time admitted by respondent/defendant as DW 1 in the original suit all these being civil matters go to strike the very root of the cause and therefore it is to say with due respect to Ld. Court of O.A. 2/96 that exparte decision in O.S 1/94 was correct and the evidences and the admitted position that have come in the original suit of the present appeal have rendered the finding of O.A. No.2/96 to be nothing but altogether illegal and also against principle of natural justice that has existed due to non allowing the original suit of O.S 1/94 to be decided in the contested manner, and therefore totally a nullity (1986/1 SCC 100) without being so declared and therefore it does not exist, and consequently Ld. Lower Court wrongly applied the principle of resjudicata in the original suit.” It is evident from the relevant parts of the impugned judgement, quoted hereinbefore, that instead of deciding whether the decision in the former OA No.2 of 1996 arising out of the former OS No.1 of 1994 between the same parties would operate as res judicata in the OS dismissed by the Civil Judge(Senior Division), the Additional District Judge criticized the way in which the First Appellate Court concerned had decided the former OA No.2 of 1996 and held that in view of the evidence and the principles of natural justice the decision in the former OA No.2 of 1996 was a nullity. The validity of the decision of the First Appellate Court concerned in the former OA No.2 of 1996 arising out of the former OS No.1 of 1994 between the same parties was not questioned in the subsequent OS that was dismissed by the Civil Judge(Senior Division) and out of which the OA in which the impugned decree was passed had arisen. No issue concerning the validity of the decisions in the former OA No.2 of 1996 and the former OS No.1 of 1994 was framed at any stage. It is, therefore, evident that the Additional District Judge, instead of examining and deciding whether the decision in the former OA No.2 of 1996 arising out the former OS No.1 of 1994 between the same parties would operate as res judicata in the OS, examined and decided whether the decisions in the former OA No.2 of 1996 and the former OS No.1 of 1994 were valid. Thus he clearly decided a nonissue, and by allowing the OA and the OS on the basis of his such decision he committed a grave error of law. For these reasons, I set aside the impugned judgment and decree of the Additional District Judge in the OA No.3 of 2010, allow the SAT and direct the First Appellate Court to dispose of the OA deciding the issues framed in the OS, and not to decide any issue, if not duly framed. No costs.