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2013 DIGILAW 339 (KER)

Nalini v. Bhargavi

2013-04-04

THOMAS P.JOSEPH

body2013
Judgment 1. The Civil Revision and Original Petition are in challenge of judgment dated 29.09.1997 in O.S.No.403 of 1996 of the Munsiff's Court, Mavelikkara. Learned Munsiff, by the said judgment found that the suit filed by the petitioner is barred by constructive res judicata under explanation IV to Sec.11 of the Code of Civil Procedure (for short, "the Code") and consequently dismissed the suit. 2. Challenging that judgment, petitioner filed C.R.P.No.394 of 2011 on 25.08.2011 with C.M.Appl.No.428 of 2011 to condone the delay of 4890 days. That application was allowed and the delay was condoned on condition of deposit of cost of Rs.3,000/-with the High Court Advocates Welfare Fund Trust. That condition was complied and the civil revision was admitted as per order dated 09.07.2012. 3. When the civil revision came up for hearing before me during early, 2013, I expressed doubt whether the Civil Revision is maintainable since whether it is by a 'finding' or by 'judgment', learned Munsiff found that the suit to be not maintainable and consequently dismissed the suit and hence remedy of petitioner was to prefer a regular appeal challenging the judgment and decree dismissing the suit. Some arguments were raised whether it was possible to convert the civil revision into an Original Petition under Art.227 of the Constitution. Learned counsel for the respondents asserted that the Court cannot grant such permission when the Civil Revision is not maintainable. Obviously understanding the difficulty in sustaining the Civil Revision or converting it into an Original Petition, petitioner filed O.P(C).No.903 of 2013 on 01.03.2013 challenging the above said judgment of learned Munsiff. 4. Petitioner(stated to be a deaf and dumb lady), executed gift deed No.3285 of 1978 on 18.11.1978 concerning the suit property, transferring her right, title and interest over the said property to the respondents reserving for herself a life interest in the said property. I am told that in exercise of that power petitioner is still residing in the suit property. 5. On 23.11.1978, petitioner executed document No.3319 of 1978 purporting to cancel gift deed No.3285 of 1978. Respondents filed O.S.No.127 of 1984 for a declaration that gift deed No.3285 of 1978 has taken effect, to set aside document No.3319 of 1978 and for consequential injunction. That suit was resisted by the petitioner but ended in a decree in favour of respondents. On 23.11.1978, petitioner executed document No.3319 of 1978 purporting to cancel gift deed No.3285 of 1978. Respondents filed O.S.No.127 of 1984 for a declaration that gift deed No.3285 of 1978 has taken effect, to set aside document No.3319 of 1978 and for consequential injunction. That suit was resisted by the petitioner but ended in a decree in favour of respondents. Petitioner preferred an appeal against judgment and decree in O.S.No.127 of 1984 but the appeal was dismissed in the year, 1996. 6. After dismissal of the appeal, without challenging the judgment and decree of the appellate court by way of a second appeal, petitioner filed O.S.No.403 of 1996 for a declaration that gift deed No.3285 of 1978 is void (for non compliance with Sec.123 of the Transfer of Property Act - for short, "the Act" and for consequential injunction. Respondents interalia contended that suit is hit by Sec.11 of the Code as the decision in O.S.No.127 of 1984, confirmed by the appellate court is binding on petitioner and that at any rate, plea raised in O.S.No.403 of 1996 ought to have been raised by way of defence in O.S.No.127 of 1984 and that having not been done, that plea is barred by constructive res judicata. 7. Learned Munsiff considered that question as a preliminary issue under Rule 2 of Order XIV of the Code, answered the issue against petitioner and consequentially dismissed the suit. Thus, this Civil Revision and Original Petition as first above stated. 8. Learned counsel for respondents has raised objection to the maintainability of the Civil Revision and the Original Petition. Learned counsel submits that since whether by way of 'judgment' or 'finding' on the issue regarding res judicata trial court found that suit is maintainable and consequentially dismissed the suit, that judgment is followed by a decree and that judgment and decree are amenable to an appeal under Sec.96(1) of the Code. It is contended that a Civil Revision is not maintainable. It is also contended that the Original Petition is filed almost 15 years after the impugned judgment and that when a remedy by way of appeal is available, this Court must be slow to entertain an Original Petition. 9. It is contended that a Civil Revision is not maintainable. It is also contended that the Original Petition is filed almost 15 years after the impugned judgment and that when a remedy by way of appeal is available, this Court must be slow to entertain an Original Petition. 9. In response, learned counsel for petitioner has contended that respondents never raised any objection to the maintainability of Civil Revision and only this Court raised that question when the Civil Revision came for hearing during early 2013. It is also argued that delay in filing the Civil Revision has already been condoned on cost. Therefore, at this belated stage, relegating petitioner to the remedy of a regular appeal is not justified or warranted. 10. So far as the Civil Revision is concerned, it leaves me in no doubt that it is not maintainable. Reason is that challenge is not merely to a finding entered by the learned Munsiff as to the maintainability of the suit. Normally when a preliminary issue is answered by the trial court by a finding that the suit is not maintainable, that should be followed by a judgment and decree dismissing the suit. Instead, learned Munsiff has written a 'judgment' answering the issue regarding res judicata against petitioner and has dismissed the suit. Therefore, a Civil Revision is not maintainable. 11. The next question is whether I should entertain the Original Petition which as pointed out by the learned counsel for respondents is preferred almost 15years after the impugned judgment?. 12. The mere fact that a regular appeal is provided does not debar this Court from entertain a challenge to the judgment invoking power under Art.227 of the Constitution. I am aware, the mere fact that an appeal if presented would be barred by limitation is not by itself a ground to entertain the Original Petition under Art.227 of the Constitution. Question whether the Original Petition should be entertained or not, should depend on the facts of the case as well. Respondents have not challenged the order condoning the delay in filing the civil revision. Petitioner has deposited the cost with the High Court Advocates Welfare Fund Trust. They never objected to the maintainability of the Civil Revision and this Court raised doubt regarding maintainability of the Civil Revision when it came up for hearing early, 2013. Respondents have not challenged the order condoning the delay in filing the civil revision. Petitioner has deposited the cost with the High Court Advocates Welfare Fund Trust. They never objected to the maintainability of the Civil Revision and this Court raised doubt regarding maintainability of the Civil Revision when it came up for hearing early, 2013. Had respondents pointed out non maintainability of the Civil Revision immediately on their appearing in the Civil revision, probably petitioner could have preferred a regular appeal requesting to condone the delay. Instead the Civil Revision remained on the file for about 2 years. In such a situation, when there was latches on the part of respondents also in alerting this Court as to the non maintainability of the Civil Revision, I am not inclined to think that at this belated stage, when the delay in the Civil Revision is condoned on petitioner depositing Rs.3,000/- with the High Court Advocates Welfare Fund Trust , this Court should turn round and say that the Civil Revision is not maintainable, it is liable to be dismissed and that this Court does not intent to entertain the Original Petition also. Equity does not require such a course. The power of Superintendence under Art.227 of the Constitution includes judicial revision. That power can be used when there is an error of law apparent on the face of record. Therefore, notwithstanding that the proper course available to the petitioner would have been to prefer a regular appeal, having regard to the peculiar facts and circumstances of this case I am inclined to entertain O.P (C).No.903 of 2013. 13. Then the question is whether interference is required with the impugned judgment?. I have already adverted to the relevant facts necessary for decision on that question. Though, petitioner had challenged validity of gift deed No.3285 of 1978 on various grounds including that it had not taken effect and that it was cancelled by document No.3319 of 1978, that challenge has failed by the decree in O.S.No.127 of 1984 and dismissal of the appeal arising therefrom. Therefore, whatever contention petitioner had raised challenging gift deed No.3385 of 1978 in O.S.No.127 of 1984 having been found against, cannot be again be raked up in the present suit. 14. Therefore, whatever contention petitioner had raised challenging gift deed No.3385 of 1978 in O.S.No.127 of 1984 having been found against, cannot be again be raked up in the present suit. 14. Learned counsel for petitioner has contended that in the present suit challenge to gift deed No.3285 of 1984 is on the ground that it does not fulfill the requirement of Sec.123 of the Act in that when the said provision says that attestation by two or more witnesses is required for the valid execution of a gift deed, the document in question is attested only by one witness. 15. Learned Munsiff has entered a finding that the said plea ought to have been raised by petitioner in O.S.No.127 of 1984 as a ground of defence. The doctrine of constructive res judicata is not an essential part of the doctrine of res judicata, but is only a technical content. Explanation IV to Sec.11 of the Code says that when a matter which might and ought to have been made a ground of defence or attack in the former suit shall be deemed to have been a matter directly and substantially in issue in the suit. Admittedly, the plea that gift deed is invalid for non compliance with Sec.123 of the Act is not raised by petitioner, in O.S.No.127 of the 1984. 16. Can the plea raised in O.S.No.403 of 1996 be said to be barred by constructive res judicata?. In Mathura Prasad Bajoo Jaiswal Vs. Dossibai N.B Jeejeebhoyf ( AIR 1971 SC 2355 ) the Supreme Court has held that a wrong decision on a question of law relating to the jurisdiction of the Court would not operate as res judicata in a subsequent suit. The Supreme Court observed: "But the doctrine of res judicata belongs to the domain of procedure, it cannot be exalted to the status of a legislative direction between the parties so as to determine the question relating to the interpretation of enactment affecting the jurisdiction of a Court finally between them, even though no question of fact or mixed question of law and fact and relating to the right in dispute between the parties has been determined thereby. A decision of a competent Court on a matter in issue may be res judicata in another proceeding between the same parties: the ''matter in issue'' may be an issue of fact, an issue of law, or one of mixed law and fact. An issue of fact or an issue of mixed law and fact decided by a competent court is finally determined between the parties and cannot be reopened between them in another proceeding. The previous decision on a matter in issue alone is res judicata: the reasons for the decision are not res judicata. A matter in issue between the parties is the right claimed by one party and denied by the other, and the claim of right from its very nature depends upon proof of facts and application of the relevant law thereto. A pure question of law unrelated to facts which give rise to a right, cannot be deemed to be a matter in issue. When it is said that a previous decision is res judicata, it is meant that the right claimed has been adjudicated upon and cannot again be placed in contest between the same parties. 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 action is different, nor when the law had 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." (emphasis supplied) Learned counsel for petitioner has invited my attention to the decision in Marci Celine D'Souza and Anr. Vs. Renie Fernandez and Ors. (AIR 1998 Kerala 280) to contend that a gift deed which is executed not in compliance of Sec.123 of the Act is invalid. 17. Vs. Renie Fernandez and Ors. (AIR 1998 Kerala 280) to contend that a gift deed which is executed not in compliance of Sec.123 of the Act is invalid. 17. Per contra, learned counsel for the respondents rely on the decisions in Sumathy Vs. Dakshayani ( 1987(1) KLT 141 ), Cheru Vs. Choyikutty ( 1988(2) KLT 727 ) and Gorie Gouri Naidu and Anr. Vs. Thandrothu Bodemma and Ors. ( AIR 1997 SC 808 ). In the last of the said decisions the Supreme Court stated that inter party judgment given by a competent court would bind by the parties even if it is erroneous. There, the suit concerned a gift made by a coparcener and it was held to be invalid between the coparceners. It was held that such decision would bind the parties to the subsequent suit for partition. Referring to the decision in Mathura Prasad Bajoo Jaiswal Vs. Dossibai N.B Jeejeebhoyf (supra) this Court held in Sumathy Vs. Dakshayani (supra) that erroneous decision between the parties when it became final and conclusive is binding on them and that in a subsequent suit that erroneous earlier decision would operate as res judicata. In Cheru Vs. Choyikutty (supra), it is held that even an erroneous decision between the parties once it is final would be binding on the parties. 18. I must say, there could be no quarrel with the proposition stated in the above decisions. But, as stated by the Supreme Court in Mathura Prasad Bajoo Jaiswal Vs. Dossibai N.B Jeejeebhoyf (supra) an earlier erroneous decision purely based on law as to the jurisdiction of a Court would not operate as res judicata. I have extracted paragraph 3 of the said decision where it is held that when the earlier decision "declares valid a transaction which is prohibited by law", such decision would not also operate as res judicata in a subsequent suit. 19. Back to the facts of this case -plea raised by the petitioner is that gift deed No.3285 of 1978 is void for the reason that it is not executed in compliance under Sec.123 of the Act as it is attested by only one witness. As Sec.123 of the Act makes it clear and as Marci Celine D'Souza and Anr. Vs. Renie Fernandez and Ors. As Sec.123 of the Act makes it clear and as Marci Celine D'Souza and Anr. Vs. Renie Fernandez and Ors. (supra) says, a gift deed has to be attested by atleast two witnesses and if not, it cannot be treated as a gift deed in the eye of law. The decision in O.S.No.127 of 1984 could not declare gift deed No.3285 of 1978 valid if it is attested by only one witness. Hence the decision in O.S.No.127 of 1984 cannot operate as res judicata even by applying Expl.IV to Sec.11 of the Code a plea in the latter suit that gift deed No.3285 of 1978 is void for the reason that it is attested by only one witness (if it is actually so). 20. Learned counsel for petitioner has given me a copy of gift deed No.3285 pf 1978 to contend that the said document is attested by only one witness. 21. Question whether gift deed No.3285 of 1978 is attested by only one witness is not to be decided in this proceeding. That should depend on evidence recorded in the trial court. Hence I refrain from making any opinion regarding that question in this proceeding. 22. In the view I have taken, I must hold that the decision rendered by the learned Munsiff that O.S.No.403 of 1996 is barred by constructive res judicata in view of the decision in O.S.No.127 of 1984 is erroneous. For the said reason also I am justified in entertaining this Original Petition. It follows that consequent dismissal of that suit is liable to be set aside. I do so. Resultantly, (I) C.R.P.No.394 of 2011 is dismissed as not maintainable. (II) O.P(C).No.903 of 2012 is allowed as under: (a) Judgment dated 29.09.1997 in O.S.No.403 of 1996 of the Munsiff's Court, Mavelikkara and consequent decree dismissing the suit are set aside. (b) Finding of learned Munsiff in O.S.No.403 of 1996 that the said suit is barred by constructive res judicata in view of the decision in O.S.No.127 of 1984 to the extent it related to the plea raised by the petitioner in O.S.No.403 of 1996 that gift deed No.3285 of 1978 is void for the reason of non compliance with Sec.123 of the Act is set aside . (c) O.S.No.403 of 1996 is remitted to the Court of learned Munsiff, Mavelikkara to decide whether gift deed No.3285 of 1978 is void for the reason of non compliance with Sec.123 of the Act. (d) Parties shall appear in the Court of learned Munsiff on 22.05.2013.