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2014 DIGILAW 829 (CAL)

Nakul Chandra Mistry v. Radhey Shyam Mistry

2014-08-29

SANJIB BANERJEE

body2014
JUDGMENT : Sanjib Banerjee, J. The petitioners implore the court to do justice by ignoring the rules of procedure. They challenge an order of April 29, 2014 by which their petition under Section 47 of the Code of Civil Procedure, 1908 has been rejected, which paves the way for the opposite parties herein to get the benefit of, what the petitioners perceive to be, a palpably erroneous order. 2. The petitioners' father purchased a land measuring 0.19 acre in district Murshidabad by a deed registered on February 23, 1987. The predecessors-in-interest of the opposite parties applied under Section 8 of the West Bengal Land Reforms Act, 1955 in February, 1990, claming a right of pre-emption. On June 22, 1993 the petition for pre-emption succeeded. An appeal was carried from the order by the predecessor-in-interest of the petitioners. On September 11, 1988 such appeal succeeded. The preemptors applied under Section 115 of the Code before this court, seeking revision of the appellate order. By an order of April 8, 2004, the appellate order was set aside by this court in CO 248 of 1999 and the order passed by the trial court in the pre-emption case was affirmed thus: "In the circumstances, the said order dated 11.09.1998 passed by Learned Additional District Judge, Kandi, Murshidabad, in Misc. Appeal No. 9 of 1998 be set aside. The present application under Section 115 be thus, allowed on contest. Order No. 35 dated 22.06.1993 passed by the Learned Trial Court in Misc. Case No. 18 of 1990 stands affirmed." 3. In May, 2007 the petitioners' predecessor-in-interest attempted to seek review of the order dated April 8, 2004 passed by this court by praying for condonation of the delay in applying for review. During the pendency of the application under Section 5 of the Limitation Act, 1963 filed in connection with the proposed petition for review of the order dated April 8, 2004, the petitioners or their predecessor-in-interest applied under Section 47 of the Code before the court in seisin of the execution proceedings launched by the opposite parties herein for implementation of the pre-emption decree. The ground urged in course of the proceedings under Section 47 of the Code was that by virtue of an amending Act of 2000, the West Bengal Land Reforms Act, 1955 stood amended with retrospective effect from August 7, 1969 and such amendment materially affected the rights of the parties. It was the same ground which was sought to be made the basis of the petition for review of the order dated April 8, 2004. 4. On July 19, 2011 the application under Section 5 of the Limitation Act filed in connection with the proposed petition for review of the order dated April 8, 2004 was dismissed on contest. The relevant order found that the delay of 1136 days had not been sufficiently explained and observed that a "party should not be encouraged to take a false plea to get rid of the bar of the limitation." The petitioners' predecessor-in-interest challenged the order of July 19, 2011 rejecting the application under Section 5 of the Limitation Act in connection with the proposed petition for review of the order dated April 8, 2004 by way of a special leave petition. The Supreme Court dismissed such petition on November 28, 2011 with the observation that there was "no ground to interfere with the impugned order." 5. The petitioners say that the executing court had invited the parties to the proceedings under Section 47 of the Code to adduce evidence and the exercise was completed before such court. By the order impugned dated April 29, 2014, the executing court noticed that the "sole reason" for invoking Section 47 of the Code by the petitioners herein was that by virtue of the amendment of the year 2000 the order passed by the Munsif on June 22, 1993 allowing the pre-emption proceedings could not be sustained and, as such, the order or decree could not be executed. 6. The executing court observed that the change in the law had taken effect with retrospective effect during the pendency of CO 248 of 1999, "but for the reasons best known to the petitioners they did not raise the contention of the instant application during the hearing of the said CO No. 248/99." 7. 6. The executing court observed that the change in the law had taken effect with retrospective effect during the pendency of CO 248 of 1999, "but for the reasons best known to the petitioners they did not raise the contention of the instant application during the hearing of the said CO No. 248/99." 7. The order impugned recorded, thereafter, that though the petitioners herein had sought to have the order allowing CO 248 of 1999 reviewed by seeking condonation of the delay in applying for review, the application under Section 5 of the Limitation Act was dismissed and the resultant petition for the special leave to appeal was also rejected by the Supreme Court. The executing court concluded as follows: "Given the aforesaid backdrop the contentions in the instant application having already been raised and disposed of before the Hon'ble High Court and also before the Hon'ble Apex Court I am afraid as to how the present application has been preferred once again before this Court by the petitioners. Such effort of the petitioners if entertained by this Court would, in the view of this Court, result in wreckage in the judicial discipline and hierarchy." 8. The executing court proceeded thereupon to take steps for implementation of the pre-emption decree of June 22, 1993 as the same had been affirmed by this court's order of April 8, 2004. 9. The petitioners contend that the rule of res judicata is a mere rule of procedure that cannot stand in the way of justice being done. They claim that in view of the amending Act that came into effect in March, 2001 with retrospective effect from August 7, 1969, the opposite parties herein were precluded from preying on the land purchased by the petitioners or their predecessor-in-interest; and, since the very basis of the right canvassed in the pre-emption proceedings stood washed away by the amendment, such ground could be urged at any time and at any stage. The petitioners suggest that in this court resurrecting the order of the trial court, all that this court did was to recognise that the law and the facts that governed the pre-emption proceedings before the trial court had been correctly applied and appreciated. The petitioners suggest that in this court resurrecting the order of the trial court, all that this court did was to recognise that the law and the facts that governed the pre-emption proceedings before the trial court had been correctly applied and appreciated. The petitioners say that this court had no occasion, while allowing CO 248 of 1999 by the order of April 8, 2004, to consider the change in law as such matter had not been brought to the notice of the court. The petitioners suggest that if the change in law had been brought to the notice of this court and the order of April 8, 2004 passed nonetheless, the doctrine of res judicata would have applied; but in the relevant order and the reasons in support thereof being silent on such count, a right that the opposite parties or their predecessors-in-interest did not have in law cannot be undeservingly conferred on them by the application of a rule of procedure. 10. The petitioners first rely on a judgment reported at (1970) 1 SCC 613 , (Mathura Prasad Bajoo Jaiswal v. Dossibai N.B. Jeejeebhoy) where the principal of res judicata was discussed in great detail in the context of the erroneous exercise of jurisdiction in a previous matter. The judgment instructs in what circumstances the rule would apply. For the present purpose it would suffice to notice the observation therein that where "the law is altered since the earlier decision, the earlier decision will not operate as res judicata between the same parties " as the matter in issue in the subsequent proceedings can, in such a case, never be the same as in the previous proceedings since the law interpreted is different. 11. In the next judgment cited, reported at (1991) 1 SCC 494 , (Isabella Johnson v. M.A. Susai), the Supreme Court held that the rule of res judicata or estoppel would not be applicable to an erroneous decision on jurisdiction. The view expressed was that a "court which has no jurisdiction in law cannot be conferred with the jurisdiction by applying principles of res judicata there can be no estoppel on a pure question of law " 12. The view expressed was that a "court which has no jurisdiction in law cannot be conferred with the jurisdiction by applying principles of res judicata there can be no estoppel on a pure question of law " 12. Another judgment brought by the petitioners, reported at (2005) 3 SCC 232 , (Sonepat Cooperative Sugar Mills Ltd v. Ajit Singh), held that the principle of res judicata would not apply in the case of decisions relating to jurisdictional facts. A more recent judgment, reported at (2014) 4 SCC 434 (R. Unnikrishnan v. V.K. Mahanudevan), has been placed by the petitioners where it was emphasised that the competence of the court which had pronounced the previous judgment on the same matter in issue was an essential component for the application of the principle of res judicata. 13. The final authority cited is on the doctrine of merger as recognised in the judgment reported at (2008) 8 SCC 65 (State of Kerala v. Kondottyparambanmoosa). The primary question considered in that case was whether the dismissal of a revision petition on the ground of delay would result in the merger of the order of the lower court with that of the High Court. The court noticed the law on the doctrine of merger and observed that three conditions were necessary for the doctrine to apply: the jurisdiction exercised should be appellate or revisional; the jurisdiction should have been exercised after issuance of notice; and, a hearing ought to have been conducted in the presence of the parties. On the facts of the case, the Supreme Court held that since the order of dismissal on the ground of delay passed by the High Court did not consider the merits of the matter, the doctrine of merger would not apply. 14. The opposite parties refer to a judgment reported at (2010) 3 SCC 192 , (Harjinder Singh v. Punjab State Warehousing Corporation) where the Supreme Court reminded High Courts exercising jurisdiction under Articles 226 and 227 of the Constitution to interpret social welfare legislations in the light of the Preamble to the Constitution and the provisions contained in Part IV thereof. The decision does not appear to be apposite in the present context. 15. The decision does not appear to be apposite in the present context. 15. Before dwelling on the issue of res judicata and as to whether the petitioners herein were entitled to canvass their objection to the executability of the pre-emption decree by way of their petition under Section 47 of the Code, the contention as to the impact of the change of law on the rights of the parties herein needs to be noticed. It is the petitioners' case that by reason of the 2000 amendment that came into effect in March, 2001 with retrospective effect from August, 1969, it was possible for the petitioners herein to have urged a ground that the right of pre-emption could not have been asserted by the opposite parties or their predecessors-in-interest. The contention is not that the right of pre-emption was altogether abolished. 16. Though the doctrine of res judicata belongs to the domain of procedure and, as Mathura Prasad Bajoo Jaiswal instructs, it cannot be exalted to any higher status, it is founded on a principle of public policy that a party may not be vexed twice over in respect of a matter in issue which has been decided and the decision has attained finality. Section 11 of the Code, and the larger principle of public policy that it espouses, places an embargo on a court to try any suit or issue in which the matter directly and substantially in issue was also directly and substantially in issue in a previous suit between the same parties in a court competent to try the subsequent suit or the suit in which such issue has been subsequently raised, provided the matter has been finally decided. Though such doctrine of res judicata has no application in criminal jurisprudence, there is an element of its application in subsequent petitions for bail or anticipatory bail. It has also now come to be accepted, in this age of tribunalisation where the judiciary has abdicated its exclusive authority of adjudication in various spheres, that the word "suit" in Section 11 of the Code is given an enlarged meaning and not restricted to actions in civil courts instituted by the lodging of a plaint. 17. It has also now come to be accepted, in this age of tribunalisation where the judiciary has abdicated its exclusive authority of adjudication in various spheres, that the word "suit" in Section 11 of the Code is given an enlarged meaning and not restricted to actions in civil courts instituted by the lodging of a plaint. 17. There are several conditions that have to be met before a subsequent action or an issue can be said to be precluded, by the doctrine of res judicata or the analogous principle of issue estoppel, from being adjudicated afresh. These include, inexhaustibly, the competence of the forum which has rendered the previous decision, the identity of the parties and, in some cases, the scope of the two actions. It is also imperative that the "matter", within the meaning of the word in Section 11 of the Code, ought to have been in issue or could have been in issue in the previous action. If a ground could or ought to have been taken in course of the proceedings culminating in a final decision, such ground cannot be canvassed later on the excuse that it had not been specifically raised in course of the previous decision. The principle applies to different stages of the same proceedings, unless the plea at a later stage is founded on material not existing at the previous stage. 18. Section 47 of the Code prohibits a separate suit being instituted in connection with the execution, discharge or satisfaction of the decree by the parties to the suit in which the decree was passed or by their representatives. Section 47 of the Code necessarily excludes such matters being raised afresh in course of execution that had already been raised in course of the suit, or that might or ought to have been raised in course of the suit. The fourth and seventh Explanations to Section 11 of the Code abridge the scope of Section 47 thereof. 19. Section 47 of the Code necessarily excludes such matters being raised afresh in course of execution that had already been raised in course of the suit, or that might or ought to have been raised in course of the suit. The fourth and seventh Explanations to Section 11 of the Code abridge the scope of Section 47 thereof. 19. If an appeal from a decree or a revision from an appellate decree is regarded as the continuation of the suit, it necessarily follows that if a matter which could and ought to have been made a ground of defence or attack in the suit, or the continuation thereof by way of appeal or revision, had not been urged, such matter cannot be raised in course of a petition under Section 47 of the Code to question the executability of the decree, whether the same is passed in appeal or in revision. 20. The change of law, that the petitioners harp on, took effect during the pendency of the petition under Section 115 of the Code arising out of the appellate order setting aside the decree passed by the trial court. If such change of law had any impact on the rights of the parties, that ought to have been made a ground for defending the appellate order and attacking the trial court decree in the proceedings before this court under Section 115 of the Code. It is not in dispute that such course of action was not adopted on behalf of the petitioners or their predecessor-in-interest. A petition for review of the order passed on April 8, 2004 was attempted to be filed, but the laws of limitation precluded it from being entertained in the absence of sufficient cause for the delay being demonstrated. 21. Since the principle embodied in the rule of res judicata or issue estoppel has more to do with the finality or conclusivity of the decision and nothing to do with the correctness thereof (provided it is not a jurisdictional error), the rights of the parties herein qua the pre-emption matter stood determined by the order of April 8, 2004. 21. Since the principle embodied in the rule of res judicata or issue estoppel has more to do with the finality or conclusivity of the decision and nothing to do with the correctness thereof (provided it is not a jurisdictional error), the rights of the parties herein qua the pre-emption matter stood determined by the order of April 8, 2004. It is not the petitioners' contention that the court which received the claim of pre-emption made by the opposite parties or their predecessors-in interest did not have the authority to adjudicate on the claim; or that this court did not have the jurisdiction to entertain the revision. What the petitioners assert is that the right of pre-emption that the opposite parties or their predecessors-in interest claimed may not have been allowed in view of the change in law; which is not a question pertaining to the competence of the court to receive the action. An erroneous decision as to the existence of a right may be an error on facts or an error in law, but it may not necessarily be an error of jurisdiction. A court or any other civil forum may erroneously accept a right asserted by a party, but such error need not be an error of jurisdiction going to the competence of the court or the forum to receive the action or adjudicate thereupon. It is only an error of jurisdiction on the ground of the competence of the court that precludes the operation of the rule of res judicata in respect of a previous decision on the same matter which has attained finality. 22. Since all matters between the parties pertaining to the right of pre-emption have been decided by the order dated April 8, 2004, any matter which could or ought to have been made a ground of attack or defence in course of such proceedings culminating in the order could not have been urged thereafter, much less in proceedings under Section 47 of the Code to resist the execution of the same order or decree. 23. The order impugned has sufficiently indicated the reasons in support thereof and there is no merit in the petitioners' challenge thereto on the ground of illegality or material irregularity. CO 1995 of 2014 fails. The executing court is requested to bring the proceedings before it to a logical conclusion with utmost dispatch. 23. The order impugned has sufficiently indicated the reasons in support thereof and there is no merit in the petitioners' challenge thereto on the ground of illegality or material irregularity. CO 1995 of 2014 fails. The executing court is requested to bring the proceedings before it to a logical conclusion with utmost dispatch. There will be no order as to costs.