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2014 DIGILAW 94 (GAU)

PREMANSHU PAUL v. KABIR AHMED

2014-01-24

A.M.SAPRE

body2014
JUDGMENT This is a revision filed by the defendant under Section 115 of the Code of Civil Procedure against the judgment/decree dated 7.3.2007 passed by Civil Judge, Karimganj in Title Appeal No.114/2003 which in turn arise out of judgment /decree dated 29.9.2003 passed by Civil Judge(Junior Division) Karimganj in Title Suit No.251/1999. By impugned judgment/decree, the first appellate Court allowed the appeal filed by the plaintiff and reversed the judgment/decree passed by the trial court, which had dismissed plaintiff’s suit on the preliminary issue raised by the defendant along with other issues, namely - suit is hit by principle of resjudicata under Section 11 of the Code. So the short question which arises for consideration in this revision is whether first appellate court was justified in allowing the plaintiff’s appeal by decreeing plaintiff’s suit and in turn was justified in reversing the judgment and decree of the trial court which had dismissed the plaintiff’s suit? Facts of the case lie in a narrow compass. They however need mention in brief. The petitioner is a defendant whereas the respondent is the plaintiff. The respondent filed a suit against the petitioner claiming his eviction from the suit house on the grounds pleaded in the plaint. The petitioner (defendant) on being served filed the written statement and raised several factual and legal pleas. The trial court on the basis of pleadings of the parties framed 7 issues. So far as issue no 6 was concerned, it was about the maintainability of the suit on the ground of it being barred by the principal of resjudicata as defined under Section 11 of the Civil Procedure Code. The trial court, as it appears from the perusal of the judgment tried this issue (No.6) as preliminary issue and answered it against the plaintiff. It was held that the suit is hit by the principal of resjudicata as defined under Section 11 ibid because one earlier decision rendered in a suit decided between the same parties being Title Suit No. 219 of 2000 dated 29.9.2003 in relation to the same subject matter of the suit property concludes the controversy raised in subsequently instituted one. The suit was, therefore, dismissed on the short ground of its maintainability. So far as other issues were concerned, they were, therefore, answered in the light of finding recorded on Issue No. 6. The suit was, therefore, dismissed on the short ground of its maintainability. So far as other issues were concerned, they were, therefore, answered in the light of finding recorded on Issue No. 6. The plaintiff felt aggrieved filed first appeal out of which this revision arises. The first appellate court by impugned order allowed the appeal and while reversing the judgment and decree passed by the trial court answered the issue no 6 in plaintiff’s favour and held that the suit is not hit by principal of resjudicata and trial court committed an error in dismissing the suit on such ground. The first appellate court then proceeded to decree the suit on merits and passed the decree for possession against the defendant in relation to the suit property which has given rise to filing of the revision by the defendant. Heard Mr. K.A. Mazumdar, learned counsel for the petitioners. Also heard Mr. A.B. Choudhury, learned senior counsel assisted by Mr. S.A. Choudhury, learned counsel for the respondents. Having heard the learned counsel for the parties and on perusal of the record of the case, I am inclined to allow the revision in part and in turn while setting aside the impugned appellate court’s order remand the case to the first appellate court for deciding the first appeal afresh on merits. The basic question involved in the appeal was whether trial court was justified in answering issue no 6 in defendant’s favour?.In other words, the only question which the first appellate court was required to decide in the appeal out of which this revision arises was whether trial court was justified in holding that suit was hit by principal of res judicata under Section 11 ibid and was therefore liable to be dismissed as being not maintainable? In my view, though this question was dealt with by the appellate court but, I am not impressed by the manner and the approach of the appellate court in so deciding. The first mistake that he committed was that having held the suit to be not hit by the principle of resjudicata proceeded to decree the suit itself on merits by answering all the issues in plaintiff’s favour. The first mistake that he committed was that having held the suit to be not hit by the principle of resjudicata proceeded to decree the suit itself on merits by answering all the issues in plaintiff’s favour. This he could not do for the simple reason that even the trial court had not decided any of the issues (other than issue no 6) on the merits once it came to a conclusion that suit was hit by resjudicata. Secondly, all that the first appellate court could do in such case was to remand the case to the trial court for answering other issues on merits. It had no jurisdiction to answer other issues on merits and nor it had jurisdiction to decree the suit on merit except to remand the suit to trial court with a view to answer other issues. Thirdly, even otherwise, it did not discuss any issues on merits much less properly. The effect of answering the issue of maintainability of suit on principle of resjudicata in plaintiff’s favour only means that it is now triable on merits i.e. it can be tried on other issues arising in the case. It however can never result in granting decree in plaintiff’s favour and against the defendant in relation to subject matter of the suit. In other words, in such circumstances, it only enables the trial court to proceed to try the suit on merits with a view to find out as to whether suit should be decreed or it be dismissed on merits. It may be that suit can still be dismissed on merits notwithstanding answering of the issue of resjudicata in plaintiff’s favour holding that suit is maintainable because if there is no case made out by the plaintiff on merits, the suit cannot be decreed in his favour. If, however, the issue of resjudicata is answered against the plaintiff, then it results in dismissal of suit as not maintainable. In such circumstances, it may not be necessary to examine other issues because even if they are answered on merits, yet they are of no significance. Coming now again to the facts of this case, the manner in which the appellate court answered the issue no 6 does not appear to be proper and hence it calls for interference. In such circumstances, it may not be necessary to examine other issues because even if they are answered on merits, yet they are of no significance. Coming now again to the facts of this case, the manner in which the appellate court answered the issue no 6 does not appear to be proper and hence it calls for interference. As stated above, the learned judge did not properly appreciate the extent, scope and the manner in which he had to decide the appeal and hence committed an error in decreeing the whole claim of the plaintiff. I am, therefore, not in agreement with its reasoning and conclusion and hence consider it just and proper to set aside the impugned judgment and remand the case to the first appellate court for its fresh decision on the issue no 6. As a consequence of the foregoing discussion, the revision petition succeeds and is allowed in part. The impugned judgment is set aside. The appeal out of which this revision arises is restored to its file. The case is now remanded to the first appellate court for deciding the appeal afresh on its merits on issue no 6. In case, if the appellate court comes to the conclusion that suit is hit by the principle of resjudicata, then it will uphold the finding of the trial court and dismiss the appeal whereas if it comes to a conclusion that it is not hit by the principle of resjudicata then it will allow the appeal and remand the case to the trial court for deciding the suit on merits on other issues in accordance with law. Before parting with the case, I may observe that I have not recorded any finding on the issue no 6 either way and hence the first appellate court would decide the issue afresh strictly in accordance with law uninfluenced by my observation on merits which I have refrained from making once I formed an opinion to remand the case for the reasons mentioned above. Parties to appear before the first appellate court on 10th March to enable the appellate court to decide the appeal as directed within a period of six months. The record of the case be sent back to the concern court by the registry so as to reach there before the date of appearance. No cost.