Research › Search › Judgment

Himachal Pradesh High Court · body

2016 DIGILAW 232 (HP)

Karam Singh v. Janki Devi

2016-03-11

RAJIV SHARMA

body2016
JUDGMENT : Rajiv Sharma, J. This Regular Second Appeal has been instituted against judgment and decree dated 19.8.2004 rendered by the learned District Judge, Hamirpur, HP in Civil Appeal No. 50 of 2002. 2. “Key facts" necessary for the adjudication of the present appeal are that the appellants-plaintiffs (hereinafter referred to as 'plaintiffs' for convenience sake) filed a suit for declaration with consequential relief of permanent prohibitory injunction/possession of the land as detailed in the plaint. Suit was contested by the respondents-defendants (hereinafter referred to as 'defendants' for convenience sake). According to them, matter has already been decided by the competent authority under the provisions of HP Holdings (Consolidation and Prevention of Fragmentation) Act, 1971 (here after ‘Consolidation Act’). The learned Senior Sub Judge, Hamirpur was appointed as an Arbitrator under Section 21 (2) of the Consolidation Act. The learned Senior Sub Judge disposed of the matter vide Award in Arbitration Case No. 1 of 1993, on 13.7.1994. Plaintiffs filed a Civil Writ Petition bearing No. 458/1995. It was dismissed by this Court on 30.10.1995. Learned Senior Sub Judge, Hamirpur dismissed the suit vide judgment dated 30.8.2001. Plaintiffs, preferred an appeal before the learned District Judge, Hamirpur. He dismissed the appeal on 19.8.2004. Hence, this Regular Second Appeal. 3. The Regular Second Appeal was admitted on 24.12.2004, on the following substantial questions of law : “1. Whether the trial court and the first appellate court erred in holding that the award made by the Arbitrator was res judicata when the issues involved were not directly and substantially involved in the arbitration proceedings? 2. Whether the order which is nullity can form the basis for res judicata.” 4. Mr. Anup Rattan, Advocate, has vehemently argued that the learned Courts below have erred by holding that the principle of res judicata was not directed in this case. 5. Mr. Anand Sharma, Advocate, has supported the judgments and decrees passed by the Courts below. 6. Matter qua settlement was pending before the Director Consolidation under the Consolidation Act, 1971. The Additional Director Consolidation under the provisions of Section 21 (2) of the Consolidation, referred the dispute for sole arbitration under Section 21 of the Act. The learned Senior Sub Judge, Hamirpur was appointed as the sole Arbitrator. 6. Matter qua settlement was pending before the Director Consolidation under the Consolidation Act, 1971. The Additional Director Consolidation under the provisions of Section 21 (2) of the Consolidation, referred the dispute for sole arbitration under Section 21 of the Act. The learned Senior Sub Judge, Hamirpur was appointed as the sole Arbitrator. Learned Arbitrator passed Award dated 13.7.1994 by concluding that Dhani Ram and Prabhu were not tenants over the suit land and they were co-sharers alongwith others in the suit land. Plaintiffs challenged the Award rendered in Arbitration Case No. 1/1993 dated 13.7.1994 by filing CWP No. 458/1995 before this Court. The same was dismissed on 30.10.1995. Thus, the Award made by the learned Senior Sub Judge, Hamirpur dated 13.7.1994 has attained finality. Decision rendered by the Arbitrator under Section 21 of the Consolidation Act, was final and moreover, the same has been upheld by this Court. It was not open to them to re-agitate or reopen the matter which has attained finality. Order passed by learned Senior Sub Judge can not be termed as a ‘nullity’ as he has passed the order strictly in accordance with the provisions of the Consolidation Act. 7. Their Lordships of the Hon'ble Supreme Court in Pujari Bai v. Madan Gopal reported in AIR 1989 SC 1764 , have held that when a writ petition after contest is disposed of on merits by a speaking order, the question decided in that petition would operate as res judicata. Their Lordships have held as under : “14. From all the facts and documents, one thing appears to be clear that although certain allotment was made in favour of the respondent in 1959, he was not put in possession of the allotted lands. It is also clear that the survey Nos. of lands allotted in 1959 to the respondent are not the same survey Nos. allotted to the appellant in December, 1962. It is further clear that the appellant was given possession of those properties allotted to her and even permanent Sanad was granted to her” 8. A Division Bench of the Calcutta High Court in P.C. Ray & Co. v. Union of India reported in AIR 1971 Calcutta 512, has held that the principles of res judicata as a general law are applicable to the arbitration proceedings as well. The Division Bench has held as under : “16. A Division Bench of the Calcutta High Court in P.C. Ray & Co. v. Union of India reported in AIR 1971 Calcutta 512, has held that the principles of res judicata as a general law are applicable to the arbitration proceedings as well. The Division Bench has held as under : “16. The said question or issue that the claim of respondent, Union of India on account of shortfall (i.e. felling timber less than the quantity guaranteed) is barred by the principles analogous to res judicata, not being a jurisdictional issue, the arbitrators in the second reference in our opinion, are entitled to entertain, try and adjudicate upon the same. Principles of res judicata as principles of general aw are applicable to arbitration proceedings as well as awards. An award if valid is in fact a final adjudication by a competent forum chosen by the parties themselves and until is set aside is conclusive upon the merits of the controversy submitted. An award will operate as res judicata in subsequent proceeding between the parties either in court or before the arbitrator unless the arbitrators in making the said award had acted without jurisdiction.” 9. A learned Single Judge of the Patna High Court in D.R. Gupta v. Steel Authority of India Ltd. reported in AIR 1985 Orissa 224, has held that the principles of res judicata are applicable to the arbitration proceedings. The law is also well established that a decision liable to appeal may be ‘final’ until any appeal is preferred, but once the appeal is filed the decision loses its character of ‘finality’ and what was once res judicata again becomes res sub judice, that is, matter under judicial enquiry. The learned Single Judge has held as under : “6. The arbitration clause in agreement between the parties has already been extracted in para 2. It is not in dispute that Hindustan Steel Limited went out of existence and was taken over by the Steel Authority of India Limited on 1-5-78. However, as pointed out by the learned Subordinate Judge by virtue of the provisions contained in Section 23 of Act 16 of 1978 the agreement between the parties shall remain in full force as if instead of Hindusthan Steel Limited the Steel Authority of India Limited had been a party to the said agreement. However, as pointed out by the learned Subordinate Judge by virtue of the provisions contained in Section 23 of Act 16 of 1978 the agreement between the parties shall remain in full force as if instead of Hindusthan Steel Limited the Steel Authority of India Limited had been a party to the said agreement. Coming to the first preliminary objection raised on behalf of the opposite party, I may refer to the decision of this Court in Civil Revision No. 328 of 1973 and Misc. Appeal No. 166 of 1973 reported in (1974) 2 Cut WR 1081, Dayaram Gupta v. Hindusthan Steel Ltd., Rourkela 1. The aforesaid two cases before this Court arose out of an order of the learned Subordinate Judge rejecting the petitioner's application for mandatory injunction. In the judgment it is observed that the matter before this Court related to the dispute between the parties as to whether there was a contract for a fresh lease between the parties and it was found that there was no arbitration agreement between the parties to refer that dispute to arbitration and as such the arbitration proceeding in so far as it related to the contract for a fresh lease was held to be not maintainable. This finding is not in respect of the original lease agreement dated 3-10-63 between the parties which also forms a part of the subject-matter of the petitioner's arbitration case. The learned Subordinate Judge has correctly held in para 15 of the impugned order that the findings of this Court in Civil Revision No. 328 of 1973 and Misc. Appeal No. 166 of 1973 have no bearing on the proceeding pending before him. The first preliminary objection raised on behalf of the opposite party is accordingly rejected. As regards the second preliminary objection, a copy of the judgment of the learned Subordinate Judge in Title Suit No. 8 of 1975 has been filed by the opposite party in this Court. The petitioner is the plaintiff and the opposite party is the defendant. The suit is for specific performance of contract and for extension of the lease dated 3-10-63 and for direction to the opposite party to execute and register a lease deed and give delivery of possession to the petitioner. This suit was dismissed by the judgment dated 31-10-81. The petitioner is the plaintiff and the opposite party is the defendant. The suit is for specific performance of contract and for extension of the lease dated 3-10-63 and for direction to the opposite party to execute and register a lease deed and give delivery of possession to the petitioner. This suit was dismissed by the judgment dated 31-10-81. It is urged on behalf of the opposite party that principles of res judicata are applicable to arbitration proceedings and a number of decisions including AIR 1953 SC 65 (Mohanlal Goenka v. Benoy Krishna Mukharjee) and AIR 1978 Cal 449 (Talcher Coalfields Ltd. v. Central Coalfields Ltd.) have been cited in support of this proposition. It is not necessary to refer to those decisions as it is well established that principles of res judicata are applicable to arbitration proceedings. However it has been stated on behalf of the petitioner that the said judgment is now pending in this Court in First Appeal No. 77 of 1982. Law is well established that a decision liable to appeal may be 'final' within the meaning of Section 11 of the Civil Procedure Code until an appeal is preferred, but once the appeal is filed the decision loses its character of 'finality' and what was once res judicata again becomes res sub judice that is, matter under judicial enquiry. (See Mulla's Code of Civil Procedure, Volume I, Fourteenth Edition, page 143). In the present case the judgment of the learned Subordinate Judge Title Suit No. 8 of 1975 is pending disposal in this Court in First Appeal No. 77 of 1982 and therefore the said judgment cannot operate as res judicata during the pendency of the First Appeal. The second preliminary objection raised on behalf of the opposite party must accordingly be overruled.” 10. The substantial questions of law are answered accordingly. 11. In view of the discussion and analysis made hereinabove, there is no merit in the appeal and the same is dismissed. Pending application(s), if any, also stand disposed of. No costs.