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2022 DIGILAW 214 (UTT)

Arun Vijay Sati v. Dinesh Chandra Thapliyal

2022-07-20

SHARAD KUMAR SHARMA

body2022
JUDGMENT : SHARAD KUMAR SHARMA, J. 1. Before answering the arguments, as it has been extended by the learned Senior Counsel for the revisionist, this Court feels it apt to deal with the circumstances, under which the impugned order dated 5th June 2022, as it has been rendered in Civil Suit No. 1 of 2017, Dinesh Chandra Thapliyal and Another vs. Ramesh Chandra Thapliyal and Another, was rendered by the Court below, whereby the two issues being issue No. 8, with regard to the implications of Section 11 of the CPC and the issue No. 9 with regard to attracting the bar of institution of the proceedings of Suit under Order 7 Rule 11 of CPC, has been answered against the defendants/revisionist by the impugned order, which is under challenge. 2. The factual backdrop of the instant case, which requires consideration is, that earlier a Civil Suit, being Civil Suit No. 41 of 1992, Ramesh Chandra Thapliyal vs. Smt. Deveswari Devi and Others, was instituted before the Court of Civil Judge, Pauri Garhwal, by invoking the provisions contained under Section 34 and 38 of the Specific Relief Act, wherein the “subject matter” which has been argued by the learned Senior Counsel for the revisionist, as if the subject matter would be the “property involved” i.e. the land lying in village Srikot, Ganganali, Patti Katulsyun khatauni khata No. 27, having 6 Nali 9 Mutthi of village Koteshwar, the land lying in khata No. 8 out of which 15 Nalis lies in village Kothad, Katulsyun in khasra No. 7/8, 4 Nali 5 Mutthi and also that of the land lying in khata No. 45 of an area of 14 nali 3 mutthi of land, out of the aforesaid 5 khata Nos; total 44 nali 2 mutthi of land were the subject matter in dispute in a Suit for the grant of decree of apportionment of shares, as instituted before the Court of Civil Judge (Junior Division) on 8th June 1992. If the principal relief, which was sought in the said Suit is taken into consideration, which is extracted hereunder; it reads as under: ^^vuqrks"k ¼v½ Áfroknh la[;k 1 ds uke uxjikfydk Jhuxj ds vfHkys[kksa esa vafdr o uUnk nsoh eksgYyk] xq:}kjk jksM+ Jhuxj esa fLFkr nknjlh Hkou dk caVokjk dj oknh dk mlesa 1@5 nknjlh ekfydkuk gd fgLlk ?kksf"kr dj vyx fd;k tk;A ¼c½ ;g fd] oknh ds i{k esa vkSj Áfroknhx.k ds fo:) xzke dksBM+ ds [kkrk la[;k 44 esa Áfrokny la[;k 1 ds uke 'ks"k nknjlh 3 ukyh 10 eqBBh o xzke JhdksV] xaxkukyh] iVVh&dVwyLwa ds [kkrk la[;k 27 esa 'ks"k nknjlh 2 ukyh 8 eqBBh dqy 6 ukyh 2 eqBBh Hkwfe ij oknh dk nknjlh ekfydkuk 1@5 gd ?kksf"kr fd;k tk;A** 3. In fact, the nature of relief, which was modulated there in the said Suit of 1992, was a declaration in relation to the right, which was said to have been claimed to have devolved to the extent of 1/5th share of a disputed property, and a decree of declaration was also sought as against the defendants therein the said suit. Apart from it, a declaration was also sought to the effect that they may be declared as to be the owners of the property in question which was disputed in the suit. 4. The Suit No. 41 of 1992, seeking for a decree of declaration, in relation to the property, which has been dealt with above was decided in favour of the plaintiff i.e. Mr. Ramesh Chandra Thapliyal therein, and it is contended that the said judgment of declaration of title has attained its finality. Later on, it is contended, that there was yet another set of proceeding in relation to the same disputed property i.e. by way of Suit No. 16 of 2009, whereby a sale deed dated 3rd July 2009 was put to challenge. The said sale deed was said to be in relation to the same set of property, which was the subject matter of the earlier Suit no. 41 of 1992, and consequently, it was the subject matter of the present Suit also, being Suit No. 1 of 2017. 5. The plaintiff in Suit No. 1 of 2017, Dinesh Chandra Thapliyal and another Vs. 41 of 1992, and consequently, it was the subject matter of the present Suit also, being Suit No. 1 of 2017. 5. The plaintiff in Suit No. 1 of 2017, Dinesh Chandra Thapliyal and another Vs. Ramesh Chandra Thapliyal and another, had instituted the Suit, by invoking the provisions of Section 31 to be read with Section 38 of the Specific Relief Act of 1963, for the grant of decree of cancellation of the sale deed, which is said to have been executed on 22nd September 2016. The defendants therein i.e. revisionist, herein who were the defendants, on the institution of the said Suit for declaring the sale deed of 22.09.2016 to be void and bad in the eyes of law, had filed an Application under Section 11 of the Code of Civil Procedure on 7th December 2019, contending thereof that the present Civil Suit No. 1 of 2017, where the challenge was confined to be given to the sale deed of 2016, would be barred by the principle of res-judicata, because the subject matter, i.e. the property covered by the sale deed, which as per the perception of the learned Senior Counsel for the revisionist, would be, the property which was the subject matter of declaration in the earlier Suit, being Suit No. 41 of 1992, which also remained as a subject matter when a challenge was given to the sale deed dated 3rd July 2009 in Suit 16 of 2009, as referred to in his Application in Para 8, which had been filed by the defendant/revisionist, before the Court below, and thereafter, it was contended that owing to an earlier adjudication of declaration of a right over the disputed property, as well as to the sale deed which had been considered in Suit No. 16 of 2009, the instant Suit No. 01 of 2017, where the challenge was given to the subsequent sale deed, which was executed on 22.09.2016, would be barred by the principles of res-judicata, and hence Order 7 Rule 11 of the CPC, will come into play. 6. 6. The learned Senior Counsel for the defendant/revisionist submitted, that if the simplicitor language of Section 11, is taken into consideration, the power which is created therein under Section 11 would be, that “trying any suit or an issue” in which the matter directly or substantially, the issue has been a subject matter of issue in the former suit. This interpretation to Section 11, as extended by the learned Senior Counsel for the defendant/revisionist, would be in correlation to the determination of their rights, which was decided in the earlier Suit for declaration which he claims that it would operate as a res-judicata, because it was a an issue, which was earlier decided in Suit No. 41 of 1992. 7. This Court is of the view, that the language used under Section 11 where “shall try any suit or issue” would always mean not the subject matter i.e. the property, but rather the cause of action, which has accrued to the plaintiff, to institute a subsequent suit. Here, in the instant case the subsequent suit, the cause of action or the issue, which has accrued, is as a consequence of the execution of the sale deed dated 22.09.2016, which the learned Senior Counsel for the revisionist contends, that in case if that liberty is granted, to put a challenge to the sale deed of 22.09.2016, in Suit No. 01 of 2017, it would rather eradicate the effect of the earlier decree, which had been rendered in Suit No. 41 of 1992, for declaration of right to the extent of 1/5th share of the property. 8. The terminology of the provision contained under Section 11 of the CPC, where the legislature has used ‘try any suit or an issue’ in the matter. The connotation of word “issue” used therein, will have a much wider implications, and particularly, if it is read in the context of the judgment, as reported in Bhanu Kumar Jain vs. Archana Kumar and Another, 2005 (1) SCC 787 . The aforesaid judgment of the Hon’ble Apex Court, has drawn a distinction between the issue of estoppel and res-judicata. The res-judicata debars of exercising its jurisdiction by the Courts to determine the thalassic, if it has attained the finality between the parties. The aforesaid judgment of the Hon’ble Apex Court, has drawn a distinction between the issue of estoppel and res-judicata. The res-judicata debars of exercising its jurisdiction by the Courts to determine the thalassic, if it has attained the finality between the parties. Whereas, the doctrine of issue estoppel is invoked against the party only if such an issue is or has already decided against him, he would be estopped from raising the same in the latter proceedings. The doctrine of res-judicata creates a different kind of estoppels, and not an estoppel by a Court when it relates to a cause of action. 9. In fact, if the impugned order under challenge is taken into consideration and particularly, in the context of the observations, which has been made by the learned trial Court, while recording its finding in Para 11 and particularly Para 13 of the judgment, the learned trial Court has rightly drawn an inference, that in the two earlier instituted suits, the “cause of action” was entirely different, because in Suit No. 41 of 1992, it was a right of declaration of title over 1/5th share was under consideration, which was sought interse between the parties to the proceedings of the said suit, and in the subsequent Suit No. 16 of 2009, it was a subject matter, which was giving altogether a different cause of action, owing to the execution of the sale deed dated 3rd July 2009 which was new cause of action to give challenge to the veracity of subsequently executed sale deed. 10. In that eventuality, this Court is of the view, that for the purposes of attracting Section 11, the “issue” herein will denote to a “cause of action” which accrues to the plaintiff to the subsequent institute suit. In the instant case, the cause of action is, as a consequence of the later sale deed, which was executed on 22nd September 2016 which as per opinion of this Court would be different issue altogether, and a subsequent cause of action, as it relates to the determination of right of subsequent purchaser. 11. In the instant case, the cause of action is, as a consequence of the later sale deed, which was executed on 22nd September 2016 which as per opinion of this Court would be different issue altogether, and a subsequent cause of action, as it relates to the determination of right of subsequent purchaser. 11. In fact, the interpretation given by the learned Senior Counsel for the revisionist, to the impugned judgment from the perspective, that in fact if the impugned judgment is visualised from the viewpoint, that when the right and title to the extent of 1/5th share, has already been determined in the earlier Suit No. 41 of 1992, in fact, subsequent challenge to the sale deed, which was executed by the defendant/revisionist interse amongst themselves, would debar the institution of the present suit, because it would only be an incidental question, which has to be decided by the Court as to what implications would the judgment and decree rendered in Suit No. 41 of 1992 and Suit No. 16 of 2009, would have in the subsequent instituted Suit No. 1 of 2017 where the challenge was given to the sale deed dated 22nd September 2016. 12. This Court is of the view, that the word “issue” which has been referred to under Section 11 of the CPC, will have had to be rationally interpreted, the “issue” would always denote to not the subject matter of the suits i.e. property in dispute or the subject of determination of a right in the earlier suit, even by way of suit for declaration, this Court’s opinion is that the issue here would be, the “cause of action” which has accrued for the plaintiff/respondent, subsequently, as soon as the subsequent sale deed has been executed on 22nd September 2016. Hence, it would be rather altogether a fresh cause of action, which will determine the cause for the plaintiff/respondent to institute the suit, as against the sale deed, in which, it would always be open for the defendant /applicant, to the application under Section 11, to get an issue decided with regard to the implications and determination of their right as decided in the earlier suit for declaration, being Suit No. 41 of 1992, which will be an incidental question which would be required to be decided, while propriety of sale deed dated 22nd September 2016, is judicially scrutinized by the Court in the Suit No. 1 of 2017. In fact, the learned Senior Counsel for the revisionist has attempted to draw a distinction from the context of the “subject matter” and the “cause of action.” 13. In legal parlance, the subject matter may be, that it is the same property qua, which the rights have been declared in favour of the defendant/revisionist, in the earlier set of proceedings, but that declaration itself will not dilute the issue, in case if there accrues subsequent cause due to the execution of the subsequent sale deed dated 22nd September 2016, because what bearing will the decree rendered in Suit No. 41 of 1992, could have, would always be a subject matter to be considered decided as an issue based on appreciation of facts, by the learned trial Court while scrutinising the propriety of the sale deed dated 22nd September 2016, and issue of effect of the decree, would only be one of the subject matter which is to be decided by the Court, while by framing an appropriate issue about the effect of the decree rendered in suit for declaration in Suit No. 41 of 1992. 14. The learned Senior Counsel for the revisionist has referred to a judgment, rendered by the Hon’ble Apex Court as reported in R.M. Sundaram alias Meenakshisundaram vs. Sri Kayarohanasamy and Neelayadhakshi Amman Temple, 2022 SCC Online SC 888 and particularly the learned Senior Counsel for the revisionist has drawn attention of this Court to the contents of Para 36 of the said judgment, which is extracted hereunder: “36. General principle of res-judicata under Section 11 of the Code contains rules of conclusiveness of judgment, but for res-judicata to apply, the matter directly and substantially in issue in the subsequent suit must be the same matter which was directly and substantially in issue in the former suit. Further, the suit should have been decided on merits and the decision should have attained finality. Where the former suit is dismissed by the trial court for want of jurisdiction, or for default of the plaintiff's appearance, or on the ground of non-joinder or mis-joinder of parties or multifariousness, or on the ground that the suit was badly framed, or on the ground of a technical mistake, or for failure on the part of the plaintiff to produce probate or letter of administration or succession certificate when the same is required by law to entitle the plaintiff to a decree, or for failure to furnish security for costs, or on the ground of improper valuation, or for failure to pay additional court fee on a plaint which was undervalued, or for want of cause of action, or on the ground that it is premature and the dismissal is confirmed in appeal (if any), the decision, not being on the merits, would not be res-judicata in a subsequent suit. The reason is that the first suit is not decided on merits.” 15. Particularly, the reference which has been made with regard to the effect of Section 11 of the Code, which has been dealt with above by the said judgment it was owing to the observations which were made by way of the general principles of res-judicata of Section 11, which is said to have been made applicable, it contains and deals the rule of conclusiveness of the judgment. Here, the conclusiveness would be as aspect qua the “cause of action” and not the “subject matter of property” qua which the declaration has already been alleged to have been made in favour of the defendant/revisionist in the earlier Suit. 16. The reference of the matter directly or substantially, an issue, would not be a cloud to a cause of action, but rather the declaration made earlier. 16. The reference of the matter directly or substantially, an issue, would not be a cloud to a cause of action, but rather the declaration made earlier. Since in the instant suit, no element of declaration of right qua defendant/revisionist, is being sought to be subjected to challenge and it is only the scrutinisation of the sale deed, which is the subject, what bearing will it have on its judicial scrutiny by the Court on the propriety of the sale deed dated 22nd September 2016, would not attract Section 11, because it is altogether a different and “distinct cause of action” for the plaintiff/respondent, to put a challenge to the said sale deed and merely because of the fact, that the defendant/revisionist, even if has a decree of declaration in his favour, he will not acquire an immunity to perpetuity from putting a challenge to a deed which has been executed by the co-defendants as amongst themselves, who were the defendants in Suit No. 41 of 1992. Hence, this judgment, in fact, was slightly based a distinct issue, which was altogether involved consideration in the light of the observations made in Para 2 of the said judgment. The implications of Section 11, as it has been observed in Para 36 to be read with Para 37 of the said judgment of R.M. Sundaram (supra), it cannot be read in isolation to the actual fact, which was involved therein for consideration before the Hon’ble Apex Court, in the said suit where the effect of grant of decree of mandatory injunction directing the Temple, to comply with the undertaking given in the letter of 4th October 1962, as it was factually involved consideration in the said case for the purposes of maintaining an independent and exclusive possession and enjoying over the disputed property of the Temple, was the cause which was being considered as a consequence of an adjudication made in the earlier suit, which was then subject matter of consideration in the said case of 1981. Hence, the said matter was entirely based upon a different consideration, to the one at hand, which is being adjudicated by this Court. Hence, the said matter was entirely based upon a different consideration, to the one at hand, which is being adjudicated by this Court. Hence, the aforesaid principle of Section 11, as observed in Para 36, as per the opinion of this Court, would always mean attracting Section 11, when the subject is same, but the cause of action is entirely different that too a cause of action which admittedly has accrued subsequently. 17. Another judgment, of which the reference has been made by the learned Senior Counsel for the revisionist is, as reported in Sathyanath and Another vs. Sarojamani, 2022 SCC Online SC 563 and particularly, the learned Senior Counsel for the revisionist has yet again relied upon the principles as envisaged in Para 27 of the said judgment, to be read with Para 29, where the implications of Order 7 Rule 11 has been read in conjunction, with regard to the restrictions which had been imposed due to attracting the principles of Section 11 of CPC. Para 27 and 29 are extracted hereunder: “27. This Court was thus examining the scope of Order VII Rule 11 of the Code, whereas such is not the issue in the present appeal. In fact, the defendant has filed an application for framing of preliminary issues. The direction of the High Court is on such application. Therefore, such application needs to be considered in the light of the provisions of Order XIV Rule 2 of the Code. 29. In appeal before this Court, it was considered whether res-judicata raises a mixed question of law and facts. The Court held as under: “26. The court while undertaking an analysis of the applicability of the plea of res-judicata determines first, if the requirements of section 11 CPC are fulfilled and if this is answered in the affirmative, it will have to be determined if there has been any material alteration in law or facts since the first suit was decreed as a result of which the principle of res-judicata would be inapplicable. We are unable to accept the submission of the appellants that res-judicata can never be decided as a preliminary issue. In certain cases, particularly when a mixed question of law or fact is raised, the issue should await a fullfledged trial after evidence is adduced. We are unable to accept the submission of the appellants that res-judicata can never be decided as a preliminary issue. In certain cases, particularly when a mixed question of law or fact is raised, the issue should await a fullfledged trial after evidence is adduced. In the present case, a determination of the components of res-judicata turns on the pleadings and judgments in the earlier suits which have been brought on the record. The issue has been argued on that basis before the Trial court and the first appellate court; followed by two rounds of proceedings before the High Court (the second following upon an order of remand by this court on the ground that all parties were not heard). All the documentary material necessary to decide the issue is before the court and arguments have been addressed by the contesting sides fully on that basis. xxx xxx xxx 62. In view of the discussion above, we summarise our findings below: (i) Issues that arise in a subsequent suit may either be questions of fact or of law or mixed questions of law and fact. An alteration in the circumstances after the decision in the first suit, will require a trial for the determination of the plea of res-judicata if there arises a new fact which has to be proved. However, the plea of res-judicata may in an appropriate case be determined as a preliminary issue when neither a disputed question of fact nor a mixed question of law or fact has to be adjudicated for resolving it.” 18. While answering the said question of principle of res-judicata, it has been observed, in the light of the judgment and the reasoning given in Para 29, that the issue of res-judicata if involved can never be decided as a preliminary issue, in a case particularly when a mixed question of law or fact is raised and has to be comparatively analysed by the Courts. The issue should await a full-fledged trial, after the evidence is adduced by the parties to the proceedings. Because it is an issue material consideration of the documentary evidence, which would be the subject matter of scrutiny only while deciding the propriety of sale deed dated 22nd September 2016, which would be an issue i.e. once again a “cause of action” to be determined on merit by the Court. 19. Because it is an issue material consideration of the documentary evidence, which would be the subject matter of scrutiny only while deciding the propriety of sale deed dated 22nd September 2016, which would be an issue i.e. once again a “cause of action” to be determined on merit by the Court. 19. This principle has to be read in the context of the mixed question of fact or mix question of law, in fact, which in an altered circumstances, which in the instant case happens to be on account of subsequent sale deed dated 22nd September 2016, which requires a trial for the determination of plea of res-judicata, if there arises a new cause of action i.e. the execution of the sale deed, which has to be proved as per law, that it has been validly executed only when the deed of conveyance itself is made a subject matter of a judicial scrutiny before the Court. 20. In yet another judgment, rendered by the Hon’ble Apex Court in Coffee Board vs. M/s Ramesh Exports Pvt. Ltd. 2014 (6) SCC 424 [Civil Appeal No. 5527 of 2014] the Hon’ble Apex Court, in view of Para 11 of the said judgment, was dealing with regards to the circumstances of a bar to be created from institution of a subsequent suit, as an implication of an adjudication of right in an earlier given proceedings there it has observed that the principles of Section 11 of CPC which has to be read in consonance with the provisions of Order 7 Rule 11, it would only create a bar when the cause of action was identical in the earlier suit, which had been later agitated in the subsequent suit filed by the plaintiff, which, in the instant case happens to be the sale deed dated 22nd September 2016. Para 11 of the said judgment is extracted hereunder: “11. The bar of Order 2 Rule 2 comes into operation where the cause of action on which the previous suit was filed, forms the foundation of the subsequent suit and when the plaintiff could have claimed the relief sought in the subsequent suit, in the earlier suit; and both the suits are between the same parties. The bar of Order 2 Rule 2 comes into operation where the cause of action on which the previous suit was filed, forms the foundation of the subsequent suit and when the plaintiff could have claimed the relief sought in the subsequent suit, in the earlier suit; and both the suits are between the same parties. Furthermore, the bar under Order 2 Rule 2 must be specifically pleaded by the defendant in the suit and the Trial Court should specifically frame a specific issue in that regard wherein the pleading in the earlier suit must be examined and the plaintiff is given an opportunity to demonstrate that the cause of action in the subsequent suit is different. This was held by this Court in Alka Gupta vs. Narender Kumar Gupta (supra) which referred to decision of this Court in Gurbux Singh vs. Bhooralal, wherein it was held that: “6. In order that a plea of a bar under Order 2 Rule 2(3) of the Civil Procedure Code should succeed the defendant who raises the plea must make out: (1) that the second suit was in respect of the same cause of action as that on which the previous suit was based; (2) that in respect of that cause of action the plaintiff was entitled to more than one relief; (3) that being thus entitled to more than one relief the plaintiff, without leave obtained from the court omitted to sue for the relief for which the second suit had been filed. From this analysis it would be seen that the defendant would have to establish primarily and to start with, the precise cause of action upon which the previous suit was filed, for unless there is identity between the cause of action on which the earlier suit was filed and that on which the claim in the later suit is based there would be no scope for the application of the bar.” 21. A reference may be had to a judgment as reported in 2010 (2) SCC 545, where the Hon’ble Apex Court, while dealing with the principles of res-judicata under Section 11 has dealt with an issue, that as to while considering the implications of bar of institution of subsequent suit, what is required to be seen is as to whether the relief claimed in the both the suits arose from the same cause of action and if there is difference the subsequent suit will not be barred by Section 11 of C.P.C. 22. Since here, the cause of action, is arising because of the subsequent sale deed, it would be altogether a different issue as per the language used under Section 11 of the Code of Civil Procedure. Hence, the essential ingredients for applicability of Section 11 of CPC are: (i) That the matter must be directly and substantially in issue in the former suit and that in the later suit, which could not be a case herein, because here, it was a sale deed, which was a subject matter of scrutiny, where the determination as already observed by this Court earlier, was about the title of the plaintiff/respondent, which was decided in the earlier suit, would only be a question which would be incidental to be decided by the Court while scrutinizing the deed of conveyance, executed subsequently which had gave a fresh cause of action in the light of the observations made by the Hon’ble Apex Court in Para 12 of the judgment of Alka Gupta (Supra). (ii) A prior suit though despite of the fact, that it should be between the same set of parties or a person claiming under them but still merely because it is the same set of parties, who are litigating in the subsequent suit, who were commonly the parties in the earlier proceedings too in relation to the property, which was commonly placed in the two proceedings, the property or the parties would not be the exclusively debarring an institution of the subsequent suit, where the issue as per the principles already dealt with above by this Court where the term “issue” has been decided. The “issue” herein will always denote to a subsequent “cause of action.” Hence, in that view of the matter, since the subsequent suit was arising on account of a fresh cause of action, which has accrued on account of execution of the subsequent sale deed, the bar of Section 11, as it has been sought to be attracted by the learned Senior Counsel for the defendant/revisionist, would not be applicable, because the issue would still be left open to be decided by the Court about the effect of earlier decree, only after framing of an appropriate issue as to what bearing the earlier decree, which was rendered in Suit No. 41 of 1992, would have while the plaintiff/respondent puts a challenge to the sale deed dated 22nd September 2016. 23. If the impugned judgment is taken into consideration, the rationale, which has been applied by the Court, while rejecting the revisionist’s application under Section 11 and deciding issue Nos. are 8 and 9, pertaining to Section 11 and Order 7 Rule 11 for the reasons given in Para 11 and 13, are absolutely justified, because this Court is of the considered view, that for the purposes of attracting Section 11, it would always be an “issue” i.e. the “cause of action” which will be of a prime consideration and not exclusively the parties to the suit or the subject matter, which was under litigation in a prior proceeding. Here, the cause of action, as it has already observed, is the subsequent sale deed, the bar of Section 11 or Order 7 Rule 11 of CPC, as sought to be attracted by formulation an issue Nos. 8 and 9, has been rightly answered against the revisionist herein. Hence, I do not find any merit in the revision. The revision is accordingly, dismissed.