1. The facts leading to the present petition are no more in dispute. The petitioner pandering is a protected lessee of the fields. Survey Nos. 28/2. 24/4 and 15/6 area 22 acres, of village sawargaon Dukre, situate in District Buldana. The respondent No. 4 Yadaosao is the landholder of the said land. The present proceedings came to be initiated by respondent No. 4 under the provisions of section 36 (2) read with section 38 of the Bombay Tenancy and Agricultural Lands Act, 1958. here in after called the Act, for possession of the land from his tenant Pandurang.
2. The respondent No. 4 acquired right to these fields by a registered deed of partition which is evidenced by a document of December 17. 1958. The tenancy of pandurang is protected and dates back to a period prior to the date of partition, i.e., December 17. 1958. These being the facts the respondent No. 4 who is the tenure-holder having acquired by partition this land after 1st day of August 1953 and the protected lease in favour of the petitioner pandurang being prior to the date of the said partition. had no locus standi to make an application in view of the bar of sub-section (7) of section 38 of the Act. no Court therefore under the Act could proceed to grant relief to him.
3. However, the litigation between the parties is pending for it had its own chequered course. Initially by and order dated October 22. 1963. the Naib Tahsildar held that the respondent No.4 was entitled for possession of the suit land as per provisions of section 38 (4) (a). Proviso, of the Act. In the appeal which was disposed of on April 13, 1964. the Deputy Collector with tenancy appellate powers affirmed that finding directing that respondent No. 4 Yadaorao. should be placed in possession of half the suit land under section 38 of the Act. The matter was taken by the tenant to Maharashtra Revenue Tribunal and by an order dated February 23, 1965. that Tribunal held that the application itself was not tenable in view of the provisions of section 38 (7) of the Act and adjudged that the application was untenable.
4. Respondent No. 4 moved a petition under Article 227 of the Constitution being Special Civil Application No. 407 of 1956 in this Court. It appears that when that case up for hearing on April 5. 1966, a decision interpreting section 38 (7) was rendered by this court in some other petition which is now reported is Salubal V. Chandu : AIR1966Bom194 . Following that decision this court allowed the writ petition and remanded the matter for finding out the other conditions contemplated by the provisions of section 38 of the Act so as to enable a relief to tenure-holder
5. When the matter went back before the Tribunal the Tribunal merely referred to Saluabi's decision : AIR1966Bom194 and held that application was tenable and the claim of the applicant will be allowed to the extent indicated by section 38 (4) (a), proviso 1 of the Tenancy Act. Though this court directed that all the questions on merits as required by section 38 should be freshly found. the tribunal disposed of the case by affirming earlier view taken by the appellate authority. Against that order the present petition is directed.
6. This petition was filed some time on December 18, 1967. During the pendency of this petition. a Full Bench of this court considered the correctness of the Salubai's decision : AIR1966Bom194 and interpreted the provisions of section 38 (7) and found that the landlord of the conditions imposed by that provision. This Full Bench decision is reported in Smt. Radhabai V. state of Maharastra : AIR1970Bom232 FB. If that is what is the law. then the application filed by respondent No. 4 under section 38 admittedly upon a partition of December 17, 1958. is not tenable nor he is entitled to any right as claimed by him.
7. Therefore. it is properly urged at the time of argument of this petition that no useful purpose will be served by again remanding this case to the Tribunal to comply with earlier directions given by this Court though the petition initially was filed for such a relief. but the matter being covered by the ratio of Radhabai's decision : AIR1970Bom232 FB the tenancy courts have no jurisdiction to adjudicate To this the learned counsel appearing for respondent No. 4 naturally pleads the doctrine of res judicata or its general priniciples. The only question therefore that clearly arises for consideration is whether the earlier order of this court following Salubai's case : AIR1966Bom194 since overur;led should stand in the way of the petitioner to apply the law found in Radhabai's decision so as to non-suit the land-holder.
8. It is plain that upon the interpretation given in Radhabai's case : AIR1970Bom232 FB the respondent No. 4 could not maintain any application before the tenancy authorities under section 38 of the Act. On the basis of Salubai's decision : AIR1966Bom194 . alone his application could be treated as tenantable and tenant deprived of his land. The question thus is one of initial jurisdiction to entertain a proceeding and furnish relief. The provisions of section 32 (7) in clear terms operate upon a power to adjudicate upon rhe rights of a tenure holder to terminate the tenancy of a tenant. In other words if the tenancy is of the nature indicated by that sub-section. the entire section 38 is not available and there is in law no right to move the tenancy courted are tribunal of limited jurisdiction. Unless statue confers a power or authority those tribunals cannot seek to decide the disputes nor can reach the rights of parties on any consideration of general principles of law.
9. The argument however takes in the earlier order of this Court which is produced at Annexure-D in this petition wherein what was expressed in salubai's case : AIR1966Bom194 was mentioned and theTribunal's order set aside and the matter remanded back for a fresh trial on merits. Taking therefore the decision in Salubai's case as law that order was made. This court did not dispose of the litigation finally between the parties nor put an end to the rights of the same proceeding not finally disposed of by special Civil Application No. 407 of 1965. The earlier order was made under the provisions of Articles 227 of the Constitution which is of a supervisory character. Such a power can be exercised from time to time and by its very nature is meant to correct the errors of law and jurisdiction of the lower tribunals always keeping them in the bounds of law. Therefore, when an order was made in the earlier petition. the matter was not disposed of but reopened in the same proceeding. During the pendency of the very same lis the Full Bench by Rasdhabai's decision : AIR1970Bom232 (FB) declared the law which must apply and govern the rights of the parties as if applicable at all stages of litigation. This is more so, for earlier remand was on the basis of a view of law unrelated to facts between the parties. Hardly it can be said therefore that such as order concludes either the valuable rights available to the parties or the matters of jurisdiction or authority of the tenancy Courts.
10. It is rugged strenuously by the tenure-holder that the real effect of Annexure-D, i.e.,the order of this Court, is to hold that his application was tenable in view of Salubai's decision : AIR1966Bom194 and what remained for the Tribunal was to apply other provisions of Section 38 and grant him relief. It was not open to the Tribunal to sit in judgment upon the order made by this Court on April 5, 1966 holding that the application was tenable. The interpretation put by this Court conferred the right on the tenure-holder which cannot be defeated in a subsequent proceeding. The learned counsel appearing for the tenure-holder, therefore, relied upon for this purpose on certain decisions of this Court as well as of the Supreme Court which will be noticed as I discuss the several facets of the doctrine of res judicata which falls for consideration in this case. It may be mentioned that the learned counsel says that this case is governed by the principles laid down by this Court in Shenphad v. Maharashtra Revenue Tribunal, Nagpur 1970 Mah LJ 541 and Special Civil Appln. No. 867 of 1968 decided on 4-2-1971 (Bom) Laxman v. Shaikh Munir. As against this, the petitioner's counsel submits and presses in aid the Supreme Court decision in Mathurs Prasad v. Dossibai : 3SCR830 and decisions of this Court in Special Civil Appln. No. 698 of 1970 decided on 30-3-1972 Bhagwansingh v. Sitabai, and Special Civil Appln. 943 and 944 of 1970. decided on 5-4-1972 (Bom) Chhaganlal v. Mansingh and Chhaganlal v. Ghanashyam,. respectively and submits that the decision of this case should be governed by the principle enunciated by these judgments and the matter cannot be foreclosed on the plea of res judicata.
11. The doctrine of res judicata is a doctrine of repose and is grounded on public policy. It means that the things which wer actually and directly in dispute and which were finally adjudicated upon should not be allowed to be reagitated. In a sense it postulates a principle of peace operative over the warring field of litigation and secures finality for justice. doctrine as is known to us had its origin in English common law principle its recent appraisal by that it stems out of law of estoppels and in essence is a doctrine of 'issue - estoppel'. In Edwards V. Edwards (1967) 2 All ER 1032 Sir Jocelyn Simon. P. observes:
'All adjudication. like every piece of social engineering of desiderata, not all of which are easily made consistent. There should. first, be the fullest and truest assessment of all relevant facts. There must. however, secondly be some protection of individual privacy and liberty. Thirdly, and most relevant of all to this application it is desirable that disputes within society should be brought to an end as soon as is reasonably practical and should not be allowed to drag That last principle finds expression in maxim which English law took over from the Roman law; It is in the public interest that there should be some end to litigation. The principle, for example applies in the doctrine which is known to lawyers as res judicata; in other words. Once there is decision on a matter by a competent Court, it is binding on all courts of similar jurisdiction'.
In Carl-Ziess-Stiftung V. Rayner (1966) 2 All ER 536 . its content is found to mean 'an issue estoppel'. The Court observes:
' Within recent years the principle gas developed so as to extend to what is now described as 'issue estoppel'. that is to say where in a judicial decision between the same parties some issue which was in controversy between the parties and was incidental to the main decision has been decided, then that nay create an estoppel per rem judicatam'.
12. As far as Indian Law is concerned, the principles of res judicata are firmly grounded into our system of juddicial administration both under the code of Civil Procedure and also upon general principles. In Satyadhyan V. Smt. Deorajin Debi : 3SCR590 the principles were applied on the need of giving a finality to judicial decisions. If a matter between two parties in one suit or proceeding has been decided and that decision has achieved finality either because no appeal was taken to a higher court or because the appeal was dismissed or no appeal lies, then neither party should be allowed in the future suit or the proceeding between the same parties to canvass the matter again. This is the core and concept of the rule. The principles however underlying the doctrine are available and as such applicable in other jurisdictions too for achieving finality and firmness to judicial process. Similarly a given controversy may stand concluded between two stages of the same litigation to the extent that Court. Whether the trial Court or higher Court. having at an earlier stage decided the matter in one way will not allow the same parties to reagitate the matter again at a subsequent stage of the same proceeding. Relying on these salutary rules it is said that the judgment in Special Civil Application No. 407 of 1965 of this Court must be treated as res judicata for the purpose of the present petition.
13. The doctrine came further for consideration before the Supreme Court in all its varied aspect in a later case reported in : 3SCR830 (Mathura prasad'scase cited supra) and the Court emphasised that when law is altered or when decision relates to jurisdiction of court, the matters cannot be treated as foreclosed upon a plea of res judicata. Eminently therefore questions affecting jurisdiction or arising upon alterations of the very law to be applied are clear exceptions to this parent doctrine and as also to its general principles. In Shenphad's case 1970 Mah LJ 541 mainly reliance is place on Satyadhyan's case : 3SCR590 to conclude that a decision of the Revenue Tribunal that the application was not hit by Section 38 (7) bound the parties on the principle of res judicata and thus had put an end to the controversy between them. That view need not halt the march of reasoning in this particular case; for Shenphad's case was distinguished in Special Civil Application No. 698 of 1970 decided on March 30, 1972 and special Civil Applications Nos. 943 and 944 of 1970 dated 5-4-1970 which were differently decided. The learned Judge observed that the earlier case was not applicable to the facts available in special Civil Application No.698 of 1970 as the law was changed by amendment and when law is changed, the principles enunciated by Supreme court in Mathura Prasad's case : 3SCR830 (Supra) would indicate that res judicata was not available. There the court noticed the amendment made to section 38 (7) and the interpretation put by Radhabai's case and on almost similar facts decided that the doctrine did not decide the dispute. Thus the latter conclusions indicate that matter cannot be shelved now by recourse to this convenient and cosy concept of no doubt, an efficacious principle.
14. It is necessary and compulsive that the doctrine of res judicata and general principles remanding therefrom must be resorted to secure and freeze the issues once debated and finally decided. However it is eminently obvious that the felt necessities of a given cause and the course of justice tend to find exceptions to do justice at all times. Administration of justice and principles of adjudication are not wrought nor understood within a static formulae. Human fallibility and foibles constantly necessities an alert to find solutions to varying patterns of difficulties. Even under our system of civil and criminal adjudications therefore well-known erosions have in fact chiselled out the neat shape of the basic concep;t of res judicata. One such permissive course is engrafted in the statue itself by Section 44 of the Evidence Act; completely allowing a party to a suit or other proceeding to show that the earlier judgment is not binding on account of fraud. collusion or incompetency of the court, the fraud herein may also negligence qua the rights of persons under disability viz., minors (See Iftkhar Hussain V. Beant Singh AIR 1946 Lah 233 .Beliram and Brothers V. Mohd. Afzal : AIR1937All28 , and Pulin Behari V. Satya Charan. AIR 1923 Cal 79.
This is indicative by way of illustration that there are species in matters and causes which need not tie down the party by doctrine of res judicata. Any one who can establish the grounds mentioned in Section 44 of the Evidence Act avoids the doctrine as well as its principles. What of jurisdication spoken of by that section may come to surface either by exposition of law or its later authoritative interpretation . No Court or Tribunal by interpreting a law of its jurisdiction in error can fasten upon a party its authority eminently emanating from such interpretation at the foot of this doctrine.
15. Yet another facet clearly concerned with this concept may also be conceived. Whenever a Court decide a pure question of law unrelated to fects, such an interpretation or decision upon the question of law though subsequently discovered to be wrong need not be permitted to hold the course of justice. Whenever the law is changed or its interpretation is found to have been incorrectly made the parties should be able to show that such a decision unrelated to facts do not foreclose their rights upon allusions to these general principles. This Court in Balvant Nathu V. Secy. of state : (1908)10BOMLR531 expostulated a dicta that govern such matters. observing that whenever it is shown in regard to any part of the judgment which can be shown to be grounded on mistake or error as it would have been the duty of that Bench to correct if it had been brought to its notice when the judgment was delivered and if that part of the judgment is based upon the assumption or hypothesis which came later on to be ascertained to be erroneous. It is competent for the Court or rather, incumbent on it, to disregard it and to reopen that portion of the case affected by the error. This view was followed by Allahabad High Court in Chauli V. Meghoo : AIR1945All268 abd quoted with respectful approval, Apart from the rights of the parties, therefore, this obligation flows from the very fundamental duty to do justice at all times according to law. The Courts cannot relieve themselves by alluding to mere expediency of doctrinaire approach and allow palpable errors to rule the rights of party need suffer. That is surely not the domain of the doctrine of Res Judicata. I must say, with respect that the observations in Balwant's case. : (1908)10BOMLR531 supra should govern the matters whenever the error upon an interpretation of a statue has been brought before the Court in the same or subsequent proceedings.
16. Courts are fully armed and ever enabled to do justice between the parties before it. (See Manhar Lal Chopra V. Hiralal. : AIR1962SC527 ). It is a power to act ex debito justitiae and to do real and substantial justice for the administration of which the institution of Courts exists. It is well recognized principle of this administration that courts are bound to exercise vigil that the act of the Court does no injury to any of the suitors and that principles applies at all stages of a litigation. (See Rodger V. The Comptoir D' Escompte De Paris. (1871) 3 PC 465. From the maxim ex debito justice and the duty implied in the jurisdiction of the Court, an erroneous interpretation which has been shaken either upon reconsideration of an issue of law by the same Court or reversed by the higher Court upon the same question of law should always be capable of being recalled so that none suffers by the error properly found. To hold otherwise would entail great hardship and inconvenience to the suitors who would though the proceedings are alive be subjected to suffer like Prometheus chained to the rock. This bristles with worst incongruities and surely shadows the lustre of justice and equity. The doctrine or its principles do not therefore fetter the Court when squarely the matter in dispute depended upon interpreting a provision of law concerning the power to grant relief and to possess proper jurisdiction. From Rodger's case(1871) 3 PC 465 may usefully extract from the opinion of Lord Cairns where the learned Lord observed:
'Now their Lordships are of opinion,, that one of the first and highest duties of all Courts is to take care that the act of the courts does no injury to any of the Suitors, and when the expression. 'the act of the Court' is used, it does not mean merely the act of the primary court. or of any intermediate court of appeal. but the act of the court as a whole from the lowest court which entertains jurisdiction over the matter upto the highest Court which finally disposes of the case. It is the duty of the aggregate of those Tribunals, if. I may use the expression to take care that no act of the Court in the course of the whole of the proceedings does an injury to the suitors in the court 1871 3 PC 465.'
Upon such a sublime compulsion to protect parties from the mistakes of court the need of applying general principles of res judicata may in a given case recede to backwaters.
17. As I see it, Section 38 (7) affacts the very jurisdiction to entertain the application under Section 38 of the Act which in itself is declaratory and remedial. Tenability of an application and conditions therefor are jurisdictional matters. tion 38 carves out specific remedy for special reliefs and sub-section (7) relates very much to the power of the authorities under the Tenancy Act enabling them to act or not to act under the earlier sub-sections. Once it is shown that a lis of a tenure-holder claiming a right against a tenant as is described in sub-section (7) is before the revenue authority then nothing can be done and the application itself is incompetent. In other words by interpreting the matters in sub-section (7) Tribunal or court cannot assume a jurisdiction which the statue never intended to confer upon it and further exercise it upon such an assumption. What would be the effect if salubai's case : AIR1966Bom194 was held applicable at this stage of such a proceeding? Though correct law applicable as it found in Radhabai's case. : AIR1970Bom232 (FB), barred an enquiry at the behest of the tenure-holder of the kind of respondent No. 4 still his application would be granted and he would enter upon possession of the land from a protected tenant contrary to all intendment of the statue. Even still acting upon Saluabai's case the general principles of res judicata are applied to the present phase of this litigation. it would mean that the tribunal or the Court by an erroneous decision as to its capacity to entertain an application clothed itself with powers to adjudicate upon the matters which it had none a on a true interpretation of those provisions. Surely such a course in essence would be entirely without law and hence without jurisdiction. It must therefore be held that to the matters involving interpretation with regard to jurisdiction particularly of the special tribunals like the tenancy courts. The doctrine of res judicata or its general principles need not forestall the rights of the parties. This view appears to me to be in accord with what the supreme Court observed in Mathura Prasad's case. : 3SCR830 . Matters which reach to the root are clearly beyond the pale even of section 11 of the Code of Civil Procedure. (See P. Krishna Nair V. Ramchandra Sanghvi, : AIR1956Bom268 Similarly the doctrine does not apply whenever the law is changed and in that sense the interpretation on a pure question of law has been found to be erroneous. (See Salik Ram V. Subedar Singh. and Jharuram Das V. Hajar Mohammad : AIR1944Cal13 .
18. In another decision that was relied upon by the learned counsel for the respondent No.4, i.e. Special Civil Appln. No. 867 of 1968 decided on 4-2-1971 (Bom) by this Court, the matter was concluded on the principles of res judicata for it was obvious there that the earlier judgment decided the rights of the parties and it was not merely a decision relating to question of law or jurisdiction. After noticing the decisions of the Supreme Court reported in : 3SCR590 . Arjuna Singh V. Mohindra Kumar : 5SCR946 . Ganpathi Thevar V.S.N. Devasthaanam : 1SCR508 and Sobhag Singh V. Jai Singh, : 2SCR848 . the court held that the earlier decision rendered in that litigation by the Maharashtra Revenue Tribunal though erroneous was not open to challenge at that stage. The case is clearly distinguishable both on the facts available and the questions that fell for consideration in that case.
19. In the present case as has been indicated above, an interpretation of sub-section (7) of Section 38 which was made by this court in Salubai's case : AIR1966Bom194 was merely alluded to and the case remanded. Now, the very basis on which the earlier order was made by this Court has been shown in these proceedings before me to be wrong and erroneous on the strength of Radhabai's decision : AIR1970Bom232 . If that be so. there is no principle nor any policy still to subject the party when the matter is open and really and substantially alive in this Court and not to recall the error of interpreting a law or a provision of the statue upon which the fate of a litigant depends. As I view the matter there is ample power and an obligation flowing from the basic concept of justice that such errors should not be allowed to be perpetrated and undone. I would therefore treat that there was no jurisdiction in the revenue authorities to entertain the application oof the respondent No. 4 and the application filed by the said respondent was liable to be rejected upon the proof of the facts which are not in dispute in this case. The application itself was not entertainable.
20. That being the position, the present petition will have to be allowed. The order made by the Revenue Tribunal is hereby quashed being without jurisdiction and the application filed by the respondent No. 4 for resumption of land under Section 36(2) read with Section 38 (1) of the Act is adjudged untenable. However, in the circumstances of the case, there will be no order as to costs.
21. Petition allowed.