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Maqbul Fatima and ors. Vs. Amir Hasan Khan and ors. - Court Judgment

LegalCrystal Citation
SubjectProperty;Civil
CourtAllahabad
Decided On
Judge
Reported inAIR1914All514; (1915)ILR37All1
AppellantMaqbul Fatima and ors.
RespondentAmir Hasan Khan and ors.
Excerpt:
.....judgement--effect of decision in british india as to the title to part of an estate on a suit filed in rampur for possession of another portion of the same estate situated there. - cantonments act[c.a. no. 41/2006]. section 346 & cantonment fund (servants rules, 1937, rules 13, 14 & 15: [h.l. gokhale, ag. cj, p.v. hardas, naresh h. patil, r.m. borde & r.m. savant, jj] jurisdiction of school tribunal constituted under maharashtra employees of private schools (conditions of service) regulations act, (3 of 1978) held, school run by the cantonment board is a primary school and it is not a school recognised by any such board comparable to the divisional board or the state board. the school tribunal constituted under section 8 of the maharashtra act cannot entertain appeals filed..........suit resulted in favour of the plaintiffs. while it was pending the defendants instituted another suit in rampur, claiming possession against the defendants in that suit (the plaintiffs in the present suit) of the property situate in rampur. thereupon the plaintiffs instituted the present suit claiming the reliefs set forth above.3. there can be no doubt that if all the property was situated in british india, the decision of the subordinate judge of bareilly, confirmed by the high court, would operate as res judicata against the defendants. the difficulty is that part of the property is situated in rampur, outside british india.4. it is pointed out on behalf of the plaintiffs that they do not ask the court to issue any injunction to the court in rampur and that the relief that they.....
Judgment:

Henry Richard, C.J. and Tudball, J.

1. This appeal arises out of a suit brought by the plaintiffs against the defendants for reliefs set forth in the following words:

(a) That it be declared that the 'judgement', dated the 2nd of February, 1911, by the Subordinate Judge of Bareilly, between the parties, and upheld by the Honourable High Court on the 6th of November, 1912, is binding between the parties, and operates as res judicata against the defendants on the points heard and decided between them in all subsequent proceedings even in the Rampur court.

(b) That the defendants be restrained by a perpetual injunction from continuing their suit in the court of the District Judge of the Rampur State against the plaintiffs, which they have instituted there for the recovery of a moiety of the estate situated in the ceded district of Rampur * * * * * *.

2. It will be convenient very shortly to state here the facts which led to the institution of the present suit. At one time one Nawab Muhammad Altaf Ali Khan was the owner of considerable property situated partly in Bareilly and partly in the Rampur State. Upon the death of Nawab Muhammad Altaf Ali Khan disputes arose between the plaintiffs and the defendants as to the title to the property situated in both places. The plaintiffs instituted a suit before the Subordinate Judge of Bareilly for a declaration of their title in respect of so much of the property as was situate in the district of Bareilly. That suit resulted in favour of the plaintiffs. While it was pending the defendants instituted another suit in Rampur, claiming possession against the defendants in that suit (the plaintiffs in the present suit) of the property situate in Rampur. Thereupon the plaintiffs instituted the present suit claiming the reliefs set forth above.

3. There can be no doubt that if all the property was situated in British India, the decision of the Subordinate Judge of Bareilly, confirmed by the High Court, would operate as res judicata against the defendants. The difficulty is that part of the property is situated in Rampur, outside British India.

4. It is pointed out on behalf of the plaintiffs that they do not ask the court to issue any injunction to the court in Rampur and that the relief that they claim is against the defendants personally. It is strongly urged that even in Rampur the decision that was given in British India in respect of the Bareilly property is absolutely conclusive, and that therefore, the defendants ought not to be allowed to reopen the matter in Rampur, and put the plaintiffs to the expense and inconvenience of defending the suit in that State.

5. Assuming for a moment that this Court has power to grant an injunction which in effect would restrain proceedings in the Rampur State (even though the injunction is not directed to the Rampur court) it is necessary to consider whether or not the plaintiffs are entitled to a declaration 'that the Judgment of the Subordinate Judge of Bareilly operates as res judicata in the Rampur State.' It is said that in the district in Rampur, in which the property is situate, the laws in force in British India are observed and that this condition has been observed by the Ruler of the Rampur State ever since the ilaqa was granted to the State in recognition of services in the Mutiny. A document is on the record called 'Dastur-ul-Amal' in which it is stated that 'the affairs and cases of the new ilaqa shall be decided in accordance with the laws in force in British India.' It was also stated at the Bar that the Code of Civil Procedure has been printed in Rampur for the use of the ilaqa. No copy of this Code was produced. It might be difficult to decide, were it necessary to do so, that the meaning of the Dastur-ul-Amal was that not only existing laws but all future laws, including adjective law like the Code of Civil Procedure, were to apply to the ilaqa. We will, however, assume that a Code of Civil Procedure in all respects the same (with the necessary modifications to make it applicable to the State) is in force in Rampur so far as this ilaqa is concerned. Section 11 of the Code of Civil Procedure is as follows:

No court shall try any suit or issue in which the matter directly and substantially in issue has been directly and substantially in issue in a former suit between the same parties, or between parties under whom they or any of them claim, litigating. under the same title in a court competent to try such subsequent suit, or the suit in which such issue has been subsequently raised, and has been heard and finally decided by such court.

6. The issues in the suit in Rampur are said to be, and probably are, identical with the issues in the suit that was tried in Bareilly, but the Subordinate Judge in Bareilly was not competent to try the suit in respect of the property which is situated in Rampur. It seems, therefore, that so far as Section 11 of the Code of Civil Procedure is concerned the Judgment of the Subordinate Judge of Bareilly does not operate as res judicata in Rampur.

7. But it is contended that Section 13 of the Code of Civil Procedure makes the Judgment absolutely conclusive, because the issues, though not the cause of action, are the same. Section 13 is as follows:

A foreign Judgment shall be conclusive as to any matter thereby directly adjudicated upon between the same parties or between parties under whom they or any of them claim, litigating under the same title, except' as in the same section provided. The word 'Judgment' in the expression 'foreign judgement' is evidently used in the sense in which the word 'Judgment' 1 is used in England.

8. It is contended that if in the Rampur court the Judgment of the learned Subordinate Judge of Bareilly was produced that court would be at once bound to pronounce Judgment against the defendants in the Rampur State, and in favour of the defendants by reason of the language of Section 13. If this argument be sound the result would be somewhat startling. A court in Rampur, which was only competent to try suits where the value of the property was very small might give Judgment in favour of a party and in a suit subsequently brought in British India between the same parties, in respect of different property worth many lakhs, if the Judgment of the Rampur court was produced nothing more could be said, and the court in British India to matter how high its jurisdiction) would be absolutely bound. This would mean that it was the intention of the Legislature to give greater effect to a Judgment of a foreign court no matter how petty, than to judgements of as high, or possibly higher courts British India. In British India it is only when court is competent to try the second suit that the matter is res judicata. Such a result, we think, would be almost absurd.

9. It is contended that, no matter how absurd the result the words of Section 13 are quite plain. A 'foreign judgement' our Code of Civil Procedure to be the Judgment of a 'foreign court and a 'foreign court 'is defined to be a court which has no authority in British India, and is not established or continued by the Governor General. A 'foreign judgement' has no force or authority as such in British India. It is of course true that a foreign Judgment may give a cause of action and a suit may be brought based upon it to obtain the same relief as was given by the foreign judgement. If we read the words of Sections 13 as meaning that the foreign Judgment shall be conclusive as to any matters thereby directly adjudicated upon in any proceedings based upon such judgement, the meaning of the section becomes perfectly clear. In our Judgment it is only in proceedings, based upon 'foreign judgements' that the question of the 'foreign judgement' can properly arise. We may here point out that if the Code printed in Rampur is simply a copy of our Code and contains the same definition of 'foreign judgement' and 'foreign court' it is difficult to see how Section 13 applies at all. We would be inclined, if such be the case, to infer that the Code was only printed as a guide to judicial officers in Rampur when dealing with cases in the ilaqa. For these reasons we are of opinion that the plaintiffs are not entitled to the declaration they ask for. If they are not, they clearly are not entitled to the injunction claimed.

10. It is unnecessary to express any opinion on the other questions raised. In conclusion we wish to say that we have no reason for thinking that the suit will not be fairly and honestly tried out in Rampur on the evidence.

11. The result is that the appeal fails and is dismissed with costs.


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