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Muhammad Abdul Hamid Vs. Hedayetunnissa Bibi and ors. - Court Judgment

LegalCrystal Citation
CourtAllahabad
Decided On
Judge
Reported inAIR1914All414; 25Ind.Cas.284
AppellantMuhammad Abdul Hamid
RespondentHedayetunnissa Bibi and ors.
Excerpt:
civil procedure code (act v of 1908), section 11, exp. iv - suit to enforce recurring charges--certain properties not included in former suit--amendment of plaint before decree--no notice to defendant--decree absolute--defendant given notice--second suit including those properties--res judicata. - - in other words, the plaintiffs admitted that the defence on the point was good and they sought to be allowed to enforce their charge as against gaddupur and kursand......appeal is whether or set this point is res judicata. the charge is a recurring charge and the present suit is to recover what has fallen due from december 31st, 1903 to june 30th, 1907. prior to the present suit in the year 1904 a similar suit was brought by the plaintiffs to recover the charge as against the present defendant and the other defendants to the suit. along with the plaint in the former suit, the plaintiffs filed a list b of those properties against which they sought to enforce the charge. in that list was entered the village of godhna, but not the villages of kursand and gad-dapui'. the defendant had notice of that suit, but he did not appear and defend it. other defendants, however, did and one point which they raised in their written statement was that the plaintiffs.....
Judgment:

Tudball, J.

1. This appeal arises out of a suit brought by the plaintiffs-respondents to recover a certain sum of money charged upon certain properties. The appellant-defendant is a person who is the owner of three of the various properties against which the plaintiffs have sued. These properties are in the villages Godhna, Kursand and Gaddupur. In respect to Kursand and Gaddupur the defendant-appellant pleaded that they were not liable to the charge. The Court of first instance decreed the suit. The defendant appealed and the lower Appellate Court dismissed the appeal holding that the point in issue is res judicata.

2. The sole point for decision in the present appeal is whether or set this point is res judicata. The charge is a recurring charge and the present suit is to recover what has fallen due from December 31st, 1903 to June 30th, 1907. Prior to the present suit in the year 1904 a similar suit was brought by the plaintiffs to recover the charge as against the present defendant and the other defendants to the suit. Along with the plaint in the former suit, the plaintiffs filed a list B of those properties against which they sought to enforce the charge. In that list was entered the village of Godhna, but not the villages of Kursand and Gad-dapui'. The defendant had notice of that suit, but he did not appear and defend it. Other defendants, however, did and one point which they raised in their written statement was that the plaintiffs had omitted to sue as against some four villages of which Kursand and Gaddupur were two. An issue was framed on the point. The defence raised was that the other properties, Kursand, Gaddupur etc., were equally liable to the charge. The suit was decreed on September 9th, 1904. On September 6th, that is three days prior to the decision, the plaintiffs filed an application asking the Court to allow them to amend list B attached to the plaint and enter the villages Kursand and Gaddupur' and also another village. In other words, the plaintiffs admitted that the defence on the point was good and they sought to be allowed to enforce their charge as against Gaddupur and Kursand. The Court ordered notice of the application to be given to the Pleader of those defendants who were defending the suit. Muhammad Abdul Hamid not being present and the proceedings against; him being ex parte, no information apparently was given to him of this application. The Court decided the suit and delivered judgment and ordered, the plaint to be amended by the entry of 'the two villages Kursand and Gaddupur in list B. The order was formally passed and carried out on the date on which judgment was delivered, and apparently after delivery of judgment the Court granted a decree for the recovery of the money by sale of the properties entered in list B, including Kursand and Gaddupur. The money not having been paid the plaintiffs on March 23rd, 1905, applied for an order absolute under Section 89 of the Transfer of Property Act. Notice was issued to the defendant, Abdul Hamid, and it was. served on him on March 28th, 1905. He again did not appear, no objections were taken and on May 13th, 1905, the Court passed the final decree under Section 89 of the Transfer of Property Act. When the present suit was brought Muhammad Abdul Hamid raised the plea, as I have noted above, that the villages of Kursand and Gaddupur were not liable for this recurring charge. The question is whether this plea might and ought to have been made a ground of defence by him in the former suit. It is strongly urged on his behalf that as the former suit was originally brought he had no reason to defend it, that the village of Godhna was liable, to the charge and the plaintiffs did not seek to enforce their charge against Kursand and Gaddupur, that the order of amendment was passed immediately after judgment had been delivered (it was probably passed at the time that the judgment was delivered), that, therefore, the appellant had no opportunity of raising the point and that, therefore, it cannot now be res judicata in the present suit. It seems to me, however, that after the preliminary decree had been passed and before the final decree in the suit had been made, Muhammad Abdul Hamid received clear notice of the preliminary decree which had been passed in the case, that when he had knowledge that a preliminary decree had been passed as against the villages of Kursand and Gaddupur it was open to him to re-open the point either by way of review or by way of appeal so as to enable him to put forward his defence, that is, the present one which he has put forward in the present suit. Instead of that, with full knowledge of the preliminary decree, he allowed the final decree to be passed against him allowing the charge to be enforced against Kursand and Gaddupur without taking any objection. He at least could have asked the Court to review its decision on the ground that he had no notice of the amendment. Over and above that, if he had attended to his interests properly in the suit of which he had full notice, he would have (at a very early stage) become aware of the plea taken by his co-defendants and also become aware of the change of position taken up by the plaintiffs. It is clear that if he could have raised the defence in the fromer suit he ought to have raised it; and, in my opinion, in view of the facts stated above, he could have raised it in the first suit and most certainly ought to have done so. It is too late for him now, in the present suit, to raise the plea after he had allowed judgment to go against him in the former suit. Under the circumstances, I must hold that the decision of the Court below is correct. This is the only point raised in this appeal. It, therefore, fails and is dismissed with costs.


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