M.R. Sharma, J.
1. One Surta was the original owner of the land which was being cultivated by Gajpat Singh as a tenant up to 1938. From 1950 onwards the revenue entries show that he was cultivating this land on payment of no rent and regarded himself as owner. On 11th Oct. 1966, Surta made a gift of this land and some other property in favour of Sudhan. Gajpat Singh filed a suit for declaration that he was the owner of this property either by purchase or by adverse possession and so Sutra could not have made a valid gift. This suit was dismissed as having abated on Feb. 27, 1969, and this dismissal of the suit was affirmed in appeal.
2. On June 5, 1970, the present suit for possession of land was instituted by Sudhan. It was resisted by Gajpat Singh inter alia, on the ground that he had become the owner of the property by adverse possession. On the pleas raised by the parties, the learned trial Court framed the following issues:--
1. Whether the plaintiff is owner of suit land?
2. Whether the defendant has become owner of suit land by purchase from Surta and by being in adverse possession of the suit land above twelve years ?
3. Whether the defendant is estopped from raising the above plea covered by issues Nos. (1) and (2) for the reasons detailed in para No. 7 of the plaint?
4. Whether the plea covered by issues Nos. (1) and (2) is barred by principle of res judicata?
5. Whether the suit is within time ?
On issue No. (1), it was found that Sudhan, respondent, was the owner of land. On issue No. (2), it was held that the appellant had not become owner of the land by purchase from Surta but his possession, being adverse, had ripened into title. Issues Nos. (3) and (4) were discussed together and it was held that because of the abatement of earlier suit the appellant was debarred from resisting the claim of the respondent on the plea of adverse possession. The learned lower appellate Court affirmed the decision of the learned trial Judge on these issues and dismissed the appeal.
3. The second appeal filed by the appellant came up before me on Aug. 24, 1973. It was pointed out that there was a sharp conflict of judicial authorities on this point whereas the Lahore and Madras High Courts in Raju v. Ram Chand, AIR 1933 Lah 752, and Kamatchi Ammal v. Athigamudaya Pillai, AIR 1969 Mad 426, took the view that abatement of a suit tantamounts to a judgment in favour of the successful party and the same matter could not be re-agitated in subsequent proceedings, the Allahabad High Court in Bejai Ragho Niwasji v. Tej Narain Lal, AIR 1943 All 99, took the view that a party whose suit had abated could defend its possession in a subsequent suit filed against it. I was inclined to follow the Division Bench decision of the Lahore High Court in Raju's case (supra), but it was pointed out that provisions of O. IX, R. 9, Civil P. C. were somewhat analogous to the provisions of O. XXII, R. 9, Civil P. C., and in Shivashankar Prasad Sah v. Baikunth Nath Singh, AIR 1969 SC 971, it had been held that the dismissal, for default of the judgment-debtor, of an application filed by him under S. 47, Civil P. C., resisting the execution of the decree, was not a final decision of the Court after hearing the parties and the same did not operate as res judicata and the judgment-debtor could raise the same objection in a subsequent application filed by him. From this I inferred that the authority of Raju's case (supra) had been impliedly shaken. At my request, the learned Chief Justice ordered that the controversy in judicial opinion should be resolved by a Full Bench and this is how this case has come up before us.
4. Order XXII, R. 9(1), Civil P. C. reads as under:--
'9. Effect of abatement or dismissal-
(1) Where a suit abates or is dismissed under this Order, no fresh suit shall be brought on the same cause of action'.
It is significant to note that the statute bars a fresh suit on the same cause of action and places no express impediments in the way of the defendant to defend a new suit on the basis of the facts pleaded by him in the earlier suit, which had been filed by him and had abated. Some other provisions, which are in pari materia, may also be noticed.
'O. Decree against plaintiff by default bars fresh suit-
(1) Where a suit is wholly or partly dismissed under rule 8, the plaintiff shall be precluded from bringing a fresh suit in respect of the same cause of action..........................'
O.XXIII, R. 1(3)-
'1. Withdrawal of suit or abandonment of part of claim-
...... ...... ...... ...... ...... .......... ...... ...... ...... ...... ......
(3) Where the plaintiff withdraws from a suit, or abandons part of a claim without the permission referred to in sub-rule (2), he shall be liable for such costs as the Court may award and shall be precluded from instituting any fresh suit in respect of such subject-matter or such part of the claim'.
5. Under these provisions also no express bar has been created against a defendant to raise such pleas as had been raised by him in his earlier suit which might have either been dismissed in default of hearing or withdrawn by him, as the case may be.
6. In some of the decided cases, the points of similarity between these provisions have been judicially noticed. In Rajaram Vithal v. Ramchandra Pandu, AIR 1948 Bom 226 (FB), it was observed as under:--
'It will be noticed that the consequence is the same as on an abatement of the suit, and that Bench held that the general terms of O. 9, R. 9, do not over-ride the specific directions of section 60, T. P. Act, 1882. If the general terms of O. 9, R. 9, cannot override the specific directions of S. 60, equally so the general terms of O. 22, R. 9, cannot override the specific directions of S. 60. Transfer of Property Act. We see no difference in principle between the decision in Shrindhar Sadba v. Ganu Mahadu, AIR 1928 Bom 67, and the case we are considering now; and we are not satisfied by Mr. Shah's argument that that case was wrongly decided'.
In Santosh Kumar v. Nandalal Chakrapani, AIR 1963 Cal 289 (FB), Mr. Justice Bachawat (as the learned Judge then was), observed as under:-
'It is to be observed that in the case of abatement of a suit also the bar of S. 391 of the Code of 1882, corresponding to O. 22, R.9, Civil P. C., 1908, did not either operate as res judicata or preclude the defence or extinguish the title of the legal representative of the deceased plaintiff to the subject matter of the suit, see Jayasingh Lalchand v. Gopal Yeshwant, (1904) 6 Bom LR 638; see also in this connection Mt. Chand Kour v. Pratab Singh, (1887-88) 15 Ind App 156 (PC), which decided that the similar bar of S. 103 of the 1882 Code corresponding to O. 9, R.9, Civil P. C. 1908, did not operate as res judicata and Mahanth Singh v. U. Ba Yi, 66 Ind App 198: AIR 1939 PC 110, where it was held that the similar bar of O. 23, R. 1 sub-rule (3), Civil P. C. 1908, did not extinguish the debt sued upon'.
In Devi Sahai v. Nanar, AIR 1955 Pepsu 28, the Court, while considering the effect of O.22, R.9, Civil P. C., on the right of a successful plaintiff to defend a subsequent suit against him on the same pleas, relied upon Bisheshardas v. Ram Prasad (1906) ILR 28 All 627, which was a case of dismissal of a suit in default of hearing under the old section 103, Code of Civil Procedure, which was equivalent to O.9, R.9, Civil P.C., 1908.
7. In view of the above authoritative pronouncements, I am of the firm opinion that it would be open to me to treat these provisions at par so far as their effect on the rights of a defendant to raise pleas in defence is concerned. In Shivashankar Prasad Sha's case (AIR 2969 SC 971) (supra), the Court was concerned with the objections filed by a judgment-debtor under S. 47, Civil P. C. to resist and application for execution of a decree. These objections were dismissed in default of hearing. The decree-holder took out another execution to which the judgment-debtor raised the same objections. It was argued that the judgment-debtors were debarred from raising the same objection by the principle res judicata. The Court observed as under:
'A dismissal of a suit for default of the plaintiff, we think, would not operate as res judicata against a plaintiff in a subsequent suit on the same cause of action. It is was otherwise, there was no need for the Legislature to enact R. 9, O.9, Civil P. C., which in specific terms says that where a suit is wholly or partly dismissed under R.8, the plaintiff shall be precluded from bringing a fresh suit in respect of the same cause of action'. In coming to this conclusion, the Court followed with approval the following observations made by the Judicial Committee of the Privy Council in Maharaja Radha Prashad Singh v. Lal Sahab Rai, (1890) 17 Ind App 150.
'None of the questions, either of fact or law, raised by the pleadings of the parties, was heard or determined by the Judge of the Shahabad Court in 1881, and his decree dismissing the suit does not constitute res judicata within the meaning of the Civil P. C. It must fall within one or other of the sections of Chap. VII of the Code, in the present case it is immaterial to consider which, the severest penalty attached to such dismissal in any case being that the plaintiff cannot bring another suit for the same relief. If the bar of res judicata cannot operate against a defendant, then I fail to seek how he can be precluded from setting up the same pleas in defence of a suit filed against him. At least no such provisions existing in the Civil P. C. has been brought to our notice.
8. The opening words of S. 11, Civil P. C. read as-
'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.
-- -- -- -- -- --'
Thus, while giving statutory recognition to the principles of res judicata, the Legislature made an express provision that no issue, which arose in a former suit between the same parties and was adjudicated upon, shall be tried in a subsequent suit by any Court. Apparently, either of the parties to the litigation could reap the benefit of an earlier decision on an issue in subsequent litigation. In this situation, it cannot be said that the Legislature was not aware of the fact that legal impediments could be raised against a defendant also. In spite of this fact, while legislating on the subjects relating to dismissal of suits in default of hearing or on abatement or on the withdrawal of suits without the permission of the Court, the Legislature did not think it proper to lay down in express terms that the unsuccessful plaintiff in the earlier suit shall be debarred to raise the same pleas as a defendant in any subsequent suit relating to the same subject-matter. If I were now to distort the plain language of the statute and to hold that in these three eventualities the pleas raised in the earlier suits could not be subsequently set up as defences. I would simply be committing an act of violence against the statute, which course is certainly not open to me. The legislative intent is quite clear and, as observed by the Supreme Court in Shivashankar Prasad Sah's case (AIR 1969 SC 971) (supra), if it was otherwise, then there was no need for the Legislature to enact O.9, R.9, Civil P. C., and for the same considerations I would add to this category the provisions of O. 22, R.9(1), and O.23, R. 1(3), Civil P. C. the abatement of a suit does not deprive the unsuccessful plaintiff of his bundle of rights. It merely debars him from suing again on the same cause of action just as the law of estoppel leaves the rights untouched but bars the remedies. The bar against a fresh suit is created by O.22, R.9(1) itself and not because the order of abatement operates as a judgment. Furthermore, when it is said that a suit has abated, it means that the suit was never there or was in a state of animated suspension. Only an order of revival could bring life into it. In Kelly v. Rochelle, 93 South W. R. 164, the Court accepted the following definition of the word 'abatement':--
'An abatement, in the sense of the common law, is an entire overthrow or destruction of the suit, so that it is quashed or ended. But, in the sense of a Court of equity, an abatement signifies only a present suspension of all proceedings in the suit, for the want of proper parties capable of proceeding therein. At common law a suit, when abated, is absolutely dead. But a suit in equity, when abated, is (if such an expression be allowed) merely in a state of suspended animation, and it may be revived'.
Something which is non-existent or is in a state of animated suspension cannot be said to have decided anything. In order to create a bar of res judicata, a decision must be given on the merits of the controversy after hearing the parties. In Jayasing Lalchand, v. Gopal Yeshwanti (1904)6 Bom LR 638, it was observed as under:
'The abatement of the suit brought by Sagan could, under S. 371, Civil P. C. have no other effect than that of preventing him or those claiming under him for suing again on the same cause of action. The section does not say that the title of the plaintiff or those claiming under him is extinguished by such abatement, and that, in any suit brought not by, but against him, the plaintiff cannot defend his possession or rights by relying upon his true title. The abatement of a suit under S. 371 has not the same effect as res judicata under S. 13 of the Civil P.C.'
In Sheikh Habibulla v. Jamuna Singh AIR 1958 Pat 95, it was observed as follows:
'Therefore, on principle it has to be held that the dismissal of a suit on the ground of abatement cannot operate as res judicata though a second suit on the same cause of action will of course be barred, the reason being that res judicata essentially arises out of a decision given on merit while a bar against fresh action is founded on the provisions of law as laid down in the Civil P. C. and not necessarily on an order which is tantamount to a final decision on merit though it is true that for certain purposes that order may operate as judgment'.
I am in respectful agreement with the view expressed in these cases. Some other judgments were also cited at the Bar, but I do not deem fit necessary to refer to them since the causes of action in those cases were of recurring nature.
9. In Rahimunnissa Begam v. M. A. Srinivasa Ayyangar, AIR 1920 Mad 580, it was held that-
'An order of abatement operates as a judgment in favour of the defendant and the only course open to a legal representative of the deceased plaintiff to escape the effect of the abatement order is to apply to set aside the abatement. If he does not succeed in vacating the judgment and so long as the defendant continues in possession, the order of abatement is conclusive of the defendant's rights to the property'.
With utmost respect to the learned Judges, who decided this case, it may be observed that whether an order of abatement is a judgment and should be followed up by a decree or not is entirely a different matter. Even if such a judgment is to be followed up by a decree, it does not mean that the unsuccessful plaintiff should be debarred from raising the same pleas in a subsequent suit against him. Furhter the learned Judges seem to have taken a passage out of the context in which it appeared in the judgment of their Lordships of the Privy Counsil in Brij Indar Singh v. Lala Kanshi Ram AIR 1917 PC 156. In that case the learned District Judge, when informed that some of the defendants had died, passed an ex parte, order of abatement without hearing the plaintiff and in that situation it was observed by the Privy Council as under:
'An order abating the suit, looking to the terms of S. 371 already quoted, may be said to be really tantamount to a judgment in favour of the defendant. To pronounce such a judgment ex parte when no notice has been given to the opposite side to appear and contest the order, is much the same as to decide a suit against a defendant, who has not been cited to appear. The practice, if it is a practice, is quite indefensible'.
There can hardly be any quarrel with the proposition of law enunciated above. An order of abatement would indeed be a judgment against the unsuccessful plaintiff inasmuch as his suit would be dismissed and he would be precluded from filing a fresh suit on the same cause of action, but it would be wholly unreasonable to infer from this passage that the unsuccessful plaintiff would be debarred from raising the same pleas as a defendant in a subsequent suit filed against him. In an earlier part of the judgment the Privy Council also observed as under:--
'Then comes S. 371. This primarily deals with what abatement involves. 'No fresh suit shall be brought on the same cause of action'. It is obvious that it is only a plaintiff that is hurt by this'.
These observations do not lend any support to the view expressed by the learned Judges in Rahimunnissa Begam's case (supra), so far as the rights of a party as defendant in the subsequent litigation are concerned. This case was followed by a learned Judge of the Madras High Court in Kamatchi Ammal v. Athigamudaya Pillai, Air 1969 Mad 426. The learned Judge observed as under:-
'It appears to me that the decision of the Lahore High Court is more in accordance with the principles embodied in O.22, R.9. Surely, if the plaintiff, whose suit has abated, cannot again bring a fresh suit on the same cause of action, and the earlier decision should be deemed to be a decision against him, he cannot get rid of the effect of the earlier decision just because he happens to be a defendant in a subsequent suit. Even in the subsequent suit, where he is a defendant, it should be held that he would be barred from agitating the same questions which he could have agitated in the earlier suit and which, because of the provisions of O.22, R.9, he is prohibited from agitating in a subsequent suit as a plaintiff. The fact that he is merely a defendant in the subsequent suit does not seem to affect the principle embodied in O.22, R.9'.
With utmost respect to the learned Judge, I may observe that he also proceeded on the basis that the final order in the abated suit was a judgment and this judgment remained conclusive unit set aside. The difference in phraseology of S.11 Civil P. C., and O.22, R.9(1) does not appear to have been canvassed before the learned Judge.
10. Raju's case (Air 1933 Lab 752) (supra) was decided on these facts:
In the year 1917 Raju had sued the mortgagees and mortgagors for a declaration to the effect that he was in possession of the land in dispute and was its owner. His suit was decreed against the mortgagors but was dismissed against the mortgagees as having abated. In a subsequent suit, Raju was impleaded as a defendant and he asserted that he had been in adverse possession of the property in dispute for a period exceeding 12 years. The learned District Judge, however, held that he was not proved to be in possession of the property. Abdul Rashid, J. as the learned Judge then was, speaking for the Bench, observed as under:
'I am, however, of the opinion that the appellant's claim against the plaintiffs having abated during litigation of 1917, he cannot resist the present claim by denying their rights. Under O.22, R.9, Civil P. C, where a suit abates or is dismissed under that Order, no fresh suit can be brought on the same cause of action. Raju cannot bring a fresh suit to establish his title to this land nor can he ask for a declaratory decree to the effect that he is in possession of the mortgaged property. No authority has been quoted by the learned counsel for the appellant to show that though Raju, appellant, cannot bring a suit himself to establish his title, he can resist the claim of the plaintiffs in spite of the definite finding of both the Courts below that he is not in possession of the mortgaged property.'
In the first place, Raju, being out of possession of the property in dispute, could not resist the suit for declaration filed by the opposite party and in that sense the case is distinguishable on facts. However, if this case is considered as an authority for the proposition that an unsuccessful plaintiff, whose suit had abated, cannot raise the same pleas in defence in subsequent litigation, I may, with utmost respect to the learned Judges, observe that this view cannot be justified either in principle or on authority.
11. On behalf of the respondent, it was argued that even in written statement a counter-claim could be set up against the plaintiff and this counter-claim was in the nature of a weapon of offence and enabled a defendant to enforce a claim against the plaintiff as effectively as an independent action. According to him, a counter-claim was also decided in the suit and if the plaintiff's suit had abated and he was debarred from filing a fresh suit, he should be disallowed to set up the same pleas in his written statement filed as a defendant. He has relied upon Lassoo and Sons v. Krishna Bahadur Nepali, Air 1932 Bom 617, and some other judgments which bring out a distinction between a set-off and a counter-claim. I, however, fail to see how the right of a defendant to set up a counter-claim in the written statement can affect the validity of the principle enunciated above. No counter-claim has been set up by the appellant in the written statement in this case and so it is not necessary to pursue this line of reasoning any further.
12. In Hansraj Gupta v. Dehra Dun-Mussorrje Electirc Tramway Co. Ltd., AIR 1933 P. C. 63, it was held that the word 'suit' ordinarily means a civil proceeding instituted by the presentation of a plaint, O.22, R.9(1), really bars such a suit and does not bar defences taken in a written statement.
13. For the reasons mentioned above, I hold that it is open to a defendant to set up the same pleas in his written statement filed in a subsequent suit, which were taken by him in an earlier suit which had abated. Further, in view of the pronouncement made by their Lordships of the Supreme Court in Shivashankar Prasad's case (Air 1969 SC 971) Raju v. Ram Chand, AIR 1933 Lah 752, Rahimunnissa Begam v. M. A. Srinivasa Ayyangar, Air 1920 Mad 580, and Kamatchi Ammal v. Athigamudaya Pillai Air 1969 Mad 426, cannot be regarded as correctly decided. On the other hand, the decisions in Jaya Singh Lalchand v. Gopal Yeshwant, (1904) 6 Bom LR 638, and Sheikh Habibulla v. Jamuna Singh Air 1958 Pat 95, lay down the correct law on the point. The case will now be decided by the Single Bench on merits in accordance with the position of law explained above.
B.R. Tuli, J.
14. I agree and have nothing to add.
S.S. Sandhawalia, J.
15. I agree.
16. Order accordingly.