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Bai Chanchal Widow of Chhaganbhai Jibhai and anr. Vs. Bai Suraj Widow of Ranchhodbhai Chhaganbhai and anr. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtGujarat High Court
Decided On
Case NumberCivil Revn. Appln. No. 539 of 1960
Judge
Reported inAIR1963Guj198
ActsCode of Civil Procedure (CPC) , 1908 - Sections 11 and 115
AppellantBai Chanchal Widow of Chhaganbhai Jibhai and anr.
RespondentBai Suraj Widow of Ranchhodbhai Chhaganbhai and anr.
Appellant Advocate P.D. Desai, Adv.
Respondent Advocate A.D. Desai, Adv.
DispositionRevision dismissed
Cases ReferredAnnamalay v. Thornhill
Excerpt:
civil - res judicata - sections 11 and 115 of code of civil procedure, 1908 - there cannot be two judgments in two suits on matters directly and substantially in issue - high court cannot interfere under section 115 if res judicata refers to one issue - high court can interfere where res judicata refers to res judicata of suit as whole. - - their lordships of the privy council held that the judges of the lower courts had perfect jurisdiction to decide the question which was before them. the high court may call for the record of any case which has been decided by any court subordinate to such high court and in which no appeal lies thereto, and it such subordinate court appears (a) to have exercised a jurisdiction not vested in it by law, or (b) to have failed to exercise a.....orderv.b. raju, j. 1. this revision application is against an order of the district judge of broach, holding that an appeal before him was not barred by res judicata. a preliminary objection was taken by the learned counsel for the opponents, and he contends that when the lower court has decided a question of res judicata, no revision lies, and he relies on amir hassan khan v. sheo baksh singh, ilr 11 cal 6 (pc).2. in ilr 11 cal 6 (pc), their lordships of the privy council were dealing with the application of sections 13 and 43 of act x of 1877 and also section 622 of act x of 1877 as amended by section 92 of act xii of 1879. in the case before their lordships certain properties were mortgaged amongst 8 co-sharers and the right to redeem was afterwards contested by them in an application.....
Judgment:
ORDER

V.B. Raju, J.

1. This revision application is against an order of the District Judge of Broach, holding that an appeal before him was not barred by res judicata. A preliminary objection was taken by the learned counsel for the opponents, and he contends that when the lower Court has decided a question of res judicata, no revision lies, and he relies on Amir Hassan Khan v. Sheo Baksh Singh, ILR 11 Cal 6 (PC).

2. In ILR 11 Cal 6 (PC), their Lordships of the Privy Council were dealing with the application of Sections 13 and 43 of Act X of 1877 and also Section 622 of Act X of 1877 as amended by Section 92 of Act XII of 1879. In the case before their Lordships certain properties were mortgaged amongst 8 co-sharers and the right to redeem was afterwards contested by them in an application to the District Court. Subsequently, a suit was filed under Act XXXII of 1871, namely the Oudh Civil Court Act, in the Court of Extra Assistant Commissioner by one Raja Amir Hassan Khan, who sued one Sheo Baksh to give possession on redemption from mortgage of a three-fourths share in a taluq named Khanpur, comprising six villages in Sitapur, on payment of the mortgage debt. A decree in favour of the plaintiff was passed by the Extra Assistant Commissioner which was confirmed by the District Judge of Sitapur. According to Section 21 of Act XIII of 1879, there was no appeal from the decision of the District Judge of Sitapur to the Judicial Commissioner, but the Judicial Commissioner purported to exercise revisional jurisdiction. Their Lordships of the Privy Council held that the Judges of the lower Courts had perfect jurisdiction to decide the question which was before them. Their Lordships also observed that whether they decided it rightly or wrongly, they had jurisdiction to decide the case; and even if they decided wrongly, they did not exercise their jurisdiction, illegally or with material irregularity. Their lordships of the Privy Council therefore allowed the appeal before them and reversed the judgment of the Judicial commissioner. It appears from the report, that the suit raises questions as to whether it was barred under Section 13 and 43 of Act X of 1877 and whether the plaintiff was entitled to reimburse the mortgagor and whether it was competent to claim to redeem the mortgaged property.

3. The question involved in the instant case is one of res judicata. Section 11 of the Civil Procedure code, which deals with the question of res judicata, reads 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.'

4. Section 115, civil Procedure Code, which deals with revisional jurisdiction reads as follows:

'The High Court may call for the record of any case which has been decided by any Court subordinate to such High Court and in which no appeal lies thereto, and it such subordinate Court appears

(a) to have exercised a jurisdiction not vested in it by law, or

(b) to have failed to exercise a jurisdiction so vested, or

(c) to have acted in the exercise of its jurisdiction illegally or with material irregularity, the High court may make such order in the ease as it thinks fit.'

The High Court can exercise revisional jurisdiction in the above three cases mentioned in Section 115, C.P. Code.

(5) When a Court deals with the matter, it may do any of the following kinds of things

(1) It may refuse to exercise jurisdiction by refusing to hear the matter or try the matter.

(2) It may exercise jurisdiction and proceed to hear the matter or try the matter.

(3) Before doing either (1) or (2), it might decide a jurisdictional fact and having decided it, may pass an order in terms of (1) or (2) above.

(4) It might commit an error of procedure while proceeding with the trial or hearing of the matter. Such an error may be material or immaterial.

(5) It may decide the controversy between the parties, which may involve questions of law as well as facts.

(6) Any error committed by it on the first three points above-mentioned would bring the case within the first two Clause (a) and (b) of Section 115, because that would be a case of exercising jurisdiction not vested in the Court of law or failing to exercise jurisdiction vested.

7. As regards the 4th point, mentioned above, namely, error of procedure while exercising jurisdiction, if such errors of procedure are committed illegally or with material irregularity, then Clause (c) of Section 115, C.P. Code, would be attracted. To act in the exercise of jurisdiction illegally would be acting in contravention of any statute or any statutory rule. Whether a Court has acted with material irregularity while acting in the exercise of jurisdiction, is always a question of fact. But Clause (c) of Section 115, C. P. Code would apply only when the Court exercises jurisdiction vested in it by law and while acting in such exercise acts illegally or with material irregularity.

8. If the Court exercises jurisdiction which is vested in it by law and in the exercise of its jurisdiction decides the controversy between the parties, which may involve questions of fact and also questions of law, Section 115, C. P. Code would not be attracted whether the decision is right or wrong. In other words, a decision on the issues arising in the suit whether they be issues of fact or of law, wouldnot attract Section 115, C. P. Code, whether the decision is right or wrong. In a case, where the revision application challenges a decision on an issue of fact or an issue ot law, which arises in the controversy between the parties, as erroneous the High Court has no revisional jurisdiction.

9. The question whether a particular fact is jurisdictional or not would depend on the section of the Act giving or taking away jurisdiction. Section 11 of the Civil Procedure Code has already been quoted above. If the suit which has been instituted is one in which the matter directly or substantially has been in issue in a former suit between the same parties etc., then according to Section 11, C. P. Code, the Court shall not try any such suit. Section 9 C. P. Code, reads as follows:

'The Courts shall (subject to the provisions herein contained) have jurisdiction to try all suits of a civil nature excepting suits of which their cognisance is either expressly or impliedly barred.

Explanaton: A suit in which the right to property or to an office is contested is a suit of civil nature, notwithstanding that such right may depend entirely on the decision of questions as to religious rites or ceremonies.'

It uses the expression 'jurisdiction to try all suits'. That means that Section 9, C. P. Code gives jurisdiction to a Civil Court to try a suit. In certain circumstances, Section 11 takes away that jurisdiction. Therefore, errors of jurisdiction would mean errors which would refer to jurisdiction to try a suit and not merely an issue in any suit. Under Section 11, C. P. Code, a Court may be prevented from trying a suit. It can also be prevented from trying an issue in a suit without being prevented from trying that suit. Where on the application of Section 11 to the facts of the case, the Court is prevented from trying a suit that would be a case of not exercising jurisdiction within the meaning of Section 9, C. P. Code, and if it does so wrongly, Clause (b) of Section 115, C. P. Code would apply. If the Court tries a suit notwithstanding that the whole suit is barred by res judicata as provided in Section 11, C. P. Code, Clause (a) of Section 115, C. P. Code would be attracted, because that would be a case of exercising a jurisdiction not vested in it by raw.

10. But if under Section 11, C. P. Code, the Court has jurisdiction to try the suit but has no jurisdiction to try any issue involved in the suit then it would not be a case of exercising jurisdiction or failure to exercise jurisdiction within the meaning of Sections 9 and 115, Civil Procedure Code.

11. Therefore, in my humble opinion, if the Court gives a finding that the trial of one of the issues involved in the suit is barred by res judicate and proceeds to try the other issues, it is not a case of exercising jurisdiction nor a case of failure to exercise jurisdiction within the meaning of Section 9, C. P. Code or Section 115, C. P. Code, and Clauses (a) and (b) of Section 115 would not be attracted in such a case. To sum up, in my humble opinion, the High Court has no revisional jurisdiction under Clauses (a) or (b) of Section 115 C.P.C. in certain cases of res judicata, but it has jurisdiction in certain cases of res judicata, for example, when the decision of the lower Court is that the whole suit is barred by res judicata. But when the decision of the lower Court is that only one of the issues involved is barred by res judicata, then the High Court has no revisional jurisdiction under Clauses (a) or (b) of Section 115 C. P. Code and whether Clauses (c) of Section 115 would apply would depend on the facts of each case.

12-13. The learned counsel for the opponents has referred to Joy Chand Lal v. Kamalaksha Chaudhury . This is a decision of their Lordships of the Privy Council. In this case, their Lordships of the Privy Council have observed as follows:

'Although error in a decision of a subordinate Court does not by itself involve that the subordinate Court has acted illegally or with material irregularity so as to justify interference in revision under Section 115(c) of the Civil Procedure Code, 1908, nevertheless if the erroneous decision results in the subordinate Court exercising a jurisdiction not vested in it by law, or failing to exercise a jurisdiction so vested, a case for revision arises under Sub-section (a) or Sub-section (b) of Section 115 of the Code, and Sub-section (c) of the Section can be ignored.'

Their Lordships were dealing with the question whether a loan was commercial or not and if the loan was not a commercial loan, the lower Court had no jurisdiction to deal with the question. Their Lordships were therefore dealing with a jurisdictional fact. Whether the loan was commercial or not was a jurisdictional fact, and as already observed, Sub-sections (a) and (b) of Section 115, C. P. Code would apply to such a case.

In Chaube Jagdish v. Ganga Prasad : AIR1959SC492 , it has been observed as follows:

'Section 115, Civil P.C., empowers the High Court, in cases where no appeal lies, to satisfy itself on three matters: (a) that the order made by the subordinate Court is within its jurisdiction; (a) that the case is one in which the Court ought to exercise its jurisdiction; (c) that in exercising the jurisdiction the Court has not acted illegally, that is, in breach of some provision of law or with material irregularity that is by committing some error of procedure in the course of the trial which is material in that it may have affected the ultimate decision, per Sir John Beaumont in Venkatagiri Ayyangar v. Hindu Religious Endowment Board, Madras . Therefore if an erroneous decision of a subordinate Court resulted in its exercising jurisdiction not vested in it by law or failing to exercise the jurisdiction so vested or acting with material irregularity or illegality in the exercise of its jurisdiction the case for the exercise of powers of revision by the High Court is made out. In the subordinate Court gave an erroneous decision that the loan was a commercial loan and therefore refused to exercise jurisdiction vested in it by law and the Privy Council held that it was open to the High Court to interfere in revision under Section 115. Sir John Beaumont said at p. 142 (of Ind App): (at p. 242 of AIR):

There have been large number of decisions of Indian High Courts on Section 115 to many of which their Lordships have been referred. Some of such decisions prompt the observations that High Courts have not always appreciated that although error in a decision of a subordinate Court does not by itself involve that the subordinate Court has acted illegally or with material irregularity so as to justify interference in revision under Sub-section (c), nevertheless, if the erroneous decision results in the subordinate Court exercising a jurisdiction not vested in it by law or failing to exercise a jurisdiction so vested a case for revision arises under Sub-section (a) or Sub-section (b) and Sub-section (c) can be ignored. The cases of Babu Ram v. Munnalal : AIR1927All358 and (sic) Bhikaji v. Naro Vishvanath ILR 9 Bom 432 may be mentioned as cases in which a subordinate Court by its own erroneous decision (erroneous, that is, in view of the High Court), in the one case on a point of limitation and in the other on a question of res judicata, invested itself with a jurisdiction which in law it did not possess; and the High Court held, wrongly their Lordships think, that it had no power to interfere in revision to prevent such a result. In the present case their Lordships are of the opinion that the High Court, on the view which it look that the loan was not a commercial loan had power to interfere in revision under Sub-section (b) of Section 115. In Keshardeo Chamria v. Radha Kissen : [1953]4SCR136 both these judgments of the Privy Council as also the previous judgments in 11 Ind App 237 (PC), and Balakrisnna Udayar v. Vasudeva Aiyar, 44 Ind App 261: (AIR 1917 PC 71), were reviewed and it was held that Section 115, civil P. C. applies to matters of jurisdiction alone, the irregular exercise or non-exercise of it or the illegal assumption of it. Thus if a subordinate Court had jurisdiction to make the order it made and has not acted in breach of any provision of law or committed any error of procedure which is material and may have affected the ultimate decision, then the High Court has no power to interfere. But if on the other hand, it decides a jurisdictional fact erroneously and thereby assumes jurisdiction not vested in it or deprives itself ot jurisdiction so vested then the power of interference under Section 115, Civil P. C. becomes operative.'

14. As observed by their Lordships of the Supreme Court, if a subordinate Court had jurisdiction to make the order it made and has not acted in breach of any provision of law or committed any error of procedure which is material and may have affected the ultimate decision, then the High. Court has no power to interfere. But if on the other hand it decides a jurisdictional fact erroneously and thereby assumes jurisdiction not vested in it or deprives itself ot jurisdiction so vested then the power of interference under Section 115, Civil P. C., becomes operative.

15. In : [1953]4SCR136 , their Lordships of the supreme Court observed that the words 'illegally' and 'material irregularity' which occur in Clause (c) of Section 115, C. P. Code, do not cover either errors of fact or law, and they also observed that they did not refer to the decision arrived at but to the manner in which it is reached. Their Lordships further observed that the errors contemplated relate to material defects of procedure and not to errors of either law or fact after the formalities which the law prescribes have been complied with.

16. In the case before their Lordships of the Supreme Court, a main execution application was dismissed after treating an application for time as an adjournment application. The Judge of the subordinate Court corrected his own error and the High Court in the purported exercise of its revisional jurisdiction reversed the order of the subordinate Judge. Their Lordships of the Supreme Court held that the High Court had no jurisdiction to do so as the case did not fall under Clause (c) of Section 115, Civil Procedure Code. Their Lordships were dealing with Clause (c) of Section 115, C. P. Code, and the case before their Lordships was not one of jurisdictional fact. Their Lordships of the Supreme Court only laid down the law as regards the scope cf Clause (c) of Section 115, C. P. Code.

17. Their Lordships of the Supreme Court have, however, declared the law in : AIR1959SC492 , regarding jurisdictional fact. Their Lordships of the Supreme Court did not consider the Question nor declared the law on the point whether res juidcata is a jurisdictional fact or not.

18. For the reasons already given, in my humble opinion, res judicata would be a jurisdictional fact in some cases but not in others. It would be a jurisdictional fact if the whole suit is held to be or not to be barred by res judicata under Section 11, C. P. Code, but it would not be a jurisdictional fact, if only the trial of an issue is held to be barred or not barred under Section 11, C. P. Code.

19. The learned counsel for the opponents also raises another preliminary objection. His contention is that the order in this case is only an interlocutory order and does not amount to a case decided. In this case the order was passed on an application, Ex. 11, which was an application praying that the appeal be dismissed because it was barred by res judicata. I have already held in Shah Shantital Chunilal v. Shah Shantilal Fulchand, Civil Revn. Appln. No. : AIR1963Guj195 that an order passed on such an application would amount to a case decided. The second preliminary objection is, therefore, rejected.

20. Now to turn to the facts of this revision application. Civil Suit No. 162 of 1957 was filed by the wife of one Ranchhod Chhaganbhai and others against the mother of Ranchhod and others. The wife claimed possession and mesne profits of the properties said to be in possession of the mother. She put her claim on the ground that after the death of her husband her husband's property devolved on her and she had adopted opponent No. 2 as her son.

21. Second suit No. 176 of 1957 was by themother of Ranchhod. It was a suit for partition of her half share in the property of Ranchhod, According to her, there was already a partition of her half share and she was in possession thereof. She prayed that the Court should confirm the partition and in the alternative the Court should make a fresh partition. The mother also prayed for a declaration that the alleged adoption by the wife of Ranchhod was illegal and ineffective with respect to her half share, She had made a gift of the property in favour of plaintiff No. 2 in Suit No. 176 of 195/.

22. By consent of parties, evidence led in one of the suits namely Suit No. 162/57 was treated as evidence in Suit No. 176 of 1957. The Court passed a common judgment in Suit No. 162/57 and kept a copy of that judgment in the record of Suit No. 176 of 1957.

23 Suit No. 162/57 was dismissed. Suit No. 176/-57 was partly dismissed and partly decreed. The declaration sought for was granted. The Court passed the following decree in Suit No. 162/57 :--

iku 15

^^vk Qfj;kn vkt rk-21&3&59 uk jkst] Jh- ch-,e~- Fkksjkr] flfOgy tt] lh- Mh- Hk:puh :cgoknhuh rjQFkh o Jh- Mh- ,p- iVsy rFkk izfroknhuh rjQFkh o Jh- vkj- ,p- BkdksjrFkk ih- Mh- Bkdksjuh gktjheka vk[k fudkyekVs ufdyoka;h vkad 108 ukttesaVFkh ,oa Qjekookeka vkos Ns ds] rFkk ,oaq gqdekukeqa djh vkiokeka vkos Nsds % 1 nkoks j djokeka vkos Ns- 2 i{kdkjks, iksrkuks [kpZ iksrs Hkksxooks-**

The learned judge passed the folowingdecree in suit No. 576/57 :--

iku 16

^^vk Qjh;kn vkt rk-21&3&59 us jkst Jh- ch- ,e~ FkksjkV] flfOgy tt] lh- Mh- Hk:p uh :c: oknhrjQ Fkh o Jh- ih- Mh- Bkdksj rFkk vkj- ,p- Bkdksj rFkk izfroknh rjQ Fkh o Jh- Mh-,p- iVsyuh gktjheka vk[k uhdky ekVs uhdyokaFkh vkad ua- 38 uk ttessaV Fkh ,oaqBjkokeka vkos Ns rFkk ,oaq gqdekukeqZ djh vkiokeka vkos Ns ds%&&

okn.k ua- 1 ckbZ papyuks nkokvjtheks t.kkosyh vMFkh feydruh dctks dk;nslj Ns ,oaq tkgsj djceka vkos Ns vus rsfeydrks rs.khuk dksbZi.k Hkkx ekVsuh uFkh ijUrq rs feydrks rs.khukHkjuiks'k.k vus tqnk jgsBk.k ekVs vkih N- vkFkh ,oaq o/kq tkgsjdjokeka vkos Ns ds oknh ua- 1 , oknh ua- 2 us djh vkisy c{khl nLrkost;h oknh ua-2 us mij t.kkosyh feydruks vM/kks fgLlks ts okn.k ua- 1 ckbZ papyuk dctkeka NsrsekaFkh eyrks uFkh vus NsoVs ,oaq tkgsj djokeka vkos Ns ds izfroknh ua- 1 uk,izfroknh ua- 2 uaq nkd&fo;/kku djsyqa rsukFkh okn.k ua- 1 uk dctkeka vkosyhvMFkh feydrks eqacbZuk [ksrhuh tehuuk VqdMk iMrka vVdkook rsuaq ,dhdj.k djokckcruk vf/kfu;eu lus 1947 us vk/khu jgsyk gDdus vlj djrq uFkh-

2- oknhuks ckdhuks nkoks jdjokeka vkos Ns-

3- i{kdkjks, iksrkuks [kpZ iksrsHkksxooks-

24. The plaintiffs in Suit No. 162/57 preferred an appeal, but they did not prefer an appeal from the decision in Suit No. 176/57. It is on this ground that the contention was urged that the appeal against the decree in Suit No. 162/57 was barred by principles of res judicata under Section 11, Civil Procedure Code. The learned appellate Judge decided that there was no bar of res judicata and this finding is now challenged in revision.

25. It is, however, contended that the decision in Suit No. 176/57 has become final and clear by reason of the fact that no appeal has been filed against such judgment and that an appeal has, however, been filed against the decision in Suit No. 162/57, which is still pending. It is, therefore, contended that the decision in Suit No. 176/57 has become final and that therefore that decision amounts to res judicata in proceedings in appeal against the judgment in Suit No. 162/57.

26. It is contended by the learned counsel for the opponents that Section 11, Civil Procedure Code, does not apply to appeals and ha relies on Mt. Lachhmi v. Mt. Bhulli, AIR 1927 Lah 289 and the fact that the judgment has been referred to with approval by their Lordships of the Supreme Court in Narhari v. Shanker, AIR 1953 SC 419. In AIR 1927 Lah 289, the following observations have been made : --

'Section 11 applies to suits and not to appeals. But the general principle of res judicata will apply to appeals; and, in applying these general principles, the courts are not hampered by any technical rules of interpretation such as govern the applicability of a statute.'

It may be that if Section 11, C. P. Code does not apply to appeals, the principle of res judicata contained in that section might apply as a general principle because Section 11, C. P. Code is not exhaustive as decided by their Lordships of the Privy Council, in Hook G. H. v. Administrator General of Bengal, ILR 48 Cal 499 : (AIR 1921 PC 11).

27. We have to remember that in Section 11, C. P.Code, the words 'such Court' have been used, and explanations I and II, to that section read as follows :--

'Explanation I. -- The expression 'former suit' shall denote a suit which has been decided prior to the suit in question whether or not it was instituted prior thereto.

Explanation II. -- For the purposes of this section, the competence of a Court shall be determined irrespective of any provisions as to a right of appeal from the decision of such Court'.

The view that the principle of res judicata applies to appeals might lead to anomaly and difficulties. For Instance, if there are two suits, namely Suit No. 37/54 and Suit No. 38/54, and if the Suit No. 37/54 is decided earlier and if the other conditions of Section 11, C. P. Code are satisfied, the decision in Suit No. 37/54 would be res judicata in Suit No. 38/54. If Suit No. 37/54 and Suit No. 38/54 are decided on the 7th and 8th December of the same year, but an appeal is filed against the judgment in Suit No. 38 of 1954 on 9th January and an appeal is filed against the judgment in Suit No. 37 of 1954 on the 10th January, that might lead to anomalies and difficulties. In this connection, we must remember the provisions of Sections 107 108 and 141 of the Civil Procedure Code. Section 107, C. P. Code, reads as follows :

'(1) Subject to such conditions and limitations as may be prescribed, an Appellate Court shall have power --

(a) to determine a case finally;

(b) to remand a case;

(c) to frame issues and refer them for trial;

(d) to take additional evidence or to require such evidence to be taken.

(2) Subject as aforesaid, the Appellate Court shall have the same powers and shall perform as nearly as may be the same duties as are conferred and imposed by this Code on Courts of original jurisdiction in respect of suits instituted therein.'

Section 108, C. P. Code, reads as follows : --

'The provisions of this Part relating to appeals from original decrees shall, so far as may be, apply to appeals --

(a) from appellate decrees, and

(b) from orders made under this Code or under any special or local law in which a different procedure is not provided'. Section 141, C. P. Code, reads as follows : -- 'The procedure provided in this Code in regard to suits shall be followed, as far as it can be made applicable, in all proceedings in any Court of civil jurisdiction'. Section 141, C. P. Code does not apply to the question of res judicata in appeals, because Section 11, C. P. Code is not a section, which prescribes procedure, section 107, C. P. Code also does not apply to cases of res judicata because it deals with powers and duties of an appellant Court, when the appellate Court is hearing an appeal and is not dealing with the question whether the appellate Court can hear the appeal or not. It only deals with the question how an appellate Court should decide an appeal when it hears the appeal and not with the question whether it has no power to hear an appeal.

26. Section 108, C. P. Code has no application, because Section 108 is contained in Part VII, whereas Section 11, C. P. Code is contained in Part I, C. P. Code. Order 42, Rule 1, has also no application because it only provides that the rules of Order 41 shall apply as far as may be to appeals from the appellate decrees. It has no reference to Section 11, C. P. Code.

29. The learned counsel for the applicants also relies on ISUP Ali v. Gour Chandra Deb, AIR 1923 Cal 496. At page 498 reference has been made to the conflict of views on this point, and it is observed that a different rule was however adopted in Panchanada v. Vaithinatha, ILR 29 Mad 333, where it is observed that it would lead to startling results if the Court were to hold that an appellate tribunal is precluded from dealing with a question, which conies before it on appeal, because an inferior Court, upon the same facts, but in a case other than the case under appeal, had given a decision which had not been appealed against, at the same time as the decision in the case under appeal. With reference to this case, the learned Judges of the Calcutta High Court observe as follows :

'Two observations are pertinent in this connection; first that the requirements of the rules of procedure cannot always be ignored, on the allegation that they are technical and are matters of form, not of substance; secondly, that a non-appealable decree may operate as res judicata, as explanation 2 to Section 11 of the Civil Procedure Code, 1908, prescribes that the competence of a Court shall be determined, irrespective of any provisions as to a right of appeal from the decision of such Court. This supersedes the decision, to the contrary effect, of the Madras High Court in Avinasi v. Nachammal, ILR 29 Mad 195 and of the Bombay High Court in Govind v. Dhondbasav, ILR 15 Bom 104. It is worthy of note that the decisions in ILR 29 Mad 333, and ILR 29 Mad 195, were pronounced by the same Bench on the same dale, and both proceeded on the assumption that the appealability of a decision affects the competence of a Court for purposes of res judicata. The effect of explanation 2 which affirms the contrary view that the competence of the jurisdiction of a Court does not depend on the right of appeal from its decisions, Ram Faqir v. Bindeshri Singh, ILR 41 A11 54: (AIR 1918 All 52); Musaddi v. Juala, 10 All LJ 106 : 16 Ind Cas 496 was overlooked, when the decision in ILR 29 Mad 333 was followed in Ramasami v. Karuppan, 29 Mad LJ 551 : (AIR 19!6 Mad 1133). The later decision of the Madras High Court in Bommadevara Venkata Narasimha v. Venkatapayya, 54 Ind Cas 647 : (AIR 1920 Mad 387), is of no assistance in the solution of the question raised before us as it merely lays down that where there are subordinate and dependent decrees, the reversal of the principal decree operates as a supersession of the subordinate decree; see Ashutosh v. Upendra, 38 Ind Cas 17 : AIR 1917 Cal 188 (2). Reliance, however, has been placed by the appellants on the decisions of this Court in Abdul Majid v. Jew Narain, ILR 16 Cal 233 and Mariamnessa v. Joynab Bibee, ILR 33 Cal 1101. The dicta in ILR 16 Cal 233, cannot be reconciled with the decision of the Judicial Committee in Raja of Pittapur v. Buchi, ILR 8 Mad 219, namely that an estoppel is binding, notwithstanding that the suit which raises it relates to a different property. The decision is further based on the untenable view that the question of res judicata depends upon the state of facts as they exist at the date of the trial in the primary Court. On the other hand, the decision of the majority in ILR 33 Cal 1101, was dependent upon its special facts, although an opinion was expressed that when two suits have been tried together, either of them cannot be treated as the former suit in relation to the other. This view, as we have seen, cannot be maintained, when explanation 1 to Section 11 is taken into account. The substance of the matter, then, is that the dicta in favour of the appellants to be found in the case of ILR 16 Cal 233, and ILR 33 Cal 1101, werepronounced while the Code of 1882 was in force and before explanations 1 and 2 to Section 11 of the Code of 1908 had been enacted. We cannot further overlook that the decision of this Court in Midnapur Zamindari Co., v. Nitayakali Dasi, 24 Ind Cas 243 : (AIR 1914 Cal 693] shows that if the same question is in controversy between the same parties in two distinct litigations, one after the other, but simultaneously pending, the final decision in the later suit, if given earlier, operates as res judicata in the earlier suit whose final stage is reached later. The rule of res judicata is moreover applicable to all the stages of a suit, till it is finally terminated and is not confined to Courts of first instance. We are clearly of opinion that, on principle, there is no escape from this position, and Section 11 unquestionably does not authorise a departure therefrom. The conclusion follows that the decision of the question of title in the suit now under appeal, is barred by the decision in the subsequent suit between the same parties and others, which has terminated earlier in a victory for the present respondent. That decision could have been, but never has been challenged, and cannot now be collaterally attached or implicitly ignored'.

The learned counsel for the applicants also relies on Zaharia v. Debi, ILR 33 All 51 (FB), and the following observations in the said case : --

'In the case of Bal Kishan v. Kishan Lal, ILR 11 All 148, the same question was considered by a full Bench consisting of Edge, C. J., Straight and Mah-mood, JJ. It was held that the rule of res judicata contained in Section 13 of the Code applies equally to appeals and miscellaneous proceedings as to original suits; that having regard to its main object, so far as it relates to the retrial of an issue, it refers, not to the date of the commencement of the litigation, but to the date when the Judge is called upon to decide the issue, and that where after the commencement of the trial of an issue a final judgment upon the same issue in another case is pronounced by a competent court (the identity of parties and other conditions of Section 13 being fulfilled), such judgment operates as res judicata upon the decision, original or appellate, of the issue in the later litigation.

In Ram Lal v. Chhab Nath, ILR 12 All 578, Sir John Edge, C. J. and Brodhurst, J., in a case in which the plaintiff and defendant in a suit appealed separately, and the defendant's appeal first came on for hearing and an issue as to whether the plaintiff or the defendant had title to certain lands in dispute was decided on the facts by the appellate Court adversely to the defendant, held that the plaintiff's appeal involving the same issue which came on for hearing before the same Court was barred by the principle of res judicata. The Subordinate Judge treated the finding in the first appeal as operating as res judicata ana the learned Judges in their judgment approve of his ruling, saying that although Section 13 (of the former Code of Civil Procedure) would not apply, still the principle of res judicata applied, and that Section 13 of the Code is not exhaustive, as was pointed out by their Lordships of the Privy Council in the case of Ram Kripal v. Rup Kuari, ILR 6 All 269.

The rule laid down in Chajju v. Sheo Sahai, ILR 10 All 123) was followed in Mangli v. Narain, 1893 All WN 190 Kesho Tiwari v. Sarju Kuar, 1893 All WN 221 Munna v. Nisar All, S. A. No. 764 of 1891, D/- 9-8-1893 Ajaib Ali Khan v. Ashraf Jahan Begum, S. A. No. 140 of 1899, D/- 15-2-1901 Mt. Aziman v. Abdullah, S. A. No. 208 of 1907, D/- 3-1-1908 and Abdul Basit v. Ashfaq-Hussain, 1908 All WN 211. The only conflicting authority in our Court, so far as I am aware, is that of Damodardas v. Sheo Ram Das, ILR 29 All 730. In that case none of the authorities ot the Court appear to have been cited, and no reference whatever is made to any such, but reliance is placed upon two decisions of the Calcutta and Madras High Courts respectively.

I shall now refer to these cases, but first I would refer to the case of ILR 16 Cal 233. In that case Mitter and Macpherson, JJ., held that the decision of an issue in one of two suits tried together, which is not appealed against cannot be treated as res judicata so far as the same issue was concerned in an appeal against the decision in the other suit.

In ILR 33 Cal 1101, the facts were these: Two Mahommedan co-widows -- Mariamnissa Bibi and Joynab Bibi --brought two separate suits for the recovery of their dowers from the estate of their deceased husband. A question was raised in these suits whether two houses belonged to the estate of the husband. By consent of the parties the Subordinate Judge tried both the suits together and disposed of them in one judgment, it being found that the two houses belonged to Mariamnissa as her separate property. Two separate decrees were drawn up in accordance with that judgment. The other widow Joynab, preferred : appeal against the decree in her own suit mainly on the ground that the conclusion arrived at by the Subordinate Judge in the suit of Mariamnissa Bibi respecting the title to the two houses was erroneous, but no appeal was preferred in Mariamnissa's suit. At the hearing of the appeal a question was raised on behalf of Mariamnissa that the judgment in her suit not having been appealed against operated as res judicata. It was held by Ghose, C. J., and Harington, J, (Rampini J, dissenting) that there was no bar of res judicata. Rampini, J, in his judgment referring to Section 13 of the former Code observes at p. 1107 of the Report:

'It has also been said that the words 'former suit' in Section 13 cannot relate to Mariamnissa Bibi's suit, as both suits were tried simultaneously and disposed of by one judgment. But there were two distinct suits, two sets of pleadings and issues, and though the two suits were disposed of by one judgment, this is an irregular procedure sanctioned only by consent but not expressly allowed by any section of the Code of Civil Procedure. In the eye of the law there were two judgments, one in each suit, though the Subordinate Judge may have delivered the same judgment in both suits. Hence there were necessarily two appeals. Mariamnissa Bibi's suit was certainly the one first instituted, but be that as it may as laid down in Gururajammah v. Venkatakrishnama Chetti, ILR 24 Mad 350, it is the date of the decision which is the 'former' and which is the 'second' suit, and Mariam Bibi's suit was certainly finally decided on the 30th of November, 1903, while Joynab's suit is still pending final decision in this appeal. I therefore consider that ILR 16 Cal 233 was wrongly decided. I agree in this view. Ghose, C. J., in his judgment refers approvingly to the decision in ILR 11 All 148. He remarks at page 1106: 'It may be accepted as correct that the expression 'former suit', as occurring in that section, as the Allahabad High Court has held in the case of ILR 11 All 148 and which has been approvingly quoted by the Madras High Court in the case of ILR 24 Mad 350, does not relate to the date of commencement of the litigation but to the time when the Judge is called upon to decide the issue, and that the rule contained in Section 13 is not limitedto the Courts of first instance, and that it equally applies to the procedure of the first and second appellate Courts by reason of Sections 582 and 587 respectively, but still the question here is which is the judgment that operates as a bar in this case? The learned Chief Justice seems to have based his decision entirely upon Section 13 of the Code of Civil Procedure of 1882. At page 1114 he says: Section 13 of the Code of Civil Procedure, upon which the decision of the question referred to rests.'

It has been further observed as under:

'In the later case, however, of ILR 29 Mad 333, a different view was taken. In that case cross suits between the same parties on the same facts were tried together and judgment was given on the same day, but separate decree was passed, and an appeal was preferred against ore of the decrees alone. It was held by Sir Arnold White, C. J., and Subramania Ayyar and Davies JJ., that the decree unappealed did not operate as a bar under Section 13 of the Code of Civil Procedure, 1882, so as to preclude the appellate Court from dealing with the decree appealed against. We find no reference in the judgment to the earlier decision of the Court in ILR 24 Mad., 350. The judgment is very short. The learned Judges observe that technically no doubt the appeal ought to have been in both suits, no weight is given to the technicality. The learned Judges say: 'We do not think that, either under Section 13 of the Code of Civil Procedure or on general principles, the doctrine of res judicata has any application to the facts of this case. The doctrine does not apply when, as here, the very object of the appeal, in substance if not in form, is to get rid of the adjudication which is said to render the question which the appellate Court is asked to decide res judicata.' Later on they observe: 'it would lead to startling results if we were to hold that an appellate tribunal is precluded from dealing with the question which comes before it on appeal because an inferior Court, upon the same facts, but in a case other than the case under appeal had given a decision which had not been appealed against, at the same time as the decision in the case under appeal.' The learned Judges do not point out what would be the startling results to which they apprehended a contrary conclusion would lead. An appellate Court is bound to apply the rule of res judicata even though the decision is the decision of the inferior Court provided that that Court was competent to decide the case.

I am of opinion after careful consideration of the arguments which have been addressed to us by the learned vakil and advocate for the respective parties that the case of ILR 10 All 123, and the subsequent decisions of this Court which followed it were rightly decided.'

30. But it is submitted with great respect that there cannot be two judgments in two suits on a matter which is directly and substantially in issue, in both the suits provided the conditions of Section 11, C. P. Code are satisfied, because immediately the decision is given in one suit or such a point, it would become res judicata in the other suit and the same point cannot be tried and decided in the second suit by reason of Section 11. There can of course be appeals in respect of matters which are not directly and substantially in issue in both the suits and the principle of res judicata can never apply to such a case. But the question of applying the principle of res judicata can arise only when the two suits or the two appeals, as the case may be, involve matters which are directly and substantially in issue and which are common. If they do, there cannot be two decisions by trial on that matter in the two suits in view of the provisions of Section 11, C. P. Code. The questionwhether the principle of res judicata applies to appeals cannot therefore arise in view of the provisions of Section 11, Civil Procedure Code. It is only in the appeal arising out of the former suit that the matter can be said to be heard and finally decided so as to attract Section 11, C. P. Code. In the 'subsequent suit' and in the appeal thereon the matter cannot be said to be heard and finally decided. In view of Section 11, C. P. Code, it cannot be heard and finally decided in the subsequent suit or appeal.

31. I have already given reasons for my view that the High Court cannot interfere under Section 115(a) or (b). Civil Procedure Code, in cases where the res judicata refers only to an issue but the High Court can interfere where the res judicata refers to the res judicata of the suit as a whole. I have already expressed the view that in such a case the High Court can interfere only if the ease falls under Section 115(c), Civil Procedure Code. The question whether erroneously holding that the trial of an issue is barred by res judicata or not would amount to a material irregularity or not, within the meaning of Clause (c) of Section 115, Civil Procedure Code, would depend on the facts of each case. In the instant case, there can be no doubt that even if the res judicata was with reference to the trial of only an issue, any error would amount to a material irregularity, and the High Court can interfere under Clause (c) of Section 115, Civil procedure Code. Section 11 of the Civil Procedure Code reads 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 heard and finally decided by such Court.'

The question, therefore, is whether a matter directly and substantially in issue in Suit No. 176/57 has been directly and substantially in issue in a former suit between the same parties, namely, Suit No. 162/57. It is not disputed that the parties are the same. The matter directly and substantially in issue in Suit No. 162/57 is the right of Bai Suraj, wife of Ranchhod to possession of property referred to in the plaint. The matter substantially and directly in issue in Suit No. 176/57 is different. That is a suit filed by Chanchal, the mother of Ranchhod, for a declaration. According to Bai Chanchal she is already in possession of the property. She did not file the suit for possession of the property which is not In her possession. But she wanted to get her possession confirmed and for this purpose wanted a declaration that the adoption by Suraj was illegal and that the adoption was ineffective with regard to the property in her possession. Therefore, the matter directly and substantially in issue in the two suits are entirely different, and in such a case no question of res judicata can arise. It is true that in the second suit the Court has given a declaration that the adoption is illegal and ineffective with reference to the property in possession of Bai Chanchal. But this is a declaration. The adoption is not directly and substantially in issue in the first suit, except as regards plaintiff No. 2 in Suit No. 162 of 1957. So far as plaintiff No. 1 is concerned, she did not claim under the adoption because she is the widow of Ranchhod.

32. The learned counsel for the applicants relies on ILR 33 All 51. But the learned counsel for the opponents relies on Ram Surat v. Ram Murat : AIR1955All543 and : [1950]1SCR754 . The learned counsel for the applicantsalso relies on Badri Narayan v. Kamdeo Prasad : [1962]3SCR760 .

33. It is urged by the learned counsel for the applicants that in Suit No. 176/57, a declaration has been given that the adoption is ineffective with respect to the property in possession of Bai Chanchal and that therefore this finding against which no appeal has been filed becomes res judicata with regard to the same question in suit No. 162 of 1957 and in the appeal filed from the decree in that suit.

34. In order to apply the principle contained in Section 11, Civil Procedure Code, there must be a suit and a former suit between the same parties or between the parties under whom they or any of them claim litigating under the same title, and the former suit must have been heard and finally decided by a Court competent to try the second suit or the matter directly and substantially in issue in the suit must also have been directly and substantially in issue in a former suit.

35. Here we have two suits, one suit No. 162/57 and the other suit No. 176/57. Explanation 1 to Section 11, Civil Procedure Code, provides thus:

'The expression 'former suit' shall denote a suit which has been decided prior to the suit in question whether or not it was instituted prior thereto.'

Now, in this case both the suits were heard together and decided by a common judgment. A copy of the judgment in suit No. 162/57 was kept in the record of suit No. 176/57.

36. The question arises in such a case whether suit No. 162/57 is a former suit or suit No. 176/57 is a former suit. The learned counsel for the opponents relies on AIR 1927 Lah 289, and contends that this case has been approved by their Lordships of the Supreme Court, in : [1950]1SCR754 . In this case their Lordships of the Supreme Court observed as follows:

'As has been observed by Tek Chand J., in his learned judgment in AIR 1927 Lah 289, the determining factor is not the decree but the matter in controversy. As he puts it later in his judgment, the estoppel is not created by the decree but it can only be created by the judgment. The question of res judicata arises only when there are two suits. Even when there are two suits, it has been held that a decision given simultaneously cannot be a decision in the former suit. When there is only one suit, the question of res judicata does not arise at all and in the present case, both the decrees are in the same case and based on the same judgment, and the matter decided concerns the entire suit.'

37. Their Lordships merely approved one or two observations of the learned Judge Tek Chand, J, but did not approve of all the observations of Tek Chand J, contained in AIR 1927 Lah 289. It is therefore, wrong to treat the judgment of their Lordships of the Supreme Court as approving every part of the reasoning of Tek Chand J, in AIR 1927 Lah 289, and to treat every observation in A1H 1927 Lah 289, as binding on all Courts.

38. If we turn to the Lahore case, we find that in that case two suits were disposed of by a single judgment but a separate decree was drawn up in each suit. But in the instant case there are two judgments and two decrees. The observation that estoppel of res judicata applies only when there is a judgment and not when there is a decree, therefore, is not material to the instant case, because we have two judgments and two decrees, which was not the case in the Lahore case.

39. Explanation 1 to Section 11; Civil Procedure Code, provides as under:

'The expression 'former suit' shall denote a suit which has been decided prior to the suit in question whether or not it was instituted prior thereto.'

In his judgment in Civil Suit No. 176 of 1957, the learned Judge has observed as follows:

'In my judgment in the other suit I have stated in extenso the pleadings and issues in both the suits separately and for the reasons given therein, I have also recorded findings on the issues in both the suits separately. Therefore, that judgment will also serve as judgment in the present suit. A copy of the same is kept herewith. For the reasons stated therein and in accordance with the findings given therein on the issues in the present suit, I pass the following order in this suit.'

40. In para 2 of the judgment the learned Judge observed that the rest of the plaintiffs' suit is dismissed, and in para 3 of the judgment he ordered that the parties should bear their own costs. In the common judgment which was given in Suit No. 162/57, he passed an order regarding the costs in Suit No. 176/57, but he passed no order regarding Suit No. 162/57. It is therefore clear that he decided Suit No. 162 of 1957 earlier, albeit on the same date. The reasons for deciding Suit No. 176/57 are contained In the judgment in Suit No. 162/57. The matters relating to the common issues were heard and finally decided only in Suit No. 162/57. They were not heard in Suit No. 176/57. In view of Section 11, C. P. Code they can be heard and finally decided only in one suit. The decision on those matters in Suit No. 176/57 is not alter hearing the matters. In view of Section 11, C. P. Code the decision in Suit No. 162/57 has to be followed in Suit No. 176/57. It is not a decision so as to attract Section 11, C. P. Code. Even it there is no appeal against the judgment in Suit No. 176/57 Section 11 C. P. Code is not attracted because there is no decision in Suit No. 176/57 after hearing. Only some of the Issues are common to both the suits. So far as the decision on the common issues goes, there is no question of the principle of res judicata. As regards the appeal against the judgment in Suit No. 162/57 as it involves certain questions which are not common, it can never be barred by res judicata.

41. The learned counsel for the appellants, however, relies on AIR 1962 SC 338 but this case refers to an election petition and their Lordships were dealing with the question of general res judicata and their Lordships did not declare the law on any point contained in Section 11, Civil P. C. Therefore, it is not necessary to consider this ruling.

42. The learned counsel for the opponents relies on U.P. State v. Mohd. Nooh, 1958 SCJ 242 : AIR 1958 SC 86 in support of his contention that in the circumstances the decision of the trial Court is final, even though one appeal is filed against that decision. The contention of the learned counsel for the opponents is that Suit No. 162/57 has been decided earlier and by reason of the expression 'such Court' in Section 11, C. P. Code, only the decision in Suit No. 162/57 can operate as res judicata in Suit No. 176/57 and not the decision of an appellate Court. The learned counsel relies on the following observations of their Lordships in AIR 1958 SC 86 at p. 95 : --

'In the next place, while it is true that a decree of a Court of first instance may be said to merge in the decree passed on appeal therefrom or even in the order passed in revision, it does so only for certain purposesnamely, for the purposes of computing the period of limitation for execution of the decree as in Batuk Nath v. Munni Dei, 41 Ind App 104: (AIR 1914 PC 65), or for computing the period of limitation for an application for final decree in a mortgage suit as in Jowad Hussain v. Gendan Singh, 53 Ind App 197 : (AIR 1926 PC 93). But as pointed out by Sir Lawrence Jenkins in delivering the judgment of the Privy Council in Juscurn Bold v. Pirthichand Lal, 46 Ind App 52: ILR 46 Cal 670 at pp. 678 and 679: (AIR 1918 PC 151 at pp. 152-153), whatever be the theory under other systems of law, under the Indian law and procedure an original decree is not suspended by the presentation of an appeal nor is its operation interrupted where the decree on appeal is merely one of dismissal. There is nothing in the Indian law to warrant the suggestion that the decree or order of the Court or tribunal of the first instance becomes final only on the termination of all proceedings by way of appeal or revision. The filing of the appeal or revision may put the decree or order in jeopardy but until it is reversed or modified it remains effective'.

43. The question of merger of one of the decisions does not arise in a case to which Section 11 C. P. C. applies, because in such a case there can be only one original decision after trial.

44 The learned counsel for the applicants relies on Annamalay v. Thornhill, AIR 1931 PC 263, where their Lordships of the Privy Council have observed as follows :

'Where an appeal lies the finality of the decree on such appeal being taken, is qualified by the appeal and the decree is not final in the sense that it will form res Judicata as between the same parties and consequently where pending an appeal a suit is instituted on the same cause of action and between the same parties the proper course for the Court of the second action is to adjourn the action pending the decision of the appeal in the first action'.

Their Lordships of the Privy Council were dealing with an entirely different question. Their, Lordships were dealing with the question whether the fact that there had not been an appeal against a decision in one suit operates as res judicata to hearing of an appeal against the Judgment in another suit, if other requirements of Section 11, C. P. Code are satisfied.

45. The learned counsel for the applicants contends that unless the principle of res judicata applies in the instant case, it would lead to startling results, namely that a party can file one appeal against the judgment of one suit and that without appealing from the judgment in the second suit and praying that the decree in the second suit should be set aside, he can indirectly get the same benefit by appealing in one of the suits. But, these difficulties will not arise, if we properly understand the provisions of Section 11, Civil Procedure Code. If the matter directly and substantially in issue in both the suits has been decided in one suit there cannot be a second decision by trial on tne same point, in the second suit.

46. For the above reasons, I hold that the appeal against the judgment in Suit No. 162/57 is not barred by res judicata. The revision application is dismissed, but there will be no order as to costs.


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