I.N. Modi, J.
1. This is a second appeal by the plaintiff Koodi against the judgment and decree of the District Judge Alwar dated 15-4-1953, in a suit for possession.
2. The following pedigree table will be found helpful in understanding the facts of the case out of which this appeal arises:
PEMA|_________________________________________| | |Leela Hukmi Heera | (Proforma (ProformaKoodi Deft.No.3) Deft.No.4) (Plaintiff)
3. The case of the plaintiff Koodi was that Roshan, father of defendant No. 1 Baboo, had obtained a money decree against defendant Hukmi and that in execution of that decree, he had the suit house attached and sold on the allegation that it was the exclusive property of the judgment-debtor aforesaid and defendant No. 2 Narain had purchased the same at a public auction. The plaintiffs case further was that the suit house was the joint and ancestral property of the plaintiff and the other defendants Hukmi and Heera, and that the former had a one-third share therein and his share in the said property was not liable to attachment and sale. Consequently, the plaintiff filed the present suit for a declaration that the sale of the house in question to the extent of his one-third share was null and void and also for possession of the same.
4. The defendant Hukmi, brother of Koodi, for obvious reasons admitted the suit. The plaintiff's other brother Heera remained ex parte. The remaining defendants Nos. 1 and 2 namely Baboo, son of Roshan decree-holder, and Narain, the auction purchaser resisted the suit. Their case was that the house had been validly sold in execution of Roshan's decree and that it was the exclusive property of the defendant Hukmi.
It was also pleaded by these defendants that the suit house had been held to be the exclusive property of the defendant Hukmi in an earlier litigation which was brought by defendant Heera against Roshan, and the plaintiff Koodi and defendant Hukmi were also made parties to that suit, and, therefore, the present suit was barred by the doctrine of res judicata and was not maintainable. The judgment, in that case is Ex, D-l and was given by the Munsiff Lachhmangarh in suit No. 15/40 and is dated the 23rd December 1940.
It may also be mentioned here that an appeal was taken from this judgment by Heera to the District Judge Alwar, and Roshan and Hukmi and Koodi had been made parties thereto, and the appellant Heera offered to be bound by the special oath of the respondent Roshan in the said appeal, and the latter took the oath, and, consequently, the appeal was dismissed with costs by the judgment of the learned District Judge dated the 7th July, 1941 (Ex. D-4).
5. The trial court framed a number of issues; but it is unnecessary to refer to all of them for the purposes of the present appeal. The only issue of which mention need be made is No. 6 which was to the effect whether the present suit was barred by the rule of res judicata. The court came to the conclusion that it was, and in that view dismissed the suit. The plaintiff then went in appeal to the District Judge, Alwar, who also affirmed that judgment of the trial court. Consequently the plaintiff has now come up in appeal to this Court.
6. The main question which arises for determination in this appeal is whether the plaintiff's suit is barred by the rule of res judicata, as there was a previous litigation by one of the brothers of the plaintiff, viz., Heera, and Koodi was also a party to that suit and it was decided therein that the suit property was the exclusive property of Hukmi. Learned counsel for the appellant puts his case in this way.
He admits that there was such an earlier decision which related to this very property. He also admits that the substantial question in the earlier litigation was whether the suit house was the joint and ancestral property of Heera and his two other brothers namely Hukmi and the present plaintiff or it was the exclusive property of the defendant Hukmi, and that it was decided by the trial court that the property was the exclusive property of the said Hukmi and the plaintiff Heera's suit was dismissed. His contention, however, is that there was an appeal by Heera against the judgment of the Munsiffto the court of the District Judge and that that appeal was decided on a special oath offered by Heera and accepted by Roshan, and, consequently, while the finality of the judgment of the trial court was destroyed, the judgment of the appellate court was not given on the merits, and that the present plaintiff Koodi was not a party to the oath referred to above and consequently he could not be held to be bound by a judgment given under such circumstances, as the matter could not be said to have been heard and finally decided so far as the present plaintiff isconcerned.
It may be mentioned at this place that the matter was not argued from this standpoint in any of the courts below; but as the point was one purely of law and as no fresh evidence was required to deal with -it, it was allowed to Be taken up. It also became necessary in this connection to send for the file of the earlier suit which arrived here on the 16th February, 1959.
7. I should like to mention at the very outset that the question in the form in which it has been argued at the bar is not covered by any direct authority, and that the entire trouble in this case that has arisen is chiefly due to the circumstance that Koodi the present plaintiff, though he was a party to the earlier litigation, both at the stage of the suit and also of the appeal did not appear throughout the proceedings and, in any case, was not a party to the special oath by which the plaintiff Heera offered to be bound and which was later taken by the contesting respondent Roshan.
8. Be that as it may, the question that falls to be decided is an interesting one. In this connection. If may refer to the provisions contained in Sections 9 to 11 of the Indian Oaths Act, 1873, (No. X of 1873). 'Section 9 provides that if any party to a judicial proceeding offers to be bound by a special oath or solemn affirmation mentioned in Section 8 of any other party to the case or a witness therein, the court may ask such party or witness whether he is prepared to make the required oath or affirmation.
By Section 10 it is further provided that if such party or witness agrees to make the required oath or affirmation, the court may proceed to administer it or, have it administered, and itself take necessary steps to have the evidence of the person to be sworn or affirmed. Then follows Section 11 which lays down that the evidence thus given shall be conclusive proof of the matter stated as against the person who offered to be bound by the oath of such other person referred to above.
9. In this state of the law, I have no hesitation in coming to the conclusion that the defendant Heera could not but be bound by the oath of the contesting respondent Roshan in the earlier case, and that whatever the latter stated was conclusive proof of the matter in controversy between them. As already stated, the present plaintiff was not a party to the special oath. Consequently, Section 11 of the said act as such does not bind him.
10. The question in these circumstances arises whether Koodi would still be barred by the rule of res judicata from raising the same question in the present suit, namely, whether the suit house belonged exclusively to his brother Hukmi or it was the joint property of all the three brothers including Koodi.
11. I have given, the matter my very careful & earnest consideration. It seems to me that although the plaintiff Koodi will not be bound by virtue of anything said in Section 11 of the Oaths Act, it must be remembered that after the oath was offered and accepted in due course by the party concerned, a judgment did follow and became final. The contention of learned counsel for the appellant is that such a judgment, while on the one hand it destroyed the finality of the judgment of the trial court, cannot be said to have been made after the matter involved therein was heard and finally decided within the meaning of Section II.
It may be accepted that the finality of the judgment of the trial court was shaken or even destroyed as soon as the appeal was tiled against that judgment; but the correct position seems to me to be this that this finality was restored when the appeal happened to be dismissed. See Dist. Board, Darbhanga v. Suraj Narain, AIR 1936 Pat 198.
But apart from that, the real question is whether the decision of the appellate court in the earlier suit can be said to have been a decision which was given after the matter was heard and finally decided, so far as the present plaintiff is concerned.
12. It may be pointed out in this connection that although Koodi was a party to the previous suit and he was also impleaded as a respondent in the appeal therein, he never cared to appear and allowed the suit and the appeal to go ex parte against himself. The law is wellestablished that a decision of a competent court, even if ex parte, will be binding on the parties in a later suit provided of' course the other conditions mentioned in Section 11 C. P. C. are satisfied. See Appaswami v. Thayammal, AIR 1939 Mal 830. It may also be pointed out that the mere fact that the defendant did not contest, or! that he supported the plaintiff's case, or even the | fact that he merely joined as a pro forma defendant, would not be a good ground for negativing the plea of res judicata between the co-defendants if they occupied the position of conflict inter se.
Reference may be made in this connection to two decisions of their Lordships of the Privy Council in Mt. Munni v. Tirloki Nath, AIR 1931 PC 114 and Maung Sein Done v. Ma Pan Nyun, AIR 1932 PC 161, which clearly lay down that if a plaintiff cannot get his rights decreed without trying and deciding a case between co-defendants, the court must try that case and the co-defendants must be held to be bound by a decision thus arrived at, and, on the other hand, if the relief required to be given to the plaintiff does not require or involve a decision of any case between the co-defendants, the co-defendants will not be bound as between each other by any proceeding which may be necessary only to the decree the plairitiff obtains.
It was further pointed out that in order to make a decision res judicata between co-defendants, the following three conditions are pre-requisite: (1) There must be conflict of interest between the defendants concerned: (2) it must be necessary to decide this conflict in order to give the plaintiff the relief he claims and (3) the question between the defendants must have been finally decided. Judged by these principles, there is no doubt that the question which arose in the earlier litigation between Heera and the defendant Roshan necessarily raised a conflict between Roshan and the other defendants including the present plaintiff.
Therefore, when the court arrived at the conclusion that the house in question was the exclusive property of the other defendant Hukmi and was liable to be sold in satisfaction of his debts it necessarily involved a decision that neither Heera nor Koodi had any right therein. In this state of affairs the various conditions which have been enunciated above for founding the plea of res judicata among the co-defendants are clearly fulfilled so far as that aspect of the present case goes.
13. The only question that, however, remains for consideration in the peculiar circumstances ot this case is whether the matter in appeal having been concluded by the oath of the respondent, Roshan could be said to have been disposed of as having been heard and finally decided within the meaning of Section 11.
I have no hesitation in saying that that would doubtless be so, so far as Heera is concerned. That being so, it is but a further logical step from this to arrive at the position that the matter was also similarly heard and finally decided so far as the present plaintiff is concerned. It cannot be forgotten in this connection, after all, that the interests ot Heera, Hukmi and Koodi were identical. It is not even argued at this stage that there was any conflict of interest between them. Koodi and Hukmi had not at all appeared in the earlier suit and allowed it to go ex parte.
They also did not appear in the appeal, though it is admitted that so far as Koodi is concerned, he was properly served, and indeed that position cannot be disputed. If Koodi did not appear in the earlier suit it was entirely his fault and it seems to me to be a very queer position that he should be allowed to gain by his indifference or obduracy. It may also be considered in this connection whether it would have been open to Koodi to file an appeal from the decision of the appellate court dated the 7th July, 1941.
Some argument was raised in this connection that Koodi was merely a pro forma party in that litigation, and therefore, he could not nave appealed. On giving my careful consideration to this question, however, I am disposed to hold that in a case like the one before me, where the decision given by the court against the plaintiff necessarily affects the rights of the defendants against whom the plaintiff claimed no relief, and where there was an inescapable position of conflict between the defendants themselves, the defendant even if he is pro forma would have a right of appeal' in such a case. See Hafiz Mohammad Fateh Nasib v. Swarup Chand Hukum Chand Firm AIR 1942 Cal. 1.
14. Before concluding this judgment, I should like to refer to Abdullah Ashgar Ali Khan v. Ganesh Dass, AIR 1917 PC 201 on which learned counsel for the plaintiff strongly relies for his submission that the point involved in the earlier litigation as to whether the suit property was the exclusive property of defendant Hukmi, or it was the joint and ancestral property of all the three brothers was not 'finally decided' within the meaning of Section 11 of the Code of Civil Procedure.
The case was decided on Section 10 of the British Baluchistan Regulation IX of 1896, but that does not matter inasmuch as the wording of Section 11 of the Code of Civil Procedure is substantially the same. In that case. A and B were partners. The partnership was then dissolved and a deed of dissolution was drawn up between the parties. Thereafter A executed a bond in favour of B for the amount found due by A. A then sued for the cancellation of this bond on the allegation that B had obtained the same from him by fraud.
The contention of B was that a suit for the cancellation of the bond only would not lie as the bond was based on the dissolution deed, and that no suit had been brought for the cancellation of the deed of dissolution. The trial court dismissed the suit, as, in its opinion, the fraud alleged by A had not been proved. . The court of first appeal upheld this decision. On second appeal, however, the learned Judicial Commissioner held that the objection of B to the frame of the suit was well-founded, and therefore, without entering into the merits of the case, he dismissed A's appeal and the suit was dismissed.
Thereafter, B sued on the bond, and again A contended that it was vitiated by fraud. It was held upto the High Court that the defence was barred by res judicata. On appeal to the Privy Council, this decision was set aside and their Lordships, relying on Sheosagar Singh v. Sitaram Singh, ILR 24 Cal 616 (PC), held that as the second appellate court had decided the earlier case on the ground of the defective frame of the suit and the decision of the courts below on the issue of fraud had not been pronounced upon by it, it could not be said that that case was decided on the merits. In coming to the conclusion to which they did, their Lordships relied on an earlier decision of the Privy Council in ILR 24 Cal 616 (PC). The relevant observations in the last mentioned case were these.
'To support a plea of res judicata it is not enough that the parties are the same and that the same matter is in issue. The matter must have been 'heard and finally decided.' If there had been no appeal in the first suit the decision of the Subordinate Judge would no doubt have given rise to the plea. But the appeal destroyed the finality of the decision. The judgment of the lower Court was superseded by the judgment of the Court of Appeal. And the only thing finally decided by the Court of Appeal was that in a suit, constituted as the suit of 1885 was, no decision ought to have been pronounced on the merits.'
I have carefully considered these two decisions and I am of opinion that they are entirely distinguishable on facts. In either of them, it could not be said that the judgment upon which the plea was res judicata was heard turned on the merits of the case,, and no pronouncement on the merits had in fact been made because of some formal defect or the other. The present case is entirely different. As already pointed out above, it is incontrovertible that the decision as respects Heera in the earlier suit, even though it was founded on the special oath offered by him and accepted by the contesting respondent Roshan, was given on the merits, because according to Section 11 of the Oaths Act, the evidence thus given on oath by Roshan, was conclusive proof of the matter in issue between the parties.
The decision did not turn on any formal matter, and was therefore given on the merits. The only question which then remains to be considered is whether the decision so given on the merits, can be held to be binding on the present plaintiff Koodi, who was also respondent in that case. The short answer to that question, in my opinion, is that there was a necessary conflict between the co-defendants in that case, namely Roshan and Koodi, and, therefore, all the requisites for the application of the rule of res judicata to which reference has already been made above, were fully satisfied.
15. For the reasons mentioned above, I am disposed to hold the view that the judgment of the District Judge dated the 7th July, 1941, (Ex. D-4) must be held to have been given after the appeal had been heard and finally decided within the meaning of Section 11 of the Code of Civil Procedure, as any other view, to my mind, would be fraught with grave consequences and lead to unnecessary multiplicity of litigation.
If the conclusion that the aforesaid appeal was disposed of after having been heard and finally decided not only so far as the defendant Heera is concerned but also so far as the present plaintiffgoes, is correct, as I am inclined to think that it is, then there is no escape from the position that the present suit must be held to be barred by the principle of res judicata, as all the other conditions required to bring that rule into play in the present case are satisfied.
16. The result is that this appeal fails and ishereby dismissed with one set of costs to the contesting respondents.