Pratibha Bonnerjea, J.
1. The present suit was instituted by the plaintiff against the defendants for adjudication that the decree passed in T. Suit No. 451 of 1971 by the learned 9th Bench, City Civil Court at Calcutta and registered on 7-2-1974 was void, inoperative and not binding upon the plaintiff, for an order that the said registered decree be delivered up and cancelled, injunction etc. The circumstances under which the suit was instituted will appear from the short list of dates set out below.
Aug. 1946 -- The defendant No. 2 Balai was inducted as a tenant by the defendant No. 1 Nagendra in respect of premises No. 50 Doctor Lane, Calcutta. Nagendra was the owner of this property.
9th Spet. 1946 -- A deed of sale was executed by Nagendra in favour of Balai in respect of the premises No. 50 Doctor Lane to avoid creditors. Nagendra alleged that the deed was a benami transaction.
5th June 1971 -- T. Suit No. 451 of 1971 was instituted by Nagendra against Balai for declaration that the deed executed on 9-9-1946 in favour of Balai was invalid, inoperative and was never acted upon. The plaintiff ih the present suit, Dunialal, was not a party to the said suit.
1971 _ Dunialal filed T. Suit No. 676 of 1971 against Balai in the City Civil Court for partition of the premises No. 50. Doctor Lane. Nagendra was not a party to the said suit.
12th Sept. 1973 -- A decree was passed in the said T. Suit No. 451 of 1971 on contest declaring the deed dated 9-9-1946 was invalid, inoperative etc.
8th Feb. 1974 -- Nagendra again filed another T. Suit No. 176 of 1974 against Balai and Dunialal for their eviction from the premises No. 50, Doctor Lane and for recovery of possession on the allegation that Balai had surrendered the tenancy on 6-1-1974 and had informed Nagendra that Dunialal was in wrongful occupation of the said property. Balai contested the said suit but Dunialal did not enter appearance, did not contest the suit.
2nd Jan. 1975 -- In T. Suit No. 176 of 1974 a decree for eviction was passed on contest against Balai and ex parte against Dunialal -- the present plaintiff.
Thereafter Nagendra started execution Case No. 21 of 1975 for evicting Balai and Dunialal.
April 1975 -- In execution of the decree in T. Suit No. 176 of 1974, Nagendra started another Misc. Case No. 329 of 1975 for possession with the help of police.
11th April 1975 -- A partition decree was passed in Dunialal's partition Suit No. 676 of 1971.
21st April 1975 -- Another Misc. Case No. 331 of 1975 arose as Dunialal took out an application under Order 9. Rule 13 of the C. P. C. for setting aside the ex parte decree dated 2-1-1975 against him in Suit No. 176 of 1974.
16th Sept. 1976 -- Dunialal's application under Order 9, Rule 13 of the C, P. C. was dismissed.
3rd Jan. 1977 -- Dunialal preferred an appeal with an application under Section 5 of the Limitation Act against the order of dismissal of his application under Order 9, Rule 13 of the C. P. C. and obtained C. R. No. 12 (M) of 1977 and C. R. No. 907 (M) of 1977 both of which were . subsequently discharged.
1977 -- Dunialal thereafter filed T. Suit No. 597 of 1977 in the City Civil Court for setting aside the ex parte decree in T. Suit No. 176 of 1974.
8-6-1978 -- Dunialal's T. Suit No. 597 of 1977 was dismissed for default.
2. In the premises aforesaid the decree for eviction against Dunialal in T. Suit No. 176 of 1974 became final and binding on him. The aforesaid court proceedings are all admitted by the parties to the suit.
3. When the present suit was opened, the contesting defendant Nagendra raised an objection regarding the maintainability of the suit and both the parties to the suit agreed that this preliminary issue should be decided first. The two preliminary issues were framed as follows :--
(1) Is the suit maintainable under Sections 31, 34 and 35 of the Specific Relief Act of 1963
(2) Is the suit barred by res judicata by reason of the city Civil Court decree dated 2-1-1975 passed in T. S. No. 176 of 1974
4. Let us take the first issue first. Mr. Das, counsel for the plaintiff, submitted that in T. Suit No. 451 of 1971, the present plaintiff Dunialal was not a party and if this decree would remain outstanding, that would cause serious prejudice to him. Hence this decree should be adjudged void and delivered up and cancelled under Section 31 of the Act. He further submitted that the plaintiff would be entitled to this declaration as of right in view of the provisions of Section 35 of the Act. Section 35 of the Act is as follows :--
Section 35 'A declaration made under this chapter is binding only on the parties to the suit, persons claiming through them respectively.......'
5. Sections 34 and 35 are under Chapter V of the Act. The provisions of Section 35 obviously relate to the decree passed under Section 34 of the Specific Relief Act. If the decree in T. Suit No. 451 of 1971 was passed under Section 34 of theSpecific Relief Act, 1963, then under Section 35 such a decree will not be binding on Dunialal who was a stranger to the suit. The statute makes the position clear. On the facts and circumstances of this case, is Dunialal entitled to bring a suit under Section 31 of the Act Let us now examine the requirements of Section 31 of the Act.
Section 31 'Any person against whom a written instrument is void or voidable, and who has reasonable apprehension that such instrument, if left outstanding may cause him serious injury may sue to have it adjudged void or voidable, and the Court may, in its discretion, so adjudge it and order it to be delivered up and cancelled.'
6. The relief as to delivery and cancellation of an instrument is founded upon the administration of the protective justice for fear that the instrument may be vexatiously or injuriously used by the defendant against the plaintiff or it may throw a cloud or suspicion over his title or interest. A plaintiff in a suit under Section 31 of the Act has to establish three conditions :
(1) that the plaintiff is such a person against whom the instrument is void or voidable.
(2) that the plaintiff can entertain a reasonable apprehension that if such an instrument is left outstanding it may cause him serious injury.
(3) that the Court must adjudge the instrument void or voidable.
7. The aforesaid conditions were laid down in : AIR1972All376 relying on a Full Bench decision reported in AIR 1960 Mad 1. Will a decree of a competent Court come under the expression 'written instrument' in Section 31 In : AIR1960Cal702 (Pratabmull Rameswar v. K. C. Sethia) a Division Bench of this High Court had held at p. 628 (of Cal WN) : (at p. 709 of AIR) :--
'But an award or a judgment of Court is not in this sense a written instrument within the meaning of Section 39 of the Specific Relief Act, the words 'adjudged' and 'delivered up' appear to support this argument, in other words the word 'adjudged' means that where a written instrument such as a written contract has already been 'adjudged' by a Court or Tribunal Section 39 cannot be applied. It is only when a written instrument has not been 'adjudged' by a Court or Tribunal but remains an unadjudged written instrument that Section 39 can be invoked. Similarly the 'delivery' of the written instrument cannot be made to include delivery of an award or judgment of Court to be 'cancelled'. There is no question of delivery or cancellation in such a case because the judgments or awards on which judgments are pronounced are public records and the parties can have them by making the proper application to Court for those copies and which can be set aside according to the law or procedure applicable and not delivered for cancellation as contemplated in Section 39 of the Specific Relief Act. We are, inclined to think that Section 39 of the Specific Relief Act cannot be applied in the case of judgments of a Court or an award of a Tribunal although they may come within the general expression 'written instrument'. We consider that the expression 'written instrument' in Section 39 means an instrument which has not already been adjudged by any formal Court or Tribunal.'
8. I am in full agreement with this decision which is also binding on me. This decision applies in full force in the present case as Section 31(1) of the Specific Relief Act 1963 is verbatim reproduction Of Section 39 of the repealed Act.
9. Therefore the 1st condition in : AIR1972All376 is not fulfilled as the decree in T. Suit No. 451 of 1971 is not a 'written instrument' which is void or voidable against the plaintiff. The second condition also is not fulfilled because the plaintiff cannot entertain a reasonable apprehension that the decree in T. Suit No. 451 of 1971. if left outstanding will cause him serious injury because it cannot be, vexatiously or injuriously used against him due to the provisions of Section 35 of the Act. This decree is not binding on him, he being a stranger to the said suit. Under the circumstances, the question of adjudging the said decree as void or voidable will not arise. So the 3rd condition is also not fulfilled. Hence no relief can be given to the plaintiff under Section 31 of the Act. In my opinion, the plaintiff has no right to invoke Section 31 of the Specific Relief Act of 1963. Realising this difficulty, the plaintiff's counsel submitted that he was abandoning prayers for delivery and cancellation under Section 31 and would be satisfied with declaration only. This again cannot be done. A decree is not an unadjudged document which can be adjudged void or voidable. I have no hesitation to hold that no suit will lie under Section 31 of the Act on the facts and circumstances of this case. The plaintiff's counsel then urged that this suit could be treated as a suit under Section 34 of the Act. The provisions of Section 34 are as follows :--
Section 34 'Any person entitled to any legal character or to any right as to any property may institute a suit against any person denying or interested to deny his title or such legal character or right and the court may in its discretion make therein a declaration that he is so entitled and the plaintiff need not in such suit ask for any further relief.'
10. In the present suit the plaintiff did not pray for any such declaration. On the contrary, the documentary evidence of records of Courts which were freely used by both the parties during hearing, clearly proved that in 1974 Nagendra had filed the T. Suit No. 176 of 1974 in the City civil Court wherein he claimed to be the owner of the premises No. 50, Doctor Lane and alleged that Balai and Dunialal were trespassers and prayed for their eviction from the the said property. Balai filed a written statement admitting Nagendra's title over premises No. SO, Doctor Lane but denying that he was a trespasser. Dunialal did not contest the suit. On 2-1-1975, a decree for eviction was passed in the said T. Suit No. 176 of 1974 against Balai on contest and ex parte against Dunialal. Dunialal failed to set aside this ex parte decree in spite of repeated attempts as will appear from the list of dates set out above. This decree has become binding on him. According to Mr. Dutt, counsel for the defendant Nagendra, Punialal had no title in respect of this property when the present suit was filed in 1977. As he had no interest, he could not invoke the jurisdiction under Section 34 and claim a declaration. He cannot agitate the question of his alleged title to this property in the present suit as that issue would be barred by the principle of res judicata by virtue of the decree in T. Suit No. 176 of 1974. The counsel for the plaintiff Dunialal, however, submitted that the plaintiff would be entitled to raise this dispute in the present suit in spite of the decree in T. SuitNo. 176 of 1974 as this Court is a superior Court. The principle of res judicata will apply if the Court which passed the decree and the court in which the same dispute is raised subsequently are of concurrent jurisdiction. A decree by lower Court on an issue will not be treated as res judicata, if the same issue is raised before a superior Court. In support he relied on : 3SCR483 . But his submissions are completely irrelevant so far as the present suit is concerned. In the present suit, the plaintiff did not ask for a declaration of his title over premises No. 50, Doctor Lane and did not make any allegation that the decree in T. Suit No. 176 of 1974 was not res judicata. The plaintiff has completely suppressed this fact from Court. His only prayer is that the decree in T. Suit No. 451 of 1971 is void against him. Such a decree would be unnecessary in view of the provisions of Section 35 of the Act. Section 34 does not contemplate that a declaratory decree will be passed when the facts of the case come under the purview of Section 35 of the Act. The decree in T. Suit No. 451 of 1971 cannot be used against him. Therefore such a declaration will be futile. This jurisdiction under Section 34 is equitable and discretionary. In AIR 1927 Pat 286 it has been held at page 287:--
'It is well settled that a court will not make a declaration of an abstract right exclusive of practical utility especially when that declaration may not be productive of any benefit to the party obtaining the declaration,'
11. Other authorities on this point are AIR 1929 Cal 422 and AIR 1953 Assam 162.
12. In my opinion, the provisions of Section 35 of the Specific Relief Act fully protect the plaintiff in the present suit and no further declaration is necessary. Then why the plaintiff is so keen in getting a declaration from Court that the decree in Suit No. 451 of 1971 is not binding It appears from the facts of this case that the parties to the suit are veteran litigants and there were several litigations between the parties, concerning the premises No. 50, Doctor Lane, it also appears from the facts of the case and the surrounding circumstances, that if the plaintiff can obtain such a declaration that will be a stepping stone for further litigation. It is well settled thatto allow a declaratory decree to be passedwhich will be used as a stepping stone for further litigation and will be of no practical effect, is not a proper exercise of the jurisdiction. (1922) 20 All LJ 557 : AIR 1922 All 349.
13. I am convinced looking at the prayers in the plaint, that the present suit cannot be treated as a suit under Section 34 of the Act. It is a suit filed under Chapter IV Section 31 of the Specific Relief Act and I have already held that such a suit will not He on the facts of this case. The present suit is therefore, not maintainable and is liable to be dismissed. In view of my finding on the preliminary issue No. 1, it is not necessary to decide the preliminary issue No. 2. The suit is therefore, dismissed with costs in favour of the appearing defendant.