Dadu Dayalu Mahasabha, Jaipur (Trust) v. Mahant Ram Niwas, (SC) BS143835
SUPREME COURT OF INDIA

Before:- S.B. Sinha and P.P. Naolekar, JJ.

Civil Appeal No. 3495 of 2008 (Arising out of SLP(C) No. 10317 of 2007). D/d. 12.5.2008.

Dadu Dayalu Mahasabha, Jaipur (Trust) - Appellant

Versus

Mahant Ram Niwas and another - Respondents

WITH Contempt Petition (Civil) No. 120 of 2007 In Civil Appeal No. 3495 of 2008 (Arising out of SLP(C) No. 10317 of 2007)

For the Appellants :- Rajiv Dhawan, Senior Advocate with Sushil Kr. Jain, Puneet Jain, Ms. Archana Tivari and H.D. Thanvi for Ms. Pratibha Jain, Advocates.

For the Respondents :- Rajiv Datta, Senior Advocate with Somvir Singh Deswal, Shree Pal Singh and B.K. Satija, Advocates.

IMPORTANT

Legal principles of estoppel and res judicata are equally applicable in proceedings before administrative authorities as they are based on public policy and justice.

A. Evidence Act, Sections 115 and 116 - Civil Procedure Code, Section 11 - Res judicata - Estoppel - Rule of res judicata prevents the parties to a judicial determination from litigating the same question over again even though the determination may even be demonstratedly wrong - When the proceedings have attained finality, parties are bound by the judgment and are estopped from questioning it - Further held:-

[Para 30]

B. Civil Procedure Code, Section 11 - Evidence Act, Section 115 - Estoppel and res judicata - Distinction - Res judicata debars a court from exercising its jurisdiction to determine the lis if it has attained finality between the parties whereas the doctrine of estoppel is invoked against the party - If such an issue is decided against him, he would be estopped from raising the same in the latter proceeding - The doctrine of res judicata creates a different kind of estoppel viz. estoppel by accord.

[Para 31]

C. Civil Procedure Code, Section 11 - Res judicata - To constitute a matter res judicata, the following conditions must be satisfied:-

[Para 28]

D. Civil Procedure Code, Section 11 - Res judicata - Once it is held that the issues which arise in the subsequent suit were directly and substantial in issue in the earlier suit, indisputably Section 11 of the Code would apply.

[Para 22]

E. Civil Procedure Code, Section 11, Explanation 5 - Evidence Act, Section 115 - Principles of estoppel, waiver and res judicata, are procedural in nature and, thus, the same will have no application in a case where judgment has been rendered wholly without jurisdiction or issues involve only pure questions of law - Even in such cases, the principle of issue estoppel will have no role to play.

[Para 22]

F. Evidence Act, Section 116 - Civil Procedure Code, Order 2, Rule 2 - Estoppel - Entire relief not claimed in first suit - Provisions Order 2, Rule 2 bars the jurisdiction of the Court in entertaining a second suit where the plaintiff could have but failed to claim the entire relief in the first one. 2007(4) RCR (Civil) 515 : 2007(2) RCR (Rent) 465 : 2007(5) RAJ 321 (SC) relied.

[Paras 23 and 26]

Cases Referred :-

Robert Watson & Co. v. Collector, (1869)13 MIA 1.

Sheodan Singh v. Daryao Kunwar [1966]4 SCR 300.

Fateh Singh v. Jagannath Baksh Singh, AIR 1925 Privy Council 55.

Shiv Kumar Sharma v. Santosh Kumari, 2007(4) RCR (Civil) 515 : 2007(2) RCR (Rent) 465 : 2007(5) RAJ 321 : (2007)8 SCC 600.

State of U.P. v. Nawab Hussain, (1977)2 SCC 806.

Home Plantations Ltd. v. Talaku Land Board, Peermada, (1999)5 SCC 590.

Arnold v. National Westiminster Bank Plc., (1991)2 AC 93 : (1991)3 All England Reporter 41.

Annaimuthu Thevar (Dead) by Lrs. v. V. Alagammal, (2005)6 SCC 202.

Sulochana Amma v. Narayanan Nair, 1993(3) RRR 682 : 1994(2) SCC 14.

Shamsu Suhara Beevi v. G. Alex, 2004(4) RCR (Civil) 252 : (2004)8 SCC 569).

Hardesh Ores (P) Ltd. v. Hede and Company, 2007(3) RCR (Civil) 157 : 2007(1) RCR (Rent) 598 : 2007(3) RAJ 118 : (2007(5) SCC 614).

JUDGMENT

S.B. Sinha, J. - Leave granted.

2. Applicability of the principles of Res Judicata and Order 2 Rule 2 of the Civil Procedure Code having regard to an observation made by this Court, is involved in this appeal, which arises out of a judgment and order dated 8th May, 2007 passed by a learned Single Judge of the Punjab and Haryana High Court in Regular Second Appeal No. 4070 of 2005.

3. Appellant herein is a Public Trust registered under the provisions of the Rajasthan Public Trust Act 1959 and governed by the provisions thereof. Acquisition of a Gaddi and the management thereof was the subject matter of a suit.

Mahant Mani Ram Swami, admittedly was the holder of the said Gaddi.

First respondent claimed himself to be the 'Pota Chela' of the said Mahant Mani Ram Swami.

4. Disputes and differences between the parties having arisen as regards succession and management of the Gaddi, first respondent filed a suit in the Court of Senior Sub Judge, Rohtak . It was registered as Suit No. 295/2 of 1964. Another suit was filed by Mahant Mani Ram Sadhu Dadu Panthi which was marked as Suit No. 46 of 1967. The said suits were filed for grant of permanent injunction.

5. Appellant has claimed its entitlement to the management of the said Gaddi under a Will purported to have been executed by Mahant Mani Ram Swami. The main controversy between the parties, therefore, was which party was entitled to manage the Gaddi at Kalanaur of the said Trust. The matters relating to management of another Gaddi situated at another place, i.e., Makhora, however, is not in dispute.

6. The learned trial judge, having regard to the pleadings of the parties inter alia, framed the following issues :-

An additional issue was framed, after the defendant Nos. 3 and 4 were impleaded as parties in the suit, which reads :-

7. The principal issues were decided against the first respondent. The suit was dismissed holdings that he was not entitled to hold or manage the Gaddi in question. An appeal preferred thereagainst, being Civil Appeal No. 89/13 of 1973, was dismissed by the Additional District Judge, Rohtak by his orders dated 2nd January, 1973, holding :-

It was furthermore held :-

It was furthermore held :-

However, the finding of the trial court on issue No. 4 was reversed.

8. A second appeal was preferred thereagainst before the High Court which was registered as Regular Second Appeal No. 800 of 1973. The High Court allowed the purported register of the 'Bhaik' to be produced as additional evidence. It entered into the merit of the matter and held as under:-

9. The matter came up before this Court by way of Civil Appeal No. 299 of 1987 (arising out of SLP ) No. 7600 of 1983) and by a judgment and order dated 2nd February, 1987 a Division Bench of this Court allowed the said appeal stating :-

10. Relying on or on the basis of the said observation made by this Court, the second round of litigation began.

11. In the fresh suit, the first respondent also impleaded 'Gaddi Dadu Dawara Kalanur' through himself as the second plaintiff. Appellants were arrayed as defendants. In the said suit a decree for possession of the properties mentioned in paragraph 5 of the plaint (consisting of 15 items of properties) was prayed for.

12. The learned trial judge by his judgment and order dated 11th February, 2003 opined that the said suit was barred by the principles of res judiciata, the issues arising therein being directly and substantially in issue between the parties in the previous suit as well. It dealt with in details as to how the causes of actions in both the suits were the same. Respondents preferred an appeal thereagainst. The first appellate court, however, by its judgment and order dated 27th November, 2005 reversed the judgment and decree of the trial court holding that neither the principles of Res Judicata nor Order 2 Rule 2 of the Civil Procedure Code were applicable in view of the observations made by this Court in the aforementioned order of this Court dated 2nd February, 1987.

13. An appeal was preferred thereagainst by the appellants. The High Court by reason of the impugned judgment has allowed the said appeal holding :-

14. Dr. Rajiv Dhawan, learned Senior Counsel appearing on behalf of the appellant in support of the appeal submitted :-

15. Mr. Rajiv Datta, learned Senior Counsel, appearing on behalf of the respondents, on the other hand, urge :-

16. A suit is filed on a cause of action. What would constitute a cause of action is now well settled. It would mean a bundle of facts which would be necessary to be proved by the plaintiff so as to enable him to obtain a decree. First Respondent's suit for possession was premised on a legal entitlement. Appellant herein also claimed its right over the Gaddi in question. The trial court framed several issues. Its discussion centred round the respective pleas of the parties which had fully been gone into.

The suit was dismissed. The first appellate court not only went into the question of possession of the first respondent over the Gaddi, as on the date of institution of the suit, but the other questions.

17. Rightly or wrongly a decision was arrived at that the first respondent was held to be not entitled to hold the Gaddi and management of the same. A legal right of the appellant with regard thereto was found favour with the first appellate court. On the aforementioned backdrop the implication of the observations of this Court must be noticed and considered.

18. The order of this Court is in four parts, i.e. -

19. The judgment of a court, it is trite, should not be interpreted as a statute. The meaning of the words used in a judgment must be found out on the backdrop of the fact of each case. The Court while passing a judgment cannot take away the right of the successful party indirectly which it cannot do directly. An observation made by a superior court is not binding. What would be binding is the ratio of the decision. Such a decision must be arrived at upon entering into the merit of the issues involved in the case.

20. If the judgment and order of the first appellate court dated 2nd January, 1973 was restored by this Court in its order dated 2nd February, 1987, the finding arrived at by it attained finality. The issues determined therein would be, thus, binding on the parties.

21. Section 11 of the Code not only recognizes the general principle of res judicata, it bars the jurisdiction of the court in terms of Section 12 thereof.

Explanation V of Section 11 of the Code extends the principle of res judicata stating that the reliefs which could have been or ought to have prayed for even if it was not prayed for would operate as res judicata. Section 12 thereof bars filing of such suit at the instance of a person who is found to be otherwise bound by the decision in the earlier round of litigation and in a case where the principle of res judicata shall apply.

22. We, however, are not unmindful of the principles of estoppel, waiver and res judicata, are procedural in nature and, thus, the same will have no application in a case where judgment has been rendered wholly without jurisdiction or issues involve only pure questions of law. Even in such cases, the principle of issue estoppel will have no role to play.

However, once it is held that the issues which arise in the subsequent suit were directly and substantial in issue in the earlier suit, indisputably Section 11 of the Code would apply.

23. Similarly the provisions of Order 2 Rule 2 bars the jurisdiction of the Court in entertaining a second suit where the plaintiff could have but failed to claim the entire relief in the first one. We need no go into the legal philosophy underlying the said principle as we are concerned with the applicability thereof.

24. We must also bear in mind the distinction between the decision of a court of law and a court of equity.

We may notice that even as far back as in 1869 in Robert Watson & Co. v. The Collector, (1869)13 MIA 1 it was held :-

25. The Privy Council In Fateh Singh and others v. Jagannath Baksh Singh and another, AIR 1925 Privy Council 55 observed :-

It was furthermore observed :-

26. The above observation of Privy Council came up for consideration before this Court in Shiv Kumar Sharma v. Santosh Kumari, 2007(4) RCR (Civil) 515 : 2007(2) RCR (Rent) 465 : 2007(5) RAJ 321 : (2007)8 SCC 600, when this Court observed :-

27. The question which was posed by the Privy Council was :-

The Court noticed that at that point there was no authority which sanctioned the exercise by the Country Courts of India of that power which Courts of Equity in that Country occasionally exercise, of dismissing a suit with liberty to the plaintiff to bring a fresh suit for the same matter.

28. Having noticed the effect of a stray observation made by a superior court viz-a-viz applicability of the principle of res judicata we may also notice the applicability of the principle of issue estoppel.

In Sheodan Singh v. Daryao Kunwar [1966]4 SCR 300, this Court laid down the ingredients of Section 11 of the Civil Procedure Code stating:-

The question which is, thus, required to be posed is what was in issue in the earlier suit.

The issue indisputably was the claim of entitlement to Gaddi by the first respondent and a plea contra thereto raised by the appellants. Once the issue of entitlement stood determined, the same would operate as res judicata. We may notice some precedents for appreciating the underlying principles thereof. Section 11 of the Code, thus, in view of the issues involved in the earlier suit, the provisions thereof shall apply.

29. In State of U.P. v. Nawab Hussain, (1977)2 SCC 806 this Court held :-

Noticing that the same set of facts may also give rise to two causes of actions, it was held :-

30. Yet again in Home Plantations Ltd. v. Talaku Land Board, Peermada and another, (1999)5 SCC 590.

It was furthermore opined :-

This Court opined that the Law of England as enunciated by the House of Lords in Arnold v. National Westiminster Bank Plc., (1991)2 AC 93 : (1991)3 All England Reporter 41, HL to hold that the said principle will have no application in India stating:-

31. Principle of issue estoppel and constructive res judicata had also been discussed at some length by this Court in Bhanu Kumar Jain (supra) to hold:-

32. Yet again in Annaimuthu Thevar (Dead) by Lrs. v. V. Alagammal and others, (2005)6 SCC 202 a Division Bench of this Court held :-

33. Even in a case of title, Explanation IV to Section 11 would apply. (See also Sulochana Amma v. Narayanan Nair, 1993(3) RRR 682 : 1994(2) SCC 14).

34. Furthermore in terms of Section 5 of the Specific Relief Act, 1963 a suit for possession must be filed having regard to the provisions of the Civil Procedure Code. If the statute provides for the applicability of the Civil Procedure Code, there cannot be any doubt whatsoever that all the relevant provisions thereof shall apply. (See Shamsu Suhara Beevi v. G. Alex and another, 2004(4) RCR (Civil) 252 : (2004)8 SCC 569) & Hardesh Ores (P) Ltd. v. Hede and Company, 2007(3) RCR (Civil) 157 : 2007(1) RCR (Rent) 598 : 2007(3) RAJ 118 : 2007(5) SCC 614).

35. We have, therefore, no hesitation to hold that the impugned judgment cannot be sustained. The same is set aside. The appeal is allowed with costs. Counsel's fee assessed at Rs. 25,000/- (Rupees Twenty Five Thousand only).

36. We, however, do not find any specific ground to initiate contempt proceedings against the respondent at this stage. Contempt Petition is dismissed accordingly.

Petition dismissed.