9911796707
|
Home
Issues Involved:
1. Interpretation of "collaterally or incidentally in issue" u/s 11 CPC. 2. Applicability of res judicata concerning the decision of the District Judge, Surat in Appeal No.80/31. 3. Applicability of res judicata concerning the decision of the Assistant Charity Commissioner dated 19.1.1967 in Inquiry No.14/64 and Inquiry No.3/65. Summary of the Judgment: Point 1: Interpretation of "collaterally or incidentally in issue" u/s 11 CPC The Court assessed the interpretation of "collaterally or incidentally in issue" within the context of res judicata. It was determined that matters in an earlier litigation that were only collaterally or incidentally in issue do not typically constitute res judicata in subsequent proceedings where the matter is directly and substantially in issue. The Court referred to various common law jurisdictions and legal principles, including the tests laid out by English, American, Australian, and Indian courts, to establish whether an earlier finding can be res judicata in a later proceeding. The Court emphasized that the determination must be fundamental to the substantive decision and not merely a step in reasoning. Point 2: Applicability of res judicata concerning the decision of the District Judge, Surat in Appeal No.80/31 The Court highlighted the difference in the definition of "wakf" between 1928 and 1950. The 1928 law did not consider a wakf where the Sajjadanashin could spend income on himself and his family as a public wakf. However, the 1950 Bombay Public Trusts Act expanded the definition to include such wakfs. The Court agreed with the Gujarat High Court's observation that the 1931 judgment arising from the 1928 suit, which treated the wakf as private, does not operate as res judicata due to the widened definition in the 1950 Act. Consequently, the 1931 judgment does not bar the current proceedings. Point 3: Applicability of res judicata concerning the decision of the Assistant Charity Commissioner dated 19.1.1967 in Inquiry No.14/64 and Inquiry No.3/65 The decision of the Assistant Charity Commissioner on 19.1.1967, which held the wakf to be private, was superseded by the Gujarat High Court's later judgment in Sayed Mohammed vs. Ali Miya (1972(13) Guj.LR 285) dated 14.9.1970. The Court stated that an earlier binding decision loses its binding force if a subsequent decision between the same parties decides to the contrary. Therefore, the 19.1.67 decision does not become res judicata. Additionally, the plea of res judicata based on the 1965 proceedings was not raised in the lower courts in the present proceedings. Conclusion The Court confirmed the rejection of the preliminary objection and directed the Assistant Charity Commissioner to proceed with Inquiry No.142/67 on merits, concerning the Rozas at Broach and Surat, in light of this judgment and the Gujarat High Court's judgment in Sayed Mohammed vs. Ali Miya [1972 (13) Guj.L.R.285]. The appeal was dismissed with no order as to costs.
|
