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TMI Blog2014 (10) TMI 941X X X X Extracts X X X X X X X X Extracts X X X X ..... a challenge. The aspect of law which now remains to be considered is whether filing of an Appeal against a common Judgment in one case, tantamounts to filing an appeal in all the matters. The application of res judicata, so very often, conjures up controversies, as is evident from the fact that even in this Court divergent opinions were expressed by the two Judge Bench, leading to the necessity of referring the appeal to a Larger Bench. It was for this reason that we thought it appropriate to deal with the dispute in detail. It seems to us that had the decisions of the three Judge Bench in Lonankutty [1976 (4) TMI 216 - Supreme Court Of India] and Prabhu [1977 (1) TMI 163 - SUPREME COURT ] been brought to the attention of our Learned and Esteemed Brothers on the earlier occasion when this appeal was heard by two Judge Bench, the dichotomy in opinion would not have arisen. The outcome of the appeal before the High Court would have also shared a similar fate. On the foregoing analysis, especially the previous enunciation of law by three Co-ordinate Benches, we are in agreement with the opinion of our Learned Brother Asok Kumar Ganguly that the appeal calls to be allowed. We are o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ly, Shri Sethurama Chettiar. Consequent on the death of the husband of Respondent No.1, she continued as the tenant along with her children as legal representatives of her late husband. It is also not in dispute that the Trust sold the suit property to Sarvashri P.Lakshamanan, P.Vadivelu and P.Saibabha who were impleaded by the Tenants as Defendants 7 to 9 in O.S. 5/78. The Tenants were informed of this transaction on 14.10.1976, calling upon them to attorn to the new owners. The repercussion was that in 1976 itself, the Tenants filed O.S.5/78 (re-numbered) in which they had assailed the sale of the suit land on the predication that the legal formalities necessary for the transfer of trust property had not been adhered to as it was a Public Trust, and further that, subsequent to the aforementioned transaction, the Tenants (Plaintiffs in O.S.5/78) apprehended their dispossession therefrom at the hands of the Defendants, including Defendants 7 to 9 (hereinafter called Transferees ). The Prayers have been reproduced infra. In this suit, the Trust as well as the Transferees pleaded in their respective Written Statements that they had neither threatened nor harboured any intention to d ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ants 7 to 9 and, thereafter, when Defendants are threatening to disturb the plaintiffs possession. Despite the specificity of these pleadings the Tenants had ostensibly not prayed for any relief with regard to the title of the Transferee. Nevertheless, on careful consideration it appears to us that, awkwardly worded though it avowedly is, the first prayer endeavours to articulate this very prayer. In any event, the pleadings are sufficient to lay the foundations for the assumption that the Tenants were desirous of assailing the transfer of the title of the land. That being the position, the embargo of Order II Rule 2 CPC would become operative against the Tenants. The Issue relevant for the present purposes (the burden of proof of which was set on the Tenants) reads thus:- (2) Whether the suit property is not the personal property of Sethurama Chettier and whether the plaintiffs are not estopped from questioning the title of the landlord or his vendors. We hasten to clarify that had the Tenants (in O.S. 5/78) merely expressed a fear or apprehension of dispossession at the hands of the persons that had been arrayed as defendants, either collectively or individually, without ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... suit, namely, the commonality of Issues, Trial and Verdict rendering any effort to differentiate them to be an exercise in futility. A reading of the plaint and of Issue No.2 in O.S.5/78 (supra) will make it impossible to harbour the view that the contours of controversy in that case concerned only the apprehension of forcible dispossession of the Tenants by the Trust as well as the Transferees. Otherwise, Issue No.2 was palpably irrelevant to the decision in O.S.5/78 and an ignorable surplusage. Furthermore, the dismissal of the suit, even though it was on the specious and untenable ground that no cause of action had arisen to justify the filing of O.S.5/78, would inexorably lead to the conclusion that the Tenants were, thereafter, bereft of any right in the suit property. The dismissal of O.S.5/78, arguably, would become fatal to the interest of the Tenant, if a pedantic perspective is pursued. 6. As outlined above, in the impugned Judgment the Division Bench of the High Court of Judicature at Madras had highlighted that the only question argued before it was that the principles of res judicata applied against the Tenant since it negligently if not concertedly did not appeal ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... romptly pressed the preliminary objection of res judicata contending that the decrees passed by the District Court in the appeals arising from the respondents suit had become final. The High Court, however, was not impressed with that contention, primarily keeping the case of Narhari in perspective, and remanded the matter to the District Court after setting aside the judgment and decree of the District Court. The District Court in remand confirmed the previous view taken by it, against which the respondent again filed a Second Appeal in the High Court which was allowed, resulting in filing of a SLP by the Appellant. The sole and central issue canvassed before this Court was whether the Respondents right to divert the flow of water through the Appellant s land for fishing purposes is barred by res judicata, and this Court answered in the affirmative. This Court concluded that the Respondents, by not filing further appeals against the decree passed by the District Court in the appeals arising out of their own suit allowed that decision to become final and conclusive. It observed further: That decision, not having been appealed against, could not be reopened in the second appea ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s were not common in both the suits. This Court while disagreeing with the grounds taken by the appellant noted that there were two separate decrees and appellant could always have challenged the correctness or finality of the decision of the High Court in the money suit by means of an application for Special Leave to Appeal and approved the views taken by this Court in Lonankutty and reiterated: The expression former suit , according to Explanation I of Section 11 of the Civil Procedure Code, makes it clear that, if a decision is given before the institution of the proceeding which is sought to be barred by res judicata, and that decision is allowed to become final or becomes final by operation of law, a bar of res judicata would emerge. 9. O.S.6/78 was a suit filed by the Trust claiming an amount of ₹ 11468/- as arrears of rent from the Tenants. Significantly, the three Transferees (who were Defendants 7 to 9 in O.S.5/78) had not been impleaded by the Trust palpably because no relief had been claimed against them and additionally because their presence was not relevant for the determination of the Issues that had arisen in O.S.6/78 and O.S.7/78. The claims pertaine ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... stitutions Act was not necessary; and that the Transferees had become the absolute owners of the suit property by transfer/sale. Most significantly, it was also held that the Tenants are stopped from challenging the title of the present landlord and they are bound to attorn the tenancy. They have no right to question the title of the landlord or his successors-in-title. It is also palpably perceptible that the common Judgment entered into the arena of title and transferability of the suit property owing to the Tenants stance in all three suits, thereby rendering imperative the filing of Appeals against the decrees in O.S.5/78 as well as O.S.7/78. 11. In O.S.7/78, as already outlined, the Trust sought recovery of ₹ 2600/- as arrears of rent in respect of an alleged oral lease for the land mentioned in Schedule B situated on the western side of the Schedule A property. The defence of the Tenants was that the entire property comprising both Schedules A and B was a composite whole, and was let out for a period of 15 years by means of the Lease Deed dated 8.11.1967. It was also pleaded that the suit had been filed by a public trust and, thus, was not competent as fra ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... h a specific Issue had not been struck in this context in O.S.5/78. There is no gainsaying that where parties are aware of the rival cases the failure to formally formulate an Issue fades into insignificance, especially when it is prominently present in connected matters and extensive evidence has been recorded on it without demur. Secondly, on a proper perusal of the plaint, it ought to have been palpably evident that the Plaintiff/Tenant in O.S.5/78 feared dispossession from the demised premises because of what they considered to be an illegal transfer; but since all the Defendants had averred in their Written Statement that they had no intention of doing so, the suit ought not to have been dismissed but ought to have been decreed without more ado solely so far as the prayer of injunction was concerned. But, in the Trial Court the title to the leased land had become the fulcrum of the fight, owing to the pleadings of the Tenant in which it had repeatedly and steadfastly challenged the title of the Trust as well as the Transferees. The Tenant should not be permitted to approbate and reprobate, as per its whim or convenience, by disowning or abandoning a controversy it has sought t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e present landlord and they are bound to attorn the tenancy. They have no right to question the title of the landlord or his successors-in-life. In the result, the ample evidence produced by the defendant would prove that the suit property is the private property of Sethurama Chettiar and sale deed dated 30.6.76 in Ex.A.19 is valid and the defendants 7 to 9 are now the real owners of the property who are entitled to take possession of the property after expiry of the lease. In the result, the issues are answered accordingly. In the result, O.S.5/78 is dismissed with cost. O.S.6/78 is decreed in part with cost as per the calculation above. Regarding O.S.7/78, since the court has held that the entire property is one, there cannot be any lease amount for the rear portion and it dismissed with cost. 15. The Tenants filed Appeal 581 of 1983 in the High Court of Judicature at Madras which came to be decided by the learned Single Judge on 25th April, 1997. It is indeed significant that the Transferees had not been impleaded by the Tenants in the First Appeal, although the former were parties before the Trial Court in the Tenants own suit, viz. O.S. 5/78, and since any decision ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s are correct, valid in law and as such it is sustainable? (iii) Whether the plaintiff is entitled to question the validity of the sale-deed in favour of defendants 7 to 9 by the second defendant? (iv) What relief, if any, the parties are entitled to? Obviously, O.S. 5/78 was as focal as the other, otherwise (iii) above would not have arisen. It is evident that all concerned erroneously assumed that O.S.5/78 had also been carried in Appeal. 16. The First Appellate Court, in reversal, held that the Plaintiff in O.S.6/78 was a Public Trust and, accordingly, fell within the purview and sweep of the Hindu Religious Institutions Act, 1972. So far as the failure of the Tenants to appeal against the dismissal of O.S.5/78, the First Appellate Court held, in our opinion questionably, that that was not necessary since there was no adverse findings against the Tenants. While we can appreciate that owing to the stands of the defendants in their Written Statements filed in O.S.5/78 there was, in actuality, no challenge to the Plaint, but nevertheless, the suit of the Tenants had been dismissed and therefore, at the very least, it would have been proper and prudent to file an appeal a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... fect of the principle of res judicata on that lis. The Trust had by that time already sold the property and remarkably their only subsisting interest was for the recovery of the paltry decretal sum of ₹ 268/. We would have expected the Trust to vehemently assert that a decision adverse to its Transferees could legally not have been delivered in their absence; and that Section 116 of the Evidence Act disabled the Tenants from challenging the Trust s title or legal character, since it is the Trust which had put the Tenant in possession. However, as it has transpired, the Second Appellate Court agreed with the interpretation given by the First Appellate Court that res judicata did not apply against the Tenants. 18. For facility of reference Section 11 of the CPC is extracted below: Res Judicata- 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, an ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... uent suit or issue must be the same matter which was directly and substantially in issue in the former suit; (ii) The former suit must have been a suit between the same parties or between parties under whom they or any of them claim; (iii) The parties must have litigated under the same title in the former suit; (iv) The court which decided the former suit must be a court competent to try the subsequent suit or the suit in which such issue is subsequently raised; and (v) The matter directly and substantially in issue in the subsequent suit must have been heard and finally decided by the court in the first suit. Further Explanation 1 shows that it is not the date on which the suit is filed that matters but the date on which the suit is decided, so that even if a suit was filed later, it will be a former suit if it has been decided earlier. The conundrum in Sheodan Singh was only marginally different to what has arisen before us. The Appellate Court was confronted with five Appeals from five different Suits between the same parties in which the Issues were common. Two of the Appeals were dismissed, albeit, not on merits. It was in those premises argued and accepted by t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... stance, issues and finding being common or substantially similar in the connected suits tried together, non-filing of an appeal against one or more of those suits ought not to preclude the consideration of other appeals on merits; and that the principle of res judicata would be applicable to the judgment, which is common, and not to the decrees drawn on the basis of that common judgment. 21. On the other hand, the verdict of Full Bench of the Allahabad High Court in Zaharia vs. Debia ILR (1911) 33 All 51 and decisions of the Calcutta High Court in Isup Ali vs. Gour Chandra Deb 37 Cal LJ 184: AIR 1923 Cal 496 and of the Patna High Court in Mrs. Getrude Oastes vs. Mrs Millicent D Silva ILR 12 Pat 139 : AIR 1933 Pat 78 are of the contrary persuasion. These decisions largely proceeded on the predication that the phraseology suit is not limited to the Court of First Instance or Trial Court but encompasses within its domain proceedings before the Appellate Courts; that non-applicability of res judicata may lead to inconsistent decrees and conflicting decrees, not only due to multiplicity of decrees but also due to multiplicity of the parties, and thereby creating confusion as to whi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... achieve a result indirectly when it has deliberately or negligently failed to directly initiate proceedings towards this purpose. Laws of procedure have picturesquely been referred to as handmaidens to justice, but this does not mean that they can be wantonly ignored because, if so done, a miscarriage of justice inevitably and inexorably ensues. Statutory law and processal law are two sides of the judicial drachma, each being the obverse of the other. In the case in hand, had the Tenant diligently filed an appeal against the decree at least in respect of O.S. 5/78, the legal conundrum that has manifested itself and exhausted so much judicial time, would not have arisen at all. 23. Adverting in the impugned Judgment to the decision of this Court in Sajjadanashin Sayed vs. Musa Dadabhai Ummer AIR 2000 SC 1238, the Division Bench delineated the distinction between an aspect of the litigation that is collaterally and incidentally, as against one that is directly and substantially focal to the question the determination of which is the immediate foundation of the decision. Reference was also drawn to enunciation of what constitutes res judicata in Hoag vs. New Jersey (1958) 356 U.S. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ant were common in all three suits, and that Issues on this aspect of the dispute had been claimed by the Tenants in all the three suits. On a holistic and comprehensive reading of the pleadings of the Tenant in all the three suits, it is inescapable that the Tenant had intendedly, directly and unequivocally raised in its pleadings the question of the title to the demised premises and the legal capacity of the Trustees to convey the lands to the Transferees. This is the common thread that runs through the pleadings of Tenant in all three suits. It is true that if O.S.5/78 was a suit for injunction simpliciter, and in the wake of the stance of the Trustees and Transferees that no threat had been extended to the Tenants regarding their ouster, any reference or challenge to the ownership was wholly irrelevant. But the ownership issue had been specifically raised by the Tenant, who had thus caused it to be directly and substantially in issue in all three suits. So far as the Suit Nos.6/78 and 7/78 are concerned, they were also suits simpliciter for the recovery of rents in which the defence pertaining to ownership was also not relevant; no substantial reason for the Tenant to file an a ..... X X X X Extracts X X X X X X X X Extracts X X X X
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