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TMI Blog2018 (3) TMI 1994X X X X Extracts X X X X X X X X Extracts X X X X ..... irectly and substantially had arisen in the former suit between the same parties or their privies and was decided and has become final, so that the parties are not vexed twice over; vexatious litigation is put an end to and valuable time of the court is saved. The principle of res judicata applies on all fours to the present case as has been rightly held by the Trial Court and affirmed by the High Court in the impugned judgment - Appeal dismissed. X X X X Extracts X X X X X X X X Extracts X X X X ..... resh enquiry into the allegation made by the Appellant in his application dated 3rd February, 1966 and to dispose of the same in accordance with law. 7. Pursuant to the remand order passed, the petition filed by the Appellants' predecessor was taken up for hearing on 8th June, 1969 by the Deputy Commissioner and since no one appeared, the Deputy Commissioner dismissed the same for non-prosecution. Restoration application filed to restore the said application was also rejected by the Deputy Commissioner. 8. Appellants' predecessor then carried the matter to the Mysore Revenue Appellate Tribunal by filing an appeal against the orders passed by the Deputy Commissioner, being Appeal No. 167/1971. The same was also rejected by an order dated on 13th April, 1971 as time barred. A review petition filed to review the aforesaid order was also rejected by the Tribunal. 9. Appellants' predecessor being aggrieved, filed a writ petition being W.P. No. 1810/1971 before the High Court of Karnataka. The High Court while rejecting the writ petition by its order dated 23rd October, 1973, however, observed that if for any reason the sale was not yet confirmed by the Deputy Commissioner ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n a review petition filed by the Appellants being No. 27/1978, it allowed the review petition and set aside the order passed in revision petition No. 304/1973. Further, vide order dated 24th March, 1980, the Tribunal directed that the revision petition be posted for hearing afresh on merits, and by subsequent order dated 30th January, 1981 it rejected the revision petition filed by the Respondents. 13. The Respondents thereafter filed a writ petition before the High Court being No. 14012/1981, inter alia, questioning the orders passed by the Tribunal in revision petition No. 304/1973 dated 4.8.1978, 24.3.1980 and 30.1.1981, respectively. The learned Single Judge of the High Court by his order dated 31st July, 1989 was pleased to set aside the aforementioned orders passed by the Tribunal in the revision petition and made an observation that the auction sale had been confirmed long back. 14. Feeling aggrieved, the Appellants filed a writ appeal, being Appeal No. 2176/1989. The Division Bench of the High Court by its order dated 8th December, 1989 rejected the appeal, holding that the view taken by the learned Single Judge with regard to Section 177 of the Karnataka Land Revenue Act ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... h Court dismissed the Appellants' Writ Appeal No. 2176/1989. 16. The Respondents resisted the suit. According to them, in view of the proceedings and the order passed in W.P. No. 14012/1981 dated 31st July, 1989, the averments in the plaint regarding the proceedings before the Deputy Commissioner and before the revenue authorities have no consequence at all and by virtue of those orders, the parties have been restored to the original status quo as on 3rd May, 1966 i.e. the date of confirmation of sale certificate by the Deputy Commissioner, and there is no necessity to grant of fresh sale certificate. Apart from the above defence, there is no other defence pleaded by the Respondents in the written statements filed before the trial Court. 17. The Trial Court, based on the pleadings of the parties to the suit, framed six issues for its consideration, as follows: (i) Whether Plaintiffs prove that they are the owners entitled for possession of the suit property? (ii) Do they further prove that they are entitled for possession of the suit property? (iii) Whether Plaintiffs suit is hit by Section 11 of Code of Civil Procedure as contended in the written statement? (iv) Whet ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on and the subject matter. In other words, any issue that has been raised and decided and which was necessary for determining the rights and duties of the parties by a final conclusive judgment on the merits cannot be re-litigated by the same parties and a party is precluded from re-litigating the issue that has already been decided and also an issue which it could and should have brought forward in the earlier proceedings but chose not to do so. Keeping in view those principles, the High Court went on to observe as follows: 31. The triple identity which I have referred to in the earlier paragraphs of my order assumes importance for deciding the issues which I have raised for my consideration. At the cost repetition, let me once again notice the triple requirement for the doctrine of res judicata to apply. They are, identity of the parties, cause of action and the subject matter. The identity of the parties is not in dispute nor it can be disputed by the Plaintiffs. In fact, their father was agitating the auction sale held and its confirmation before various forums and after his death, the Plaintiffs have stepped in to his shows (sic) to continue the proceedings till this stage. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... acts and that could not have been taken note of by the trial Court, while deciding the lis between the parties and that in my opinion, being an error on facts could have been ignored by the trial Court. 20. On the aforementioned conclusion reached by the High Court, it proceeded to dismiss the first appeal preferred by the Appellants. The Appellants have approached this Court by way of special leave inter alia contending that the issue regarding confirmation of auction sale was reopened in view of the decision of the Mysore Revenue Appellate Tribunal dated 27th September, 1967. In absence of confirmation of sale and non-issuance of fresh sale certificate to the Respondents, no manner of right, title or interest or whatsoever over the suit Schedule property enured in favour of the Respondents. The fact that the Respondents' ancestor late Balakerappa was put in possession of the suit Schedule property, on the basis of sale certificate and confirmation of sale on 3rd May, 1966 will not impair the interest of the Appellants in any manner nor denude them from pursuing their remedy of restoration of possession of the suit property, the ownership whereof remained with the Appellants. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... notwithstanding the fact that the application made for setting aside the sale has been rejected. Whether it is a case for setting aside the sale and on what conditions the sale should be set-aside are matters which are within the exclusive discretion of the Deputy Commissioner. This Court, in the exercise of its jurisdiction, cannot direct the Deputy Commissioner to exercise the discretion if the conditions imposed by this Court are satisfied. It is not for this Court to lay down any conditions. That matter should have been left open. Therefore, we allow this appeal and hold that the Writ Petition should have been dismissed without making any observation as to how the discretion under the proviso to Section 177 of the Karnataka Land Revenue Act should be exercised. No costs. With this decision, the issue regarding validity of auction sale attained finality against the Appellants. 24. The matter did not rest at that as the revision petition filed by the Respondents as well as the Appellants in relation to application filed by the Appellants for invoking the discretion of the Deputy Commissioner to set aside the auction were then made subject matter of another writ petition fil ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... i Gopal who appears for the auction purchaser who is aggrieved by these orders urges that Respondents had any right at all to seek interference by the Deputy Commissioner under the provisions of Section 177 of the land Revenue Act. This Court in G.D. NAVAREKAR v. The Mysore Revenue Appellate Tribunal and Ors. (1973 (1) MLJ 331) has settled the law on the question of exercising of suo moto power by a revenue authority Under Section 177 with particular reference to its modality, it says: Suffice it to state that power is to be exercised in the interest of justice and subject to such conditions as the authority may deem proper and it does not confer a right on the Petitioner to ask the Assistant Commissioner to invoke the issue. 5. It was pointed out by this Court in the decision referred to supra, that no one has a right to move the Deputy Commissioner to exercise his suo moto powers Under Section 177 of the Karnataka Land Revenue Act. In this case review application having been disposed off by the Deputy Commissioner on 9.6.1975 may be even for wrong reasons as pointed out by Mr. Gopal for the Petitioner, having become final it seems to me that it was wrong on the part of the ap ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... enue Appellate Tribunal in the appeal filed by the Plaintiffs father in appeal No. 486/1967 (LR) and the Tribunal by its order had set aside the order of the confirmation of sale passed by the Deputy Commissioner vide his order dated 3.6.1966 and had remanded the matter to the Deputy Commissioner to pass fresh order in accordance with law after considering the application filed by the Plaintiffs father. On such remand, since Plaintiffs father did not appear before the Deputy Commissioner on the date fixed for hearing, the Deputy Commissioner has rejected the application for non-prosecution. The order so made has reached the finality in view of the order made by this Court in W.P. No. 1810/1971 and in W.A. No. 152/1973. Even after disposal of all these proceedings, the Deputy Commissioner has not passed any fresh order in confirming the sale, pursuant to the remand order passed by the Mysore Revenue Appellate Tribunal made in appeal No. 486/1967 (LR) dated 27.9.1967 and further has not issued fresh sale certificate. These factual aspects which is not disputed by the learned Counsel for Appellants would demonstrate that the Defendants are in possession of the suit Schedule property p ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... aph 24) of this judgment, the entire issue with regard to the confirmation of the auction sale and the sale certificate issued in favour of the predecessor of the Respondents, was the subject matter before the High Court between the same parties in respect of the same land and including the cause of action. On that finding, the Trial Court as well as the High Court non-suited the Appellants by dismissing the suit filed by them for declaration of ownership and possession, being hit by the principles of res judicata, as can be discerned from the discussion in paragraphs 31 and 32 of the impugned judgment, which have been extracted in paragraph 19 of this judgment. We are in complete agreement with the analysis of facts and the conclusion arrived at by the Trial Court and affirmed by the High Court. 28. For arriving at such conclusion, the Trial Court and High Court have applied the settled legal position in reference to the decisions of this Court as noticed by the High Court in the impugned judgment. The principle of res judicata as enshrined in Section 11 of Code of Civil Procedure, is founded on the maxim "Nemo Debet Bis Vexari Pro Una Et Eadem Causa". In a recent decis ..... X X X X Extracts X X X X X X X X Extracts X X X X
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