Mohd.Saeed (Adult) vs Munnu Khan (Died) Thur Smt Asgari ...
2014 Latest Caselaw 1163 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH
 
 

Court No. - 18
 

 
Case :- MISC. SINGLE No. - 2412 of 2014
 

 
Petitioner :- Mohd.Saeed (Adult)
 
Respondent :- Munnu Khan (Died) Thur Smt Asgari Khatoon And Others
 
Counsel for Petitioner :- Brijesh Kumar Saxena
 
Counsel for Respondent :- Zainul Abidin
 

 
Hon'ble Anil Kumar,J.

Heard Sri Brijesh Kumar Saxena, learned counsel for the petitioner, Sri Zainul Abidin , learned counsel for the respondents and perused the record.

With the consent of learned counsel for the parties, the present writ petition is being heard at the admission stage.

Facts, in brief, of the present case are that Munna Khan , now deceased, filed a suit for specific performance of contract against Smt. Rskhe Muneer , registered as Regular Suit NO. 90 of 1980 ( Munna Khan Vs. Smt. Rashke Muneer before the court of Civil Judge, Mohanlalganj, Lucknow, allowed by judgment and decree dated 30.11.1981.

Aggrieved by the said judgment and decree Smt. Rashke Muneer had filed first appeal before this Court as pauper bearing First Appeal No. 200(F) of 1983 (pauper) ( Smt. Rashke Muneer Vs. Munnao Khan). During the pendency of appeal Smt. Rashke Muneer died issue less and by order dated 10.7.2002 appeal filed by the Smt Rashke Muneer was dismissed as stands abated.

In view of the said facts, Munna Khan decree holder had filed execution application for execution of decree before the Civil Judge, Mohanlalganj (S.D.) Lucknow, registered as Execution case no. 9 of 2002 ( Munna Khan Vs. Smt. Rashke Muneer) on 15.9.2006 dismissed in default.

Subsequently, decree holder filed second execution application before the executing court registered as Execution Case no. 5/ of 2009 ( Munna Khan Vs. Rashke Muneer) in which objection has been filed by the petitioner on 7.1.2012 regarding maintainability of second execution application.

By order dated 30.4.2012 the executing court rejected the objection of the petitioner . Aggrieved by the said order , petitioner filed a civil revision , registered as Civil Revision NO. 200 of 2012( Mohd Saeed Vs. Munna Khan) . By order dated 9.1.2014 , revisional court dismissed the revision . In view of the said factual background, present writ petition has been filed by Mohd Saeed , judgment debtor.

Sri B.K.Saxena, learned counsel for the appellant while challenging the impugned order submits that once the first execution application has been dismissed in default so second application moved by the decree holder is not maintainable as per the provisions under Order 21 Rule 106 CPC. In this regard, he placed reliance on the following judgment:-

1. Rani Krishnawati Vs. Suresh Mohan Thakur and another, AIR 1974 Patna 327.

2. Govinda Chandra Tripathy and another Vs. Pal Hira Purchase Ltd., AIR 1985 Orissa 178.

3. Damodaran Pillai and others Vs. South Indian Bank Ltd. AIR 2005 SC 3460.

Accordingly, it is submitted by learned counsel for the petitioner that impugned order dated 30.4.2012 passed by executing court/ Civil Judge (S.D) Mohanlalganj, Lucknow thereby rejecting the objection of the petitioner in regard to maintainability of second execution application moved by decree holder as well the order dated 9.1.2014 passed by Revisional Court being contrary to law , liable to be set aside..

Sri Zainul Abidin , learned counsel for the respondents while supporting the impugned judgments submits that there is no bar under section 11 C.P.C. To move second application for execution by decree holder when his first application has been dismissed in default . He further submits that even if first application moved by decree holder has been dismissed for want prosecution thus not decided on merit, in that circumstances, he can move second application for execution of the decree which has been granted in his favour as such there is no legal impediment in the way of decree holder as per the provisions as provided under Order 21 Rule 106 CPC. In support of his arguments , he has placed reliance on the following judgments:-

1.Chheddi Singh @ Chhedda Singh ( Since deceased ) and others Vs. Sukkhi Singh,2013 (1) JCLR 573 ( All)

2. Tarni Prasad Sinha Vs. Lachuman Sahu , AIR 1976 Patna, 69.

Accordingly, he submits that present writ petition liable to be dismissed.

In order to decide the controversy involved in the present case , it will be appropriate to go through the principal of res judicata as provided under Section 11 of the CPC , from the perusal of the same the position emerges out that principles of res judicata will apply on the following conditions:-

(1) Identity of matter in issue, i.e. the matter directly and substantially in issue in the subsequent suit must be the same matter which was directly and substantially in issue in the former suit either actually (Expln 3) or constructively (Explan 4).

The subject-matter and the causes of actions of the two suits may be different but the issues may be the same. Expln III refers to direct res judicata and Expln. IV to constructive res judicata. It is not necessary that a distinct issue should be raised. It is sufficient if the matter was in issue in substance.

(2) Identity of parties- i.e. the former suit must have been between the same parties or between parties under whom they or any of them claim (See Expln VI).

(3) Same title - The parties in the subsequent suit must have litigated under the same title in the former suit.

(4) Concurrence of jurisdiction - The Court which decided the former suit must have been competent to try the subsequent suit or the suit in which issue has been subsequently raised (See Expln II). New Expln VIII has widened the scope of S. 11 by doing away with the requirement as to concurrence of jurisdiction as to pecuniary limits in both the suits.

(5) Final decision - The matter directly and substantially in issue in the subsequent suit must have been heard and finally decided in the former suit (See Expln V).

In order to constitute res judicata it is not enough that the parties are the same and the same matter is directly and substantially in issue in both suits, but another important condition is that the matter must have been heard and finally decided on merits in the former suit (Sheosagar v. Sitaram 24 C 616, 626 PC ; Parshotam v. Narbada, 21 A 505, 514 PC ; International Woollen Mills v. Standard Wool (U.K.) Ltd. AIR 2001 SC 2134 ; Mohd. Yacub v. N. Mohanraj, AIR2003 Mad 190).

Hon'ble the Apex Court in the case of Shivshanker Prasad Sah and another Vs. Baikunth Nath Singh and others, AIR 1969 SC 971 has held as under:-

"We shall first take up the contention that the objection taken by the judgment debtors' is barried by principles of resjudicata. Though at one stage, learned Counsel for the appellants-decree holders attempted to bring the case withinExplanation 5, s. 11, Civil Procedure Code, he did not pursue that line of argument but tried to support his contention on the broader principles of res judicata. The real question for decision in this case is whether the dismissal of Misc. cases Nos. 94 and 110 of 1959 for default of the judgment debtors can be said to be a final decision of the court after hearing the parties. Before a plea can be held to be barred by the principles of res judicata, it must be shown that the plea in question had not only been pleaded but it had been heard and finally decided by the court. A dismissal of a suit for default of the plaintiff, we think, would not operate as res judicata against a plaintiff in a subsequent suit on the same cause of action. If it was otherwise there was no need for the legislature to enact rule 9, Order9, Civil Procedure Code which in specific term say that where a suit is wholly or partly dismissed under rule 8, the plaintiff shall be precluded from bringing a fresh suit in respect of the same cause of action. The contention that the dismissal of a previous suit for default of the plaintiffs operates as res judicata in a subsequent suit in respect of the same claim was repelled by the Judicial Committee, of the Privy Council in Maharaja Radha Parshad Singh v. Lal Sahab Rai and Ors., (1890) 17 Ind App 150. Therein the Judicial Committee observed thus :

"None of the questions, either of fact or law raised by the pleadings of the parties was heard or determined by the Judge of the Shahabad Courtin 1881; an his decree dismissing the suit does not constitute res judicata within the meaning of the Civil Procedure Code. It must fall within one or other of the sections of chapter VII of the Code; in the present case it is immaterial to consider which, the severest penalty, attached to such dismissal in any case being that the plaintiff cannot bring another suit for the same relief."

In the case of Union of India Vs. R.C. Fabrics (P) Ltd. (2002) 1 SCC 718 ( 723) where the merits of the case were not considered n the plea of constructive res judicata, bar of res judicata would not apply.

Recently Hon'ble the Apex Court in the case of Dr. Subramanian Swamy V.s State of Tamil Nadu and others , 2014 SAR (Civil) 431 in paragraph 23 to 32 has held as under:

"23. The scope of application of doctrine of res judicata is in question.

The literal meaning of "res" is "everything that may form an object of rights and includes an object, subject-matter or status" and "res judicata" literally means "a matter adjudged a thing judicially acted upon or decided; a thing or matter settled by judgments". "Res judicata pro veritate accipitur" is the full maxim which has, over the years, shrunk to mere "res judicata", which means that res judicata is accepted for truth.

24. The doctrine contains the rule of conclusiveness of the judgment which is based partly on the maxim of Roman jurisprudence "interest reipublicae ut sit finis litium" (it concerns the State that there be an end to law suits) and partly on the maxim "nemo debet bis vexari pro uno et eadem causa" (no man should be vexed twice over for the same cause).

Even an erroneous decision on a question of law attracts the doctrine of res judicata between the parties to it. The correctness or otherwise of a judicial decision has no bearing upon the question whether or not it operates as res judicata. (Vide: Shah Shivraj Gopalji v. ED-, Appakadh Ayiassa Bi & Ors., AIR 1949 PC 302; and Mohanlal Goenka v. Benoy Kishna Mukherjee & Ors., AIR 1953 SC 65).

25. In Smt. Raj Lakshmi Dasi & Ors. v. Banamali Sen & Ors., AIR 1953 SC 33, this Court while dealing with the doctrine of res judicata referred to and relied upon the judgment in Sheoparsan Singh v. Ramnandan Singh, AIR 1916 PC 78 wherein it had been observed as under:

"........ the rule of res judicata, while founded on ancient precedents, is dictated by a wisdom which is for all time..... Though the rule of the Code may be traced to an English source, it embodies a doctrine in no way opposed to the spirit of the law as expounded by the Hindu commentators. Vijnanesvara and Nilakantha include the plea of a former judgment among those allowed by law, each citing for this purpose the text of Katyayana, who describes the plea thus: 'If a person though defeated at law, sue again, he should be answered, ''''you were defeated formerly". This is called the plea of former judgment.'... And so the application of the rule by the courts in India should be influenced by no technical considerations of form, but by matter of substance within the limits allowed by law''

26. This Court in Satyadhyan Ghosal & Ors. v. Smt. Deorajin Debi & Anr., AIR 1960 SC 941 explained the scope of principle of res-judicata observing as under:

"7. The principle of res judicata is based on the need of giving a finality to judicial decisions. What it says is that once a res is judicata, it shall not be adjudged again. Primarily it applies as between past litigation and future litigation, When a matter - whether on a question of fact or a question of law - has been decided between two parties in one suit or proceeding and the decision is final, either because no appeal was taken to a higher court or because the appeal was dismissed, or no appeal lies, neither party will be allowed in a future suit or proceeding between the same parties to canvass the matter again. This principle of res judicata is embodied in relation to suits in S. 11 of the Code of Civil Procedure; but even where S. 11 does not apply, the principle of res judicata has been applied by courts for the purpose of achieving finality in litigation. The result of this is that the original court as well as any higher court must in any future litigation proceed on the basis that the previous decision was correct."

A similar view has been re-iterated by this court in Daryao & Ors. v. The State of U.P. & Ors., AIR 1961 SC 1457; Greater Cochin Development Authority v. Leelamma Valson & Ors., AIR 2002 SC 952; and Bhanu Kumar Jain v. Archana Kumar & Anr., AIR 2005 SC 626.

27. The Constitution Bench of this Court in Amalgamated Coalfields Ltd. & Anr. v. Janapada Sabha Chhindwara & Ors., AIR 1964 SC 1013, considered the issue of res judicata applicable in writ jurisdiction and held as under:

"...Therefore, there can be no doubt that the general principle of res judicata applies to writ petitions filed under Article 32 or Article 226. It is necessary to emphasise that the application of the doctrine of res judicata to the petitions filed under Art. 32 does not in any way impair or affect the content of the fundamental rights guaranteed to the citizens of India. It only seeks to regulate the manner in which the said rights could be successfully asserted and vindicated in courts of law."

28. In Hope Plantations Ltd. v. Taluk Land Board, Peermade & Anr., (1999) 5 SCC 590, this Court has explained the scope of finality of the judgment of this Court observing as under:

"One important consideration of public policy is that the decision pronounced by courts of competent jurisdiction should be final, unless they are modified or reversed by the appellate authority and other principle that no one should be made to face the same kind of litigation twice ever because such a procedure should be contrary to consideration of fair play and justice. 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."

(See also: Burn & Co., Calcutta v. Their Employees, AIR 1957 SC 38; G.K. Dudani & Ors. v. S.D. Sharma & Ors., AIR 1986 SC 1455; and Ashok Kumar Srivastav v. National Insurance Co. Ltd. & Ors., AIR 1998 SC 2046).

29. A three-Judge Bench of this court in The State of Punjab v. Bua Das Kaushal, AIR 1971 SC 1676 considered the issue and came to the conclusion that if necessary facts were present in the mind of the parties and had gone into by the court, in such a fact-situation, absence of specific plea in written statement and framing of specific issue of res judicata by the court is immaterial.

30. A similar view has been re-iterated by this court in Union of India v. Nanak Singh, AIR 1968 SC 1370 observing as under:

"This Court in Gulabchand Chhotalal v. State of Gujarat, AIR 1965 SC 1153 observed that the provisions of Section 11 of the Code of Civil Procedure are not exhaustive with respect to all earlier decision operating as res judicata between the same parties on the same matter in controversy in a subsequent regular suit, and on the general principle of res judicata, any previous decision on a matter in controversy, decided after full contest or after affording fair opportunity to the parties to prove their case by a Court competent to decide it, will operate as res judicata in a subsequent regular suit. It is not necessary that the Court deciding the matter formerly be competent to decide the subsequent suit or that the former proceeding and the subsequent suit have the same subject-matter. There is no good reason to preclude, such decisions on matters in controversy in writ proceedings under Article 226 or Article 32 of the Constitution from operating as res judicata in subsequent regular suits on the same matters in controversy between the same parties and thus to give limited effect to the principle of the finality of decisions after full contest."

This Court in the case of Chhiddi Singh @ Chhedda Singh (Supra) has held as under:-

"There is no dispute that the earlier application was dismissed in default without going into its merits. The subsequent application for execution was within time. The dismissal of the first execution application in default without adjudicating any rights of the parties would not operate as resjudicata.

Merely for the reason that the decree holder has a remedy to seek recall of the order dismissing execution in default under Rule 106 of Order 21 C.P.C. does not mean that he has no right to apply afresh if time permits. It is settled law that if two remedies are available, a party can choose anyone of them. Therefore, it was not necessary for the decree holder to have applied for recall of the order dismissing execution in default."

In the instant case it is not in dispute between the parties that first execution application moved by the decree holder has been dismissed in default. Thus, it is clear that the same has not been decided and adjudicated on merit. Thereafter he has moved second application for execution registered as Execution Case no. 5 of 2009( Munna Khan Vs. Smt. Rashke Muneer ) so as per the facts and law as stated herein above , the second execution application moved by decree holder is maintainable and no interference is needed in the present case and the judgments which are cited by Sri Brijesh Kumar Saxena, learned counsel for the petitioner are not applicable in the facts and circumstances of the case, hence, the petitioner cannot derive any benefit.

No other points has been argued or pressed by learned counsel for the petitioner.

In the result, the writ petition lacks merit and is dismissed.

Order Date :- 24.4.2014

dk/