Principal Junior Civil Judge vs Administrator-General Of Bengal ...
2021 Latest Caselaw 5120 AP

            HON'BLE SRI JUSTICE R. RAGHUNANDAN RAO

                C.R.P.Nos.2398, 2401 & 2431 of 2019


COMMON ORDER:


       The respondents had filed O.S.No.145 of 2015 in the Court of the

Principal Junior Civil Judge, Managalagiri, Guntur District, against the

petitioners herein for partition of the suit schedule property. The 1st

respondent was married to late Sri V. Narasimha Rao. Respondent No.2 is

the daughter of late Sri Narasimha Rao. The petitioner herein is the

nephew of late Sri Narasimha Rao, i.e., the father of the petitioner is the

brother of late Sri Narasimha Rao.

2. The dispute in the suit relates to an extent of 94 cents of

land in D.No.293/C of Mandadam Village of Thulluru Mandal, Guntur

District, which has been handed over to the CRDA authorities under the

land pooling scheme initiated in that area.

3. The case of the respondents is that the respondents being

wife and daughter of late Sri Narasimha Rao are entitled to half share of

the said land while the petitioner claims that the 1st respondent and late

Sri Narasimha Rao had separated and an informal divorce was also carried

out between them under which the 1st respondent gave up all claims over

the property of late Sri Narasimha Rao. The petitioner also claims that late

Sri Narasimha Rao had executed a Will dated 25.07.1997 under which he

left all his property to his mother late Sri Mahalakshmi, who passed away

on 13.11.2006 leaving behind the petitioner as the absolute owner of the

property. Apart from these contentions, the petitioner herein had also

taken the stand that the 1st respondent had filed a statement dated

21.05.2016 before the CRDA authorities stating that she had no 2 RRR,J C.R.P.Nos.2398, 2401 & 2431/2019

differences with her husband and that her husband had passed away on

28.07.1997.

4. The petitioner herein, to demonstrate the above facts, filed

I.A.No.1690 of 2018 to summon the Special Deputy Collector, CRDA to

produce certified copy of the statement dated 21.05.2016. The same was

allowed and the Tahsildar, Mandadam, who appeared on behalf of the

Special Deputy Collector, was examined as DW.3 and the certified copy of

the statement of the 1st respondent dated 21.05.2016 was marked as

Ex.C-1. At the time of marking of the said document, the 1st respondent

never raised any question or objection as to the genuineness of Ex.C-1

nor was DW.3 cross-examined as to whether the statement dated

21.05.2016 had been suppressed and a different statement has been put

in its place.

5. After the evidence had been concluded in the trial, the suit

was posted for arguments. At that stage, the 1st respondent filed

I.A.No.200 of 2019 under Section 45 of the Indian Evidence Act, 1872 to

send Ex.C-1 along with her signature in the vakalatnama, plaint and chief

affidavit, to the Expert of Signatures and Thumb Impressions,

Government of Andhra Pradesh, Forensic Laboratory, DGP Office,

Managalagiri, Guntur District. This application was dismissed on

26.02.2019 and had become final, as the matter was not agitated further

by the 1st respondent.

6. After the dismissal of I.A.No.200 of 2019, the 1st respondent

filed three applications bearing I.A.Nos.742, 743 and 744 of 2019 seeking

permission to summon Special Deputy Collector (Land Pooling), CRDA,

along with Ex.C-1; to reopen the evidence of DW.3 for cross-examination;

and to recall the evidence of DW.3 for cross-examination. These 3 RRR,J C.R.P.Nos.2398, 2401 & 2431/2019

applications were dismissed by the trial Court on 03.04.2019. These

orders became final as the 1st respondent did not agitate the issues raised

in these applications any further.

7. Thereafter, the 1st respondent again filed I.A.No.1064, 1065

and 1087 of 2019 seeking very same reliefs, which had earlier been

sought in I.A.Nos.742, 743 and 744 of 2019. These applications were

allowed by the trial Court by an order dated 22.07.2019. Aggrieved by the

said common order, the petitioner has filed the above three civil revision

petitions.

8. The case of the 1st respondent, in the earlier set of three

applications, is that she had given a statement before the CRDA

authorities on 21.05.2016 and the same had been written down by one Sri

E. Rama Rao. However, she did not sign the original of Ex.C-1 and the

signatures on Ex.C-1 of both the 1st respondent and the scribe were

forged. In that view of the matter an application had been filed to send

the signatures for comparison, which had, unfortunately, been dismissed.

The 1st respondent then took the plea that as I.A.No.200 of 2019 had

been dismissed, the only way the 1st respondent can demonstrate her

case is by summoning DW.3 to the witness box and to call upon the

authorities to produce the original statement which was given by her and

which appears to have been replaced with a fake document. After this

application had been dismissed on 03.04.2019 the respondents again filed

the second set of applications on 08.04.2019 raising the very same

grounds.

9. The trial Court dismissed the first set of applications holding

that even if the allegations of the 1st respondent that papers had been

added/changed in the office of CRDA, is true the course of action open to 4 RRR,J C.R.P.Nos.2398, 2401 & 2431/2019

the 1st respondent is to obtain certified copies of the documents that are

available in the file of the CRDA authorities. The trial Court also held that

it is only upon demonstrating that there is another statement of the 1 st

respondent available in the file of the CRDA authority, the Court would

take up the issue of summoning DW.3 for further examination/cross-

examination.

10. However, in respect of the second set of applications, the

trial Court, while continuing to hold that its earlier order was proper,

allowed the second set of applications only on the ground that the

respondents have been filing petitions continuously and giving an

opportunity to the respondents would resolve this issue and give a quietus

to the issue.

11. Sri D. Yateendra Dev, learned counsel for the petitioner

would submit that the respondents claimed that late Sri Narasimha Rao

had passed away on 23.10.1996 and the 1st respondent contradicted

herself by stating in the original of Ex.C-1 that late Sri Narasimha Rao had

passed away on 28.07.1997; that this variation has immense importance

for the case, as it is the contention of the petitioner that late Sri

Narasimha Rao had executed a Will in favour of his mother on

25.07.1997, which is beyond the date of 23.10.1996, on which, according

to the plaint of the respondents, late Sri Narasimha Rao passed away;

that the 1st respondents, to get over this contradiction, are filing petitions

one after the other somehow to get rid of the clear admission made by

the 1st respondent; that there is no other document which records the

statement of the 1st respondent on 21.05.2016; that the filing of

applications repeatedly for the same relief is an abuse of the process of

the Court and requires to be deprecated; that the second set of 5 RRR,J C.R.P.Nos.2398, 2401 & 2431/2019

applications, which are the subject matter of the present set of revision

petitions, are hit by the principle of res judicata inasmuch as the same set

of applications, which were dismissed earlier, have been filed again; and

that the said principle of res judicata is applicable even within the same

proceeding.

12. Sri Yateendra Dev, relies upon the following judgments to

contend that once an issue has been decided by a Court, in an

interlocutory application, the same issue cannot be raised again and again

and on the same facts.

1. Hook vs. Administrator-General of Bengal and Ors.,1

2. Hope Plantations Ltd., vs. Taluk Lnd Board, Peermade and

Ors.,2

3. Erach Boman Khavar vs. Tukaram Shridhar Bhat and Ors.,3

4. Elsy D'souza vs. Precilla R. D'souza4

13. Sri Yateendra Dev submits that the trial Court having

dismissed the first set of applications on 03.04.2019 could not have

allowed another set of same applications on 30.04.2019 on the ground

that the applications should be allowed to put a quietus to the matter and

not because the trial Court found any merit in the said set of applications.

14. Sri V. Venugopala Rao, learned counsel appearing for the

respondents would submit that the respondents would suffer grievous

injury and irreparable loss in relation to their claims in the suit itself unless

the order of the trial Court is carried through. He further submits that the

principle of res judicata is not applicable in the present case as there was

(1921) SCC Online PC 15

(1999) 5 SCC 590

(2013) 15 SCC 655

AIR 2005 SC 626 6 RRR,J C.R.P.Nos.2398, 2401 & 2431/2019

no decision on merits, which had become final, and consequently the

principle of res judicata would not be applicable. He relies upon the

following judgments in support of this contention.

1. Arjun Singh vs. Mohindra Kumar and Ors.5

2. Erach Boman Khavar vs. Tukaram Shridhar Bat and anr.,6

3. R. Suresh Babu vs. G. Rajalingam and Ors.7

15. The principle of res judicata is contained and set out in

Section 11 of Code of Civil Procedure, 1908. The corresponding provision

under the Code of 1877 was Section 13.

16. In Hook vs. Administrator General of Bengal and Ors.,

a question as to the effect of the conditions set out in the codicils of a Will

had been considered and decided by an earlier order. Thereafter, on

account of the death of one of the beneficiaries the same issues were

raised again in the said proceeding. The trial Judge had held that these

issues had been already settled in its earlier order. However, he went on

to give additional reasons for adhering to the earlier order. The appellate

Court took a different view and held that the question that was raised

before the trial Court is still open and decided against the order of the trial

Court. The matter went up before the Privy Council, which upheld the

order of the trial Court on the ground that the question was already

settled. The following extract sets out the ratio of the decision of the Privy

Council:

―It is not and indeed it cannot be, disputed that, if that be the case, the matter has been finally settled between the parties, for the mere fact that the decision was given in an

AIR 1964 SC 993

(2013) 15 SCC 655

2017 (2) ALD 282 7 RRR,J C.R.P.Nos.2398, 2401 & 2431/2019

administration suit does not affect its finality (see Peareth v. Marriott). The Court of Appeal, however, took a different view and regarding the question as still open decided it against the appellant, but the error in their judgment is due to the fact that they regarded the question as completely governed by Sect. 11 of the Code of Civil Procedure. That section prevents the retrial of issues that have been directly and substantially in issue in a former suit between the same parties and this question obviously arises in the same and not in a former suit, but it does not appear that the learned Judge's attention was called to the decision of this Board in Ram Kirpal Shukul v. Mussumat Rup Kuari(2), which clearly shows that the plea of res judicata still remains apart from the limited provisions of the Code and it is that plea which the respondents have to meet in the present case In the words of Sir Barnes Peacock, at (p. 41)--

―The binding force of such a judgment in such a case as the present depends not upon Sect. 13, Act X of 1877‖ (now replaced by Sect. 11 of the Code of Civil Procedure) ―but upon general principles of law. If it were not binding there would be no end to litigation.‖

17. A Similar issue came up before the Hon'ble Supreme Court

in Hope Plantations Ltd. Vs. Taluk Land Board, Peermade and

Ors., wherein at paragraph No.26 the Hon'ble Supreme Court held as

under:

―It is settled law that the principles of estoppel and res judicata are based on public policy and justice. Doctrine of res judicata is often treated as a branch of the law of estoppel though these two doctrines differ in some essential particulars. 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. They cannot litigate again on the same cause of action nor can they litigate any issue which was necessary for decision in the earlier litigation. These two aspects are ―cause of action 8 RRR,J C.R.P.Nos.2398, 2401 & 2431/2019

estoppel‖ and ―issue estoppel‖. These two terms are of common law origin. Again, once an issue has been finally determined, parties cannot subsequently in the same suit advance arguments or adduce further evidence directed to showing that the issue was wrongly determined. Their only remedy is to approach the higher forum if available. The determination of the issue between the parties gives rise to, as noted above, an issue estoppel. It operates in any subsequent proceedings in the same suit in which the issue had been determined. It also operates in subsequent suits between the same parties in which the same issue arises. Section 11 of the Code of Civil Procedure contains provisions of res judicata but these are not exhaustive of the general doctrine of res judicata.

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

18. In the case of Erach Boman Khavar vs. Tukaram

Shridhar Bhat and Ors., which has been cited by both sides, the

learned counsel for the petitioner relied upon paragraph No.10 and 11,

wherein the Court took the view that successive applications, without any

change in circumstances and on the basis of the same facts, would be

barred by the principle of res judicata.

19. While the learned counsel for the respondents relied upon

Erach Boman Khavar vs. Tukaram Shridhar Bhat and Ors.,

paragraph No.38, to contend that where an earlier application was not

decided on merits, a second application would be maintainable.

20. The respondent relied upon Arujun Singh vs. Mohindra

Kumar and Ors., to contend that successive interlocutory applications

are not hit by the principle of res judicata. Paragraph No.13 of the said

judgment reads as follows:

14. It is needless to point out that interlocutory orders are of various kinds; some like orders of stay, injunction or receiver are designed to preserve the status quo pending the litigation 9 RRR,J C.R.P.Nos.2398, 2401 & 2431/2019

and to ensure that the parties might not be prejudiced by the normal delay which the proceedings before the court, usually take. They do not, in that sense, decide in any manner the merits of the controversy in issue in the suit and do not, of course, put an end to it even in part. Such orders are certainly capable of being altered or varied by subsequent applications for the same relief, though normally only on proof of new facts or new situation which subsequently emerge. As they do not impinge upon the legal rights of parties to the litigation the principle of res judicata does not apply to the findings on which these orders are based, though if applications were made for relief on the same basis after the same has once been disposed of the court would be Justified in rejecting the same as an abuse of the process of court. There are other orders which are also interlocutory but would fall into a different category. The difference from the ones just now referred to lies in the fact that they are not directed to maintaining the statusquo, or to preserve the property pending the final adjudication but are designed to ensure the just, smooth, orderly and expeditious disposal of the suit. They are interlocutory in the sense that they do not decide any matter in issue arising in the suit, nor put an end to the litigation. The case of an application under Order IX, Rule 7 would be an illustration of this type. If an application made under the provisions of that rule is dismissed and an appeal were filed against the decree in the suit in which such application were made, there can be no doubt that the propriety of the order rejecting the reopening of the proceeding and the refusal to relegate the party to an earlier stage might be canvassed in the appeal and dealt with by the appellate court. In that sense, the refusal of the court to permit the defendant to ―set the clock back‖ does not attain finality. But what we are concerned with is slightly different and that is whether the same Court is finally bound by that order at later stages so as to preclude its being reconsidered. Even if the rule of res judicata does not apply it would not follow that on every subsequent day which the suit stands adjourned for further hearing, the petition could be repeated and fresh orders sought on the basis of identical facts. The principle that repeated applications based on the same facts and seeking the same reliefs might be disallowed by the court does not however 10 RRR,J C.R.P.Nos.2398, 2401 & 2431/2019

necessarily rest on the principle of res judicata. Thus if an application for the adjournment of a suit is rejected, a subsequent application for the same purpose even if based on the same facts, is not barred on the application of any rule of res judicata, but would be rejected for the same grounds on which the original application was refused. The principle underlying the distinction between the rule of res judicata and a rejection on the ground that no new facts have been adduced to justify a different order is vital. If the principle of res judicata is applicable to the decision on a particular issue of fact, even if fresh facts were placed before the Court, the bar would continue to operate and preclude a fresh investigation of the issue, whereas in the Other case, on proof of fresh facts, the court would be competent, may would be bound to take those into account and make an order conformably to the facts freshly brought before the court.

21. The learned counsel for the respondents also relied upon the

judgment of this Court in R. Suresh Babu vs. G. Rajalingam and Ors.,

at paragraphs 83 and 84, to contend that the High Court cannot exercise

revisionary jurisdiction under Article 227 of the Constitution of India

unless there is a manifest jurisdictional error or transgression of its

jurisdiction.

Consideration of the Court:

22. The consistent view taken by the Courts has been that once

an issue has been decided, the same issue between the same parties

cannot be reopened and raised again. This principle has been formulated

both on the basis of principle of res judicata as well as estoppel.

23. The Privy Council in paragraph 14 of the judgment in Hook

v. Administrative General of Bengal and Ors., had held that

reopening of the same question either in the same proceeding or a

subsequent proceeding would be hit not only by the principle of res

judicata set out in Section 11 of C.P.C., but also upon the general 11 RRR,J C.R.P.Nos.2398, 2401 & 2431/2019

principles of law. This view, as explained in the same paragraph, was

taken so as to put an end to the question of raising the same issues as

allowing such a course of action would result in unending litigation.

24. In Hope Plantations Ltd., vs. Taluk Land Board,

Peermade and Anr., the Hon'ble Supreme Court had again applied both

the principles of res judicata as well as estoppel on the ground that both

these principles are based on the public policy and justice, and that these

principles are brought in, to prevent parties from litigating the same

question over and over again even though the initial determination may

even be demonstrably wrong.

25. In Erach Boman Khavar vs. Tukaram Shridhar Bhat

and Ors., the Hon'ble Supreme Court in paragraph No.38 while holding

that a subsequent application on the same issue can be filed, had placed a

caveat on such subsequent filing. The Hon'ble Supreme Court took the

view that a subsequent application would not be permissible if it is found

that the earlier application had been disposed of on merits. This

observation came up on the peculiar facts of that case. In the case before

the Hon'ble Supreme Court, an earlier application was disposed of, not on

merits, but on the basis of a submission made that an application for

amendment would not be opposed and subsequently, when such

application was made, the same was dismissed on the ground that the

earlier application had also been dismissed. It was on account of the fact

that the earlier application was not disposed of on merits that the Hon'ble

Supreme Court took the view that the subsequent application was

maintainable. The Hon'ble Supreme Court, in the very same judgment had

also noticed the case of Arjun Singh vs. Mohindra Kumar and Ors., 12 RRR,J C.R.P.Nos.2398, 2401 & 2431/2019

and held that a second application without any change in circumstances,

was not maintainable even in the same proceedings.

26. In Arjun Singh vs. Mohindra Kumar and Ors., the

Hon'ble Supreme Court had categorised the interlocutory orders as the

orders which decide the merits of a controversy, and other interlocutory

orders, which were not decided on merits of the case, which could be of

such a nature that allowing a second application would set back the clock.

However, the Hon'ble Supreme Court held that even in either case,

repeated applications, based on the same facts and seeking same reliefs,

can still be disallowed by the Court even though the said decision would

not rest on the principle of res judicata. The Hon'ble Supreme Court made

the distinction that even in cases where the principle of res judicata is not

applicable, there would still be a bar against filing of successive

applications, unless there are fresh facts which give rise to the second

application.

27. In view of the above reading of law I am of the opinion

that-

a) The principle of res judicata would apply, as set out in Section 11

of C.P.C., even two successive applications in the same suit

depending on their categorisation as set out in paragraph-13 of

Arjun Singh vs. Mohindra Kumar and Ors., where there was

determination of an issue, on merits in the first application.,

b) A second application, after the first application has been dismissed,

without reference to the principle of res judicata, would still be

barred unless there are fresh facts, which could give rise to second

application.

13 RRR,J C.R.P.Nos.2398, 2401 & 2431/2019

28. In the present case, Sri V. Venugopal Rao, the learned

counsel for the respondents contends that there is no finding on merits in

the first set of applications to invoke the principle of res judicata. This

contention would not detain this Court as the second set of applications

have been filed on the same ground and same facts as the first set of

applications, and as such, the second set of applications would not be

maintainable on the principle of estoppel, as set out in the above

judgment of the Hon'ble Supreme Court.

29. On the question of res judicata, a reading of the order

passed in the earlier set of applications would show that the trial Court

had gone into the merits of the application and had held that the earlier

set of applications were not maintainable, as necessary steps to obtain a

copy of the statement, that is said to have been made by the 1st

respondent before the CRDA authorities, had not been placed before the

Court nor any steps have been taken for obtaining a copy of the

declaration from the said CRDA authorities. On this basis, the trial Court

held that the applications would not be maintainable. In view of this

finding, the second set of same applications would clearly be hit by the

principle of res judicata.

30. Sri V. Venugopal Rao, learned counsel for the respondents

relied upon the judgment of the Supreme Court to contend that the

revision petitions are not maintainable as there is no jurisdictional error or

transgression of jurisdiction by the trial Court. However, in the case of R.

Suresh Babu vs. G. Rajalingam and Ors., at paragraph 83 (c) (e) and

(g), the learned Single Judge had held that this Court can exercise

revisional jurisdiction under Article 227 of the Constitution of India, if

there is an error of law apparent on the face of the record; arbitrary or 14 RRR,J C.R.P.Nos.2398, 2401 & 2431/2019

capricious exercise of authority or discretion; a patent or flagrant error in

procedure.

31. In the present case, the trial Court having exercised its

jurisdiction on the basis of certain findings, could not reverse its decision

simply on the ground that the respondents were filing application after

application and the application of the respondents should be allowed to

give a quietus to the matter. Such view is clearly a capricious exercise of

authority and would need to be corrected by this Court under Article 227

of the Constitution of India.

32. Accordingly, these civil revision petitions are allowed setting

aside the orders of the trial Court in I.A.Nos.1064, 1065 and 1087 of 2019

in O.S.No.145 of 2015. There shall be no order as to costs.

As a sequel, pending miscellaneous petitions, if any, shall stand

closed.

_________________________ R. RAGHUNANDAN RAO, J.

10th December, 2021 Js.

                          15                              RRR,J
                              C.R.P.Nos.2398, 2401 & 2431/2019




      HON'BLE SRI JUSTICE R. RAGHUNANDAN RAO




         C.R.P.Nos.2398, 2401 & 2431 of 2019




                10th December, 2021
Js.