Chattisgarh High Court

Saddam Hussain Qureshi vs Masoom Qureshi on 10 August, 2021

                                   1

                                                                  NAFR
           HIGH COURT OF CHHATTISGARH, BILASPUR
                             F.A. No. 180 of 2018
                           Reserved on 22.07.2021
                         Pronounced on 10.08.2021


   1. Saddam Hussain Qureshi S/o Moinuddin Qureshi Aged About 18
      Years Occupation Labour, R/o Mayapur, Ward No.32, Nagar Nigam
      Ambikapur, District Surguja, Chhattisgarh, District : Surguja
      (Ambikapur), Chhattisgarh
   2. Salauddin Qureshi S/o Moinuddin Qureshi Aged About 16 Years
      Minor Through The Guardian Brother Saddam Qureshi Appellant
      No.1, R/o Mayapur, Ward No.32, Nagar Nigam Ambikapur, District
      Surguja, Chhattisgarh, District : Surguja (Ambikapur), Chhattisgarh
   3. Aman Qureshi S/o Moinuddin Qureshi Aged About 14 Years Minor
      Through Guardian Brother Saddam Qureshi Appellant No.1, R/o
      Mayapur, Ward No.32, Nagar Nigam Ambikapur, District Surguja,
      Chhattisgarh, District : Surguja (Ambikapur), Chhattisgarh
   4. Nasimun Nisha Wd/o Late Moinuddin Qureshi Aged About 60 Years
      Occupation Housewife, R/o Mayapur, Ward No.32, Nagar Nigam
      Ambikapur, District Surguja, Chhattisgarh (Plaintiffs),
                                                          ---- Appellants
                                Versus
   1. Masoom Qureshi S/o Dilshad Ahmed Aged About 32 Years
      Occupation Business, R/o Mayapur, Ward No.32, Gurudwara Ward,
      Nagar Nigam Ambikapur, District Surguja, Chhattisgarh.
   2. Smt. Ranjana Gupta D/o Rajendra Prasad Gupta Aged About 36
      Years W/o Dhirendra Prasad Gupta, Caste Halwai, R/o Ambikapur,
      Mohalla Deviganj Road, P.S. And Tahsil Ambikapur, District Surguja,
      Chhattisgarh, Presently Resided At Village Shivnandanpur, In Front
      Of Bus Stand, P.S. Bishrampur, Tahsil Surajpur, District Surajpur,
      Chhattisgarh.
   3. State Of Chhattisgarh Through The Collector, Surajpur, District
      Surajpur, Chhattisgarh (Defendants).
                                                       ---- Respondents

___________________________________________________________ For Appellants: Shri Anurag Singh, Advocate.

For Respondent No.1:            None, though served.
For Respondent No.2:            Shri Sanjay Patel appears along with
                                Shri Jitendra Shrivastava, Advocate.
For State/Respondent No.3:      Shri Devesh Chandra Verma, G.A.


             Single Bench:Hon'ble Shri Sanjay S. Agrawal, J
                           CAV Judgment / Order

1. This Appeal has been preferred by the Plaintiffs under Section 96 of

the Code of Civil Procedure, 1908 (hereinafter referred to as the 'CPC')

questioning the legality and propriety of the order dated 25.01.2018

passed in Civil Suit No.12-A/2010, whereby the learned trial Court has

rejected the plaint holding it to be barred by principles of res judicata under

Section 11 of CPC. The parties to this appeal shall be referred hereinafter

as per their description in the trial Court.

2. Briefly stated the facts of the case are that the plaintiffs instituted a

suit claiming declaration of title and injunction by submitting, inter alia, that

predecessor-in-interest of theirs, namely, Moinuddin was the erstwhile

owner of the property in question bearing Khasra No.483/5 admeasuring

0.023 hectare situated at Shivnandanpur, Tehsil Surajpur, District Surguja

and upon his sad demise on 18.02.2002, it was inherited by them.

According to the Plaintiffs, Defendant No.1-Masoom Qureshi, who was the

son of their deceased sister-Fatima, had got the revenue papers mutated

in his name along with them by taking undue advantage of their being

minors and sold the same to Defendant No.2-Smt. Ranjana Gupta without

any authority under a registered deed of sale dated 11.09.2006 and has

obtained the revenue papers recorded in her name. Further contention of

the plaintiffs is that since the said Defendant has raised the construction

during the pendency of this appeal, therefore, they have been constrained

to institute the suit in the instant nature, instituted on 21.05.2010, claiming

ownership with regard to the suit land and for the declaration to the effect

that the alleged registered deed of sale is null and void with a further relief

of injunction restraining Defendant No.2 from interfering in their peaceful

possession and praying alternatively for the vacant possession of it.

3. Defendant 2 has contested the suit and during trial moved an

application under Order 7 Rule 11 of CPC by submitting, inter alia, that the

alleged mutation, which was recorded jointly in the name of the Plaintiffs,

and the said Defendant-Masoom Qureshi as well as the alleged sale were

questioned by one Jahanara while projecting herself to be the daughter of

said Moinuddin in a suit registered as Civil Suit No.4-A/2008, renumbered

as Civil Suit No.1-A/2013 and as the said suit was ended up on

20.01.2013 by the First Additional District Judge, Lok Adalat, Ambikapur on

the basis of compromise upholding the alleged mutation, therefore, the

instant claim with regard to the same subject matter is barred by the

principles of res judicata and the suit is, therefore, liable to be rejected.

4. In reply to the aforesaid application, it was stated by the plaintiffs

that since the alleged suit was not decided upon adjudication of the issues

involved therein nor their mother Nashimun Nisha was impleaded as a

party defendant, the principles of res judicata would, therefore, be not

attracted in the present suit.

5. The trial Court, after considering the aforesaid application, arrived at

a conclusion that since the earlier suit, being Civil Suit No.1-A/2013 with

regard to the same subject matter, was ended up on the basis of

compromise and was decreed on 20.01.2013, therefore, the instant suit is

barred by the principles of res judicata. As a consequence of it, the trial

Court has rejected the plaint in exercise of the powers under Order 7 Rule

11 of CPC. This is the order which has been impugned by way of this

appeal.

6. Learned counsel appearing for the plaintiffs submits that the finding

of the Court below holding the claim to be barred by principles of res

judicata in view of the compromise decree dated 20.01.2013 passed in

Civil Suit No.1-A/2013 is apparently contrary to law. According to him,

neither the mother of the plaintiffs was the party in the said suit nor was it

decided upon adjudication of the issues involved therein, therefore, it

ought not to have been held to be barred under the said principles. It is

contended further that the principles of res judicata would be attracted only

if the case is decided by a speaking order upon adjudicating the issues

involved between the parties and since the issues have not been

adjudicated, therefore, the Court below has committed a serious illegality

in dismissing the claim by applying the principles of res judicata. In

support, reliance has been placed upon the decision rendered by the

Supreme Court in the matters of Pulavarthi Venkata, Subba Rao and

others v. Valluri Jagannadha Rao (deceased) by his heirs and legal

representatives, and others and V. Rajeshwari (SMT) v. T.C.

Saravanabava reported in AIR 1967 SC 591 and (2004) 1 SCC 551,

respectively.

7. On the other hand, learned counsels appearing for the respective

Defendants have supported the order impugned as passed by the trial

Court.

8. I have heard learned Counsel for the parties and perused the entire

record carefully.

9. The question which arises for determination in this appeal is as to

whether the Court below was justified in rejecting the plaint under Order 7

Rule 11 of CPC holding it to be barred by principles of res judicata under

Section 11 of CPC?

10. From perusal of the record, it appears that the plaintiffs' claim has

been held to be barred by principles of res judicata merely on the ground

that since the earlier suit, being Civil Suit No1-A/2013, instituted by so

called daughter Jahanara of erstwhile owner was decided on the basis of

compromise decree dated 20.01.2013, therefore, the instant suit is

suffered by the said principles. However, it appears that in an earlier

instituted suit, the plaintiffs' mother Nashimun Nisha was neither the party

nor the same was decided upon adjudication of the issues involved

between the parties nor the pleadings of it have been found to be placed

on record. Yet, the Court below, while applying the principles of res

judicata, has rejected the plaint in exercise of the powers enumerated

under Order 7 Rule 11 of CPC.

11. For applicability of the principles of res judicata is concerned, it has

been observed by the Supreme Court in the matter of Syed Mohd. Salie

Labbai (Dead) by Lrs and others vs. Mohd. Hanifa (Dead) by Lrs. And

others reported in AIR 1976 SC 1569 that in order to give effect to the

principles of res judicata provided under Section 11 of CPC, the following

conditions are required to be established:-

(i) that the litigating parties must be the same;

(ii) that the subject matter of the suit also must be identical;

(iii) that the matter must be finally decided between the parties and ;

(iv) that the suit must be decided by a Court of competent jurisdiction.

12. It is now to be noted that the alleged compromise decree dated

20.01.2013 passed by Lok Adalat in Civil Suit No.1-A/2013 was made only

on the basis of the consent of the parties of the said suit without

adjudicating the issues involved therein. In such circumstances, it would

not operate as res judicata as held by the Supreme Court in the matter of

Pulavarthi Venkata, Subba Rao and others v. Valluri Jagannadha Rao

(deceased) by his heirs and legal representatives, and others (supra)

wherein it has been held at para 10 as under:-

10. ..........The compromise decree was not a decision by the Court. It was the acceptance by the Court of something to which the parties had agreed. It has been said that a compromise decree merely sets the seal of the court on the agreement of the parties. The court did not decide anything. Nor can it be said that a decision of the court was implicit in it. Only a decision by the court could be res judicata, whether statutory under S.11 of the Code of Civil Procedure, or constructive as a matter of public policy on which the entire doctrine rests...........

13. Moreover, before applying the principles of res judicata under

Section 11 of CPC, the Court below should have examined not only the

entire pleadings of the earlier instituted suit, but should have seen that

whether it was decided on merits or not. It is not in dispute that the

pleadings of the earlier suit, ended on the basis of compromise decree,

were not brought on record and solely on the basis of the said consent

decree, the claim was held to be hit by the principles of res judicata under

Section 11 of CPC. However, in absence of the pleadings of an earlier

instituted suit, the Court below should have refrained from rejecting the

plaint as such, in view of the principles laid down by the Supreme Court in

the matter of V. Rajeshwari (SMT) v. T.C. Saravanabava (supra) wherein,

it has been held at para 13 which reads as under:-

13. Not only the plea has to be taken, it has to be substantiated by producing the copies of the pleadings, issues and judgment in the previous case. Maybe, in a given case only copy of judgment in previous suit is filed

in proof of plea of res judicata and the judgment contains exhaustive or in requisite details the statement of pleadings and the issues which may be taken as enough proof. But as pointed out in Syed Mohd. Salie Labbai v. Mohd. Hanifa (1976) 4 SCC 780 the basic method to decide the question of res judicata is first to determine the case of the parties as put forward in their respective pleadings of their previous suit and then to find out as to what had been decided by the judgment which operates as res judicata. It is risky to speculate about the pleadings merely by a summary of recitals of the allegations made in the pleadings mentioned in the judgment. The Constitution Bench in Gurbux Singh v. Bhooralal (1964) 7 SCR 831 placing on a par the plea of res judicata and the plea of estoppel under Order 2 Rule 2 of the Code of Civil Procedure, held that proof of the plaint in the previous suit which is set to create the bar, ought to be brought on record. The plea is basically founded on the identity of the cause of action in the two suits and, therefore, it is necessary for the defence which raises the bar to establish the cause of action in the previous suit. Such pleas cannot be left to be determined by mere speculation or inferring by a process of deduction what were the facts stated in the previous pleadings. Their Lordships of the Privy Council in Kali Krishna Tagore v. Secy. of State for India in Council (1887-88) 15 IA 186 pointed out that the plea of res judicata cannot be determined without ascertaining what were the matters in issue in the previous suit and what was heard and decided. Needless to say, these can be found out only by looking into the pleadings, the issues and the judgment in the previous suit.

14. In the instant matter as observed herein above, the plaintiffs' mother

was neither found to be impleaded in an earlier suit being Civil Suit No.1-

A/2013, which was ended up on the basis of compromise decree drawn on

20.01.2013, nor the pleadings of it were placed on record, nor the issues

involved therein were found to be adjudicated. In view of the said

background and in the light of the aforesaid principles, the claim of the

plaintiffs cannot be held to be hit by the principles of res judicata under

Section 11 of CPC, as held by the trial Court.

15. Accordingly, the appeal is allowed and the impugned order dated

25.01.2018 passed by the Second Additional District Judge, Surajpur,

District Surajpur (C.G.) in Civil Suit No.12-A/2010 is hereby set aside and

the matter is remitted to the said Court and/or the concerned Court with a