Sh. Kirti Pardeep Sood & Ors vs Shri Keshav Sood
2013 Latest Caselaw 5299 Del

*       IN THE HIGH COURT OF DELHI AT NEW DELHI

+       I.A. No. 8034/2011 (O.VII R.11 CPC) in CS(OS) 2363/2008

%                                               Reserved on: 2nd September, 2013
                                                Decided on: 19th November, 2013

SH. KIRTI PARDEEP SOOD & ORS                  ..... Plaintiffs
                   Through: Mr. Ravi Gupta, Sr. Advocate with
                             Mr. Tanmaya Mehta, Advocate for
                             Plaintiff No. 1.
                   versus

SHRI KESHAV SOOD                                            ..... Defendant
                                Through:     Mr. Mukesh Kumar Verma, Advocate.

CORAM:
HON'BLE MS. JUSTICE MUKTA GUPTA

1.

By this application under Order VII Rule 11 CPC the Defendant seeks rejection of the plaint on the plea of res-judicata. The objection of the Defendant is that in earlier suit for partition filed between the parties a decree was passed on 7th August, 1981 and thereafter the Plaintiffs filed the execution petition belatedly which was dismissed. The Appeal against the order of dismissal of the said execution petition was also dismissed and the same has attained finality till the Hon'ble Supreme Court. Since the execution of the decree passed has already been declined, the Plaintiffs in the garb of the present suit, seeking possession of the property, cannot re-agitate the issues which have been finally set at rest. The relief of possession was sought earlier as well and thus the same is barred by res-judicata. Reliance is placed on T. Arivanandam vs. T.V. Satyapal and another, 1977 (4) SCC

467; United Commercial Bank Ltd. vs. Okara Grain Buyers Syndicate Ltd. and another, 1968 (3) SCR 396.

2. Learned counsel for the Plaintiffs/non-applicants on the other hand contends that the dismissal of the execution petition has no bearing on the present suit and the same is maintainable in its present form. In the earlier suit a decree of partition was sought as the co-owner which right has been determined by this Court and the predecessor in interest of the Plaintiffs has been held to be the owner of the particular portion. Thus, after the decree passed in the earlier suit, the Defendant/applicant becomes an unauthorized occupant in the suit premises, giving a right to the Plaintiffs to seek possession. The present suit is based on a different cause of action as the earlier claim was based on the Plaintiff's right as co-owner and now it is based on the title. For the purpose of invoking the plea of res-judicata, the cause of action is required to be seen. Reliance is placed on Ajit Chopra vs. Sadhu Ram and others, 2000 (10) SCC 114. By virtue of the decree, the Plaintiffs have become the exclusive owners of the property as held in Swaroop Narain Laxminarain and another vs. Mst. Bhanwar Kunwar Bai and another, AIR 1967 MP 152. Though the remedy may have extinguished but the right of the Plaintiffs does not get extinguished. The earlier decree only defines the rights of the party and did not hand over the possession. Thus the issue in the present suit did not arise in the earlier suit. Further the earlier suit was disposed of on compromise and was not decided on the merits. No issues were framed. The possession in the suit property was not decided. Further the execution petition was dismissed not on merits but due to the technical reason of delay. Hence there is no merit in the present application and the same be dismissed.

3. I have heard learned counsel for the parties and perused the record.

4. The present suit is for the possession of the portion marked in red in the site plan with the plaint as situated in premises bearing No. 4, Hailey Road, New Delhi-110001 for an area admeasuring approximately 128 sq. yards (hereinafter referred to as 'suit property'). Late Shri Hari Das Sood, father of the Plaintiffs herein filed a suit being Suit No. 314 of 1967 for partition of the joint and immovable property, that is, 4, Hailey Road, New Delhi against Dr. Chiranji Lal Sood, his younger brother and grandfather of the applicant/Defendant herein. The said Suit No. 314 of 1967 was decreed on 7th August, 1981 partitioning and demarcating the respective shares of Shri Hari Das Sood and Dr. Chiranji Lal Sood. In terms of the said decree, the suit property fell to the share of the Plaintiffs' predecessor, that is, late Shri Hari Das Sood. The Plaintiffs sought execution of the decree dated 7th August, 1981 which execution petition was dismissed as time barred. Even the appeals filed were dismissed by this court and the Supreme Court. Thus the issue before this Court is whether the dismissal of the execution petition seeking execution of the decree dated 7th August, 1981 passed in Suit No. 314 of 1967 would bar the present suit which seeks a decree of possession in favour of the Plaintiffs and against the Defendant in respect of the suit property being part of property bearing No. 4, Hailey Road, New Delhi admeasuring approximately 128 sq. Yards.

5. In Suit No. 314 of 1967 the relief sought was decree for partition of the main building, back quarters and garage owned jointly by the predecessor of the Plaintiffs and the Defendant in respect of property No. 4, Hailey Road, New Delhi wherein the Plaintiffs and the Defendant therein owned 1/3rd and 2/3rd shares respectively and to put them in separate

possession of the respective portions of property that may fall to their respective shares as a result of partition. The suit also prayed for rendition of accounts of the income and expenses of the said property and a final decree of the amount that may be found due against the Defendant therein as a result of preliminary decree for accounts. Admittedly the Plaintiffs are the successors in interest of late Shri Hari Das Sood and the Defendant that of Dr. Chiranji Lal Sood, who were the Plaintiff and Defendant in Suit No. 314 of 1967. One of the reliefs sought in the earlier suit was the possession of the part demarcated as owners by the Plaintiffs. There can be no dispute to the proposition that once the execution petition is dismissed as being barred by delay and laches, the right of the party does not get extinguished however, the remedy gets extinguished. However, it has to be seen whether the said right would permit the Plaintiffs to re-agitate and seek possession once the remedy to seek possession get extinguished. The principle of constructive res-judicata bars a successor in interest from pursuing a remedy which has already been agitated before the competent Court earlier. In Ajit Chopra (supra) relied upon by the learned counsel for the Plaintiffs the earlier suit between the parties was based on a lease, the execution petition whereof was dismissed as time barred and the second suit was filed challenging the claim of the tenant by way of adverse possession. Thus it was held that the second suit was neither barred by Section 47 CPC nor by Section 11 CPC as by the second suit the Plaintiff was challenging the claim of tenant by way of adverse possession and thus it was a fresh cause of action.

6. The principle of res-judicata is based on the need of giving finality to a judicial decision. It provides that once a lis is adjudicated it shall not to be

agitated again. The principle of res-judicata also applies to execution proceedings. The contention of the learned counsel for the Plaintiffs is that in the earlier suit, the cause of action was based on the right of the predecessor in interest of the Plaintiffs being the co-owner however, the Plaintiffs are now seeking decree being the holder of the title in the suit property and as owners thereon. In the present case there is no difference in the relief sought or cause of action because in the first suit the claim was as a co-owner, that is, on the basis of title and the present suit also seeks a decree as owner on the basis of the title unlike in Ajit Chopra (Supra) wherein the challenge was to the claim of the tenant by way of adverse possession.

7. The words used in Section 11, CPC are "directly and substantially in issue". If the matter was in issue directly and substantially in a prior litigation and decided against or in favour of a party then the subsequent proceedings would be barred by the principles of res judicata. Further if the issue was 'necessary' to be decided for adjudicating on the principal issue and was decided, it would have to be treated as "directly and substantially' in issue. The test to determine whether an issue was directly and substantially in issue in earlier proceedings or collaterally or incidentally, is that if the issue was 'necessary' to be decided for adjudicating on the principal issue and was decided, it would have to be treated as 'directly and substantially' in issue and if it is clear that the judgment was in fact based upon that decision, then it would be res judicata in a latter case. Reference: Sajjadanashin Sayed Md. B.E. Edr. (D) by L.Rs., vs. Musa Dadabhai Ummer and others, AIR 2000 SC 1238.

8. In Khushi Ram vs. Charanjit Kaur Sahni and another, 194 (2012) DLT 239 this Court held:-

"8. The ownership claimed by the plaintiff in the objections filed by him was a matter directly and substantially in issue in the execution proceedings. The title and possession claimed by him having been denied by the decree holder, it was necessary for the Court to adjudicate upon the right, which the plaintiff claimed in land in question. Therefore, it cannot be disputed that the ownership and possession of the land subject matter of the objections, which is also the subject matter of the present suit, was a matter directly and substantially in issue. The findings of the Executing Court on this issue, therefore, operate as res judicata and it is not open to the plaintiff to re-agitate the very same issue by way of an independent suit. The findings recorded by the learned Executing Court, having not been challenged by the plaintiff, attained finality and, therefore, are binding on him.

9. In order to succeed in the defence of res-judicata the party is required to show that not only the cause of action is same but also that the Plaintiffs had the liberty of getting the relief which they now seek in the present proceedings. The test to be applied is whether the claim in the subsequent suit or proceedings is in fact founded on the same cause of action, which was the foundation of the former suit or proceedings. The cause of action for a proceeding has no relation whatsoever to the defence which may be set up nor does it depend on the character or relief prayed by the Plaintiff or the Defendant or the applicant. It refers entirely to the grounds set forth in the plaint or the application, as the case may be, or in other words, the basis upon which the Plaintiff and applicant ask the Court to arrive at conclusion in his favour. The reliance of the learned counsel for the Plaintiffs on Jaswant Singh and another vs. Custodian of Evacuee Property, New Delhi, 1985 (3) SCC 648 wherein these principles have been laid down is of no

avail to the Plaintiffs as even looking on the basis of grounds set forth the claim is again based on title to the suit property which issue stands determined in favour of the Plaintiffs in the earlier suit.

10. The decision in Swaroop Narain Laxminarain (supra) relied upon by learned counsel for the Plaintiffs has no application to the facts of the present case. In the said case Rani Bai and Bhanwar Kunwar Bai were two widows of late Shiva Prasad. Rani Bai filed a suit against Bhanwar Kunwar Bai alleging that on remarriage the latter lost her rights in the suit property. In the said suit it was admitted that Bhanwar Bai was in possession of the entire suit property. On 17th March, 1952 a decree was passed in favour of Rani Bai. However, the execution thereof was dismissed twice. Later on 3 rd July, 1958 Bhanwar Kumar Bai instituted the suit asserting that Rani Bai was never in possession and a declaration be granted that the Defendants have no right, title or interest in suit property. The court held that Rani Bai's half share which was not acquired by virtue of the decree, could not be adversely affected by reason of the remedy of execution becoming time barred. The remedy is barred but not the right.

11. Learned counsel for the plaintiffs has also contended that since the earlier decree was a consent decree passed on the basis of settlement arrived at between the parties without any adjudication on merits, the same would not be barred by the principles of res judicata. In Shankar Sitaram Sontakke & another v. Balkrishna Sitaram Sontakke and others, AIR 1954 SC 352 their Lordships held that it is well settled that a consent decree is as binding upon the parties thereto as a decree passed by invitum. The compromise having been found not to be vitiated by fraud, misrepresentation,

misunderstanding or mistake, the decree passed thereon has the binding force of res judicata.

12. As noted above the cause of action and the relief sought in the earlier suit was also as an owner though a co-owner and even in the present as an owner of the suit property. I find merit in the application of the Defendant. Consequently, the suit is liable to be rejected being barred by principles of res-judicata.

Application is disposed of.

CS (OS) 2363/2008 and I.A. Nos. 13705/2008 (u/Order XXXIX Rule 1 and 2 CPC) and 4340/2010 (u/Order XII Rule 6 CPC)

In view of IA 8034/2011 under order VII Rule 11 CPC having been allowed, the suit is rejected being barred by principles of res-judicata.

Applications are dismissed as infructuous. The date fixed for 9th December, 2013 stands cancelled.

(MUKTA GUPTA) JUDGE NOVEMBER 19, 2013 'vn'