Civil Appeal No 2021 of 1969
Appeal by Special Leave from the Judgment and Order dated 15th January 1969 of the Punjab and Haryana High Court in SA No 905 of 1963
123 R K Garg for the Appellants
Hardev Singh for Respondent No 1
N section Bindra and T section Arora for Respondent No 2
The Judgment of the Court was delivered by UNTWALJA J
This appeal arises out of an unfortunate litigation where the plaintiff appellant in this appeal has got to fail in this Court too on some technical grounds
One Sardar Balwant Singh died on 10th March 1955 leaving only three sons according to the case of appellants namely the two appellants and respondent No 2
Respondent No 1 claimed to be a fourth son of Balwant Singh entitled to 14th share in the property left by him
The appellants filed Suit No 41 of 1958 in the Court of Sub Judge Bassi
The Civil Court on the objection of Respondent No 1 framed a preliminary issue whether the said Court was competent to try the suit or was it a matter which could be decided only by the Settlement Commissioner
By Order dated 771958 the learned Subordinate Judge decided that the Civil Court had no jurisdiction to try this suit and directed the return of the plaint for presentation to the proper Revenue Court
When the appellants filed their claim in the Revenue Court their petition was returned holding that the Revenue Court had no jurisdiction to try it
Thereupon the appellants instituted suit No 13 of 1960 in the Court of Sub Judge First Class Bassi on 2 4 1960
This suit has failed throughout on the ground of res judicata
The High Court has affirmed the dismissal on the view that the decision dated 7 7 1958 given by the Civil Court in Suit No 41 of 1958 on the point of Civil Court s jurisdiction to try the suit will operate as res judicata
In our opinion the High Court is right
The learned counsel for the appellants submitted that the appellants were driven from pillar to post for the redress of their grievances
When they instituted the suit in Civil Court that Court held that it had no jurisdiction to try it
When the suit was filed in the Revenue Court the said Court took a contrary view
Where could the appellants then go We do sympathise with the appellants  dilemma but they were wrongly advised to do as they did
Either they ought to have followed the matter in the First Civil Suit and insisted up to the end that the suit was triable by a Civil Court or they would have taken the matter further before the higher authorities and Court from the order of the Revenue Court and persisted that the matter whether the Civil Court had jurisdiction to decide the dispute between the parties or not was res judicata the Revenue Court had no jurisdiction to go behind the decision of the Civil Court
The appellants did 124 neither
It is unfortunate that due to the wrong paths which they followed under wrong advice they have ultimately to fail on the technical ground of res judicata but there is no way out
It was pointed out by Lord Russell of Killowen Upendra Nath Bose vs Lall and Others1 that there could be res judicata in regard to the question of lack of jurisdiction of the Civil Court to try a matter but A Court which declines jurisdiction cannot bind the parties by its reasons for declining jurisdiction such reasons are not decisions and are certainly not decisions by a Court of competent jurisdiction vide page 225
The above passage does not help the appellants rather goes against them
Mr Garg had also placed reliance upon a Single Judge decision of the Allahabad High Court in Jwala Debi vs Amir Singh 2 wherein the Learned Judge observed at page 132 Looked at closely a question of jurisdiction alongwith it may be raised by the defendant is a question that virtually arises between the plaintiff and the Court itself
The plaintiff invokes the jurisdiction of the Court
The defendant may or may not appear
If the Court finds that it has no jurisdiction to entertain the plaint it will order the return of it for presentation to the proper Court
The defendant if he appears and if he so chooses may point out to the Court that it has no jurisdiction
A decision on the question of jurisdiction does not affect in any way the status of the parties or the right of one party to obtain redress against the other
The fact that a decision as to jurisdiction is not binding on the parties in a subsequent litigation will be apparent from this
 We do not approve at all the views as expressed by the learned Single Judge of the Allahabad High Court
If defendant does not appear and the Court on its own returns the plaint on the ground of lack of jurisdiction the order in a subsequent suit may not operate as res judicata but if the defendant appears and an issue is raised and decided then the decision on the question of jurisdiction will operate as res judicata in a subsequent suit although the reasons for its decisions may not be so
For the reasons stated above we dismiss this appeal but direct the parties to bear their own costs throughout
PBR Appeal dismissed


Summary:
The appellants filed a suit in the court of a subordinate judge
At the instance of respondent No 1 who was the defendant in the suit an issue as to the jurisdiction of the court to try the suit was framed
Holding that it had no jurisdiction to try the suit the civil court returned the plaint to the appellants for being presented to the proper revenue court
The revenue court on presentation of a petition by appellants held that it had no jurisdiction to try it
Thereupon the appellants again filed a suit in the court of subordinate judge
The suit failed on the ground of res judicata
On appeal the High Court upheld the view of the civil court
On the question whether the decision of the subordinate judge on the preliminary issue operated as res judicata
Dismissing the appeal  HELD If in a case the defendant does not appear and the Court on its own returns the plaint on the ground of lack of jurisdiction the order in a subsequent suit may not operate as res judicata but if the defendant appears and an issue is raised and decided then the decision on the question of jurisdiction will operate as res judicata in a subsequent suit although the reasons for its decision may not be so
124G In the instant case in the first suit the appellants ought to have consisted that the suit was triable by civil court or they should have taken the matter before a higher Court in the revenue proceeding
The appellants did neither
The revenue court had no jurisdiction to go behind the decision of the civil court
123G Upendra Nath Bose vs Lall  Ors AIR 1940 PC 222 held inapplicable
Jwala Debi vs Amir Singh AIR 1929 All 132 not approved