Madhya Pradesh High Court
Harjas Rai Makhija vs Smt. Pushparani Jain on 3 April, 2012
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     HIGH COURT OF MADHYA PRADESH : JABALPUR.
                   First Appeal No.961/2010
                        Harjas Rai Makhija
                             -Versus-
            Smt. Pushparani Jain and another.
PRESENT : Hon'ble Shri Justice K.K. Trivedi.
            Shri R.P. Agrawal, learned senior counsel assisted by
            Shri Sanjay Agrawal, learned counsel for the
            appellant.
            Smt. Shobha Menon, learned senior counsel assisted
            by Shri C.A. Thomas, learned counsel for the
            respondents.
            Shri P.S. Chouhan, learned counsel for respondent
            No.2.
                         JUDGMENT
(03.4.2012) 1: This appeal under Section 96 of the Code of Civil Procedure is against the Judgment
and decree dated 28.9.2010, passed in regular Civil Suit No.471-A/2008 by the V Additional District
Judge, Bhopal. The controversy in short involved can be summarised thus :-
(i) A plot No.251 was allotted to the respondent No.1 on 19.9.1981 by the Bhopal
Development Authority. For the purposes of getting the sale deed executed, the
respondent No.1 has appointed respondent No.2, her real brother a general Power of
Attorney.
(ii) On the basis of some general Power of Attorney executed allegedly on 30.4.1983 in favour of
respondent No.2 by the respondent No.1, he entered into an agreement for sale of the plot in suit to
the appellant on 16.10.1988. An advance of Rs.1 lac was paid towards the sale consideration and
possession of the suit plot was also said to be delivered to the appellant. The sale deed was to be
executed upto 30.4.1989.
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(iii) The respondent No.1 filed a Civil Suit being C.S. No.51-A/1999 against the appellant as also the
respondent No.2 saying that she has not executed any Power of Attorney in favour of the respondent
No.2 for the purposes of sale of the suit plot. If at all there was any agreement so executed on
16.10.1988 by the respondent No.2 for sale of the plot in favour of the appellant, that was null and
void.
(iv) A Civil Suit No.52-A/1999 was also filed by the appellant for specific performance of contract on
the strength of sale agreement dated 16.10.1988. Both the suits were tried and were decided by the
Court.
(v) While decreeing the suit filed by the respondent No.1, the suit filed by the appellant was
dismissed vide Judgment dated 4.10.1999 and 7.10.1999 respectively passed by the District Judge,
Bhopal. The appellant filed the First Appeals before this Court being F.A.No.607/99 and
F.A.No.638/1999 against the aforesaid Judgment and decree. During pendency of the said appeal,
an application under Order 41 Rule 27 of the Code of Civil Procedure was filed for taking additional
evidence on record. With this application, an application made by respondent No.2 before the
Bhopal Development Authority, was also filed. It was stated that such an application was made on
behalf of the respondent No.1, by the respondent No.2, in his capacity as General Power of Attorney
holder and a copy of the General Power of Attorney was also produced before the Bhopal
Development Authority.
(vi) Both the appeals were heard together, the application under Order 41 Rule 27 of the Code of
Civil Procedure was also considered. Both the appeals were dismissed by a common Judgment and
decree dated 13.9.2002. Categorical finding with respect to the rejection of the application under
Order 41 Rule 27 of the Code of Civil Procedure was recorded by this Court in the Judgment and
decree passed on 13.9.2002. It was categorically held that such an application which is sought to be
taken on record was not a document in the nature of secondary evidence which could be taken on
record for consideration.
(vii) The appellant filed Special Leave Petition before the Apex Court against the Judgment and
decree of this Court passed in the said appeals on 13.9.2002. The specific ground with respect to the
rejection of application under Order 41 Rule 27 of the Code of Civil Procedure was taken in the
Special Leave Petition. The Special Leave Petition was dismissed on 25.7.2003 and a review
application filed before the Apex Court was also dismissed on 9.8.2003.
(viii) A criminal complaint was filed by the appellant in the Court of Chief Judicial Magistrate,
Bhopal, against the respondents as also one Ms. Sneh Rani Jain, a sister of respondents. The
criminal complaint was dismissed, a criminal revision was filed before the Additional Sessions
Judge, Bhopal, which was allowed vide order dated 10.12.2002. The criminal complaint was said to
be maintainable as sufficient material on record for taking cognizance in said criminal complaint
was available. A revision filed before this Court was dismissed and the Criminal case is pending
consideration before the Court below.
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(ix) The appellant obtained a certified copy of Power of Attorney said to be produced along with the
application submitted by the respondent No.2 before the Bhopal Development Authority and
thereafter, filed the present suit in the Court of V Additional District Judge, Bhopal, for the reliefs of
declaring that the Judgment and decree obtained on 4.10.1999 in Civil Suit No.51-A/1999 by the
respondent No.1 was null and void as the same was obtained fraudulently concealing the material
fact relating to execution of Power of Attorney in favour of respondent No.2 by the respondent No.1;
a decree of permanent injunction to the effect that the respondents shall not execute the Judgment
and decree dated 4.10.1999 passed in the Civil Suit No.51-A/1999; cost of the suit; and any other
reliefs.
The trial Court after full dressed trial has dismissed the suit.
Hence, this appeal against the Judgment and decree.
2: It is the contention of learned counsel for the appellant that since it was specifically pleaded in the
plaint that a fraud was played by the respondent No.1 knowing fully well that she has executed a
Power of Attorney for sale of the suit property, in favour of the respondent No.2, her own brother as
the respondent No.1 was residing at United State of America and was unable to come and lookafter
the property at Bhopal in India, but this document was deliberately concealed and a bald statement
was made that no such Power of Attorney was executed by the respondent No.1 in favour of the
respondent No.2 and hence the claim was made in the suit aforesaid. Since now the Power of
Attorney has come into the light and such a written document has been obtained by getting a
certified copy from the public office of Bhopal Development Authority, such a fraud played by the
respondent No.1 with the Court is apparent and, as such, the decree obtained by fraud is not binding
on the appellant. Thus, it is categorically contended that the Court below was not right in holding
that the appellant has failed to prove his case and has wrongly dismissed the suit of the appellant.
3: Per contra it is vehemently argued by learned Senior counsel for the respondent No.1 that there
was no fraud played by the respondent No.1. If at all this was the defence or claim made by the
appellant that the respondent No.2 was general Power of Attorney holder for the purposes of
transfer of the suit land in favour of the appellant, it was the duty on the part of the appellant to
place all such facts on record and to gather all the evidence at that time and put it for the trial.
Having failed to do so and losing upto highest Court of the country, the appellant cannot be
permitted to reagitate the issue before trial Court.
These aspects have categorically been found proved by the Court below and the suit of the appellant
has rightly been dismissed. Thus, it is contended that in view of the settled position of law, no relief
whatsoever can be granted to the appellant and his appeal is liable to be dismissed with exemplary
cost.
4: To appreciate the rival submissions made by learned Senior counsel for the parties, it is required
aptly to examine the entire evidence, the documentary as well as oral and the manner in which such
claims were made before the Court below. The first and foremost question which is to be examined
is whether the appellant was aware of the Power of Attorney allegedly said to be executed in favour
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of the respondent No.2 by the respondent No.1 at the time when the previous suit was pending
against him and when previously a claim was made by him for specific performance of the said
agreement, or not ?
5: The documents which the appellant has placed on record are first an application said to be filed
for grant of no objection by the respondent No.2 on behalf of respondent No.1 before the Bhopal
Development Authority on 1/6/1983, which has been exhibited as Ex.P/1. The second document
which is placed on record by the appellant before the trial Court in this suit is a certified copy of the
Power of Attorney said to be executed by the respondent No.1 in favour of respondent No.2 on
30.4.1983. The said document is exhibited as Ex.P/2. The contents of the said documents are that
the Power of Attorney is executed for the purposes of carrying on the construction, supervision,
management and disposal of plot No.251 in Major Shoping Centre Zone-II, Habibganj, Bhopal, in
Scheme No.13 of Bhopal Development Authority, Bhopal and for the said purposes execute any
document pay and receive any sum or sums, receive or realise any outstanding to manage the above
property. In the clear word, it is not said that the Power of Attorney holder is authorised to sell out
the property in suit. The management and disposal word used in this Power of Attorney, more
appropriately the word disposal in the said Power of Attorney is being construed as if the said
person was also authorised to sell out the property of respondent No.1 to anyone else. The other
documents placed on record by the appellant are with respect to the plan of construction prepared
and submitted before the authorities, a statement recorded of a witness examined in the Criminal
case, who is said to be an employee of the Bhopal Development Authority, for the purposes of
proving the said Power of Attorney produced before the Bhopal Development Authority. The other
document is with respect to the application for grant of permission to make construction, made
before the Municipal Corporation Bhopal and the lease deed executed in favour of the respondent
No.1. Ex.P/6 filed by the appellant is the copy of sanctioned map and a copy of the criminal
complaint made, the order passed by the Additional Sessions Judge, Bhopal in Criminal Revision.
The appellant has also produced a death certificate of the Notary, who was said to have notarised the
said Power of Attorney and a register of Notary where the execution of Power of Attorney by
respondent No.1 in favour of respondent No.2 is duly registered. However, though a reference is
made to the agreement of sale, yet the sale agreement has not been produced. Another Power of
Attorney executed by the respondent No.1 in favour of respondent No.2 on 14.4.1989 has been
placed on record as Ex.P/15. The appellant has examined himself as a witness as PW/1, one Vinay
Agrawal son of the Notary and Advocate late Shri Hari Narayan Agrawal, who has expired, as PW/2.
As against this evidence, the respondent No.1 has produced an application made before the Town
Improvement Trust, Bhopal, as Ex.D/1, an affidavit filed in the case No. 29- A/1994, certain letters
written by her, an order passed by the Apex Court in the case of review petition filed by the appellant
and the rejection of the Special Leave Petition filed by the appellant, a complete copy of the
Judgment and decree delivered in the First Appeal No.607/1999 by this Court on 13.9.2002, a
Judgment and decree passed in Civil Suit No.51-A/1999 and Civil Suit No.52-A/1999 by the District
Judge, Bhopal. The respondent was examined as a witness by conferencing. The statement of
respondent No.2 were recorded in the defence. Now this being the total evidence produced by the
parties, this Court is required to examine whether fact relating to execution of the Power of Attorney
by the respondent No.1 in favour of the respondent No.2 was within the knowledge of the appellant
at the time when the first suit was brought by the appellant against the respondents or not, or when
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he came as a defendant in the suit filed by the respondent No.1 against him. The record of the said
suit was also called and kept with the suit subsequently filed.
6: In fact, it has to be noted that a definite claim was made by the appellant in his first suit which he
has filed for specific performance that by virtue of a Power of Attorney, the respondent No.1 has
authorised the respondent No.2 to execute a sale deed in favour of the appellant with respect to the
suit plot and for the said purposes an agreement was executed by the respondent No.2 on behalf of
the respondent No.1 in favour of appellant. If that was the situation, the appellant was required to
remain more vigilant. He was aware that the respondent No.1 was not residing in India, was not
readily available and if, for that reason she has executed any Power of Attorney in favour of her
brother to sell out the property in suit, it was necessary for the appellant to get a copy of the Power
of Attorney obtained before entering into any agreement with the respondent No.2 on behalf of
respondent No.1. As has been found by the trial Court, the appellant had not produced the sale
agreement before the lower Court, but by making an application I.A.No.4058/2012, the copy of the
said agreement has been produced before this Court. The entire agreement is styled as if the same
was executed by the respondent No.1 through the Power of Attorney holder. Not a single word is
found in this agreement that any Power of Attorney for the said purposes was executed by the
respondent No.1 in favour of respondent No.2 and, therefore, in his capacity as the Power of
Attorney holder of respondent No.1, the respondent No.2 was executing the said document on
16.10.1988. This itself is enough proof of the fact that in fact, if at all any fraud was committed with
the appellant, it was none else nothing but respondent No.2 who executed an agreement
purportedly in respect of respondent No.1 self styling himself as Power of Attorney of respondent
No.1. If a person is Power of Attorney holder of the owner, he himself is required to execute the
agreement categorically saying that by virtue of such Power of Attorney executed by the owner he is
acting on behalf of the owner. Such declarations are not found in the said document. This makes it
clear that the Power of Attorney, said to be executed on any particular date, was not for the purposes
of sale of the plot in dispute.
7: As has been stated hereinabove, the Power of Attorney said to be executed on 30.4.1988,
produced as document Ex.P/2 does not contemplate a specific condition that the said Power of
Attorney is being issued for the purposes of disposing of/selling the property in question. Therefore,
merely because some Power of Attorney was executed, not specifically authorising the respondent
No.2, by the respondent No.1 for selling the property in suit, it could not have been said that the
respondent No.2 automatically become authorised to sell the suit property. This being so, since
these facts were not got verified at the initial stage when the appellant had entered into such an
agreement with the respondent No.2 for the sale of the plot in suit, it cannot be said that the
appellant was vigilant, cautious and a bonafide purchaser. Such assertion cannot be accepted at such
a stage when the appellant has lost the litigation previously brought before this Court upto the stage
of Apex Court. Whether can it be said that the Power of Attorney came to the notice of the petitioner
at such a belated stage only when a criminal case was launched by him making allegation of
committing fraud with him by the respondents. Undisputedly, the appeal was preferred against the
previous Judgment and decree passed in the Civil Suit filed by the respondent No.1 and also against
the Judgment and decree passed in Civil Suit filed by the appellant himself. The Civil Suit was filed
by the appellant for specific performance of the agreement. If he was stating that agreement was
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executed by the respondent No.2 in his capacity of Power of Attorney holder of respondent No.1, it
was the duty cast on the part of the appellant to prove that the respondent No.2 was in fact the
Power of Attorney of respondent No.1. When such a fact was not proved, the suit was dismissed. In
the pending appeal, an application under Order 41 Rule 27 of the Code of Civil Procedure was filed
for taking an application made before the Bhopal Development Authority as additional evidence on
record. If the appellant could have obtained a photocopy of such a document, what precluded him to
make an application for grant of certified copy of the said Power of Attorney which was allegedly
attached along with the application and which was produced before the Bhopal Development
Authority ? Why only after losing upto the Apex Court the good sense prevailed and the appellant
applied for grant of a certified copy of such a document. If it was such an important document, the
appellant could have obtained a certified copy of that document at the time when the First Appeal
was pending consideration before this Court and could have produced along with copy of the
application submitted by the respondent No.2 before the Bhopal Development Authority and in
such circumstances, this Court could have exercised the power under Order 41 Rule 23-A of the
Code of Civil Procedure could have sent back the matter to the trial Court for recording of the
evidence on the said particular document or even could have framed an issue on that evidence and
could have obtained the findings on the same from the trial Court at that stage. The issue could have
been decided at that stage only if the justified attempt would have been made by the appellant to
obtain such document. This all shows that neither the appellant was vigilant nor serious to
prosecute his claim. In fact, he was enjoying the possession over the suit property without making
payment of any compensation and, therefore, he was prolonging the litigation. He fought upto the
Apex Court unsuccessfully filed a review also and after losing in all Courts has come with this plea
therefore, such a stand is not to be accepted at all. Further, this Court has categorically dealt with
the application made under Order 41 Rule 27 of the Code of Civil Procedure and has recorded its
finding in the First Appeal in none other than specific words that such a plea of the appellant was
not to be accepted at all. For the purposes of better appreciation, findings of this Court recorded in
paragraph 11 of the said Judgment are reproduced :-
"11. The main crux of the matter is whether the plaintiff, Dr. Pushparani Jain had
executed the power of attorney authorising Jinendra Kumar Jain, her brother to
negotiate in regard to the property and execute the deed of sale. In the trial Court no
document was produced to establish that the said plaintiff had executed any power of
attorney in favour of her brother. It was only admitted that the power of attorney was
executed to get the lease deed executed with Bhopal Development Authority. On a
perusal of the evidence it is discernible that the defendant No.2 had perused the
photocopy shown to him by the mediator and visited his lawyer seeking legal opinion.
The learned trial Judge has referred to Ex.P/1 and recorded a finding that the said
document did not so indicate. On a scrutiny of Ex.P/1, it is also noticeable that the
same is silent in that regard. Before this Court an application has been filed under
Order 41 Rule 27 of the Code of Civil Procedure for taking additional evidence. In the
application, it has been stated that recently the plaintiff has come to know that the
defendant No.2 had applied to the Bhopal Development Authority seeking
permission for sale. It is apposite to mention here that the application which had
been filed by the defendant No.2 before the Authority has been brought on record.
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On a perusal of the same it transpires that in the said application there is mention of
the fact that the photocopy of the power of attorney supposed to have been executed
by the plaintiff was produced before the said authority. It is submitted by Mrs.
Shobha Menon that the application filed under Order 41 Rule 27 should not be
entertained inasmuch as the defendant No.2 had himself admitted that he had filed a
photocopy before the Bhopal Development Authority and a photocopy of a photocopy
cannot be regarded as secondary evidence. It is submitted by her that at the best what
the defendant No.1 can prove that a photocopy was filed along with the said
application by the defendant No.2, but that could not bind the plaintiff. Quite apart
from the above, it is also purforth that the application filed under Order 41 Rule 27 is
factually incorrect inasmuch as there is evidence on record that Harjas Rai Makhija
had deposed that Jinendra Kumar Jain had got the matter discussed through a
middle man in regard to the plot. Thus, the stand taken in the application does not
fresco the correct picture and it is highlighted that the appellant who has stated that
he has come to know about such power of attorney recently is blatant lie and hence,
should not be accepted for consideration."
8: This being so, such findings recorded by the Court are not to be disturbed and specially the same
have been approved by the Apex Court. It will be noteworthy to state here that such a rejection of the
application under Order 41 Rule 27 of the Code of Civil Procedure was the ground raised before the
Apex Court in Special Leave Petition filed by the appellant. After appreciating the findings recorded
by this Court in the earlier First Appeal filed by the appellant, the Apex Court has dismissed the
Special Leave Petition of the appellant. That means nothing, but affirmation of the finding of this
Court. The review petition filed by the appellant before the Apex Court also met with the same
result. Thus, in the considered opinion of this Court, in view of these facts, the reagitation of
litigation was not permissible in law.
9: In the light of whatever is found by this Court, the Judgment of the trial Court is examined. There
were two issues framed with respect to the grounds raised by the appellant in the suit that the decree
has been obtained in Civil Suit No.51-A/1999, fraudulently concealing the execution of the Power of
Attorney by the respondent No.1 in favour of respondent No.2. The trial Court in paragraph 6
onwards of its Judgment has considered the entire evidence, has taken note of all the facts and has
categorically held that the evidence produced by the appellant is not such that a fraud is proved.
Apart from that the lower Court has categorically held that the appellant had utterly failed to prove
that there was any such Power of Attorney in existence. The lower Court has taken note of conduct
of the appellant also. In view of this, it cannot be said that the Court below has committed any error
of law in not appreciating the evidence available on record in appropriate manner.
10 : Learned senior counsel for the appellant has placed his reliance in various laws laid down by the
Apex Court in different situations. It is contended that since the Court below has also considered as
if the provisions of Section 11 of the Code of Civil Procedure would be attracted in the case and such
a suit filed by the appellant was hit by principles of res judicata, therefore, the submission is made
that the Judgment and decree is bad in law. It is contended by learned Senior counsel appearing for
the appellant that the trial Court in its Judgment while dealing with the issue No.5 with respect to
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the application of principle of re judicata has given no finding, but has simply recorded that the suit
is not maintainable. It is contended that in view of the law laid down by the Apex Court, the said
principle of res judicata would not be attracted at all as a Judgment and decree obtained by fraud is
to be treated as nullity. Relying in the case of Ram Preeti Yadav V. U.P. Board of High School and
Intermediate Education and others [(2003) 8 SCC 311], Indian Bank V. Satyam Fibres (India) Pvt.
Ltd. [(1996) 5 SCC 550], S.P. Chengalvaraya Naidu (Dead) by L.Rs. Vs. Jagannath (Dead) by L.Rs.
and others [(1994) 1 SCC 1] and Ajit Savant Majagvai V. State of Karnataka [(1997) 7 SCC 110],
learned senior counsel for the appellant has, vehemently, contended that the fraud is committed
either by letter or words which induces the other person or authority to take a definite determinative
stand as a response to the conduct of the former either by words or letter and, therefore, mere slight
negligence on the part of the appellant would not amount as if fraud was not played. It is also
contended by learned senior counsel that the Courts have the inherent power under Section 151 of
the Code of Civil Procedure and if such a fact is brought to the notice of the Court that fraudulently a
decree has been obtained by suppression of material facts by the other side, the said decree can be
set aside in exercise of inherent powers also by the Court by recalling its Judgment or orders if it is
proved that the same is obtained by fraud on record. It is also contended that the factum of fraud is
required to be tested in each case taking into account the circumstantial evidence as well. Thus, it is
said that in view of the law pronounced by the Apex Court, the Court below was not right in
dismissing the suit filed by the appellant and refusing to grant a decree of declaration that the
decree in previous suit was obtained by the respondent No.1 by playing fraud on Court. With due
respect to the pronouncement of the Apex Court, each and every case is to be tested on the basis of
the facts and circumstances which are proved or brought on record. In the given circumstances if the
appellant himself was not vigilant about verifying the fact of Power of Attorney at the initial stage or
if he was not careful enough to produce the document of Power of Attorney on record even when he
moved an application under Order 41 Rule 27 of the Code of Civil Procedure before the appellate
Court, how could it be said that the fraud was played by the respondent No.1. That apart, the Power
of Attorney as has been placed on record does not authorises in any specific words the respondent
No.2 to execute the sale deed or even a sale agreement of the property in suit, belonging to
respondent No.1, by her, as the entire Power of Attorney deals with development of the plot, its
protection and subsequently getting a construction done. If that was the intention of the original
owner of the land, how could the word disposal used in the Power of Attorney in question could be
termed as authorising the respondent No.2 to do away the property of the respondent N.1 by putting
it on sale. This being so, the entire claim made by the appellant is totally misconceived and baseless.
Even if such a Power of Attorney would have been tested at that time when the first suit was
pending, in the considered opinion of this Court, no other finding could have been recorded except
the one which is recorded by this Court in this Judgment.
11 : Learned senior counsel appearing for the respondent has, vehemently, contended that the law is
well settled in various cases decided by the Apex Court with respect to the application of principle of
res judicata, reagitating the litigation after a decision and stated that all those situations have been
examined by the Apex Court in the case of Vishnu Dutt Sharma Vs. Daya Sapra [(2009) 13 SCC 729].
It is also contended by learned senior counsel for respondents that what is being stated by the
appellant is that such a Power of Attorney was proved from the statement of the employee of the
Bhopal Development Authority, recorded in a criminal proceeding. It is contended that in view of
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the law laid down by the Apex Court in the case of Vishnu Datt Sharma (supra), the findings in a
criminal proceedings by no stretch of imagination would be binding in a Civil Proceedings and as
there were no statement of any witness to prove existence of such a Power of Attorney, it was rightly
held by the lower Court that the appellant had not made out his case for grant of a decree as
claimed. It is contended by learned senior counsel for the respondent that the trial Court has
categorically recorded that opportunity was available to the appellant to prove that such a Power of
Attorney was in existence, but when his application for calling the record was rejected by the trial
Court, no attempts were made by him to challenge such an order. In view of this, it is contended that
the appeal preferred by the appellant is liable to be dismissed. Relying on the decision of the Apex
Court in the case of M. Nagabhushana V. State of Karnataka and others [(2011) 3 SCC 408], learned
senior counsel for the respondents has contended that since the finality was already obtained in
such a claim upto the Apex Court, reagitating the same was not permissible in view of the specific
provisions made in Explanation IV as contained in Section 11 of the Code of Civil Procedure. It was
nothing but an abuse of the process of Court. Learned senior counsel for respondents has further
relied on certain decisions of the Madras High Court and has contended that these aspects have
categorically been found by the High Court that a practice of reagitating litigation is going on and
unsuccessful party always tries to reagitate the matter before the Court. To curtdail down such a
tenancy, it has become necessary for the Court to dismiss such litigation with heavy cost so that such
a practice may not be continued for long otherwise it will totally demolish the judicial system
prevalent in this country.
12 : It is to be seen that the Madras High Court has categorically found in its order in many ways and
many words that the unsuccessful person, were trying to approach the Court seeking the same relief
which was earlier denied by the Court, on one pretext or another. Slightly change in the claims,
change of grounds or fishing out a ground is not to be permitted for reagitating the issue before the
Court. The Apex Court also considered these aspects in many cases. In the case of M. Nagabhushana
(supra) in paragraphs 13 to 18, the Apex Court has categorically recorded these reasons. For proper
appreciation, which according to this Court are some what similar circumstances in the present
appeal, the findings of the Apex Court are reproduced from paras 13 to 18 :-
"13. That principle of finality of litigation is based on high principle of public policy. In the absence
of such a principle great oppression might result under the colour and pretence of law inasmuch as
there will be no end of litigation and a rich and malicious litigant will succeed in infinitely vexing his
opponent by repetitive suits and actions. This may compel the weaker party to relinquish his right.
The doctrine of res judicata has been evolved to prevent such an anarchy. That is why it is perceived
that the plea of res judicata is not a technical doctrine but a fundamental principle which sustains
the rule of law in ensuring finality in litigation. This principle seeks to promote honesty and a fair
administration of justice and to prevent abuse in the matter of accessing court for agitating on issues
which have become final between the parties.
14. Tek Chand, J. delivering the unanimous Full Bench decision in Lachhmi V. Bhulli traced the
history of this doctrine both in Hindu and Mohammedan jurisprudence as follows : (ILR
pp.391-92).
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"In the Maitakshra (Book II, Chapter I, Section V, verse 5) one of the four kinds of effective answers
to a suit is 'a plea by former Judgment' and in verse 10, Katyayana is quoted as laying down that 'one
against whom a Judgment had formerly been given, if he brings forward the matter again, must be
answered by a plea of purva nyaya or former Judgment' (Macnaughten and Colebrooke's
translation, p.22). The doctrine, however, seems to have been recognised much earlier in Hindu
jurisprudence, judging from the fact that both Smriti Chandrika (Mysore Edn., pp.97-98) and
Virmitrodaya (Vidya- Sagar Edn., p.77) base the defence of prang nyaya (former decision) on the
following text of the ancient law-giver Harita, who is believed by some Orientalists to have
flourished in the 9th century BC and whose Smriti is now extant only in fragments-
'The plaintiff should be non-suited if the defendant avers: "in this very affair, there was litigation
between him and myself previously", and it is found that the plaintiff had lost his case.' There are
texts of Prasara (Bengal Asiatic Society Edn., p.56) and of Mayukha (Kane's Edn., p.15) to the same
effect.
Among Muhammadan law-givers similar effect was given to the plea of 'Niza-i-munfasla' or 'Amar
Mania taqrir mukhalif'. Under Roman Law, as administered by the Proetors' courts, a defendant
could repel the plaintiff's claim by means of exceptio rei judicatoe or plea of former Judgment. The
subject received considerable attention at the hands of Roman jurists and as stated in Roby' Roman
Private Law (Vol. II, p.338) the general principle recognised was that 'one suit and one decision was
enough for any single dispute' and that 'a matter once brought to trial should not be tried except, of
course, by way of appeal."
15. The learned Judge in Bhulli case also noted that in British India the rule of res judicata was first
introduced by Section 16 of Bengal Regulation 3 of 1773 which prohibited the Zila and City Courts
from entertaining any cause which, from the production of a former decree or the record of the
court, appears to have been heard and determined by any Judge or any Superintendent of a court
having competent jurisdiction. The learned Judge found that the earliest legislative attempt at
codification of the law on the subject was made in 1859, when the first Civil Procedure Code was
enacted, whereunder Section 2 of the Code barred every court from taking cognizance of suits which,
on the same cause of action, have been heard and determined by a Court of competent jurisdiction.
The learned Judge opined, and in our view rightly, that this was partial recognition of the English
rule insofar as it embodied the principles relating to estoppel by Judgment or estoppel by record.
Thereafter, when the Code was again revised in 1877, the operation of the rule was extended in
Section 13 and the bar was no longer confined to the retrial of a dispute relating to the same cause of
action but the prohibition was extended against reagitating an issue, which had been heard and
finally decided between the same parties in a former suit by a competent court. The learned Judge
also noted that before the principle assumed its present form in Section 11 of the Code of 1908, the
section was expanded twice. However, the learned Judge noted that Section 11 is not exhaustive of
the laws on the subject.
16. It is nobody's case that the appellant did not know the contents of the FWA. From this it follows
that it was open to the appellant to question, in the previous proceeding filed by it, that his land
Harjas Rai Makhija vs Smt. Pushparani Jain on 3 April, 2012
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10
which was acquired was not included in the FWA. No reasonable explanation was offered by the
appellant to indicate why he had not raised this issue. Therefore, in our Judgment, such an issue
cannot be raised in this proceeding in view of the doctrine of constructive res judicata.
17. It may be noted in this context that while applying the principles of res judicata the court should
not be hampered by any technical rules of interpretation. It has been very categorically opined by Sir
Lawrence Jenkins that :
"... the application of the rule by courts in India should be influenced by no technical considerations
of form, but by matter of substance within the limits allowed by law."
18. Therefore, any proceeding which has been initiated in breach of the principle of res judicata is
prima facie a proceeding which has been initiated in abuse of the process of court."
13 : In view of these pronouncement and factual scenario which have come on record as indicated
hereinabove, keeping in view the conduct of appellant himself, this Court is left with no option, but
to dismiss this appeal with costs. Consequently, the appeal is dismissed. The appellant will bear his
own cost and the cost of respondent No.1 throughout. Counsels fee is quantified at Rs.25,000/-
(Rupees Twenty Five Thousand), if precertified.
(K.K.Trivedi) Judge /04/2012 A.Praj.
HIGH COURT OF MADHYA PRADESH AT JABALPUR First Appeal No.961/2010 Harjas Rai
Makhija
-Versus-
Smt. Pushparani Jain and another.
                         O R D E R
                        ( .4.2012)
Post it for       /4/2012
                                     (K. K.Trivedi)
                                           Judge
                                         /04/2012
Harjas Rai Makhija vs Smt. Pushparani Jain on 3 April, 2012
Indian Kanoon - http://indiankanoon.org/doc/122012865/
11