Case: Mst. Gulab Bai Vs. Manphool Bai

Gajendragadker, J. 1. This appeal by a certificate given by the Rajasthan High Court arises from a suit filed by the respondent Mst. Manphool Bai against appellant 2 Ladu Ram for the recovery of the arrears of rent and for ejectment. To this suit the respondent joined appellant 1 her mother in-law Gulab Bai as a pro forma defendant. The property in question is a shop situated in the Johri Bazar at Jaipur. This property originally belonged to Chhogalal, and after him it devolved on his adopted son Phool Chand. The case for the respondent is that her husband Lal Chand had been adopted by appellant 1 after the death of her husband Phool Chand. Appellant 2 had executed a rent note (Ex. 24) in favour of Lal Chand in Samvat Year 1939. On Lal Chands death the respondent held the property as his widow and as such she served a notice on appellant 2 on May 31, 1938, calling upon him to pay the arrears of rent due from him and asking him to vacate the shop (Ex. 16). It appears that soon thereafter on August 27, 1938, appellant 2 executed a rent note in favour of the respondent (Ex. 21) but apparently appellant 2 failed to pay the rent regularly and so on January 17, 1939, the respondent had to sue appellant 2 for arrears of rent due and for ejectment. This suit was filed in the Court of Munsiff, East Jaipur. The amount due by way of arrears which was claimed in that suit was Rs. 700/. Appellant 2 resisted the said claim made by the respondent mainly on the ground that the rent note on which the suit was based had been executed by appellant 2 in favour at the respondent an her mother-in-law and that the suit was defective for want of a necessary party inasmuch as the mother-in-law had not been joined to it. Appellant 2 claimed that the respondent, acting by herself, was not entitled to claim either the arrears or to ask for ejectment. Incidentally be pleaded that the rent in question had been paid by him to the respondents mother-in-law Gulab Bai. This litigation went up to the Jaipur Chief Court in second appeal. All the Courts upheld the principal plea raised by appellant 2 that Gulab Bai was a necessary party to the suit, and so on the preliminary ground that for non-joinder of the necessary party the suit was defective the claim made by the respondent was rejected. The decision of the Chief Court was pronounced on May 26, 1941. It was under these circumstances that the respondent filed the present suit on November 15, 1943, in the Court of Civil Judge, Sawai Jaipur, claiming to recover Rs. 2,400 /- as arrears from appellant 2 and asking for his ejectment from the suit premises; and as we have already stated the respondent impleaded appellant 1 as a pro forma defendant to this suit. 2. Several pleas were raised by appellant 2 against the claim made by the respondent. In the present appeal, however, we are concerned only with two of these pleas. It was urged by appellant 2 that the present suit was barred by res judicata and so since appellant 1 had not joined the respondent in making the claim the suit was incompetent. It was also urged in the alternative that on the merits it should he held that the rent note had been executed by appellant 2 in favour of two lessors, appellant 1 and the respondent. The trial Court rejected these pleas and passed a decree in favour of the respondent and against both the appellants for Rs. 1,800/-. It also directed appellant 2 to vacate the premises by the end of March, 1948, failing which the respondent was given a right to execute the decree against him. Against this decree both the appellants preferred an appeal in the Court of the District Judge. The learned District Judge held that the respondents suit was barred by res judicata and so he allowed the appeal and dismissed the respondents suit. Then the matter reached the Rajasthan High Court at the instance of the respondent in second appeal. The High Court has reversed the conclusion of the District Court on the question of res judicata and has held that the present suit was not barred by res judicata. On the construction of the rent note the High Court has held that the rent note on which the suit is based was passed by appellant 2 in favour of the respondents and that the reference the name of appellant 1 in the said rent note does not constitution her into a co-lessor with the respondent. On these findings decree passed by the District Court has been reversed and that of the trial Court has been restored. The appellants then moved the Rajasthan High Court for a certificate and a certificate has been granted to them principally on the ground that the question of res judicata which the appellants seek to raise of a question of general importance. It is with this certificate that the appellants have come to this Court by their present appeal. 3. Pending the appeal appellant 1 Gulab Bai died on April 19, 1959. Thereupon an application was made by appellant 2 and Dhan Kumar who claims to have been adopted by Gulab Bai in her lifetime applied for a certificate declaring that Dhan Kumar was the heir and legal representative of appellant 1. The High Court refused to grant the certificate on the ground that the deceased appellant 1 was merely a pro forma defendant to the suit and since no relief had been claimed against her the High Court thought that her death did not cause any defect in the record in the appeal preferred to this Court and all that was needed to be done was to remove her name from the cause title. The High Court also held that Dhan Kumar may seek his remedy by a proper suit if he so desired. Dhan Kumar and appellant 2 then applied to this Court (Civil Miscellaneous Petition No. 267 of 1961) for substitution of Dhan Kumar in the place of deceased appellant 1. The respondent objects to the introduction of the name of Dhan Kumar on the record in place of the deceased appellant 1. It is urged on her behalf that Gulab Bai had no authority to make an adoption and in fact had made no adopted as alleged by Dhan Kumar. In ordinary course we might have called for finding on issues arising between to parties on his application, but since the matter is very old we do not wish to give it a further lease of life by adopting that course. We have, therefore, allowed Dhan Kumar to join the present proceedings without deciding the question as to the factum or validity of his alleged adoption. We may also add that the question about the factum and validity of the adoption of the respondents husband Lal Chand was also put in issue in the Courts below and in fact the District Court had made a finding against Lal Chands adoption. The High Court thought it unnecessary to decide this matter. Thus there is a dispute between Dhan Kumar and the respondent on two grounds : Dhan Kumar seeks to challenge the factum and validity of Lal Chands adoption, whereas the respondent seeks to challenge the factum and validity of Dhan Kumars adoption. Both these points have not been considered by us, and so the parties would be at liberty to agitate them in proper proceedings if they are so advised. In the present appeal we propose to consider only two points, one of res judicata and the other about the construction of the rent note. 4. The decision of the question of res judicata lies within a very narrow compass. The relevant facts necessary decide that point are not in dispute if is clear that in the earlier litigation it was held by the Jaipur Chief Court that the rent note in question had been executed in favour of both appellant 1 and the respondent and both necessarily meant that appellant 2 was a tenant of the two co-lessors. It was also held that the respondent acting by herself if alone was not entitled to claim arrears of rent or to ask for ejectment, so that if the decision of the said issue can operate as res judicata the present suit would be clearly barred. On the other hand it is conceded by the appellants that the Munsiff who tried the earlier suit was not competent to try the present suit having regard to the limits of his pecuniary jurisdiction, and so one of the conditions prescribed by S. 11 of the Code of Civil Procedure is absent. Section 11 requires inter alia that the prior decision of the material issue should have been given by a court competent to try the subsequent suit, and that is the basis on which the respondent has successfully urged before the High Court that the plea of res judicata cannot be sustained. It has been urged before us by Mr. Rameshwar Nath that in construing the material clause in S. 11 the High Court was in error in putting a literal construction on the words subsequent suit. The High Court should have construed the said words liberally and should have held that the word suit includes even a part of a suit. If this contention is right then the relevant issue decided in the earlier litigation would be a part of the subsequent suit, and since the Munsiff who tried the earlier suit was competent to try this part of the subsequent suit the requisite condition is a satisfied and the suit is thus barred by res judicata. Thus the narrow question which calls for our decision is whether the word suit in the context can be liberally construed to mean even a part of the suit. 5. Let us first read S. 11, which runs thus: No Court shall try any suit or issue in which the matter directly and substantially in issue has been directly and substantially in issue in a former suit between the same parties, or between parties under whom they or any of them claim, litigating under the same title, in a Court competent to try such subsequent suit or the suit in which such issue has been subsequently raised, and has been heard and finally decided by such Court. The appellants argument is that in construing the clause in a Court competent to try such subsequent suit or the suit in which such issue has been subsequently raised it would be relevant to remember that this clause is really intended to emphasise the consideration that the Court which tried the earlier suit and the Court in which the subsequent suit is filed should be Courts of concurrent jurisdiction; and the concurrence of jurisdiction should be tested by reference to the matter in issue which has been tried in the earlier suit and which also falls to be decided in the subsequent suit. In support of this argument reliance has been placed on the classical statement of the general principle of res judicata enunciated in the Duchess of Kingston s case, 2 Sm L C (13th Ed.). 644 (645). In that case it was observed that from the variety of cases relative to judgments being given in evidence in civil suits, these two deductions seem to follow as generally true : First, that the judgment of a Court of concurrent jurisdiction, directly upon the point, is as a plea, a bar, or as evidence, conclusive between the same parties, upon the same matter, directly in question, in another Court; secondly, that the judgment of a Court of exclusive jurisdiction, directly upon the point, is in like manner conclusive upon the same matter, between the same parties, coming incidentally in question in another Court for a different purpose. The basis of the rule of res judicata is that an individual should not be vexed twice for the same cause, and the liberal construction of the word suit would be consistent with this basis; otherwise if the competence of the earlier Court is going to be judged by reference to its competence to try the entire suit as subsequently instituted, in many cases where the matter directly and substantially in issue has been tried between the parties by the earlier Court it may have to be tried again in a subsequent suit because the earlier Court had no jurisdiction to try the subsequent suit having regard to its pecuniary jurisdiction. That, it is urged, would be anomalous and inconsistent with the principle underlying the doctrine of res judicata. 6. The word suit has not been defined in the Code;but there can be little doubt that in the context the plain and grammatical meaning at the word would include the whole of the suit and not a part of the suit, so that giving the word suit its ordinary meaning it would be difficult to accept the argument that a part of the suit or an issue in a suit is intended to be covered by the said word in the material clause.The argument that there should be finality of decisions and that a person should not be vexed twice over with the same cause can have no material bearing on the construction of the word suit. Besides, if considerations of anomaly are relevant it may be urged in support of the literal construction of the word suit that the finding recorded on a material issue by the Court of the lowest jurisdiction is intended not to bar the trial of the same issue in a subsequent suit filed before a Court of unlimited jurisdiction. To hold otherwise would itself introduce another kind of anomaly. Therefore, it seems to us that as a matter of construction the suggestion that the word suit should be liberally construed cannot be accepted. This position would be abundantly clear if we consider the legislative history and background of S. 11. 7. In that connection it would be relevant to cite the material provisions in regard to res judicata contained in the earlier Codes. Section 2 which dealt with res judicata in the Code of 1859 (Act VIII of 1859) read thus : The Civil Courts shall not take cognisance of any suit brought on a cause of action which shall have been heard and determined by a Court of competent jurisdiction in a former suit between the same parties or between parties under whom they claim. 8. In the Code of 1877 (Act X of 1877), S. 13 provided that - no Court shall try any suit or issue in which the matter directly and substantially in issue has been heard and finally decided by a Court of competent jurisdiction, in a former suit between the same parties, or between parties under whom they or any of them claim, litigating under the same title. 9. Then followed the Code of 1882 (Act XIV of 1882) in which S.13 dealt with the principle of res judicata. Section is is substantially in the same terms as S. 11 of the present Code of 1908 (Act V of 1908). 10. The question about the construction of the word competent jurisdiction occurring in S. 2 of the Code of 1859 as well as S. 13 of the Code of 1877 fell to be considered in Misir Raghobardial v. Sheo Baksh Singh, ILR 9 Cal 439 : 9 Ind App 197 (PC). In that case the Privy Council took the view that the expression competent jurisdiction must be taken to mean competent jurisdiction as regards the pecuniary limit as well as the subject-matter, and they pointed out that if the pecuniary limit of jurisdiction was ignored it would lead to the anomalous consequence that the decision of a Munsiff upon (for instance) the validity of a Will, or of an adoption, in a suit for a small portion of the property affected by it, should be conclusive in a suit before a District Judge or in the High Court, for property of a large amount, the title to which might depend upon the will or the adoption. The judgment further pointed out that in India there are a large number of Courts, and the one main feature in the Act constituting them is that they are of various grades wit different pecuniary limits of jurisdiction; and that by the Code of Procedure a suit must be instituted in the Court of the lowest grade competent to try it. That being so, unless the concept of competent jurisdiction included considerations of pecuniary jurisdiction of the Court it would inevitably mean that a finding recorded by a Court of the lowest pecuniary jurisdiction on an issue arising in a suit before it would bind the parties in a subsequent suit where the claim involved may be very much higher. It would thus be seen that in dealing with S. 2 of the Code of 1859 the Privy Council introduced the notion of concurrent jurisdiction though the words used in the section were a Court of competent jurisdiction, and, it was held that the jurisdiction must be concurrent as regards the pecuniary limit as well as the subject matter. This decision proceeded on the assumption that in order to make the decision of one Court final and conclusive in another Court, it trust be a decision of a Court which would have had jurisdiction over the matter in the subsequent suit in which the first decision is given in evidence as con- clusive (vide : Mst. Edna v. Mst. Bechun, 8 Suth W R 175.) 11. Having thus, interpreted the expression competent jurisdiction the Privy Council proceeded to consider whether any change in the law was intended to be elected by S. 13 of the Code of 1877; and they observed that the intention of the said section seems to have been to embody in the Code of Procedure by Ss.12 and 13 the law then in force in India instead of the imperfect provision in S. 2 of the Code of 1850, and they added that as the words in the section do not clearly show an intention to alter the law their Lordships do not think it right to put a construction upon them which would cause an alteration. It would thus be seen that this decision is an authority for the proposition that the rule of res judicata as interpreted even under the Code of 1877 was held to be the same as it obtained under the Code of 1859 as interpreted by the Privy Council in the light of the general considerations as to res judicata, enunciated in the case of Duchess of Kingston, 2 Sm L C (13th Ed) 644. 12. This position has been clearly stated in another decision of the Privy Council in Gokul Mandar v. Pudmanund Singh, ILR 29 Cal 707. On this occasion the Privy Council had to consider the effect of S.13 of the Code of 1882. The argument which was urged before the Privy Council on S.13 was that a decree in a previous suit cannot be pleaded as res judicata in a subsequent suit unless the judge by whom it was made had jurisdiction to try and decide not only the particular matter in issue but also the subsequent suit itself in which the issue is subsequently raised, and in upholding this argument their Lordships observed that in this respect the enactment goes beyond S. 13 of the previous Act X of 1877, and also, as appears to their Lordships, beyond the law laid down by the judges in the Duchess of Kingstons case, 2 Sen LC (13th Ed) 644. In other words, this decision would show that even though in the earlier Codes there may have been some doubt about the test of competent jurisdiction which has to be applied to the Court which tried the earlier suit, the position under the Code of 1882 is absolutely clear. The question to he asked under S. 13 of the said Code is could the Court which tried the earlier suit have tried the subsequent suit if it had been then filed ?In other words, it is the whole of the suit which should he within the competence of the Court at the earlier time and not a part of it. Having regard to this legislative background of S. 11 we feel no hesitation in holding that the word suit in the context must be construed literally and it denotes the whole of the suit and not a part of it or a material issue arising in it. 13. Several decisions have been cited before us where this question has been considered. We do not think any useful purpose would be served by referring to them. It may be enough to state that in a large majority of decisions the word suit has been literally construed (vide: Ram Dayal v. Jankidas, ILR 24 Bom 466 and Shibu Rout v. Baban Rout, ILR 35 Cal 353, though in some cases and under special circumstances a liberal construction has been accepted (vide: Sheikh Maqsood Ali v. H. Hunter, AIR 1943 Oudh 338 (FB). We must accordingly hold that the High Court was right in coming to the conclusion that the present suit is not barred by res judicata. 14. That takes us to the question of the construction of the rent note. The High Court has held that on a fair and reasonable construction of the document it must be held that the rent note has been passed by appellant 2 in favour of the respondent alone though incidentally out of respect the name of appellant 1 has been introduced in it. In our opinion this conclusion is right. It is true that the rent note has been executed in favour of both appellant 1 and the respondent; but it is significant that the rent note stipulates that when the rent is paid by appellant 2 he has to obtain a receipt from the owner. The word owner is used in singular and not plural and that indicates that the rent note proceeded on the assumption that the property which was the subject-matter of the rent note belonged to one owner and not two. There is another clause in the rent note which is clearer still. This clause reads : therefore, I have executed in my proper senses this rent note on a stamped paper valued Rs. 6/- in the names of each of the two, mother-in-law and the daughter in-law, Sethanji Gulab Bai widow of Phoolchandji in the capacity of being elder in the family and Sethanji Manphool Bai alias Bhanwar Bai widow of Lalchandji the heir in the family and the owner of the property, which will stand and may be used in times of need. This clause makes it perfectly clear that the inclusion of the name of appellant 1 was merely formal and it was intended to show respect to the elderly lady in the family. It also shows that the respondent was treated as the owner of the property as the heir of her deceased husband Lal Chand. Reading this clause together with the earlier clause as to the receipt for the payment of rent which we have already considered it is absolutely clear that the name of appellant 1 was not included in the rent note because she had any right to the property let out but solely as a matter of respect which the respondent showed to appellant 1. Threfore, in our opinion, the contention that the rent note has been passed by appellant 2 in favour of the respondent and appellant 1 cannot be sustained. If that be the true position there call be no doubt whatever that appellant 2 is precluded from disputing the title of the respondent in the present proceedings. As the High Court has pointed out the sequence of events leading to the execution of the suit rent note unambiguously shows that appellant 2 has recognised the respondent as the lessor and as such the principles of S. 116 of the Evidence Act clearly apply.

Decision:
0[ds]In ordinary course we might have called for finding on issues arising between to parties on his application, but since the matter is very old we do not wish to give it a further lease of life by adopting that course. We have, therefore, allowed Dhan Kumar to join the present proceedings without deciding the question as to the factum or validity of his alleged adoption. We may also add that the question about the factum and validity of the adoption of the respondents husband Lal Chand was also put in issue in the Courts below and in fact the District Court had made a finding against Lal Chands adoption. The High Court thought it unnecessary to decide this matter. Thus there is a dispute between Dhan Kumar and the respondent on two grounds : Dhan Kumar seeks to challenge the factum and validity of Lal Chands adoption, whereas the respondent seeks to challenge the factum and validity of Dhan Kumars adoption. Both these points have not been considered by us, and so the parties would be at liberty to agitate them in proper proceedings if they are so advised. In the present appeal we propose to consider only two points, one of res judicata and the other about the construction of the rent noteIf this contention is right then the relevant issue decided in the earlier litigation would be a part of the subsequent suit, and since the Munsiff who tried the earlier suit was competent to try this part of the subsequent suit the requisite condition is a satisfied and the suit is thus barred by res judicataThe basis of the rule of res judicata is that an individual should not be vexed twice for the same cause, and the liberal construction of the word suit would be consistent with this basis; otherwise if the competence of the earlier Court is going to be judged by reference to its competence to try the entire suit as subsequently instituted, in many cases where the matter directly and substantially in issue has been tried between the parties by the earlier Court it may have to be tried again in a subsequent suit because the earlier Court had no jurisdiction to try the subsequent suit having regard to its pecuniary jurisdiction. That, it is urged, would be anomalous and inconsistent with the principle underlying the doctrine of res judicataBesides, if considerations of anomaly are relevant it may be urged in support of the literal construction of the word suit that the finding recorded on a material issue by the Court of the lowest jurisdiction is intended not to bar the trial of the same issue in a subsequent suit filed before a Court of unlimited jurisdiction. To hold otherwise would itself introduce another kind of anomaly. Therefore, it seems to us that as a matter of construction the suggestion that the word suit should be liberally construed cannot be acceptedIt would thus be seen that in dealing with S. 2 of the Code of 1859 the Privy Council introduced the notion of concurrent jurisdiction though the words used in the section were a Court of competent jurisdiction, and, it was held that the jurisdiction must be concurrent as regards the pecuniary limit as well as the subject matter. This decision proceeded on the assumption that in order to make the decision of one Court final and conclusive in another Court, it trust be a decision of a Court which would have had jurisdiction over the matter in the subsequent suit in which the first decision is given in evidence as con- clusiveIn other words, this decision would show that even though in the earlier Codes there may have been some doubt about the test of competent jurisdiction which has to be applied to the Court which tried the earlier suit, the position under the Code of 1882 is absolutely clearIn other words, it is the whole of the suit which should he within the competence of the Court at the earlier time and not a part of it. Having regard to this legislative background of S. 11 we feel no hesitation in holding that the word suit in the context must be construed literally and it denotes the whole of the suit and not a part of it or a material issue arising in itWe do not think any useful purpose would be served by referring to them. It may be enough to state that in a large majority of decisions the word suit has been literally construedthough in some cases and under special circumstances a liberal construction has been. We must accordingly hold that the High Court was right in coming to the conclusion that the present suit is not barred by res judicataThe High Court has held that on a fair and reasonable construction of the document it must be held that the rent note has been passed by appellant 2 in favour of the respondent alone though incidentally out of respect the name of appellant 1 has been introduced in it. In our opinion this conclusion is right. It is true that the rent note has been executed in favour of both appellant 1 and the respondent; but it is significant that the rent note stipulates that when the rent is paid by appellant 2 he has to obtain a receipt from the owner. The word owner is used in singular and not plural and that indicates that the rent note proceeded on the assumption that the property which was the subject-matter of the rent note belonged to one owner and not two. There is another clause in the rent note which is clearer stillThis clause makes it perfectly clear that the inclusion of the name of appellant 1 was merely formal and it was intended to show respect to the elderly lady in the family. It also shows that the respondent was treated as the owner of the property as the heir of her deceased husband Lal Chand. Reading this clause together with the earlier clause as to the receipt for the payment of rent which we have already considered it is absolutely clear that the name of appellant 1 was not included in the rent note because she had any right to the property let out but solely as a matter of respect which the respondent showed to appellant 1. Threfore, in our opinion, the contention that the rent note has been passed by appellant 2 in favour of the respondent and appellant 1 cannot be sustained. If that be the true position there call be no doubt whatever that appellant 2 is precluded from disputing the title of the respondent in the present proceedings. As the High Court has pointed out the sequence of events leading to the execution of the suit rent note unambiguously shows that appellant 2 has recognised the respondent as the lessor and as such the principles of S. 116 of the Evidence Act clearly apply.