IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA. C. Revision No. 8/2010 Reserved on : 6.7.2010 Decided on:30.7. 2010. Smt. Fatma. ...Petitioner. Versus Omi and others. ... Respondents. Coram The Hon’ble Mr. Justice Rajiv Sharma, Judge. Whether approved for reporting?1 Yes. For the Petitioner : Mr. Bimal Gupta, Advocate. For the Respondents:Mr. Ashok Kumar Tyagi, Advocate for respondent No.1. Mr. Karan Singh Kanwar, Advocate for respondents No. 2 to 4. Justice Rajiv Sharma, Judge. This revision petition has been preferred by the petitioner-plaintiff (hereinafter referred to as ‘the plaintiff’ for convenience sake) against the order dated 12.11.2009 passed by the learned Senior Civil Judge (Senior Division), Poanta Sahib, District Sirmaur in application CMA No. 275/6 of 2009 in civil suit No. 3/1 of 2008 under order 14 rule 5 of the Code of Civil Procedure. Material facts necessary for the adjudication of this petition are that the plaintiff instituted a suit No. 87/1 of 2004 on 3.9.2004 for specific performance of agreement dated 25.6.2003 against defendant- respondent No.1 (hereinafter referred to as ‘defendant No.1’ for Whether the reporters of the local papers may be allowed to see the Judgment? Yes. 2 convenience sake) in respect of land comprised in Khata Khatauni No. 113/209min, Khasra No. 185/1 situated at Mauza Amboya Tehsil Paonta Sahib, District Sirmaur. The agreement was attested by the Public Notary on 25.6.2003. Defendant No.1 received a sum of Rs. 33,500, as part payment, out of the sale consideration. Defendant No.1 has agreed to execute the sale deed in favour of the plaintiff within two months after the redemption of the suit land since the defendant No.1 has mortgaged the same with Sehkari Sabha Daghali for Rs. 11,000/-. The suit was contested by defendant No.1. He had denied the execution of agreement and it was specifically averred that if signatures were found on any paper, the same were result of fraud and undue influence. The learned trial court framed the following issues in civil suit No. 87/1 of 2004: 1. “Whether the defendant has executed an agreement to sell in favour of the plaintiff as alleged? OPP. 2. Whether in pursuance of the agreement, if proved while deciding issue No.1, plaintiff paid Rs. 33,500/- to the defendant on the same day? OPP 3. If both these issues are held in affirmative, whether the plaintiff is entitled to decree of specific performance as prayed for? OPP 4. Whether the suit is not maintainable? OPP 5. Whether the plaintiff has no cause of action? OPD 6. Relief.” Issues No.1 and 2 were decided in favour of the plaintiff by holding that the agreement to sell was duly executed by defendant No.1 in favour of the plaintiff and while deciding issue No.2, the trial court held that the payment of Rs. 33,500/- to defendant No.1 stood proved. However, as far as issues No. 3 and 5 are concerned, those were taken up together and the trial court observed that once defendant redeems the land and did not execute the sale in favour of the plaintiff, the cause 3 of action shall accrue in favour of the plaintiff even if sale deed was executed in favour of 3rd person within a period of two months. It was further held that cause of action shall accrue to plaintiff to specifically enforce the agreement and the third party can be arrayed as party, who had to prove that he was bonafide purchaser. The trial court held on the basis of issues No.3 and 5 that no cause of action has accrued to the plaintiff nor she was entitled to decree of specific performance as prayed for. In other words, the suit of the plaintiff bearing No. 87/1 of 2004 was found to be pre-mature. Defendant No.1 redeemed the land on 28.10.2006 vide Rapat No. 98 and the suit was decided on 20.2.2006. Thereafter defendant No.1 executed and registered sale deed No. 1583 on 30.10.2006 in favour of defendant No.2 in respect of Khasra No. 185/1, 222/5 and 286/1 kita 3 measuring 2-0 bighas. He also executed and registered sale deed No. 749 in favour of defendants No. 3 and 4 in respect of Khasra No. 185/1, 222/5 and 286/1 kita 3 measuring 0-5 bighas. Defendant No.2 executed and registered sale deed No. 750 in favour of defendant No.3 and 4 on 19.6.2007. It is in these circumstances that the plaintiff instituted civil suit No. 3/1 of 2008 for the following relief: “It is therefore, prayed that a decree of Specific Performance under section 10 of the Specific Relief Act, 1963, of the Agreement dated 25th June 2003, directing the defendant No.1 to execute and register the Sale Deed of the land measuring 2-5 bighas, comprised in Khata Khatauni No. 113/209min, bearing khasra No. 185/1, situated at Mauza Amboya, Teh. Paonta Sahib, Distt. Sirmour (H.P.), in favour of the plaintiff and decree of Declaration to the effect that Sale Deed No. 1583 Dt. 30.10.2006, executed by defendant No.1 in favour of defendant No.2, Sale Deed No. 749 Dt. 19.6.2007, executed by defendant No.1 in favour of defendants No.3 & 4 and Sale Deed No. 750 Dt. 19.6.2007, executed by defendant No.2 in favour of defendant No.3 and 4, are illegal, null, void and inoperative on the rights of the plaintiff, 4 to extent of 1 Bigha 3 Biswas 10 Biswansis (i.e. 1-3-10 Bighas), comprised in Khasra No. 185/1, executed by all the respective Vendors of all the three Sale Deeds in question, during the subsistence of Agreement Dt. 25th June 2003, executed by defendant No.1 in favour of the plaintiff and also in violation of the terms and conditions of the said Agreement, with the consequential relief of decree of permanent injunction restraining the defendants No.3 and 4 for further alienating the suit land in favour of any other person (s), themselves or through their agents or attorneys or legal representatives, along with the costs of the suit, may kindly be passed in favour of the plaintiff and or any other relief, which this Ld. Court deems fit, may also be granted in favour of plaintiff and against the defendants, jointly or severally, in the interest of justice.” The suit was contested by the defendants No. 1 to 4. Defendant No.1 has filed separate written statement and defendants No. 2 to 4 filed separate written statement. The plaintiff filed replications to the written statement filed by defendant No.1 as well as to written statement filed by defendants No. 2 to 4. The trial court on 6.9.2008 framed the following issues: 1. “Whether the defendant No.1 agreed to sell the suit land to the plaintiff for a sale consideration of Rs. 34,500/- and executed the agreement for sale on 25.6.2003 in favour of the plaintiff as alleged? …OPP 2. Whether the plaintiff paid Rs. 33,500/- as earnest money to defendant No.1 on 26.6.2003, as alleged? ...OPP 3. Whether the defendant No.1 agreed to execute the sale deed in favour of plaintiff after getting the suit land redeemed from the Sehkari Sabha Dighali, as alleged? OPP. 4. If issues No.1 to 3 are proved in affirmative, whether the plaintiff is entitled to the relief of specific performance of contract on the basis of agreement, as prayed for? OPP. 5. Whether the sale deed No. 1583 dated 30.10.2006, sale deed No. 749 dated 19.6.2007 and sale deed No. 750 5 dated 19.6.2007 are illegal and not binding on the rights of the plaintiff, as alleged? …OPP 6. Whether the plaintiff is entitled for the relief of permanent injunction restraining the defendant No.3 and 4 for further alienating the suit land in favour of any other person, as alleged? …OPP 7. Whether the suit is not maintainable, as alleged? …OPD 1 to 4. 8. Whether the plaintiff has got no cause of action to file the present suit? …OPD 1 to 4. 9. Whether the defendant No.2 to 4 are bona fide purchasers of valuable consideration without notice of the agreement dated 25.6.2006, as alleged? OPD 2 to 4. The plaintiff filed an application under order 14 rule 5 of the Code of Civil Procedure for striking of issues No. 1 to 4 framed on the basis of proposed issues filed by defendants No. 2 to 4 and for framing of additional issues. The application was contested by defendants No.2 to 4. Trial Court dismissed the application vide order dated 12.11.2009. Hence, this present petition against the order dated 12.11.2009. Mr. Bimal Gupta has strenuously argued that the trial court has not taken taken into consideration the findings recorded by the learned Civil Judge (Junior Division) in civil suit No. 87/1 of 2004 decided on 10.2.2006. According to him, the findings recorded vide issues No. 1 and 2 constitute res judicata and the issues to this effect were required to be framed by the trial court in the present suit. He also contended that defendants No.2 to 4 are bound by the findings recorded in civil suit No. 87/1 of 2004. Mr. Karan Singh Kanwar has supported the impugned order dated 12.11.2009. According to him, defendants No.2 to 4 are not bound by the findings given by Civil Judge (Junior Division) in civil suit No. 87/1 of 2004 dated 10.2.2006. He also contended that since the 6 suit was found to be pre-mature, his clients could not assail the same in the Appellate Court. I have heard the learned counsel for the parties and have perused the pleadings carefully. What emerges from the facts enumerated hereinabove is that plaintiff had instituted civil suit No. 87/1 of 2004 against defendant No.1 for specific performance in the court of learned Civil Judge (Junior Division), Paonta Sahib. The learned Civil Judge (Junior Division) has answered issues No.1 and 2 in favour of the plaintiff. He has held that the plaintiff had led cogent and convincing evidence on record in order to prove agreement Ex.PW-3/A. He has also proved the payment of Rs. 33,500/- to defendant No.1. It is while determining issues No. 3 and 5, he has come to a conclusion that the suit was premature and the plaintiff had the opportunity to get the sale deed registered within two months after getting the suit land redeemed by defendant No.1. However, defendant No.1 got the land redeemed on 28.10.2006 vide rapat No. 98. He, as noticed above, executed and registered sale deeds in favour of defendants No.2 to 4 vide sale deed No. 1583 dated 30.10.2006, sale deed No. 749 dated 19.6.2007 and sale deed No. 750 dated 19.6.2007. The plaintiff has filed the present suit bearing No. 3/1 of 2008 for grant of decree for specific performance by declaring the sale deeds null and void and inoperative on the rights of the plaintiff with further prayer that the defendant No.1 be directed to execute and register sale deed of the land measuring 2-5 bighas on the basis of agreement dated 25.6.2003. Defendant No.1 and 2 to 4 have filed separate written statements to which replications stood filed by the plaintiff. The trial court has framed the issues as per order dated 6.9.2008 merely on the basis of the proposed issues filed by Sh. K.S. Chauhan, Advocate appearing on behalf of defendants No. 2 to 4. It is 7 apparent that neither plaintiff nor defendant No.1 has given the proposed issues. The issues are to be framed by the trial court on the basis of the pleadings as per order 15 rule 2 of the Code of Civil Procedure. It is admitted case that defendant No.1 has not assailed findings returned by the trial court on issues No.1 and 2 in civil suit No. 87/1 of 2004. The same have attained finality. The plaintiff was non- suited in civil suit No. 87/1 of 2004 only on the ground that the suit was premature and she will get opportunity to get the sale deed executed after two months after the redemption of the land by defendant No.1. The present application has only been contested by defendants No.2 to 4 to whom defendant No.1 has sold the land. The findings recorded by the learned Civil Judge (Senior Division) that the plaintiff was required to establish the necessary ingredients of specific performance in the case independent to the findings of earlier suit No. 87/1 of 2004 are erroneous. The plaintiff was not required to prove execution of agreement and part payment again in the present suit. The findings recorded in earlier civil suit No. 87/1 of 2004 to this extent are binding between the plaintiff and defendant No.1 and his successor-in-interest as well. Defendants No. 2 to 4 are protecting their rights to the extent that their predecessor-in-interest, i.e. defendant No.1 was bound even though earlier civil suit No. 87/1 of 2004 has been dismissed by the trial court. In fact, the plaintiff was really successful since material findings have been recorded by the trial court and merely the suit was dismissed on the ground of being pre- mature. Defendant No.1 has not assailed the findings recorded by the trial court in civil suit No. 87/1 of 2004. The Apex Court in Pawan Kumar Gupta versus Rochiram Nagdeo, (1999) 4 SCC 243 has held that the rule of res judicata is incorporated in section 11 of the Code of Civil Procedure. It is the 8 decision on an issue and not merely findings on any incidental question to reach such decision, which operates as res judicata. Their Lordships have further held that there was no hurdle in law for the defendant to file an appeal against the judgment and decree in that first suit as he still disputed those decisions on such contested issues. Their Lordships have held as under: “17. The rule of res judicata incorporated in section 11 of the Code of Civil Procedure (CPC) prohibits the court from trying an issue which “has been directly and substantially in issue in issue in a former suit between the same parties", and has been heard and finally decided by that court. It is the decision on an issue, and not a mere finding on any incidental question to reach such decision, which operates as res judicata. It is not correct to say that the party has no right of appeal against such a decision on an issue though the suit was ultimately recorded as dismissed. The decree was not in fact against the plaintiff in that first suit, but was in his favour as shown above. There was no hurdle in law for the defendant to file an appeal against the judgment and decree in that first suit as he still disputed those decisions on such contested issues. 19. Thus the sound legal position is this: If dismissal of the prior suit was on a ground affecting the maintainability of the suit any finding in the judgment adverse to the defendant would not operate as res judicata in a subsequent suit. But if dismissal of the suit was on account of extinguishment of the cause of action or any other similar cause a decision made in the suit on a vital issue involved therein would operate as res judicata in a subsequent suit between the same parties. It is for the defendant in such a suit to choose whether the judgment should be appealed against or not. If he does not choose to file the appeal he cannot thereby avert the bar of res judicata in the subsequent suit.” Their Lordships of the Hon’ble Supreme Court in Saroja versus Chinnusamy (dead) by LRs. and another, (2007) 8 SCC 329 have held that under section 11 of the Code of Civil Procedure in order to constitute res judicata, the following conditions must be satisfied: 9 “5. We have carefully examined the provisions under Section 11 of the CPC. After a careful reading of the provisions under Section 11 of the CPC, it is discernible that in order to constitute res judicata, the following conditions must be satisfied: (i) There must be two suits - one former suit and the other subsequent suit; (ii) The Court which decided the former suit must be competent to try the subsequent suit; (iii) The matter directly and substantially in issue must be the same either actually or constructively in both the suits. (iv) The matter directly and substantially in issue in the subsequent suit must have been heard and finally decided by the Court in the former suit; (v) The parties to the suits or the parties under whom they or any of them claim must be the same in both the suits; (vi) The parties in both the suits must have litigated under the same title. 17. Now let us deal with Condition No. (v) which says, "the parties to the suits or the parties under whom they or any of them claim must be the same in both the suits". It is true that the appellant was not a party to the suit filed by respondent No. 3 and others against Kuppusamy from whom the appellant had purchased the property by a registered deed of sale. In the present case, the appellant was litigating on the basis of the title acquired by her from Kuppusamy against whom the ex parte decree was passed in the former suit. Therefore, it would not be difficult for us to hold that the appellant, who although was not a party to the former suit, claimed through Kuppusamy in the suit subsequently filed by her. In the case of Ishwardas Vs. The State of Madhya Pradesh & Ors. [AIR 1979 SC 551], this Court held that in order to sustain the plea of res judicata, it is not necessary that all the parties to the two litigations must be common. All that is necessary is that the issue should be between the same parties or between parties under whom they or any of them claim". (Emphasis supplied). Therefore, Condition (v) is also satisfied. 18. Lastly, we deal with Condition No. (vi) which says, "the parties in both the suits must have litigated under the same title". We have to enquire whether the parties in the subsequent suit were litigating under the same title for the purpose of determining whether the ex parte decree passed in the former suit would operate as res judicata in the subsequent suit filed by the appellant. In our view, this condition is also fully satisfied. In this 10 connection, we may rely on a decision of this Court in the case of Aanaimuthu Thevar (Dead) by Lrs Vs. Alagammal & Ors. [ JT 2005 (6) SC 333]. In that case the former suit was jointly filed by one Muthuswami as owner and mortgagor with the mortgagee in respect of the suit property. The subsequent suit was filed by the appellant in that appeal who had purchased the suit property from Muthuswami. It was held by this Court that the appellant in that appeal was litigating under the same title which Muthuswami had in the suit property. In the background of such facts, this Court held that since the issue of title of the suit property was directly and substantially involved in the former suit, the suit filed by the appellant in that appeal shall operate as res judicata, or at least, the suit was hit by the principle of constructive res judicata. This being the position and in view of our discussions made hereinabove, we hold that by virtue of the ex parte decree passed in the former suit, the subsequent suit filed by the appellant is hit by res judicata.” Their Lordships have explained the expression party to suit or the party under whom they or any of them claim must be the same in both the suits and the parties in both the suits must have litigated under the same title. In the instant case also, the successor-in-interest is bound by the result of earlier suit, i.e. civil suit No. 87/1 of 2004 to the extent the predecessor-in-interest, i.e. defendant No.1 is bound. It is also settled law that all that is necessary is that the issue should be between the same parties or between parties under whom they or any of them claim in order to sustain the plea of res judicata. The primary purpose of order 14 rule 5 of the Code of Civil Procedure is to ensure determination of all the questions in controversy between the parties. This provision is intended to do justice between the parties by not leaving controversial point undecided or undetermined. Accordingly, in view of the observations made hereinabove, the present petition is allowed. Impugned order dated 12.11.2009 is set aside. The application CMA No. 275/6 0f 2009 is allowed. Trial Court 11 is directed to frame/reframe, add or delete issues as per the discussion made hereinabove. No costs. (Rajiv Sharma), Judge. 30.7. 2010. *awasthi*