RSA 183/2003 BEFORE THE HON’BLE MR JUSTICE IA ANSARI :: J U D G M E N T & O R D E R :: [ O R A L ] I have heard Mr. MH Rajbarbhuiyan, learned counsel for the appellants-pl aintiffs, and Ms. PK Deka, learned counsel, appearing on behalf of the responden ts-defendants. 2. By preferring this appeal, the plaintiffs-appellants have put to challen ge the judgment and decree, dated 24-02-2003 and 07-03-2003, respectively passed by the learned Civil Judge (Senior Division), Hailakandi, in Title Appeal No. 2 0 of 1995, dismissing the appeal and thereby upholding and affirming the judgmen t and decree, dated 27-06-1995 and 10-07-1995, respectively, whereby the learned Civil Judge (Junior Division) had dismissed the suit. 3. The case of the plaintiffs-appellants is, in brief, thus: On the request of the defendant-respondent No. 1, the predecessor-in-interest of the present a ppellants, namely, Sarada Mohan Das, had allowed the defendants to stay in a roo m on the western varanda of his house as monthly tenant. In the absence of plain tiff and his family members, the defendants trespassed into the main room of the house and when the wife of said Sarada Mohan Das asked the defendants to hand o ver the possession of the house, the defendants assaulted her, whereupon the sai d plaintiff lodged a criminal case against the defendants, but, later on, did no t pursue the case as the defendant No. 1 executed a deed of compromise stating t herein that he would vacate the house within 22-04-1987. However, the defendant No. 1 had failed to do so, the plaintiffs instituted a suit. The said suit gave rise to Title Suit No. 70 of 1987. In the suit, the defendants took the plea tha t they were in the occupation of the suit premises on the strength of an unregis tered lease deed, which was executed between the plaintiffs and the defendants. The suit was dismissed, on 25-03-1988, by the learned Munsiff No. 1, Hailakandi. A decree accordingly followed. The dismissal of the suit was challenged by the said plaintiff by way of an appeal, which gave rise to Title Appeal No. 08 of 19 88. The appeal too was dismissed by the judgment and decreed, dated 22-02-1989, passed by Assistant District Judge, Hailakandi. After the dismissal of the appea l, the said plaintiff against instituted the present suit seeking, inter alia, d eclaration that (i) the lease deed, mentioned in the 3rd Scheduled of the plaint , which was relied upon by the defendants in the former suit (i.e., Title Suit N o. 70 of 1987), was forged, fictitious and illegal and (ii) recovery of khas pos session of the 2nd Scheduled land and house standing thereon by vacating the def endants therefrom. 4. As indicated hereinabove, the present suit also failed and was dismissed by the learned trial Court and the decree has been upheld by the learned first appellate Court. 5. It is in the backdrop of the above facts that this Court is, now, requir ed to determine if there is any substantial question of law raised for determina tion by the appellants in this second appeal. 6. In support of this appeal, what has been submitted, on behalf of the app ellants, is that the issue, in the subsequent suit, is as to whether the unregis tered lease deed, which had been relied upon by the defendants in the former sui t, is a forged and fictitious one and this was, according to the learned counsel for the appellants, not an issue in the former suit and, hence, the subsequent suit, i.e. the present suit, which gave rise to the present appeal, was not barr ed by Section 11 of the Code of Civil Procedure (in short, ’the Code’); whereas the learned appellate Court has held that the suit is barred by Section 11 of th e Code. 7. While considering the above submissions made on behalf of the appellants , it needs to be noted that the issue No. 2, framed in the former suit, read as under: (2) Whether the defendants are occupiers of the suit house and possesses by vir tue of a lease deed or whether the defendant No. 1 is tenant in respect of the s chedule house and possessor? 8. From a bare reading of the issue No. 2, it becomes transparent that the issue, raised in the former suit, was whether the defendants were in occupation of the suit house by virtue of a lease deed. It, thus, becomes clear that the c ore issue for determination, in the suit, was whether the defendants were in occ upation of the suit house by virtue of the lease deed or they were trespassers. If the said lease deed was forged and fictitious one, burden rested on the plain tiffs to prove, in the former suit itself, that the said lease deed was forged a nd fictitious one. The plaintiffs did not, admittedly, adduce any evidence nor c ould they elicit anything from the cross-examination of the defendants’ witnesse s to show that the said lease deed was forged and fictitious one. In fact, while dealing with the Issue No. 2, the learned trial Court, while analyzing the plea dings of the parties and the evidence on record, observed as under: Perused Ext. (Ka), which appears to be a agreement between both the parties. Th e defendant has examined their witnesses including the scribe and the attesting witness of the Ext. (Ka). The plaintiff simply denied to have but any signature on Ext. (Ka) while witness Nos. 2 and 3 of the defendants clearly supported the story of the defendants proving that Ext. (Ka) has been executed by both the pa rties. So mere contention of non-execution of Ext (Ka) by plaintiff is of no val ue. The plaintiffs should have disproved the execution of Ext.(Ka). When no step has been taken by the plaintiff to disprove Ext. (Ka), I hold that Ext. (Ka) is a deed of agreement of both the parties and the parties are bound by the agreem ent they arrived at perused Ext. (Ka). From Ext. (Ka) at least it can be held th at the defendant is not a trespasser as claimed for by the plaintiff and is clea rly a tenant under the plaintiff in respect of a house and land as mentioned in Ext. (Ka) and he is evictable only under due process of land not under the insta nt form. The plaintiff mentions that there was a compromise between the parties vide Ext. (Ka) and has not taken any measure to prove Ext. (Ka) leaving the same as a simple unproved document having no value in the eye of law. In view of above discussion, the issue No. 2 is decided in the affirmati ve. 9. From the above observations made by the learned trial Court, it is clear that the learned trial Court had concluded, in the former suit, that the lease deed, in question, was a deed executed by both the parties to the deed. It was a lso pointed out by the learned trial Court that it is for the plaintiffs to disp rove the deed, in question. The learned trial Court concluded that no step was t aken by the plaintiffs to disprove Ext. Ka, Ext. Ka being the deed of agreement by the parties concerned and the parties were bound by the agreement, which was arrived at by them. In short, the finding of the learned trial Court, in the for mer suit, was that Ext. Ka is a deed of agreement, which the parties had execute d. The learned trial Court further concluded that from Ext. Ka, it can, at least , be held that the defendants are not trespassers as claimed by the plaintiffs a nd the defendant No. 1 is clearly a tenant under the plaintiff in respect of the house and land as mentioned in Ext. Ka and he is evictable only under due proce ss. This conclusion of the learned Court below nullifies the controversy that th e deed, in question, was forged and fictitious one. Was not, therefore, the suit , which has given rise to the present revision, barred by res judicata ? What, t hen, is res judicata and how does res judicita differ from constructive res judi cita? Can a suit be also barred by the doctrine of constructive res judicita? 10. While considering the question as to what the doctrine of res judicata i s, it needs to be borne in mind that the doctrine of res judicata rests on three maxims, namely, (i) Nemo debet lis bexari oro una et eadem causa (no man should be vexed twice for the same cause); (ii) interest republicae ut sit finis litiu m (it is in the interest of the State that there should be an end to a litigatio n); and (iii) res judicata pro veritate occipitur (A judicial decision must be a ccepted as correct). The principle of res judicata is based on the need of givin g finality to judicial decisions. What it says is that once a res is judicata, i t shall not be adjudged again. Primarily, it applies as between past litigation and future litigation. When a matter ? whether on a question of fact or a questi on of law ? has been decided between two parties in one suit or proceeding and t he decision is final, either because no appeal was taken to a higher court or be cause the appeal was dismissed, or no appeal lies, neither party will be allowed , in a future suit or proceeding, between the same parties, or parties litigatin g under them, to canvass the matter again. [See Satyadhan Ghosal -Vrs- Deorajin Debi (AIR 1960 SC 941) ]. 11. Two of the important tests, for application of the doctrine of res judic ata, are :- (i)The matter, directly and substantially, in issue, in the subseque nt suit, must have been, directly and substantially, in issue, in the former sui t either actually or constructively. (ii) 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. [See Sheodan Singh -vs- Daryao Kunwar (AIR 1966 SC 1332), Syed Mohd. -vrs- Mohd. Hanifa, reported in (1976) 4 SCC 780 (790), and i n Jaswant Singh -vrs- Custodian of Evacuee Property, reported in (1985) 3 SCC 64 8]. 12. Unless, therefore, any issue was directly and substantially raised, the issue had been heard and decided in the earlier proceeding, the same issue can b e raised in the subsequent proceeding. Conversly, if any issue was directly and substantially an issue in the former suit, the issue had been heard and decided in the earlier suit, the same issue cannot be raised in the subsequent suit. An issue can be directly and substantially in issue, either actually or constructiv ely. An issue can be said to have been an issue actually raised in a former suit if the issue was actually raised in the former suit. Similarly, any matter, whi ch might and ought to have been made a ground of defence or attack in a former s uit, shall be deemed to have been a matter directly and substantially in issue i n such suit. This deeming provision clearly creates a legal fiction and this leg al fiction is commonly called constructive res judicita. 13. Though it may be true that it was not specifically raised in the former suit by the plaintiffs that the said deed was a forged and fictitious one, the q uestion is: Whether the plaintiff can, now, raise the issue for determination by the Court. It is noteworthy, in this regard, that Section 11 of the Code of Civ il Procedure reads as under: 11. Res-judicata. - No Court shall try any suit or issue in which the matter di rectly and substantially in issue has been directly and substantially in issue h as been directly and substantially in issue in a former suit between the same pa rties, 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 d ecided by such Court. Explanation I.- ***** ***** ***** ***** ***** Explanation II.- ***** ***** ***** ***** ***** Explanation III.- ***** ***** ***** ***** ***** Explanation IV.- Any matter, which might and ought to have been made ground of d efence or attack in such former suit shall be deemed to have been a matter direc tly and substantially in issue in such suit. 14. From what is contained in the Explanation IV, it becomes clear that any matter, which might and ought to have been made ground of defence or attack in t he former suit, shall be deemed to have been a matter directly and substantially in issue in the subsequent suit. Explanation IV to Section 11 embodies the prin ciple of constructive res judicata by laying down that any matter, which might a nd ought to have been made a ground of defence or attack in such former suit, sh all be deemed to have been a matter directly and substantially in issue in such suit. The concept has been explained by Somervell L.J., in GREENHALGH v. MALLARD , reported in [1947] 2 All. E.R. 255, thus: \I think that on the authorities to which I will refer, it would be accurate to say that res judicata for this purpo se is (1) [1939] 2 K.B. 426 at p. 437, (2) [1947] 2 All. E.R. 255 at p, 257 not confined to the issues, which the court is actually asked to decide, but that i t covers issues or facts, which are so clearly part of the subject matter of the litigation and so clearly could have been raised that it would be an abuse of t he process of the court to allow a new proceeding to be started in respect of th em.\ 15. Illustrating the concept of constructive res judicata, Somervell, L.J., observed, in GREENHALGH (supra), In other words, a conspiracy may give rise to a claim for damages if either the end or the means, or both, are wrongful; but, in my opinion, a plaintiff, who believes he has a cause of action in conspiracy, must make up his mind whether he is going to rely on one or other or both of th ese allegations - whether he is going to say that the means were unlawful, but h e does not suggest that the purpose was unlawful; or that both are unlawful. But if he has chosen to rely on, and put his case in, one of those ways, he cannot, in my view, thereafter, bring the same transactions before the court and say th at he is relying on a new cause of action. 16. Referring to the above observations of Somervell, L.J., the Supreme Cour t, in State of Uttar Pradesh -vs- Nawab Hussain, reported in 1977 AIR 1680, poin ted out, This doctrine is based on two theories: (i) the finality and conclusiv eness of judicial decisions for the final termination of disputes in the general interest of the community as a matter of public policy, and (ii) the interest o f the individual that he should be protected from multiplication of litigation. It therefore serves not only a public but also a private purpose by obstructing the reopening of matters which have once been adjudicated upon. It is thus not p ermissible to obtain a second judgment for the same civil relief .on the same ca use of action, for other- wise the spirit of contentiousness may give rise to co nflicting judgments of equal authority, lead to multiplicity of actions and brin g the administration of justice into disrepute. It is the cause of action which gives rise to an action, and that is why it is necessary for the courts to recog nise that a cause of action which results in a judgment must lose its identity a nd vitality and merge in the judgment when pronounced. It cannot therefore survi ve the judgment, or give rise to another cause of action on the same facts. This is what is known as the general principle of res judicata. But it may be that t he same set of facts may give rise to two or more causes of action. If in such a case, a person is allowed to choose and sue upon one cause of action at one tim e and to reserve the other for subsequent litigation, that would aggravate the b urden of litigation. Courts have therefore treated such a course of action as an abuse of its process & & & & & &. ***** ***** ***** ***** ***** ***** ***** ***** ***** ***** This is, therefore, another and an equally necessary and efficacious aspect of t he same principle, for, it helps in raising the bar of res judicata, by suitably construing the general principle of subduing a cantankerous litigant. That is w hy, this other rule has, sometimes, been referred to as constructive res judicat a, which, in reality, is an aspect or amplification of the general principle . 17. In short, thus, the doctrine of res judicata, as embodied in Section 11 of the Code, bars a court from adjudicating an issue, in a subsequent suit, whic h had been actually raised in the former suit, which had already been heard and finally disposed of; whereas, the doctrine of constructive res judicata applies, as incorporated in Explanation IV to Section 11, when an issue, which might hav e been raised or ought to have been raised in the former suit, either as a defen ce or attack, but was not raised by the party concerned, such a party, or anyone litigating under such a party, would be debarred from raising such an issue, fo r, a matter, which was available to a party either as a weapon of defence or att ack, but had not been raised in the former suit, the trial of such an issue, in the subsequent suit, would stand barred by the doctrine of constructive res judi cata, which stands incorporated in Explanation IV to Section 11. 18. In the backdrop of the above position of law, namely, that an issue, whi ch might, and ought to, have been raised in the former suit, was not raised by t he party, who could have, and ought to have, raised such an issue, such a party would be barred from raising the issue in a subsequent suit, when this Court tur ns to the case of hand, it becomes more than transparent in the former suit, the plaintiffs were bound to raise the question as to whether the deed was forged a nd fictitious one. In the former suit, the plaintiffs merely contended that the deed had not been executed by the plaintiff No. 1. In support of the plea, no ev idence was either adduced by the plaintiffs nor, as indicated above, anything wa s elicited from the cross-examination of the defendants’ witnesses. The learned trial Court, therefore, concluded, as can be seen from the observations made by the trial Court that the deed, in question, was a deed executed by the parties c oncerned. The issue, therefore, stood rested with the decision so reached on the said issue, the decision being that the said deed was a deed executed by the pa rties concerned. In the face of such an unambiguous and clear finding, there cou ld have been no room for the present plaintiffs to contend, in the subsequent su it, that the deed, in question, was a forged and fictitious one. 19. Coupled with the above, this Court has minutely examined the pleadings o f the parties and the judgment and decree passed by the learned trial Court and also the judgment of learned first appellate Court. The decision, reached by the learned Courts below, could not be shown to be incorrect, factually or in law. Situated thus, there can be no escape from the conclusion that the appellants ha ve failed to show that any substantial question of law, far less substantial que stion of law, has surfaced for determination. The second appeal is, therefore, n ot admitted and shall accordingly stand dismissed with cost.