LPA No. 602 of 1992 1 In the High Court of Punjab and Haryana, Chandigarh. LPA No. 602 of 1992 (O&M) Date of Decision: 12.05.2010 Darbara Singh and others ....Appellants. Versus Chajja Singh ....Respondent. Coram:- Hon'ble Mr. Justice Adarsh Kumar Goel Hon'ble Mr. Justice Alok Singh 1.Whether reporters of local news papers may be allowed to see judgement ? 2. To be referred to reporters or not ? 3. Whether the judgement should be reported in the Digest ? Present: Mr. Arun Jain, Sr. Advocate with Mr. Amit Jain, Advocate for the appellants. Mr. J.R. Mittal, Sr. Advocate with Mr. Akshay Bhan, Advocate for the respondents. ... Alok Singh, J. 1. Present Letters Patent Appeal is filed challenging the judgement and decree dated 27.2.1992 passed by learned Single Judge of this Court thereby dismissing RFA No.492 of 1979 arising out of the judgement and decree dated 20.2.1979 passed by the trial Court dismissing the suit of the plaintiffs against the defendants seeking specific performance of the contract of sale. LPA No. 602 of 1992 2 2. Brief facts of the present case are that land of defendant – respondent No.1 (vendor) was under mortgage with the plaintiffs – appellants; defendant-vendor entered into an agreement to sell on 14.6.1972 with the plaintiffs for Rs.74000/- with the stipulation that mortgage amount of Rs.32,000/- payable to the plaintiffs would be adjusted against the sale price and an amount of Rs.25,500/- was paid to the vendor in cash as earnest money at the time of the execution of the agreement to sell and the remaining amount of Rs.16,500/- would be paid at the time of registration of the sale deed, which was agreed to be executed on or before 25.1.1973; at the first instance, the plaintiffs filed Civil Suit No.737 of 14.12.1972 against the vendor and other defendants for injunction restraining them from transferring the land subject matter of agreement to sell, to anybody else except the plaintiffs; the suit was decreed on 1.3.1973; the vendor – defendant in contravention of the agreement to sell and the Civil Court decree dated 1.3.1973, transferred the suit land to the defendants- respondents by sale deed dated 15.12.1972 and 27.3.1974. The plaintiffs filed present suit for decree for specific performance of the agreement to sell and in the alternative, for recovery of Rs.25,500/-. 3. The defendants denied the execution of the agreement to sell dated 14.6.1972 and contended that the plaintiffs with the help of Jarnail Singh, Dhera Singh and Ujagar Singh secured thumb impression of Chajja Singh on several papers on 18.12.1972 and the agreement to sell might have been forged on those papers. An FIR in this respect was also lodged at Police Station Mubarkpur. Decree for injunction dated 1.3.1973 was obtained by the plaintiffs by misleading and coercing the vendor. No consideration was ever paid to the vendor for the alleged agreement to sell. LPA No. 602 of 1992 3 4. The trial Court vide judgement and decree dated 20.2.1979 dismissed the suit of the plaintiffs for decree for specific performance or in alternative, for recovery of Rs.25,500/. Learned Single Judge of this Court also dismissed the first appeal filed by the plaintiffs – appellants before us. Both the Courts have observed that the alleged agreement to sell dated 14.6.1972 is not proved having been executed by the defendant – Chajja Singh. 5. We have heard learned counsel for the parties and perused the records. 6. Learned counsel for the appellants vehemently argued that undisputedly injunction suit was filed by the plaintiffs – appellants i.e. Civil Suit No.173/14.12.1972, seeking permanent injunction that defendants be restrained from alienating the property in dispute in favour of any other person except in favour of the plaintiffs. Basis of Suit No.173 was agreement to sell dated 14.6.1972. Undisputedly, Suit No.173 was decreed by the trial Court vide consent decree dated 1.3.1973. Decree dated 1.3.1973 is still in existence and before passing the compromise decree, the learned Court recorded the statement of defendant – Chajja Singh, who had stated before the Court that he would not transfer land in dispute in favour of any other person except in favour of the plaintiffs and the agreement to sell dated 14.6.1972 was specifically admitted by the defendant – Chajja Singh. On the strength of above, learned counsel for the appellants – plaintiffs further argued that since this compromise decree still holds good and was passed with the consent of the defendant – vendor, hence now the defendant cannot challenge the genuineness and validity of the agreement to sell dated 14.6.1972. Contentions of the defendants pertaining to the LPA No. 602 of 1992 4 challenge to the agreement to sell dated 14.6.1972 is barred by the principle of Estoppel. Learned counsel further argued that in Suit No.737 (supra), defendant could have challenged the genuineness and validity of the agreement to sell dated 14.6.1972. Since the defendant has not challenged the genuineness and validity of the agreement to sell dated 14.6.1972, in the present/subsequent suit for specific performance, he cannot challenge the genuineness and validity of the agreement to sell dated 14.6.1972 and his contention/defence on this score would be barred by the principle of res judicata in view of Explanation 4 to Section 11 CPC. 7. In contra, learned counsel for respondents argued that both the Courts below have recorded concurrent finding of fact that agreement to sell dated 14.6.1972 is not proved. Hence, the plaintiffs have absolutely no right to seek decree for specific performance. It is further argued by the learned counsel for the respondents that vide impugned judgement dated 27.2.1992, learned Single Judge has decided three appeals i.e. RFA No.492 of 1979, RSA No.597 of 1991 and RSA No.898 of 1991; Decree in RSA No.597 of 1991 and RSA No.898 of 1991 were passed on the basis of finding that agreement dated 14.6.1972 is not proved, arrived at in suit for specific performance and judgement passed in RSA No.898 of 1991; Judgements of RSA No.597 of 1991 and RSA No.898 of 1991 have attained finality because SLP against the same had already been dismissed by the Apex Court. Hence, present intra-Court appeal is barred by the principle of res judicata and the plaintiffs are not entitled to any relief. 8. To examine the respective contentions of learned counsel for the parties, we hereby formulate two questions of law for the just and fair adjudication of the present appeal:- LPA No. 602 of 1992 5 1. As to whether contention of the defendant challenging genuineness and validity of the agreement to sell dated 14.6.1972 would be barred by principle of Estoppel and principle of res judicata in view of the consent being given in previous Suit No.737 and for non-challenge of the agreement in the previous Suit No.737 ? 2. As to whether present appeal is barred by principle of res judicata in view of the order passed in RSA No.597 and 898 of 1991, decided by the impugned judgement dated 27.2.1992 ? 9. Answer to question No.1.:- We have already mentioned hereinabove respective arguments raised by learned counsel for the parties. Now we proceed to examine the respective arguments of the learned counsel for the parties. Undisputedly, previous Suit No.737 was filed by the present plaintiffs on the basis of the disputed agreement to sell dated 14.6.1972, seeking injunction against the defendant not to alienate the property in dispute in favour of any other person except in favour of the plaintiffs. Undisputedly, learned Court decided Suit No.737 vide judgement/decree dated 1.3.1973 recording the statement of the defendant on the compromise filed before him and making compromise part of the decree dated 1.3.1973. Undisputedly, the defendant had not challenged the genuineness and validity of the agreement to sell dated 14.6.1972 in the previous instituted Suit No.737. 10. It is not a case of the defendant that before the learned Court deciding Suit No.737, the defendant was not present for statement and by producing impostor showing him respondent No.1, statement was recorded. If it is so, it means learned Court decided Suit No.737 by recording the LPA No. 602 of 1992 6 statement of defendant No.1 – vendor who gave his consent and the genuineness and validity of the agreement to sell dated 14.6.1972 was not disputed by him and stated before the Court that he would not alienate the property in dispute in favour of any other person except in favour of the plaintiffs and hence, defendant No.1 cannot take any plea against his any statement and consent given in Suit No.737 and is estopped to make any contention contrary to his consent and statement given in Suit No.737. 11. Section 11 of CPC and its Explanations reads as under: -- “11. Res judicata. 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. Explanation I- The expression "former suit" shall denote a suit which has been decided prior to the suit in question whether or not it was instituted prior thereto. Explanation II.- For the purposes of this section, the competence of a Court shall be determined irrespective of any provisions as to a right of appeal from the decision of such Court. Explanation III.- The matter above referred to must in the former suit have been alleged by one party and either denied or admitted, expressly or impliedly, by the other. LPA No. 602 of 1992 7 Explanation IV.- Any matter which might and ought to have been made ground of defence or attack in such former suit shall be deemed to have been a matter directly and substantially in issue in such suit. Explanation V.- Any relief claimed in the plaint, which is not expressly granted by the decree, shall, for the purposes of this section, be deemed to have been refused. Explanation VI- Where persons litigate bona fide in respect of public right or of a private right claimed in common for themselves and others, all persons interested in such right shall, for the purposes of this section, be deemed to claim under the persons so litigating. Explanation VII.- The provisions of this section shall apply to a proceeding for the execution of a decree and reference in this section to any suit, issue or former suit shall be construed as references, respectively, to proceedings for the execution of the decree, question arising in such proceeding and a former proceeding for the execution of that decree. Explanation VIII.-An issue heard and finally decided by a Court of limited jurisdiction, competent to decide such issue, shall operate as res judicata in as subsequent suit, notwithstanding that such Court of limited jurisdiction was not competent to try such subsequent suit or the suit in which such issue has been subsequently raised.” 12. From the perusal of Section 11 and its Explanations, we have no hesitation in holding that if in a previously instituted suit between the LPA No. 602 of 1992 8 parties or their predecessors-in-interest any issue is finally decided between the parties by the Court having jurisdiction then judgement passed in previously instituted suit shall be res judicata in a subsequent suit involving the same question/issue. From the perusal of Explanation IV to Section 11, we are of the opinion that any plea or defence, which ought to have been raised, if not raised, in the previously instituted suit, the same shall be res judicata in a subsequent suit. Undisputedly, in a previously instituted Suit No.737, defendants have not challenged the genuineness and validity of the agreement to sell dated 14.6.1972, which he could have challenged rather he has admitted the same. Hence in a subsequent instituted present suit, the defendants cannot challenge the same and this contention of the defendants challenging genuineness and validity of the agreement to sell dated 14.6.1972 would be barred by the principle of res judicata. 13. In view of the above, we find that contention of the defendants - respondents challenging genuineness and validity of the agreement to sell dated 14.6.1972 is not only barred by principle of Estoppel but also barred by principle of res judicata, as discussed above. 14. Answer to Question No.2. Undisputedly, in a suit or first appeal, subject matter of RSA No.597 and 898 of 1991, decrees were passed placing reliance on the findings recorded by the Court in a suit for specific performance in RFA No.492 of 1979. No independent finding is recorded about the validity and genuineness of the agreement to sell in a suit or first appeal subject matter of RSA No.597 and 898 of 1991. Courts deciding original suit for redemption of mortgage and appeals arising therefrom, subject matter of RSA No.597 and 898 of 1991, nowhere held that consent decree dated 1.3.1973 passed in Suit No.737 is nullity or void. Moreover, LPA No. 602 of 1992 9 even in the impugned judgement, before us, no finding is recorded that consent decree dated 1.3.1973 passed in Suit No.737 is outcome of fraud or misrepresentation and is nullity or void. There cannot be conflicting judgement between the same parties. Consent decree dated 1.3.1973 has attained finality and was never challenged by the vendor – defendant. 15. Merely because a finding recorded in a previously decided suit that too during the pendency of appeal, was relied upon in a different litigation between the same parties pertaining to the same property and judgement of subsequent suit has attained finality, shall not be res judicata in a pending appeal arising out of previously instituted suit. 16. In view of the above discussion, our answer to question No.2 is in favour of appellants and against the respondents. 17. In view of the findings recorded by us hereinabove, judgements passed by the First Appellate Court as well as by the trial Court cannot be sustained. In view of decree passed in suit for redemption of mortgage, we are of opinion that it would not be equitable to pass decree for specific performance in favour of the plaintiffs on the basis of agreement to sell dated 14.6.1972. However, keeping the totality of the circumstances in mind, we are of the view that decree for alternative recovery of Rs.25,500/- can be passed in favour of the plaintiffs against the defendants with interest thereon from the date of institution of suit till the realization of the decretal amount @ 6% per annum. Hence, present appeal is allowed. Impugned judgements and decree are set aside. Suit of the plaintiffs stands decreed for recovery of Rs.25,500/- with interest thereon @ 6% per annum from the date of institution of suit till the realization of the amount. The plaintiffs are also entitled to costs of litigation, in accordance with law. LPA No. 602 of 1992 10 Appeal stands allowed in the aforesaid terms. ( Alok Singh ) Judge ( Adarsh Kumar Goel ) Judge 12.05.2010 sk.