IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.BHAVADASAN WEDNESDAY, THE 19TH MAY 2010 / 29TH VAISAKHA 1932 SA.No. 397 of 1993(E) ------------------------------- O.S.31/1984 OF PRL. MUNSIFF COURT, NEDUMANGAD. AS.47/1987 of III ADDL. DISTRICT COURT, TRIVANDRUM .................... APPELLANT IN SA-APELLANT IN THE LOWER APPELLATE COURT- DEFENDANT NO.5 IN SUIT: --------------------------------------------------------------------------------------------------- PAREEDKUNJU MOIDEENKANNU, KOLLOTTU MANALIVILAKATHU VEEDU, KOKKUDI MURI, MANNOORKARA VILLAGE, NADUMANGAD TALUK, TRIVANDRUM DISTRICT. (DIED) *2ND ADDL. APPELLANT TRANSPOSED BY ADV. SRI.S.V.BALAKRISHNA IYER RESPONDENT NO.1 IN S.A.-RESPONDENT NO.1 IN THE LOWER APPELLATE COURT-PLAINTIFF IN SUIT-RESPONDENTS 2 TO 5 IN SA.- RESPONDENTS 2 TO 5 IN THE LOWER APPELLATE COURT- DEFENDANTS 1 TO 4 IN SUIT: -------------------------------------------------------------------------------------------------------- 1. SHAHUL HAMEED PEERUKANNU, PONGOTTUKONATHU VADAKKUMKARA PUTHEN VEEDU, KOKKUDI MURI, MANNOORKARA VILLAGE, NEDUMANGAD TALUK, TRIVANDRUM DIST. *2. MOIDEENKANNU ASHARAF, KOLLATTU MANALIVILAKATHU VEEDU, KOKKUDI MURI, MANNOORKARA VILLAGE, NEDUMANGAD TALUK, TRIVANDRUM DIST. * APPELLANT DIED. LEGAL HEIRS RECORDED. 2ND RESPONDENT TRANSPOSED AS ADDL. APPELLANT. IT IS RECORDED THAT ADDITIONAL APPELANTS R4 & R5 ARE LEGAL HEIRS OF DECEASED APPELLANT AND 2ND RESPONDENT TRANSPOSED AS ADDL. APPELLANT AS PER ORDER DATED 08/01/2010 ON I.A.2504/2008. } *TRANSPOSED AS ADDL.APPELLANT SA.No. 397 of 1993(E) **3. BEEVI UMMAL RAMLA BEEVI, IN -DO-. *(DIED) ** NO LEGAL HEIRS NEED BE IMPLEADED FOR DECEASED R3, AT THE RISK OF THE APPELLANT, AS PER ORDER DATED 23/01/1995 ON MEMO c.f. 4781/1994. 4. MOIDEENKANNU ABDUL KHARIM, IN -DO-. 5. MOIDEENKANNU KAMARUDEEN, IN -DO-. -DO-. BY ADV. SRI.R.S.KALKURA, SR.G.S.RAGHUNATH. THIS SECOND APPEAL HAVING BEEN FINALLY HEARD ON 19/05/2010,THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: rs. P. BHAVADASAN, J. - - - - - - - - - - - - - - - - - - - - - - - - - - - S.A. No. 397 of 1993 - - - - - - - - - - - - - - - - - - - - - - - - - - - - - Dated this the 25th day of January, 2011. JUDGMENT The fifth defendant in O.S. 31 of 1984 before the Principal Munsiff's Court, Nedumangad, who suffered a decree at the hands of both the courts below is the appellant. The parties and facts are herein referred to as they are available before the trial court. 2. The suit was framed as one for declaration of title and recovery of possession. Plaint A schedule property initially belonged to one Pathummal Beevi Ummal. After her death it was partitioned by her legal heirs as per Ext.A1 dated 10.4.1974. The respective sharers took possession of the property allotted to them. The first defendant was a minor then. In the partition deed, he was represented by the third defendant, one of his brothers, and plaint B schedule, which is a portion of the A schedule property, was allotted to the first defendant. After Ext.A1 partition deed, S.A.397/1993. 2 the sharers as per Ext.A2 sale deed dated 18.4.1974 assigned their properties to the plaintiff. The third defendant acted as the guardian of the first defendant executed the sale deed on behalf of the first defendant also. It appears that the first defendant acquired another item of property, which is shown as plaint C schedule property soon after the sale in favour of the plaintiff. Later the first defendant, when he attained majority filed O.S.389 of 1977 challenging the partition and also the sale in favour of the plaintiff on his behalf by the third defendant. That suit was decreed and the plaintiff was dispossessed of the share of property of the first defendant. Invoking the indemnity clause in Ext.A2 document, the present suit was filed for the reliefs already made mention of. 3. First and fifth defendant alone contested the suit. It was contended by the first defendant that Ext.A2 sale deed executed on behalf of him by the third defendant is void. If at all any loss is suffered by the plaintiff, he has to recover it from others and not from the first defendant. S.A.397/1993. 3 At best the plaintiff is entitled to get only Rs.500/- returned with reasonable interest. He cannot claim any right over plaint C schedule property. Moreover, the sale consideration shown in Ext.A2 as far as the first defendant is concerned is only Rs.500/- and the acquisition of plaint C schedule was for Rs.1,200/-. Pointing out that the plaintiff is not entitled to any relief, he prayed for a dismissal of the suit. 4. Fifth defendant contended that he was an unnecessary party and that no reliefs can be sought for against him. He is not a party to either Ext.A2 or in the earlier suit. Plaint C schedule property belongs to him, which he had obtained as per deed No.1158/1109 and that is not liable to be proceeded against by the plaintiff. According to the fifth defendant, the third defendant made him believe that Rs.1200/- will be given as consideration and then got the deed executed by him, but the amount was not paid. Therefore the sale deed relied on by the plaintiff in favour of the first defendant has not come into force and the property is to be deemed to be owned and possessed by the fifth S.A.397/1993. 4 defendant. On the basis of these contentions, he prayed for a dismissal of the suit. 5. On the above pleadings, necessary issues were raised by the trial court. The evidence consists of the testimony of P.W.1 and documents marked as Exts.A1 to A7 from the side of the plaintiff. The defendants did not adduce any evidence at all. On an evaluation of the evidence in the case, the trial court found that the plaintiff is a disappointed alienee and he is entitled to be re-inducted into possession of C schedule and accordingly decreed the suit. 6. The fifth defendant carried the matter in appeal as A.S.47 of 1987 before the District Court, Thiruvananthapuram. The lower appellate court confirmed the judgment and decree of the trial court and hence this Second Appeal. 7. Notice has been issued on the following questions of law: “(A) Has not the lower appellate court acted illegally in refusing to consider the arguments S.A.397/1993. 5 addressed before it on the question of maintainability of the suit? (B) Have not the courts below erred substantially in failing to see that the question of compensation which the plaintiff might and ought to have raised in the earlier suit O.S.389 of 1977, cannot now be put in an independent suit? © Have not the courts below erred in failing to see that the instant suit is barred by constructive res judicata? (D) Have not the courts below gone wrong in thinking that the loss caused to the plaintiff could be compensated by giving him the father's property? (E) Have not the courts below erred in failing to see that the plaintiff could at best get only proportionate compensation out of plaint C schedule property on the facts and in the light of evidence in the case? (F) On the facts and in the circumstances of the case, have not the courts below erred in decreeing the suit?” S.A.397/1993. 6 8. Senior counsel appearing for the appellant, Sri.K. Jayakumar, pressed only two points for consideration. According to the learned counsel, both the courts below ought to have found that the suit is barred by the principle of res judicata. Secondly, he would point out that even assuming that the plaintiff is entitled to succeed, he is entitled to proportionate share of the property which would have been acquired utilizing the funds provided by the plaintiff to the first defendant covered by Ext.A2 sale deed. In other words, learned counsel pointed out that the plaintiff could seek 5/12 shares over plaint C schedule property. 9. Per contra, learned counsel appearing for the respondents Sri. Kalkura contended that both the courts below have analysed the evidence in considerable detail and have come to the conclusion that the plaintiff is entitled to succeed. Attention of this court was drawn to the fact that C schedule infact belonged to the first defendant and he had not come up in appeal against the judgment and decree and therefore no interference is called for. As S.A.397/1993. 7 regards the contention of res judicata is concerned, learned counsel pointed out that there is no pleading to that effect and documents necessary to attract the plea have not been produced. In the light of this, the question does not arise for consideration. 10. Learned counsel for the appellant pointed out that he is entitled to compensation for the loss suffered by him due to the act of filing of a suit by the first defendant and getting a decree in respect of B schedule property and he is entitled to insist that C schedule should be conveyed to him. It was utilizing the funds made available under Ext.A2 , Ext.A3 acquisition was made. Learned counsel therefore contended that there is no merit in any of the contentions raised by the appellant and that the appeal is only to be dismissed. 11. The appellant placed considerable reliance on Explanation 4 to Section 11 Code of Civil Procedure , which reads as follows: S.A.397/1993. 8 “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 t 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 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.” The provision is probably known as might and ought rule. The contention of the appellant is that the plaintiff in this suit ought to have raised all the present contentions in this suit in O.S. 389 of 1977 and should have sought for appropriate reliefs in that suit itself. The contention is that when the first defendant sued to have the partition deed and the sale deed in favour of the plaintiff set aside, and S.A.397/1993. 9 when the plaintiff contested that suit, the plaintiff ought to have pleaded that in case it is found that the sale deed in his favour was liable to be set aside as far as the estate of the first defendant is concerned, the indemnity clause provided in Ext.A2 enables him to proceed against C schedule property. Having not done so, he is precluded from filing a separate suit for such a relief. 12. The argument though looks formidable and attractive, it is void on merits for two reasons. It is true that in the alternative a contention could have been raised by the plaintiff in the earlier suit. But strictly speaking the cause of action for the present suit arises only on a decree being passed in the earlier suit. It could not be said that the cause of action for the present suit existed even at the time of the earlier suit. Only on declaration that the sale deed in favour of the plaintiff was void in law and that he could not acquire any rights in plaint B schedule property by virtue of Ext.A2, his cause of action for seeking re-conveyance from the first S.A.397/1993. 10 defendant did arise. Therefore, it could not be said that he ought to have raised this issue in the earlier suit. 13. The next ground on which the contention is to fall is that there is absolute want of pleadings in this regard. It is well settled that the plea of res judicata is a rule of evidence and there has to be specific pleading and supporting evidence to establish such a plea. Apart from want of pleading, there is also no issue raised by the court below. It is well settled that in order to succeed in a plea of res judicata, the plea has to be specifically raised. Mere production of the judgment in the earlier suit by itself is not sufficient. True, in the case on hand the judgment in the earlier suit has been produced. But as already noticed, that is not sufficient. Apart from the fact that there is no plea in the present suit, pleadings in the earlier suit have also not been proved. 14. It is useful to refer to the decision reported in Subbiah. R v. P. Amamdam @ Panchali (1992 (2) LW 652), wherein it was held as follows: S.A.397/1993. 11 “Even otherwise, there is absolutely no plea in the present plaint by the appellants raising the question of res judicata and the respondent did not have to meet the case of res judicata. The question of res judicata must be supported by proper pleading. It has been held by the Privy Council in Jagadish Chandra Deo v. Gour Hari Mahato and others (AIR 1936 PC 258) that “it is the law of res judicata that a party raising a plea of res judicata is not entitled to go into the question of res judicata, when it has not been properly raised by the pleadings or in the issues, particularly in the issues.” 15. In the decision reported in Jagadish Chandra Deo v. Gour Hari Mahato (AIR 1936 PC 259) it was held as follows: “A party raising a plea of res judicata is not entitled to go into the question of res judicata, when it has not been properly raised by the pleadings or in the issues particularly in the issues.” S.A.397/1993. 12 16. In the decision reported in Smt. V. Rajeshwari v. T.C.Saravanabava (2004(2) LW 373) it was held as follows: “Reverting back to the facts of the present case, admittedly the plea as to rs judicata was not taken in the trial court and the first Appellate Court by raising necessary pleadings. In the First Appellate Court the plaintiff sought to bring on record the judgment and decree in the previous suit, wherein his predecessor in title was a party. as apiece of evidence. He wanted to urge that not only he had succeeded in proving his title to the suit property by the series of documents but the previous judgment which related to a part of this very property had also upheld his predecessor's title which emboldened his case. The respondent thereat, apprised of the documents, did not still choose to raise the plea of res judicata. The High Court should not have entered into the misadventure of speculating what was the matter in issue and what was heard and decided in the previous suit. The fact remains that the earlier shit was confined to a small portion of the entire S.A.397/1993. 13 property now in suit and a decision as to a specified part of the property could not have necessarily constituted res judicata for the entire property, which was now the subject matter of litigation.” In the said decision, it was also observed that the plea of res judicata is capable of being waived. It is observed as follows: “That apart the plea, depending on the facts of a given case, is capable of being waived, if not properly raised at an appropriate stage and in an appropriate manner. The party adversely affected by the plea of res judicata may proceed on an assumption that his opponent had waived the plea by his failure to raise the same.” 17. In the decision reported in Deva Ram v. Ishwar Chand ((1995) 6 SCC 733) it was held that when the issue and cause of action are different in two suits, decision in the earlier suit could not act as res judicata in the subsequent suit. Therefore, it is well settled that there has S.A.397/1993. 14 to be specific pleading and issue raised by the court below for consideration in order to attract the plea of res judicata. Both the ingredients are found wanting in the case on hand. Therefore, the contention based on constructive res judicata has to fail. 18. Coming to the second contention, learned counsel appearing for the respondents pointed out that the appeal is only by the fifth defendant and the first defendant, who actually suffered the decree has not come up in appeal. Therefore, the question of interference with the judgment and decree of the court below does not arise. It was also pointed out that the definite stand taken by the fifth defendant was that the property continued to be possessed and owned by him and that was found against by both the courts below. 19. It could not be said that there is no substance in the above plea. But if it is found that the decree suffers from any inherent defects and it is found that the decree is not legal or sustainable, this court sitting in appeal is S.A.397/1993. 15 empowered under Order 41 Rule 33 to pass such decree as the case may require irrespective of the fact whether any of the party is appealed or not. The provision reads as follows: “Order 41 Rule 33. Power of Court of Appeal.- The Appellate Court shall have power to pass any decree and make any order which ought to have been passed or made and to pass or make such further or other decree or order as the case may require, and this power may be exercised by the court notwithstanding that the appeal is as to part only of the decree and may be exercised in favour of all or any of the respondents or parties, although such respondents or parties may not have filed any appeal or objection and may, where there have been decrees in cross-suits where two or more decrees are passed in one suit, be exercised in respect of all or any of the decrees, although an appeal may not have been filed against such decrees.” 20. The scope and ambit of Order 41 Rule 33 was considered in the decision reported in Bajrangalal Shivehandrai Ruia v. Shashikant N. Ruta (AIR 2004 SC 2546), wherein it was held as follows: S.A.397/1993. 16 “Where there are several defendants, who are equally aggrieved by a decree on a ground common to all of them, and only one of them challenges the decree by an appeal his own right, the fact that the other defendants do not choose to challenge the decree or that they have lost their right to challenge the decree, cannot render the appeal of the appealing defendant infructuous on this ground. In fact, R.4 and R.33 of O.41 are enacted to deal with such a situation. In the instant case, there were several defendants equally aggrieved by decree against them of whom “S” filed appeal which was failed for non-compliance with the office objections said fact cannot have the consequence of defeating the appeal of the another appellant “B”. O.41 R.4 read with R.33 invests the Supreme Court with sufficient power to entertain the appeal of “B” before the Court and to make any appropriate order thereupon consonant with justice, equity and good conscience.” 21. In the decision reported in Sate of Kerala v. Kochittiamma (1994(2) K.L.T. 1) it was held as follows: S.A.397/1993. 17 “In this view of the abundantly clear position, the question is whether in exercise of our powers under R.33 of O.41 CPC we should grant these reliefs to the respondents/claimants. The aforesaid provisions have come up for consideration again before the Supreme Court in the case of Mahant Dhangir and another v. Madan Mohan and others (AIR 1988 SC 54) and it has observed that a sweep of power under R.33 is wide enough to determine any question, not only between the appellant and respondent; but also between the respondents and co-respondents. the appellate court could pass any decree or order which should have been passed in the circumstances of the case, in view of the words “as the case may require”. It is further observed that the only constraint is if the parties are not before the court and the question does not arise out of the judgment on their appeal.” 22. In the decision reported in Dhangir v. Madan Mohan (AIR 1988 SC 54) it was held as follows: “Rule 22 and R.33 are not mutually exclusive. They are closely related with each other. If objection cannot be urged under R.22 against S.A.397/1993. 18 co-respondent, R.33 could take over and come to the rescue of the objector. The sweep of the power under R.33 is wide enough to determine any question not only between the appellant and respondent, but also between respondent and co-respondents. The Appellate Court could pass any decree or order which ought to have been passed in the circumstances of the case. The appellate court could also pass such other decree or order as the case may require. The words “as the case may require” used in R.33 of O.41 have been put in wide terms to enable the Appellate Court to pass any order or decree to meet the ends of justice. The only constraint on the power are these : That the parties before the lower Court should be there before the appellate Court. The question raised must properly arise out of the judgment of the lower Court. If these two requirements are there, the appellate court could consider any objection against any part of the judgment or decree of the lower court. It may be urged by any party to the appeal.” 23. In the light of Order 41 Rule 33 and the above decisions, this court is clothed with sufficient power to S.A.397/1993. 19 modify the decree if it is found that the decree passed by the courts below require modification in the light of the legal principles involved and on the basis of the evidence on record. This court will be very reluctant to do so unless there are compelling reasons. 24. The second contention raised by the learned counsel for the appellant relates to the relief granted by the courts below. According to learned counsel for the appellant the sale consideration obtained by the first defendant as per Ext.A2 is only Rs.500/-, whereas the sale consideration shown in Ext.A3 dated 16.12.1974 is Rs.1,200/-. It is true that the document is executed by the fifth defendant in favour of the first defendant. The plaintiff has a case that though only Rs.500/- was shown in the document Ext.A2, in fact a sum of Rs.1200/- was given as share of the first defendant. On the other hand the fifth defendant has a case that the sale deed by him in favour of the first defendant had not come into effect. The respective contentions of both the parties have been found against by the courts below. S.A.397/1993. 20 25. In the decision reported in Chacko v. Sreeja (1991(1) K.L.T. 191) it was held as follows: “In cancelling the documents, the plaintiff need only surrender benefits received as justice may require. Such benefit required by the justice is the actual benefit received under the impugned transaction, which is avoided. It may not be conducive to justice to allow the minor to have double advantage by avoiding the transaction and at the same time retaining its benefits. “Benefit” mentioned in S.64 of the Contract Act is only benefit received under the impugned transaction directly contemplated by it and not any failure benefits by any speculative or non-speculative investment of that benefit. 'Benefit' or 'advantage', referred to in Ss. 64 and 65 of the Contract Act, do not relate to profit derived from the investment of the benefit. sometimes the investment may result in loss also. In a given case, the benefit may be only the actual consideration and its interest. But, where the consideration for the impugned transaction itself is the