Case: Narayana Prabhu Venkateswara Prabhu Vs. Narayan Prabhu Krishna Prabhu &amp; Ors

of three Judges of this Court, where Chandrachud, J. observed (at p. 534, para 19) :"Respondents did not file any further appeal against the decree passed by the District Court in the appeals arising out of their suit. They filed a second appeal in the High Court only as against the decree passed by the District Court in A.S. 66 of 1958 which arose out of the decree passed by the trial Court in the appellants suit. Thus, the decision of the District Court rendered in the appeal arising out of the respondents suit became final and conclusive.It was also observed there (para 19) :The decision of the District Court was given in an appeal arising out of a suit which, though instituted subsequently, stood finally decided before the High Court disposed of the second appeal. The decision was, therefore, one in a former suit within the meaning of Section 11, Explanation I, Civil Procedure Code."18. The expression "former suit", according to Explanation I of Section 11, Civil Procedure Code, makes it clear that, if a decision is given before the institution of the proceeding which is sought to be barred by res judicata, and that decision is allowed to become final or becomes final by operation of law, a bar of res judicata would emerge. This, as learned Counsel for the respondents rightly submits, follows from the decision of this Court in Lonankuttys case.19. The only other point which we need consider is whether the fact that the money suit was only between the defendant-appellant and one of his brothers, who was also a respondent in the partition suit makes any difference to the applicability of the principle of res judicata in this case. Learned Counsel for the appellant submits that the defendant-appellant could not come within the ambit of Explanation VI of Section 11, Civil Procedure Code which provides as follows :Where person litigate bona fide in respect of a 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.On the other hand, learned Counsel for the respondent submits that the case of the respondents is fully covered by this explanation and relies on Kumaravelu Chettiar v. T. P. Ramaswami Ayyar (AIR 1933 PC 183 : 60 IA 278 : 143 IC 665) where it was held :Explanation 6 is not confined to cases covered by Order 1, Rule 8 but extends to include any litigation in which, apart from the Rule altogether, parties are entitled to represent interested persons other than themselves.20. We think that the submission made by the learned Counsel for the respondents is sound. In a partition suit each party claiming that the property is joint, asserts a right and litigates under a title which is common to others who make identical claims. If that very issue is litigated in another suit and decided we do not see why the others making the same claim cannot be held to be claiming a right "in common for themselves and others". Each of them can be deemed, by reason of Explanation VI, to represent all those the nature of whose claims and interest are common or identical. If we were to hold otherwise, it would necessarily mean that there would be two inconsistent decrees. One of the tests in deciding whether the doctrine of res judicata applies to a particular case or not is to determine whether two inconsistent decrees will come into existence if it is not applied. We think this will be the case here.21. We need not deal with other cases of this Court cited, including Sheodan Singh v. Smt. Daryao Kunwar ([1966] 3 SCR 300 : AIR 1966 SC 1332 ) which supports the respondents submissions, and Raj Lakshmi Dasi v. Banamali Sen (1953 SCR 154 : AIR 1953 SC 33 ) which is not directly applicable inasmuch as that was a case in which the general principles of res judicata, and not Section 11 Civil Procedure Code, were applied. The preliminary objection in the case before us is fully supported, for the reasons given above, by Section 11, Civil Procedure Code read in the light of the explanations mentioned above. Consequently, the preliminary objection must prevail.22. Learned Counsel for the appellant, conscious of the difficulties in his way, filed, after the hearing of the appeal was begun before us, an application for condonation of delay in applying for leave to appeal against the judgment of the High Court in the money suit. He submits that, in view of the uncertain position in law, we should try to extend equities as much as possible in his clients favour. On the other hand, learned Counsel for the respondents points out that the objection based on the bar of res judicata was taken as long ago as 1968 by the respondents. It seems to us that the delay in waking up to the existence of the bar on the part of the appellant is much too long to be condoned. Moreover, we also find that the judgment of the High Court, based on the admissions of the appellant, does not disclose any error of law so as to deserve grant of special leave to appeal. Indeed, in so far as we could express any opinion at all upon the merits of the judgment of the High Court, based as it is upon documents containing admissions of the defendant-appellant, it seems to us that the appellant would have a very uphill task indeed in arguing his appeal even in the partition suit. We may mention here that the partition suit was instituted as long ago as 1947 and was only given a new number in 1957. If there is a case in which the principle that litigation should have an end ought to be applied, it is this on the face of facts of the case apparent to us.

Decision (1 = appeal accepted, 0 = rejected): 0

Explanation:
0[ds]7. It is true that the appeals against both the decrees of the trial Court were heard together in the High Court, and, although the appeal in the money suit is decided under a separate heading and the short judgment in it appears to be practically consequential on the judgment in the partition suit, yet, the judgments in the two appeals decided a common issue and resulted in twoquestion of res judicata arises only when there are two suits. Even when there are two suits, it has been held that a decision given simultaneously cannot be a decision in the former suit. When there is only one suit, the question of res judicata does not arise at all and in the present case, both the decrees are in the same case and based on the same judgment, and the matter decided concerns the entire suit. As such, there is no question of the application of the principle of res judicata. The same judgment cannot remain effective just because it was appealed against with a different number or a copy of it was attached to a different appeal. The two decrees in substance are one.It seems to us that to be fair to confine the ratio decidendi of the Hyderabad case to cases where there is only one suit. In the case now before us, not only were the decrees different but the suits were different. The mere fact that the judgment in the two suits were given together or in continuation did not matter. In fact, even in form, the judgment in the appeal relating to the money suit was separate from the rest of the judgment. And, in any case, there were two separate decrees.11. We think that Section 11 Civil Procedure Code enables the party to raise the statutory plea of res judicata if the conditions given therein are fulfilled. The principle embodied in the statute is not so much the principle of "estoppel by record", which the British Courts apply, as one of public policy, based on two maxims derived from Roman jurisprudence : firstly, interest reipublicae ut sit finis litium - it concerns the State that there be an end to law suits; and, secondly, nemo debet bis verxari pro una et eadem cause - no man should be vexed twice over for the same cause.12. Sir Lawrence Jenkins pointed out, in Sheoprasan Singh v. Ramanandan Prasad Narayan Sing (AIR 1916 PC 78 : 43 IA 91 : 43 Cal 694), that the rule of res judicata "while founded on ancient precedent, is dictated by a wisdom which is for all time". Litigation which has no end or finality defeats its very object. This object is decision of disputes or an end to each litigation. But, if there is no finality to it, the dispute cannot be said to be really decided at all. It is the duty of the State to see that disputes brought before its judicial organs by citizens are decided finally as early as possible. Hence, Section 11 of our Civil Procedure Code contains in statutory form, with illuminating explanations, a very salutary principle of public policy. An "estoppel", even if it be "by record", rests on somewhat different grounds. Even such a estoppel savours of an equity or justice created by actions of parties the results of which have become recorded formally behind which they are not allowed to go.It seems to us that Section 11 itself refers to a Court which actually tries the two suits. We think that, in the circumstances of the case before us, the incompetence of the Court, in which the money suit was initially filed, to try the partition suit did not matter when the actual hearing of both the cases took place in the same Court. That Court was, obviously, competent to try both the suits. After the money suit had been transferred from the Court of the Munsif, the Second Additional Sub Judge actually tried and decided both of them. This was enough to make the difference in the jurisdictions of the Courts, in which the suits were initially filed, quite immaterial. Similarly, the High Court was competent to hear appeals from judgments in both. It heard and decided the two appeals together.16. So far as the question of appeal to this Court is concerned, it is true that no appeal lay as a matter of right against the judgment in the appeal in the money suit, but, we think that the learned Counsel for the respondents is correct in submitting that the question whether there is a bar of res judicata does not depend on the existence of a right of appeal of the same nature against each of the two decisions but on the question whether the same issue, under the circumstances given in Section 11, has been heard and finally decided. That was certainly purported to be done by the High Court in both the appeals before it subject, of course, to the rights of parties to appeal. The mere fact that the defendant-appellant could come up to this Court in appeal as of right by means of a certificate of fitness of the case under the unamended Article 133(1)(c) in the partition suit, could not take away the finality of the decision so far as the High Court had determined the money suit and no attempt of any sort was made to question to the correctness or finality of that decision even by means of an application for special leave to appeal.We think that the submission made by the learned Counsel for the respondents is sound. In a partition suit each party claiming that the property is joint, asserts a right and litigates under a title which is common to others who make identical claims. If that very issue is litigated in another suit and decided we do not see why the others making the same claim cannot be held to be claiming a right "in common for themselves and others". Each of them can be deemed, by reason of Explanation VI, to represent all those the nature of whose claims and interest are common or identical. If we were to hold otherwise, it would necessarily mean that there would be two inconsistent decrees. One of the tests in deciding whether the doctrine of res judicata applies to a particular case or not is to determine whether two inconsistent decrees will come into existence if it is not applied. We think this will be the caseseems to us that the delay in waking up to the existence of the bar on the part of the appellant is much too long to be condoned. Moreover, we also find that the judgment of the High Court, based on the admissions of the appellant, does not disclose any error of law so as to deserve grant of special leave to appeal. Indeed, in so far as we could express any opinion at all upon the merits of the judgment of the High Court, based as it is upon documents containing admissions of the defendant-appellant, it seems to us that the appellant would have a very uphill task indeed in arguing his appeal even in the partition suit. We may mention here that the partition suit was instituted as long ago as 1947 and was only given a new number in 1957. If there is a case in which the principle that litigation should have an end ought to be applied, it is this on the face of facts of the case apparent to us.