Case: Avtar Singh and Others Vs. Jagjit Singh and Another

One Sardar Balwant Singh died on 10th March, 1955 leaving only three sons according to the case of appellants, namely, the two appellants and respondent No. 2. Respondent No. 1 claimed to be a fourth son of Balwant Singh entitled to 1/4th share in the property left by him. The appellants filed Suit No. 41 of 1958, in the Court of Sub Judge, Bassi. The Civil Court on the objection of Respondent No. 1 framed a preliminary issue whether the said Court was competent to try the suit or was it a matter which could be decided only by the Settlement Commissioner. By Order dated 7.7.1958 the learned Subordinate Judge decided that the Civil Court had no jurisdiction to try this suit and directed the return of the plaint for presentation to the proper Revenue Court. When the appellants filed their claim in the Revenue Court their petition was returned holding that the Revenue Court had no jurisdiction to try it. Thereupon the appellants instituted suit No. 13 of 1960 in the Court of Sub Judge, First Class, Bassi on 2-4-1960. This suit has failed throughout on the ground of res judicata. The High Court has affirmed the dismissal on the view that the decision dated 7-7-1958 given by the Civil Court in Suit No. 41 of 1958 on the point of Civil Courts jurisdiction to try the suit will operate as res judicata

Reasoning: We do sympathise with the appellants dilemma but they were wrongly advised to do as they did. Either they ought to have followed the matter i n the First Civil Suit and insisted up to the end that the suit was triable by a Civil Court, or, they would have taken the matter further before the higher authorities and Court from the order of the Revenue Court and persisted that the matter w hether the Civil Court had jurisdiction to decide the dispute between the parties or not was res judicata; the Revenue Court had no jurisdiction to go behind the decision of the Civil Court. The appellants did neither. It is unfortunate that due to the wrong paths which they followed under wrong advice they have ultimately to fail on the technical ground of res judicata but there is no waydo not approve at all the views as expressed by the learned Single Judge of the Allahabad High Court. If defendant does not appear and the Court on its own returns the plaint on the ground of la ck of jurisdiction the order in a subsequent suit may not operate as res judicata but if the defendant appears and an issue is raised and decided then the decision on the question of jurisdiction will operate as res judicata in a subsequent suit although the reasons for its decisions may not be so.