NARAYANA PRABHU VENKATESWARA PRABHU v.

NARA YAN PRABHU KRISHNA PRABHU & ORS.

January 19, 1977

[A. N. RAY, C.J., M. H. BEG AND P. N. SHINGHAL, JJ.J

. Code of Cvi/ Procedure-s. 11-Explanations II and VI-Scope of- Exzstence of right of appeal-If a bar of res-judicarn.

Explanation II to s. 11 C.P .C. provides that for the purposes of the section, the co.mpetence of a Court shall be determined irrespective of any provision as to a nght of appeal .from the decision of such Court. Expliination VI provides that where persons htagate bona fide in respect of a private right claimed in common for themselves and others, all persons interested in such right shall, for. the putjJoes of this section be deemed to claim under the persons so litigatmg.

The respondents and the appellant were brothers. The respondents filed a suit for partition of the family properties in the Court of Additional Sub-Judge of competent jurisdiction. The appellant on the other hand filed a money suit against one of the brothers in the Court of a Munsiff in which he impleaded his other brothers. Ultimately, the money suit was transferred to the Court of the Additional Sub-Judge, where the partition suit was p.;\'nding and both the suits were tried together. In appeal, the High Court heard and decided both the appeals together and pronounced separate judgments in continuation but under separate headings and a separate decree was prepared in each appeal.

The appellant filed an appeal in this Court under Art. 133(l)(a) of the Constitution before its amendment, as a matter of right, against the judgment of the High Court in the partition suit.

A preliminary objection was taken by the respondents in this Court that tae appeal was barrec\ by res-::":icata in that the appellant did not file an appeal against the judgment and Jcree in the money suit. The appellant on the other hand contended that neither in law nor in equity was he barred by res-iudicata because he filed the appeal in the partition suit as a matter of right, which was not available to him in the money suit.

Dismissing the appeal,

HELD : The preliminary objection i~ supported by s. 11 of the Code of Civil Procedure read in the light of Explanations II and VI.

[644 BJ

1 (a) Section 11 enables a party to raise the statutory pie'\ of _res-iudicata if the conditions given therein are fulfilled.

Section 11 contams, m statutory form, with explanations, a very salutary principle of public policy. [641 GD]

In the instant case, 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 competent to try both the suits. After the money suit had been transferred, the second Additional Sub-Judge actually tried and decided both of them. That was enough to make the difference in the jurisdiction of the Court in which the suits were initially filed, quite immaterial. Similarly the High Court was competent to hear the appeals from judgments in both cases. It heard and decided the appeals together. [642 A-C]

Narhari & Ors. v. Shankar & Ors. [1950] S.C.R. 754 distinguished.

Lonankutty v. Thomman & Anr., A.I.R. 1976 SC 1645=[1976] Supp. S.C.R. 74 followed.

Sheoparsan Singh v. Ramnandan Prasad Singh, AIR 1916 PC 78=43 I.A. 91, Govind Bin Lakshmanshet Aniorlekar v. Dhondba 'Ea' V Bin Ganba' RA 'V' 'V' Ta' Mbve, ILR Vol. XV Bombay 104 and Avanasi Gounden & Or~. v.

Nachamma/, LLR 29 Madras 195 referred to.

Bhugwanbutti Chowdhrani v. A. If. Forbes ILR 28 Ca!." 72 approved.

(b) The expression "former suit" in Explanation I of s. 11 makes it clear that, if a decision is given before the institution of the proceeding which is sought to be barred by res-iudicata, and that decision is allowed to become final or becomes final by operation of law, a bar of res-judicata would emerge. [643 ll]

( c) 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.

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, there is no reason why others making the same claim C cannot be held to be claiming the 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 interests are common or identical. To hold otherwise would mean that there would be two inconsistent decrees.

[643 G-HJ In the instant case, the fact that the other suit was a money suit between the appellant and one of his brothers; who was also the respondent in the partition suit, does not mate any difference to the applicability of the principle of res-judicata, [643 CJ D Kumaravelu Chelliar & Ors. v. T. P. Ramaswamy Ayyar & Ors., AIR 1933 PC 183 followed.

Sheodhan Singh v. Smt. Daryao Kunwar, [1966] 3 S.C R. 300 and Bai Lakshmi Rani & Ors. v. Banamali Sen & Ors., [1953] S.C.R. 154 referred to.

2. The question whether there is a bar of res-iudicata does not depend on the existence of a right of appeal of the same nature again~! each of the two decisions, but on the question whether the same issue, under the circumstances E given in s. 11, bas been beard and finally decided. [642 C-D]

In the instant case, the High Court heard and finally decided both the appeals before it. The mere fact that the appellant could come up to this Court" in app_eal as of right by means of a certificate of fitness under the unaamended Art. 13 3 (1 )( c) in the partition suit, could not ta1'e away the finality of the decision so far as the High Court had determined the money suit and no . attempt was made to question the correctness or finality of that decision even by means of an application for special leave. [642 D-E]

3. The appellant's application for condonation of delay in applying for leave to appeal against the High Court's judgment in the money suit must be dismissed. His delay in waking up to the existence of the bar of res-iudica{a is much too long to be condoned. The judgment of the High Court based oa the admissions of the appelant, does not disclose any error of law so as to deserve the grant of special leave to appeal. The partition suit was instituted as long ago as 1947. If tl:!ere is a case in which the nrincinle that litigation should have an end ought to be applied, it is this.

[644 C-FJ CNJL APPELLATE JURISDICTION : Civil Appeal No. 1763 of 1968. (From the Judgment and Decree dated the 28th July, 1964 of the Kerala High Court in Appeal Suit ; No. 843 of 1960).

T. C. Raghavan, Sardar Bahadur Saharya and V. B. Saharya, for the appellant.

T. S. Krishnmnoorthy Iyer and M. R. Pillai, for Respondent No. 1.

H T. S. Krishnamoorthy, P. K. Pillai and N. Suhdakaran, for Respondent No. 2.

The Judgment of the Court was delivered by

BEG, !- This is a defendent's appeal by Certificate granted by the Kerala High Coqrt under Article 133(1) (a) of the Constitution as a matter of course before its amendment because the High Court had modified a decree in a partition suit and the subject matter satisfied the requirements of the unamended Article 133.

The parties to the partition suit are descendants of Narayana Prabhu (hereinafter referred to as 'Narayana'). Krishna, the plaintiff (now dead) was the 3rd son of Narayana. The defendant-appellant, Venkateswara, was the eldest of the four sons of Narayana. The partition suit related to 72 items mentioned in schedule 'A' to the plaint claimed by the plaintiff to be joint family property. It appears C that there was no dispute with regard to certain items, but, the defendant-appellant claimed. other items as his exclusive property on the ground that they had been purchased from his personal income due to his own enterprise and exertions and ability in carrying on business.

The Trial Court had accepted the case of the defendant-appellant that all items, except No. 35 and a part of item No. 52 which belonged to the 3rd defendant, were the self-acquired properties of the defendantappellant. The High Court reversed this finding on the ground that there was "little reliable evidence on record as to the exact source of the fund with which the first defendant started the trade". The High Court rejected the submission of the defendant-appellant that, when the Tobacco business under consideration was started, Narayana being the Karta of the family, the fact that the eldest son, Venkateswara, the defendant-appellant, was carrying on the business, raised a presumption that it was the separate or self acquired business of Venkateswara.

The High Court relying on certain documentary evidence, including the letter-heads showing the business as that of '; P. N. Venkateswara Prabhu & Brothers" held that the business was joint family business.

The partition suit was filed originally in another Court but was sent to the Court of the Second Additional Sub Judge of Alleppey in 1957, and the preliminaryrl decree! was passed on 5th August, 1960.

The High Court allowed the appeal, modifying the decree to the extent that 3/4th share of items 4 to 72 of the schedule, except item 35 and part of 52 standing in the name of the 3rd defendant, were held to be partible properties as part of Joint family business, but it excluded assets which came into existence after the filing of the partition suit which operated as a clear unequivocal expression of intention to separate. It also left the extent of mesne profits of landed properties to be decided in J?roceedings for the passing of the final decree.

It appeals that the defendant-appellant had also filed a money: suit in the Court of the Munsif only against defendant No. 3, one of the four brothers but all of them were impleaded in the partition suit.

The money sit was, however, transferred to the fil~ of the Aditional Sub Judge and tried together with the partition smt and was also decreed by the Additiom1l Sub Judge of Alleppey on the sam~ date as the partition suit. The plaintiff-respondent had appealed agamst both the decrees in the High Court. The two aoneals were henrd and decided together by the H; gh Court.

The High Court, after pronouncing judgment in the partition suit, proceeded to give judgment, A under a new heading and number of the appeal in the money suit. H said, in this separate judgment :

"The suit that gave rise to this appeal has been instituted by the respondent against the appellant for money due on 14-10-1123 on account of tobacco delivered to the latter's shop. The defence was that the trades run by both the brothers were parts of the joint family trade, and not separate to foster such a claim by the respondent on the appellant.

The court below, having found in the other suit the shops run by the parties to belong to the concernedfodividuals, has decreed the suit.

As we have reversed that •finding in A.S.

No. 843 of 1960 and found the shop standing in .the name of each brother to be a branch of the joint :family trade fo tobacco and directed ascertainment of the assets and liabilities of the entire trade to be settled as on 2-3-1124, the date of that partition suit, this suit has to be dismissed".

The judgments were, therefore, two separate ones given in one continuation but under separate headings. Separate decrees were prepared

in each appeal relating to a, separate case. -D

As the defendant appellant did not seek leave to file any appeal against the High Court's .judgment and decree in the money suit and there is no appeal before us against the decree in the .money suit, a ·

preliminary objection is taken on the ground that the .defendant's appeal now before us is baued by res-judicata.

Learned Counsel for the defendant-appellant urges that the two E suits were different in nature and were filed in different Courts originally so. that the Court trying the partition suit and the Court in which

the money suit was triable were not Courts of coordinate jurisdiction.

It was also objected that the .partition suit was earlier and Pie .money suit having been filed sixteen days later .could not be deemed -to be a suit decided earlier. Furthermore, it was pointed out that the judgment was common. It was also urged that all the four brothers were •F parties to the partition suit but the money suit was only between two brothers.

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 judl!.tnent G in the partition suit, yet, the judgments in the two appeals decide a common issue and resulted in two decrees. ' It is urged that, whereas the defendant•appellant had filed an appeal on the strength of a certificate granted to him as a matter of right, following upon tne modification of -the decree of the Trial C0urt

by the Hi!.!h Court, the .defendant-appellant .had no such right ofl appeal in this Court. . Hence, it was submitted that neither in -Jaw nor in equity could the defendant-appellant be barred from putting forward his objections to the decree in the partition suit.

A Certain decisions were relied upon by learned Counsel for: the defendant-appellant Venkateswara in support of the contention that the plea of res judicata is not available as a preliminary objection to the respondent to the hearing of the appeal before us in the circumstances of this case. We proceed to consider these cases.

Narhari & Ors. v. Shankar & Ors.,(') is no doubt the judgment of the Supreme Court of India, although it was, iJl one may so put it, "the Hyderabad Wing" of it in a transitional period when a learned Judge of this Court, Mr. Justice Mehr Chand Mahajan, presided over a bench of which the other two Members were formerly Members of His

- Exalted Highness the Nizam's Judicial Committee. Technically, however, it was tliis Court's judgment. In that case, Naik, J. had followed a decision of the Judicial Committee of the Hyderabad State and held that, when there was only one suit and the appeals had been disposed of by the same judgment, it was not necessary to file two sepa~ rate appeals. It elaborated the ratio of the decision as follows (at p. 757-758) :

"It is riow well settled that where there has been one trial, one finding, and one decision, there need not be two appeals even though two decrees may have been drawn up.

As has been observed by Tek Chand J. in his learned judg ment in Mst. Lachmi v. Mst. Bhuli (AIR 1927 Lah. 289) mentioned above, the determining factor is not the decree but the matter in controversy. As he puts it later in his judgment, the estoppel is not created by the decree but it can only be created by the judgment.

The questi<>n of resjudicata arises only when there are two suits.

Even when there are two suits, it has been held that a decision given shriultaneously 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".

G . 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 dierent but the s?its were different. The mere fact that the judgments m the two smts we:e given to11ether or in continuation did ot matter. In fac.t, even m form. the iudgment in the appeal relatn:i11 to the money smt was separate from the rest of the judgment. And, in any case, there were two separate decrees.

(1) [1950] S.C.R. 754.

 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 reipublicoe ut sit finis litium-it concerns the State that there be an end to law suits; and, secondly, "nemo

debet bis vexari pro una et eadem cause"-no man should . be vexed twice over for the same cause.

Sir Lawrence Jenkings pointed out, in Sheoparsan Singh v. Ramntmdan Prasad Singh('), 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 0£ 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 sec 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 an 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.

Reliance was also placed on Govind Bin Lakshmanshet Anjorlekar

v. Dhondba 'Ra'V Bin Ganba' Ra'V'Ta'Mbye( 2 ), on behalf of the appellant.

Here, it was held that decisions in previous suits of the nature of small cause suits in which there was no right of second appeal could not operate as res judicata in suits before Courts in which questions were elaborately litigated and decided in cases which could go to the High Court in second appeal.

We were also referred to a Full Bench decision of the Madras High Court in Avanasi Gounden & Ors. v. Nachamal( 3), where it was similarly held that :. "A decision in a previous suit of a small cause nature, in which no second appeal is allowed by law, is no bar to a subsequent suit, in the same Court, which, not being of a small cause nature, is open to second appeal".

We have to rememqer that Small Cause jurisdiction is a limited one exercisable only in specified matters.

Decisions given beyond jurisdiction to try an issue cannot operate as res judicata.

Our attention was drawn to explanation II of section 11, on G behalf of the respondents. It reads :

"Explanation II.-For the purposes of this Section, the competence of a Coui:t shall be determined irrespective of any provision as to a right of appeal from the decision of such Court",

(1) A.LR. 1961 P.C. 78=43 I.A .. 91.

(2)"1.L.R. Vol. XV Bombay 104.

(3) I.L.R. 2'J Madras 195.

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, thi:: 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.

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 the correctness or finality of that decision even by means of an application for Special Leave to appeal. ·

Learned counsel for the respondents appears to us to have rightly relied upon.Bhugwaributti•Chowdhrani v. A.H. Forbes('), where itwas held that "in .order to make a matter res judicata it is not necessary that the two suits must be open to appeal in the same way".

He also relied on Lonankutty v. Thomman & Anr.(2), a recent decision

of three Judges of this Court, where Chandrachud, J., observed (at p. 1650) :

"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 AS. 66 of 1958 which arose out of the decree passed by the trial Court in the appellant's suit.

Thus, the decision of the District Court rendered in the appeal arising out of the respondent's suit became final and conclusive".

It was also observed there :

"The decision of the District Court was given in an appeal arising out of a suit. which, though instituted subse-

(1) I.L.R. 28 Cal. 78,

(2) A.T.R. 1976 S.C. 1645=[1976] Supp. S.C. R. 74.

N. PRABHU v. Pi<Am:u V. N. PRABHU K. PRABHU (Beg,].) 643

quently, stood finally decided betore the High Court disposed of the second appeal.

The decision was, therefore, one in a 'former suit' within the meaning of section 1 l, Explanation I, Civil Procedure Code". ·

The expression "former suit'', according to explnatinn . I <?f . section 11, Civil Procedure Code, makes it clear that, 1f a dec1s1011 is given before the institution of the proceeding which is .sought to be B barred by res judicata, and that decision is allowed to become final by operation of law, a bar of res jqdicata would emerge.

This as learned counsel for the respondents rightly submits, follows from the decision of this Court in Lonankutty's case (supra).

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 persons litigate bona fide in respect of a public D 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 fully covered by this explanation and E relies on Kumaravelu Chettiar & Ors. T. P. Ramaswamy Ayyar & Ors.(') where it was held:

"Explanation 6 is not confined to cases covered by 0.1, R. 8 but extends to include any litigation in which apart from the Rule altogether, parties are entitled to represent interested persons other than themselves".

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 hat 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 interests 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. ·

(I) A.T. R. 1933 P.C. 183. 7-l 12SCT/77

We nee.d not deal with other cases of this Court cited, jncluding Sheodan , smgh .v'. Smt. Darya<! Kunwar('), which supports the respondents subm1ss10ns, and Ra1 Lakshmi Bai & Ors. v. Banamali Sen & . Ors. ('), 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 m the asc befoe. us is fully supported, for the reasons given above,

y sectio~ 11, Civil Procedure Code read in the light of the .Explanation mentioned above.

Consequently, the preliminary objection must prevail.

Lerned counsel for the appellant, conscious of the difficulties in his way, filed after the hearing of the appeal was begun before us, an C . application for condonation of delay in applying for leave to appeal against the judgment of the High Court m 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 client's 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 194 7 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.

We, therefpre, reject the Civil Miscellaneous Petition No. 8585 of 1976, the application for condonation of delay in the filing the Special Leave Petition.

We dismiss the Civil Miscellaneous Petition No. 8586 of 1976 as well as the over-delayed special leave petition No. 2816 of 1976.

The result is that this appeal must be and is hereby dismissed, but, in the circumstances of the case, the parties will bear their own costs.

P.B.R.

(1) [1966] 3 S.C.R. 300

(2) [1953] S.C.R. 154.

Appeal dismissed.

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