[2008) 16 S.C.R. 629

' .....

STATE OF U.P. & ANR.

. 5 ._. •• o'

II. '.. .,

... JAGDISH SARAN AGRAWAL. & ORS.

(Civil Appeal Nos. 6757 ~675e of. 2008)

NOVEMBER 25; 2008

• I ' .; l.. '

,; f

[DR. ARIJIT PASAYAT AND DR. MUKUNDAKAl\ll .'.:"

SHARMA, JJ.] , . · ·

.Code of Civil Prqcedure, 1908:

s. 11 - Res judicata - Dismissal of suit for nonprosecution - Held: Not a decision on merit and consequently

canot operate as rejudicata.

U.P. Public 'Premises (Eviction of Unauthorized Occupants) Act, 1971 - Case by State before Prescribed D Authority for eviction - Dismissed for non-prosecution - Applicability of Or. 9, r. 9 .:.. Held: Not applicable, since the case was not dismissed under Or. 9 r.8 ..:.. Code of Civil Procedure,

1908- Or.9, r.9.

The land in question was purportedly owned by the State of Uttar Pradesh and under the management of the Nagar Palika. The Nagar Palika filed suit No. 25 of 1960

in the court of Munsif for permanent injunction in respect ofthe.said land. The said suit, in which the State of Uttar F

._ Pradesh was not a party, was dismissed. Subsequently, the State of Uttar Pradesh initiated proceedings in respect of the land under th'erU.P. Public Land (Eviction and Recovery of Rent and Damages) Act, 1959, numbered as Case No. 521 of 1970. The proceedings were dismissed G for non-prosecution. Thereafter the State of Uttar Pradesh

~. initiated proceedings (Case No. 111988-89) under the U.P.

Public Premises (Evic.tion of Unauthorized Occupants)

! .Act, 1971. The preliminary objection raised.by the alleged

629 H

SUPREME COURT REPORTS

[2008] 16 S.C.R.

A unauthorized occupants that the proceedings were barred by the principles of res judicata ln view of the orders passed in theCase No .. 521 of' 1910-ahd Suit No. 25of1960 as-well as onthe principles QfOr.9~, r.9, CPC, was rejected by the _presc:ribed. A4thor!ty. The appeal filed B by respondents was allowed by the Oistrict Judge. Writ petitions , fifed by the:. State .and the Nagar j; l.alika were dismissed by the High Court.· Aggrieved, the writ petitioners filed the in'stant appeals.

Allowing the appeals and remitting the matter to the C District Judge to decide the proceedings 6n merits, the Court \

HELD: The suit filed by Nagar Palika was dismissed on technical ground and in any case the State was not a D party the.reto. So far the case wherein the State was a party and, amendments were made, the same was dismissed f9r non-ptosecuion, but it was not dis.n:iissed . under. Or.9 r.8, Ct'C. therefore,. Or.9, r~9, CPC_ cati.IJOf be said to be applicable. The dismissal of the case .fol• no'1- E prosecution was not a decision on rherits. Consequently,

t'1e said order cannot operate as res judicaJa. [Paras 13,

15] [638-.A .. B, H; 639-A].

• \ • < • \ 1, 'i. . Ram Gobinda Dawan v. Bhaktab, aia 1971 (1) SCC 387; F Staie. of UP.'v. C[vi/'Judge (1SS6) 4 sec 558 and LSta.te of

UP. v. Rup Lal Sharma (1997)'2 SCC 1962, refr.fed to._. . ·-· .. .' .

 Case Law Reference: ·

. 1971(1) sec as7 _ • r.eferred to Para 10 G

(1986) 4 _sec 558 referred to . , . , Para 11

,(1997) 2 scc.19~2 . refered to Para'.12

! ' ' ! -. : • . ' . .... ' ~: . . ' CIVIL APPELLATE JURISDICTION-,: Civil 'Appeal No.

ORS.

~ 6757-6758 of 2008.

A ~

From the final Judgment and Order dated 5.2.2004 of the High Court of Judicature at Allahabad in C.M.W.P. Nos. 20165 and 21654 of 1994.

. Pramod Swarup, T.N. Singh,, Manoj Dwivedi .and G. 8

Venkateswara Rao for the Appellants. -i ._

H.L. Aggarwal, S.R. Singh, G.S. Bhatt, P.K. Bhatt, f Rameshwar Prasad Goyal and Debasis Misra for the Respondents. c

The Judgment of the Court was delivered by

DR. ARIJIT PASAYAT, J. 1. Leave granted.

2. Challenge in this appeal is to the judgment of a learned D Single Judge of the Allahabad High Court dismissing the writ petitions filed by the State of Uttar Pradesh and the Municipal Board Nagar Palika Lalitpur (hereinafter referred to as the 'Board'). Both the writ petitions were directed against the order dated 11th February, 1994 passed by the District E Judge, Lalitpur. By the said order learned District Judge allowed appeal No. 23 of 1992 filed by the respondent No. 1 Jagdish Sharan Agrawal and two others. State of U.P. and 27 others were parties. It was held in that. order that the proceedings initiated by the State against Jagdish Sharan F Agrawal and others under the Uttar Pradesh Public Premises (Eviction of Unauthorized Occupants) Act, 1971 (in short the Act') were barred by the principle of resjudicata, in view of the decision of the proceedings, which were initiated earlier by the Nagar Palika, Lalitpur, being suit No. 25 of 1960 as also in view G of the dismissal of the.proceedings which were :nitiated by the y State of Uttar Pradesh being case No. 521-353 under Section 3(1) of the Uttar Pradesh Public Land (Eviction and Recovery of Rent and Damages) Act, 1959 (in short the 'Eviction Act').

5. Against the said order, Jagdish Sharan Agrawal and A others approached the High Court by a Writ Petition which was dismissed by order Dated 18th February, 1992 on the ground that the alternative remedy was available. Appeal o. 23 of 1992 before the District Judge, Lalitpur, was filed under Section 9 of the Act. District Judge held that the proceedings initiated 8 JI by the State under Case No. 1 of 1988-89 was barred by the

..,.. principles of res judicata in view of the earlier orders passed in Suit No. 25of1960 and 521 of 1970. The present appellants took the stand that the judgment in question does not operate as resjudicata between the parties in as much as in the said c suit filed by the Nagar Palika, State of Uttar Pradesh was not a party. The State being the owner of the land and the land being only under the management of Nagai' Palika, in view of paragraph 47 of the Nazool Manual, any proceeding initiated by the Nagar Palika to which the State of Uttar Pradesh is not D a party cannot be said to be binding on the State.

6. The High Court found that admittedly in suit No. 25 of 1960, the State was not a party and therefore if any finding was recorded therein the same was not binding on the State. But E so far as proceeding in Case.No. 521 of 1970 is concerned, the Eviction Act itself was held to be ultra vires by this Court and consequently all proceedings taken therein are null and void and cannot be said to be binding on any person whatsoever, including the parties which were liigating there under.

F ..

7. The High Court found that there was substance in the aforesaid plea raised by Jagdish Sharan Agrawal and others.

However after going through the records, it was established that although initially a notice under the provisions of the Eviction Act was issued and proceedings were initiated against the G

j alleged unauthorized occupants, yet the Act itself havi'ng been

~ declared ultra vires by this Court, the State chose to proceed with the matter after making necessary amendments and taking necessary steps under the Eviction Act. It is thus established that the original proceedings were converted to proceedings H

 634 Sl)PREME COURT REPORTS


A .undr the Act. The proceedings were dismissed for default by the Pre.scribed Authority on 26.11.1976. An application for recall of the orders was also dismissed for non-prosecution. The High Court was of ihe view. that proceedings initiated by

:isuance, of notice under .the provisions ot' the Evi<?tion Act . a having been converted into proceedings under the Act, the order of dismissal has .become final between the parties and was not

_cha}Jng~~,, furthr. It. was held that if proceedings were

permitt; d , to be , initiated and proceedings are decided directing .eviction, it would amount to conflicting orders between the same C parties, iri respec; t ot'same pren:iises which is not justified. It was held .that to take care of sue~ situations, the requisite principles are enshrined. un.der Order IX. Rule 9, CPC. Though the

provii9n~ J~9 nqt. directly apply to proceedings under the .Eviction Act, they .will apply wih full force to the facts of the

. D preserit caseand the State.cannot be permitted to file such an application. against some person after its earlier application is dismissed for whatever 'reason~ may be. Therefore, the Writ Petition was dismissed. ·

:8. Learned cou.ns.el for .the 'appellant submitted that E d1srriissal f()r .. default does -not operate as .resjudicata. It is pointed out that there is a recurring cause of action. Since 1959 Act was de9lred to be. ltra vires, the .proceedings were initiated, tate as not a party in t.he sit by Nagar Palika and the High , Court was wrong in holding that the principles of F resjudicata apply so far as State i~ concerned. It is submitted that the principles of .resjud; cata do not apply to the facts of the case as there was no decision on merit. One remedy was restoration and other remedy was the second suit because of continuing cause of action. There. is no finding that the non G official respondents were authorized occupants.

9 .. Learned counsel for the respondents on the other hand

supportd the ju.dgment, taking Jhe stand that the proceedings are summary in nature. The effect of the order dated H ~0.10.1959 by the Governmen! of India, Uttar Pradesh in appeal

lt.

ORS. [DR. AR!JIT PASAYAT, J.]

under Section 7(1) of the Uttar Pradesh Roads and Lands A (Control) Act, 1943 (in short the 'Road Act') clearly applies to the facts of the case and the order in question has become final.

10. In Ram Gobinda Dawan v. Bhaktabala [1971 (1) SCC 387] it was held as follows: B

"21. It is interesting to note that though it was urged that

1' the decision of the Privy Council was given in default of appearance of B and his mortgagee C and therefore the said decision will not operate as res judicata, this Court c did not hold that a decision given even in the first instance in default of appearance of a party will operate as res judicata. On the other hand, this Court categorically held

that C, the mortgagee had fought out the title of mortgagor B, both before the Land Acquisition Court and the High Court and had obtained a judgment in his favour after a D full contest.

22. It is the view of this Court that the mere fact that the mortgagee did not choose to appear before the Privy Council and the decision of the Privy Council was given E in the absence of the mortgagee, is of no consequence as the-decisions of the High Court and the District Court have been given after contest. Therefore it will be seen that the decision of this Court relied on by Mr Mukherjee is no authority for the wide proposition that even if there has F

; J been no hearing and final decision by any court, at any stage, after contest, the decision will operate as res judicata.

23. For an earlier decision to operate as resjudicata it has G been held by this Court in Pu/avarthi Venkata Subba Rao ....

v. Valluri Jagannadha Rao [AIR 1967 SC 591] that the ..... same must have been on a matter which was "heard and finally decided".

24. In Sheodan Singh v. Daryan Kunwar [AIR 1966 SC H

SUPREME COURTREPORTS

[2008] 16 S.C.R

A 1332] the question whether a decisiongiven by the High-

Court dismissing certain appeal on the ground of limitation J or on the grqund that the party had not taken steps to prosecute the appeal operates as res judicata, was considered by this Court. lri that case A had instituted B against B two suits asserting title to certain property. B contested those claims and also instituted two other suits \.. to establish his title-to the same property as against A. A's

-+- suits were decreed and B's suits were dismissed. B filed fqur appeals, two appeals agains(the decision given in A's

c suits and two appeals against the dismissal of his two suits.

It is seen that all the appeals were taken on the file of the 'High Court but the two appeals filed by B against the 'decision in the suits instituted by him were dismissed by the High Court on the grounds that one was filed beyond

D the period of limitation and the other for non-prosecution.

At the final hearing the High court took the.view that the dismissal of B's two appeals, referred to above, operated . as res judicata in the two appeals filed by B against the decision in A's suits on the question oftitle to the property.

It was urged before this Coµ rt on_ behalf of B that the dismissal of his ap'peals on the groung of_ limitation and non-prosecution by the High Court. does not operate as res judicata as the High Court cannot be considered o have "heard and finally deqided'' the ql.iestiOn of title. This contentioJ; l was not. accepted: This Court referred to F instances where a formet suit was dismissed _by a trial court for want of jurisqiction o~ for default 9f. plaintiffs

appearance etc. and pointed out that in respect of such class ofcases,.the decision not being on merits, would not be res j1,1dicata in a subsequent suit It was further pointed G out that none of those considerations apply' to case where a-decision is given on the merits by the trial court and the matterJs taken in appeal and the appeal is dismissed on

)I'

some preliminary ground, like limitation or default in printing. It was held that such dismissal by an appellate H ·· court has the effect of confirming the decision of the trial

~ court on merits, and that it "amounts to the appeal being A . heard and finally decided on the. merits whatever may be the groundJor dismissal of the appeal".

11 . The positior-i was reiterated. in State of U.P. v. Civil Judge [1986(4) sec 558].

I B

12. So far as the recurring. cause. of action is concerned

-y this Court in State of U.P. v. Rup Lal Sharma [1997(2) SCC

1962] held as follows:

"Public premises" is defined in Section 2(e) of the c Act as meaning any premises 'Jbelonging to or taken on lease or requisitioned by or on behalf of the State Government ... ". The first respondent never disputed that the building belongs to the Government and all he has said was that it belongs to the Government Estate. It does D not matter. The definition of public premises is so wide as to hedge in all such buildings whether it actually belongs

.( to Government as such or only to a government department or even a building belonging to a private individual if the Government have requisitioned it or some .E person on behalf of the Government has requisitioned it.

Hence t_here is no escape from concluding that the building in question is public premises.

7: "Unauthorised occupation" is defined in Section 2(g).

F The definitioncomprises within its contours occupation of , J the public premises.by any person without authority.for such occupation, and also the continuance in occupation of such premises by any person after the authority (under which or the capacity in which he was allowed to hold or occupy the G premises) has expired or has been determined for any reason wf:latsoever. Thus continuance in occupation after ')r the determination of such authority would also make the occupation unauthorised for the purpose of the said Act."

SUPREME-COURT REPORTS


A 1 ·

13. In the present case, the suit filed by Nagar Palika was -1dismissed on technical ground and in any case the State was not a party. So far the suit where the state was a party and amendments were maqe, the same was dismissed for nonprosecution. But the same was not dismissed under Order IX B Rule8.

14. Order IX-Rule 8 and Order IX Rule 9 of CPC read as follows: l

Rule 8. Procedure where flefendant only appears

, Where the defendant appears and the plaintiff does not appear when the suit is called on for hearing, the Court shall make an order that the suit be dismissed, unless the defendant admits the claim or part thereof, in which case D the Court shall pass a decree against the defendant upon such admission, and, where part only of the claim has been ·- admitted, shall dismiss the suit so far as it relates to the . remainder. ..):

E Rule 9. Decree against plaintiff by default bars fresh suit '

(1) Where a suit is wholly or partly dismissed under rule 8, the plaintiff shall be precluded from bringing a fresh suit in respect of the same cause of action. But he may apply F for an order to set the dismissal asioe, and if .he .satisfies the Court that there was sufficient cause for his nonx

appearnce when the suit was called on for hearing, the Court shall make an order setting aside the dismissal upon s_uch terms as to costs or otherwise as it thinks fit, and shall G appoint a day for proceeding with suit.

(2) No order shall be made under this rule unless notice

of the application has been served on the opposite party.

15. Therefore Order IX Rule 9 can not be said to be

applicable. The dismissal of the suit for non-prosecution was A not a decision on merit. Consequently, the said order cannot operate as Resjudicata.

16. Above beihg te position the High Court's order is clearly unsustainable and is set aside. fhe matter is remitted B to the District Judge, Lalitpur to decide the proceeding on . merit. Appeals are allowed but with'out any order as to costs.

B.B.B.

Appeals aflowed.