Judgment Case ID: 3701

Judgment:
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. Krishnamoorthy Iyer and M.R. Pillai	. for Respondent No. 1. T.S. Krishnamoorthy	 P.K. Pillai and N. Sudhakaran	 for Respondent No. 2. 638 The Judgment of the Court was delivered by BEG	 J. This is a defendent 's appeal by Certificate granted by the Kerala High Court 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 Nara yana. 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 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 enter prise 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 defendant appellant. The High Court re versed 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 appel lant 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 appel lant	 was carrying on the business	 raised a presumption that it was the separate or self acquired business of Venka teswara. 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 preliminary 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 proceedings 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 brother 's	 but all of them were impleaded in the partition suit. The money suit was	 howev er	 transferred to the file of the Additional Sub Judge and tried together with the partition suit and was also de creed by the Additional Sub Judge of Alleppey on the same date as the partition suit. The plaintiff respondent had appealed against both the decrees in the High Court. The two appeals were heard and decided together by the High Court. The High Court	 after pro 639 nouncing judgment in the partition suit	 proceeded to give judgment	 under a new heading and number of the appeal in the money suit. It 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 concerned individuals	 has decreed the suit. As we have reversed that finding in A.S. No. 843 of 1960 and found the shop stand ing in the name of each brother to be a branch of the joint family trade. in 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. 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 barred by res judicata. Learned Counsel for the defendant appellant urges that the two 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 the 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 parties to the parti tion 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 judgment 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 the modification of the decree of the Trial Court by the High Court	 the defend ant appellant had no such right of appeal in this Court. Hence	 it was submitted that neither in law nor in equity could the. defendant appellant be. barred from putting forward his objections to the decree in the partition suit. 640 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. vs Shankar & Ors. 	(1) is no doubt the judgment of the Supreme Court of India	 although it was	 if one may so put it	 "the Hyderabad Wing" of it in a transi tional period when a learned Judge of this Court	 Mr. Jus tice 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 this 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 separate appeals. It elaborated the ratio of the decision as follows (at p. 757 758): "It is now 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 judgment in Mst. Lachmi vs Mst. Bhuli (AIR 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 question of resjudicata 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 deci dendi 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 judgments in the two suits were given togeth er 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. (1) ; 641 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 vs Ramnandan Prasad Singh(1)	 that the rule of res judicata "while rounded 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 an estoppel savours of an equity or justice created by actions of par ties 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 vs Dhondba 'Ra 'V Bin Ganba ' Ra 'F '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 oper ate as res judicata in suits before Courts in which ques tions 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. vs 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 remember that Small Cause juris diction is a limited one exercisable only in specified matters. Decisions given beyond Jurisdiction to try an issue cannot operate as res ]udicata. Our attention was drawn to explanation II of section 11	 on behalf of the respondents. It reads: "Explanation II. For the purposes of this Section	 the competence of a Court shall be determined irrespective of any provision as to a right of appeal from the decision of such Court". (1) A.I.R. 1961 P.C. 78=43 I.A. 91. (2) I.L.R. Vol. XV Bombay 104. (3) I.L.R. 29 Madras 195. 642 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 differ ence 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 con cerned	 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 parti tion 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 Bhugwanbutti Chowdhrani vs A.H. Forbes(1)	 where it was 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 Lonan kutty vs 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 Dis trict 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 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. (2) ; Supp. S.C.R. 74. 643 quently	 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". 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 pro ceeding which is sought to be barred by res judicata	 and that decision is allowed to become 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 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 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 litigat ing". On the other hand	 learned counsel for the respondent sub mits that the case of the respondents fully covered by this explanation and relies on Kumaravelu Chettiar & Ors. T.P. Ramaswamy Ayyar & Ors. C) where it was held: "Explanation 6 is not confined to cases covered by O. 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 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 interests are common or identical. If we were to hold otherwise	 it would neces sarily 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. (1) A.I.R. 1933 P.C. 183. 7 112SCI/77 644 We need not deal with other cases of this Court cited	 including Sheodan Singh vs Smt. Daryao Kunwar(1)	 which supports the respondents ' submissions	 and Raj Lakshmi Bai & Ors. vs Banamali Sen & Ors.( )	 which is not directly ap plicable inasmuch as that was a case in which the general principles of res judicata	 and not section 11 Civil Proce dure 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 Explanation mentioned above. Consequently	 the preliminary objection must prevail. 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 judg ment 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 client 's favour. On the other hand	 learned counsel for the respond ents 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 argu ing 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. We	 therefore	 reject the Civil Miscellaneous Petition No. 8585 of 1976	 the application for condonation of delay in the filing the Special Leave Peti tion. 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 par ties will bear their own costs. P.B.R. Appeal dismissed.

Summary:
Explanation II to section 11 C.P.C. provides that for the purposes of the section	 the competence of a Court shall be determined irrespective of any provision as to a right of appeal from the decision of such Court. Explanation VI provides that where persons litigate bona fide in respect 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 per sons so litigating. The respondents and the appellant were brothers. The respondents filed a suit for partition of the family proper ties 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 Rending and both the suits were tried together. In appeal	 the High Court heard and decided both the appeals together and pronounced sepa rate 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 article 133(1)(a) of the Constitution before its amendment	 as a matter of right	 against the judgment of the High Court in the parti tion suit. A preliminary objection was taken by the respondents in this Court that the appeal was barred by res judicata in that the appellant did not file an appeal against the judgment and decree in the money suit. The appellant on the other hand contended that neither in law nor in equity was he barred by res judicata 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 is supported by section 11 of the Code of Civil Procedure read in the light of Explana tions II and VI. [644 B] 1(a) Section 11 enables a party to raise the statutory plea of res Judicata if the conditions given therein are fulfilled. Section 11 contains	 in statutory form	 with explanations	 a very salutary principle of public policy. [641 C D] In the instant case	 the incompetence of the Court	 in which the money suit was initially filed	 to try the parti tion suit did not matter when the actual hearing of both the cases took place in the same Court. That Court was compe tent 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. vs Shankar & Ors. ; distin guished. Lortankutty vs Thomman & Anr.	 ; Supp. S.C.R. 74 followed. 637 Sheoparsan Singh vs Ramnandan Prasad Singh	 .AIR 1916 PC 78=43 I.A. 91	 Govind Bin Lakshmanshet Anjorlekar vs Dhondba 'Ea ' V Bin Ganba ' RA '17 ' 'V ' Ta ' Mbve	 ILR Vol. XV Bombay 104 and Avanasi Gounden & Ors. vs Nachammal	 ILR 29 Madras 195 referred to. Bhugwanbutti Chowdhrani vs A.H. Forbes ILR ap proved. (b) The expression "former suit" in Explanation I of section 11 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. [643 B] (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 conap 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 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 H] 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 make any difference to the applicability of the principle of res judicata. [643 C] Kumaravelu Chettiar & Ors. T.P. Ramaswamy Ayyar & Ors	 A/R followed. Sheodhan Singh vs Smt. Daryao Kunwar	 [1966] 3 S.C R. 300 and Bai Lakshmi Rani & Ors. vs Banamali Sen & Ors.	 ; referred to. 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. [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 appeal as of right by means of a certificate of fitness under the unaa mended 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 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 judicata is much too long to be condoned. The judgment of the High Court based on 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 there is a case in which the prin ciple that litigation should have an end ought 'to be applied	 it is this. [644 C F]