Summary
Explanation II to s. 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 Art. 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 s. 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. v. Shankar & Ors. [1950] S.C.R. 754 distin- guished.Lortankutty v. Thomman & Anr., A.I.R. 1976 SC 1645=[1976] Supp. S.C.R. 74 followed.637 Sheoparsan Singh v. Ramnandan Prasad Singh, .AIR 1916 PC 78=43 I.A. 91, Govind Bin Lakshmanshet Anjorlekar v. Dhondba'Ea' V Bin Ganba' RA '17' 'V' Ta' Mbve, ILR Vol. XV Bombay 104 and Avanasi Gounden & Ors. v. Nachammal, ILR 29 Madras 195 referred to.Bhugwanbutti Chowdhrani v. A.H. Forbes ILR 28 Cal. 72 ap- proved.(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-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. v.T.P. Ramaswamy Ayyar & Ors,A/R 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-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 s. 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 Art. 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]See the full content of this document
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Narayana Prabhu Venkateswara Prabhu VS. Narayan Prabhu Krishna Prabhu & Ors.
PETITIONER: NARAYANA PRABHU VENKATESWARA PRABHU Vs.RESPONDENT: NARAYAN PRABHU KRISHNA PRABHU & ORS.DATE OF JUDGMENT19/01/1977BENCH: BEG, M. HAMEEDULLAHBENCH: BEG, M. HAMEEDULLAHRAY, A.N. (CJ)SHINGAL, P.N.CITATION: 1977 AIR 1268 1977 SCR (2) 636 1977 SCC (2) 181ACT: Code of Civil Procedure--s. 11 Explanations II and Vl--Scope of--Existence of right of appeal--If a bar of res-judicata.JUDGMENT: CIVIL 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. 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 byBEG, 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 par...
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