SUMATHY Vs. DAKSHAYANI

JUDGEMENT

(1.) In this second appeal filed by the plaintiff the substantial question of law to be considered is whether a decree which has become final and conclusive between the parties could be reopened on the basis of a decision rendered subsequently interpreting the legal position in a different manner.

(2.) In the suit for redemption a preliminary decree was passed on 30-3-1967. Final decree application filed subsequently by the plaintiff was dismissed on 25-8-1971 accepting the contention of the defendants that they are entitled to fixity of tenure under the Kerala Land Reforms Act as amended by Act 35 of 1969. That decision was rendered on the basis of the relevant legal provisions interpreted in the decisions in Jagthamma v. Raghavan Pillai ( 1970 KLT 469 ) and Rev. Fr. Victor Fernandez v. Albert Fernandez ( 1971 KLT 216 (FB). The decision was not appealed against and hence it has become final and conclusive between the parties. The above decisions were subsequently overruled by the decision in Velayudhan Vivekanandan v. Ayyappan Sadasivan ( 1975 KLT 1 (FB). On the basis of that decision plaintiff moved a fresh application for passing final decree on the ground that defendants are not entitled to tenancy right as per the law subsequently interpreted. That application was dismissed on the ground of res judicata on account of the previous decision which has become final between the parties. Appeal was also dismissed and hence the plaintiff has come up in second appeal.

(3.) According to the counsel the earlier decision was erroneous on the relevant point of law and hence it cannot be deemed to have finally determined the question and the decision cannot operate as res judicata. I do not think I could accept that argument. S.11 of the Code of Civil Procedure embodies the doctrine of res judicata or the rule of collusiveness of decisions, as to the points decided, in every subsequent suit between the same parties. It corresponds to what is known as estoppel by judgment in English Law. It is intended to avoid superfluous suits. Though it is one of convenience and rest and not of absolute justice, it concerns the State that there should be finality to law suits and no man should be vexed twice over for the same cause. The rule is intended not only to prevent a new decision but also to prevent a new investigation so that the same person cannot be harassed again and again in various proceedings upon the same question. By the amendment Act of 1976 the provisions were extended to proceedings for execution of decrees as well as decisions by courts of limited jurisdiction notwithstanding the fact that such court was not competent to try the subsequent suit. The section does not create any right or interest in property but only operates as a personal bar. The Section does not compel the court trying the later case to hold that the previous decision is correct. A court having jurisdiction is entitled to decide rightly or wrongly. An erroneous decision by a competent court having jurisdiction will be as much res judicata as a correct decision. Remedy lies only by way of appeal, revision, review or any other process allowed by law. When none of these remedies are resorted to and an erroneous decision is allowed to become final and conclusive it will definitely operate as res judicata in subsequent suits. A decision will not cease to be res judicata merely because the view of the law on which it is based ceased to represent the correct law owing to a later judicial pronouncement. The general principles of res judicata are based firstly on public policy and secondly on private justice.