KELAPPAN Vs. ANANDAN

JUDGEMENT

(1.) AN interesting question of res judicata which has occasioned this reference to a Division Bench has been debated in this Second appeal. The unsuccessful defendant in the courts below is the appellant before us. The suit against him was for recovery of the plaint schedule house with arrears of rent and future rent, on the strength of an oral lease, alleged to have been made on 14 111955, on a monthly rent of Rs. 7/ -. The defence was that the oral lease set up was not true and that the property was held on a monthly rent of Rs. 3/-, under an entrustment of 1944. Both oral and documentary evidence were adduced by the parties in support of their respective contentions. Both the courts below without going into any of these, decided the case in favour of the plaintiff, on the ground that in a prior small cause suit. S. C. 16 of 1960, Munsiff's Court, Tellicherry, the oral lease as alleged by the plaintiff had been found and that the judgment in the sard suit (Ext. A-2) constituted res judicata against the defendant. The correctness of this finding has been assailed before us. Besides the importance of the question of law involved, substantial rights seem to turn on the contention of the defendant, for, if the entrustment was on a monthly rent of Rs. 3/- as alleged by the Defendant, he would, according to him, be entitled to 'kudikidappu' rights and therefore immune from eviction under the provisions of the Kerala act 1/1964 and the subsequent legislations.

(2.) THAT the oral lease as set up by the plaintiff was found to be true in Ext. A 2 judgment is beyond controversy. S. 11 of the Code of Civil Procedure in so far as it is material, enacts the rule of res judicata, as follows: "no court shall try any suit or issue in which the matter directly and substantially in issue in a former suit between the same parties, or between parties under whom they or any of them claim, litigating under the same title, in a Court competent to try such subsequent suit or the suit in which such issue has been subsequently raised, and has been heard and finally decided by such Court. " On the language of the section, the condition as to the 'competency' of the court which tried the former suit to try the subsequent one, is clearly not satisfied, and the bar of res judicata as enacted by the section is not attracted. But for the plaintiff-Respondent, the matter was claimed to be res judicata on general principles, in two ways: (1) that S. 11 prescribed the rule of res judicata only in respect of adjudications by ordinary'civil courts', of which the small cause court, it was said, was not one, and its adjudication therefore is not hide-bound by the limitation as to 'competency' enacted by S. 11; and (2) that quite apart from, and independently of, the provisions of S. 11, Ext. A-2 judgment is conclusive, on the general principles of res judicata which do not enjoin the condition as to 'competency'.

(3.) WE should however stress the decisions of the Supreme court in Mst. Gulab Bai & Others v. Manphool Bai (AIR. 1962 SC. 214) and janakirama Iyer v. Nilakanta Iyer (AIR. 1962 SC. 633 ). Para. 12 of the former decision stated: "this position has been clearly stated in another decision of the Privy Council in Gokul Mandar v. Pudmanund Singh (ILR. 29 Cal. 707 ). On this occasion the Privy Council bad to consider the effect of S. 13 of the Code of 1882. The argument which was urged before the Privy Council on S. 13 was that "a decree in a previous suit cannot be pleaded as res judicata in a subsequent suit unless the judge by whom it was made had jurisdiction to try and decide not only the particular matter in issue but also the subsequent suit itself in which the issue is subsequently raised", and in upholding this argument their Lordships observed that "in this respect the enactment goes beyond S. 13 of the previous Act X/1877. and also as appears to their Lordships, beyond the law laid down by the judges in the Duchess of kingston's case. 2, Sm. L. C. (13th Ed) 644". In other words, this decision would show that even though in the earlier Codes there may have been some doubt about the test of competent jurisdiction which has to be applied to the Court which tried the earlier suit, position under the Code of 1882 is absolutely clear. Similarly Para. 16 of the latter decision said: "that takes us to the question of res judicata. The argument is that on general grounds of res judicata the dismissal of the suit (O. S. No. 30 of 1943) filed by Defendants 1 to 6 should preclude the trial of the present suit. It has been fairly conceded that in terms S. 11 of the Code cannot apply because the present suit is filed by the creditors of defendants 1 to 6 in their representative character and is conducted as a representative suit under O. I, R. 8; and it cannot be said that defendants 1 to 6 who were plaintiffs in the earlier suit and the creditors who have brought the present suit are the same parties, or parties who claim through each other. Where SM is thus in-applicable it would not be permissible to rely upon the general doctrine of res judicata. WE are dealing with a suit and the only ground on which res judicata can be urged against such a suit can be the provisions of s. 11 and no other. In our opinion therefore, there is no substance in the ground that the present suit is barred by res judicata". (underlining ours) The above pronouncements are categoric that where the doctrine of res judicata is sought to be invoked with respect to the decisions in suits, S. 11 of the CPC. is exhaustive and you cannot travel outside its provisions; but if invoked with respect to proceedings adjudicated in courts of exclusive jurisdiction you may break the frontiers of SM and resort to the general principles of res judicata. Notwithstanding the strenuous efforts made by Counsel for the Respondent, we feel that this position has in no way been shaken by the Supreme Court's pronouncement in Gulab Chand's case. Indeed, in gulab Chand's case the Supreme Court affirmed its prior decision in Janakirama Iyer's case (1962 SC 633), as follows: "it is made one of the conditions for the application of a previous decision to operate as res judicata to be that the previous decision is made not only by a Court competent to make it but by a court which is competent to try the subsequent suit. This condition must have been considered necessary in view of the observations of the Privy Council in misir Raghobardial's case (1882) L. R. 91 at 197 ). and on account of the hierarchy of Courts under the various Acts Constituting Courts of civil judicature and it could have been felt that a decision by a Court which is not competent to decide the subsequent suit be not treated of a binding nature. Such an exceptional procedure seems to have been provided as a matter of precaution as the Court not competent to try the subsequent suit must necessarily be a court of inferior jurisdiction and therefore more liable to go wrong. Whatever the reason may be. the provisions of SM will govern a previous decision in a suit barring a subsequent suit with respect to the same matter in controversy and general principles of res judicata in such particular circumstances will neither be available to bar subsequent suit nor will be needed. It is in such context that the remarks of this Court in Janakirama Iyer's case at p. 224 are to be considered. In that case, the decision in a previous suit could not operates as res judicata in accordance with the provisions of S. 11 of the Code, because the parties in the two suits could not be said to be the same parties or parties who claimed through one another. It was then said: "where SM is thus inapplicable it would not be permissible to rely upon the general doctrine of res judicata. WE are dealing with a suit and the only ground on which res judicata can be urged against such a suit can be the provisions of S. 11 and no other". The observations are to be read in the context in which they are made, the context being that the question of res judicata was being considered in connection with the decision in a previous suit and the parties in the two suits being not the same. In fact, genera) principles of res judicata also require that the earlier decision be between the same parties. A decision not inter parties cannot, even on general principles of res judicata, operate as res judicata in a subsequent suit. "