PUTHIYOTTIL KUNHAVA Vs. KANIATTICHALIL MAMMADKUTTY

JUDGEMENT

(1.) Defendant appeals. Suit is one for eviction. Respondent is the owner of the premises let out to one Ali. Appellant was the sublessee under Ali. In execution of a money decree in O. S. No. 685 of 1965, the rights of Ali and the appellant were sold in Court auction and purchased by the respondent on 8-3-1967, evidenced by Ext. A3. Sale was confirmed and delivery, as seen from Ext. A4, was taken on 20-3-1967. Appellant then executed Ext. Al lease deed on 17-12-1967 and took the property on lease from the respondent.

(2.) In the suit for eviction, appellant denied the Court sale and delivery and contended that Ext. Al was executed in continuation of the earlier lease. He claimed fixity of tenure and relied on Exts. Bl and B5 order and purchase certificate issued by the Land Tribunal, to the effect that he purchased the rights of the land owner and intermediary. Respondent successfully established not only that he was not a party to Exts. B1 and B5 and no notice was issued to him, but also that the appellant is not the applicant. Identity of property is also not established by the appellant. The Trial Court and the appellate Court rejected Exts. Bl and B5 and the contentions of the appellant on the grounds that,

(3.) Even though res judicata was considered on merits and found against by both the Courts, the appellate Court took a further stand that plea of res judicata was not raised at all. Even though there is conflict of opinion whether resjudicata affects the jurisdiction of the Court itself or whether it is only a rule of procedure, the bar is applicable only when it is pleaded and established. Jurisdiction of the Court to try the suit or issue is always there and res judicata only bars investigation and decision on matters finally decided inter parties earlier. If the defendants omit to plead and prove res judicata and the Court investigates and decides matters already concluded between the parties without knowing such a decision, it is not void for want of jurisdiction. Plea of res judicata is one which might and ought to have been raised as a defence and established in order to operate as a bar in the exercise of jurisdiction to try and dispose of the matter subsequently. Otherwise the later decision will prevail and the plea of res judicata itself will be barred by constructive resjudicata and the later decision overlooking the bar of res judicata alone will prevail. The plea is one which could be waived.