V RAJENDRAN Vs. L P ARUNMUGAM

JUDGEMENT

(1.) First defendant is the petitioner herein, Plaintiffs 1 and 2 filed a suit under 5.92, C.P.C.in respect of a trust known as Comakulam Chatram otherwise called as Thambachipillai Chatram Charity. It is claimed that after first defendant took over the management of the chatram in 1972, he had committed several acts of misfeasance and malfeasance as stated in para. 7 of the plaint, and therefore, he deserves to be removed, and in his place, a new trustee will have to be appointed vesting B schedule property in the new trustee and for other reliefs like delivery of possession of property, etc.

(2.) First defendant claims that issue No.6, which deals with the point as to whether the earlier decision in O.S.No.688 of 1979 would act as res judicata or not, be tried as a preliminary issue. This resulted in the impugned order being passed holding that the said decision would not operate as res judicata on the ground that the earlier decision relied upon was based on a compromise, and hence, under Explanation VI to S.11. C.P.C.it would not operate as res judicata.

(3.) Mr. Srinivasan, learned counsel for the first defendant-petitioner, submitted that, in the light of the decisions referred to hereunder, a compromise decree would also act as res judicata. In Sundharabai v. Devaji, 1953 S.C.3.693: (1953) 2 M.L.J. 782: A.I.R.1954 S.C.82, it was held that in respect of a compromise decree, though the terms of S.11 would not apply strictly, still the underlined principles of estoppel would apply. In the same volume at page 352 it was held that a consent decree is as binding upon the parties thereto as a decree passed in invitem. If the compromise is not vitiated by fraud, misrepresentation, misunderstanding or mistake, then the decree passed thereon had the binding force of res judicata and it would bar the re-agitation of the same questions by way of fresh suit. In Sailendra Narayanan v. State of Orissa, 1956 S.C.3.449: 1956 S.C.R.72: A.I.R. 1956 S.C.346, it was held that a judgment by consent or default is as effective as an estoppel between the parties, as a judgment, whereby the court exercises its mind on a contested case. In dealing with the matter which arose under S.92, C.P.C. a Division Bench in Chiranilal v. L.I Corporation, A.I.R. 1959 Bom.396, pointed out that the whole of S.11 is based upon the principles of estoppel by record and therefore, a consent decree operates as res judicata, as much as the decree in invitem. If the conditions laid down under S.11 exist. Therefore it is held that, both on principle, and on authority, there is no substance in the contention that a consent "decree in a suit under S.92, C.P.C, should be put on an entirely different footing from that of decrees in other contested suits. In Biram Prakash v. Narendra Das, A.I.R. 1961 All.266, a Division Bench also took the same view that even if a compromise resulted in the suit being merely dismissed, it would involve disposal by an agreement against the plaintiff on the contentions raised by him, and it would as much apply in a case instituted under O.1,R.8,C.P.C. In Chintaharan Ghose v. Gujaraddi Sheik, A.I.R.1951 Cal.456, the learned judge took the view that, even in a representative suit, a compromise decree passed will be binding on persons who are represented by the parties to the suit, provided the settlement is bona fide and it will operate as res judicata. In Subba Rao v. Jagannadha Rao, (1964) 2 S.C.J.508: (1964) 2 An W.R. (S.C.)112:(1964)2 M.L.J.(S.C.)112:( 1964)2 5.C.R. 310: A.I.R. 1967 S.C.591, it is held that a compromise is not a decision by the court and it only puts the seal of the court on the agreement arrived at between the parties, not is it a decision rendered by the Court. Unless it is a decision by the court res judicata would not operate, as it would not be a matter which had been heard and finally decided by the Court.. Such a decree might only operate as an estoppel by conduct between the parties, but such an estoppel must be specifically pleaded. By adverting to these decisions, Mr.Srinivasan submits that plaintiffs 1 and 2 herein have taken active part, when earlier suit was instituted by different parties, and with full knowledge they had entered into a compromise and yet they have filed the present suit mainly to cause harassment to first defendant with ulterior motives, and not representing the interests of the public. In spite of being fully aware of the disposal of O.S.No.668 of 1979, plaintiffs have chosen not to mention about it in the plaint and such suppression had been resorted mainly to institute the present suit, without any valid ground. In the light of the decisions above referred to, he would state that the earlier compromise arrived at would act as res judicata and if not, it would operate as an estoppel by record, as held in Subba Rao v. Jagannatha Rao, (1964) 2 S.C.J. 518: A.I.R. 1967 S.C.591, Hence the earlier compromise decree having been bona fide arrived at, no fresh representative suit could be laid on the same facts and circumstances.