SANGAMESWARASWAMY TEMPLE Vs. A M KUNHAMO DIED

JUDGEMENT

(1.) THE defendant in O. S. No. 1548 of 1972, District Munsif's court, Coimba-tore, who succeeded before the trial Court and lost before the lower appellate Court, is the appellant in this second appeal. That suit was laid by the deceased first respondent (whose legal representatives are respondents 2 to 15) for a declaration of his title to the superstructure in t. S. No. 2/ 1309 in Perumal Koil Street, Nandavanam, Mottamedu, Coimbatore town, and for an injunction restraining the appellant from enforcing an order of eviction obtained by it in R. C. O. P. No. 385 of 1967. According to the case of the deceased first respondent, he took on lease'from the appellant a vacant site. measuring 22 feet east to west and 80 feet north to south in T. S. No. 2/ 1309 in perumal Koil Street, Nandavanam Kottamedu, Coimbatore town, belonging to the appellant in 1953 and after levelling it up, put up a construction thereon incurring considerable expenditure. THE further case of the deceased first respondem was that towards the end of 1964, the appellant demanded enhanced rent and owing to the refusal of the deceased first respondent to pay the rent so demanded, the appellant initiated proceedings in R. C. O. P. No. 385 of 1967. That application, according to the deceased first respondent, was dismissed, but on appeal, in R. C. A. No. 479 of 1968, the appellate authority ordered eviction and that order was confirmed in C. R. P. No. 56 of 1970 by the District court, Coimbatore, and a further revision to this Court was of no avail, but that as the proceedings before the authorities constituted under Tamil Nadu buildings (Lease and Rent Control) Act are of a summary nature, those authorities were not competent to decide the question of title to the building. Stating that taking advantage of the eviction order, the appellam was trying to take possession of the suit property, the deceased first respondent instituted the Suit O. S. No. 1548 of 1972 praying for the reliefs set out earlier.

(2.) IN the written statement filed by the appellant, it contended that the deceased first respondent was only a tenant of a building and that had also been finally decided by the authorities constituted under the provisions of the Tamil Nadu Buildings (Lease and Rent Control) Act and cannot be reopened and that the suit was only an attempt on the part of the deceased first respondent to continue unlawful possession of the premises for as long as possible. Besides, the appellant lso pleaded that in view of the prior decision under the provisions of the Tamil Nadu Buildings (Lease and Rent Control) Act, which had become final, the deceased first respondent was not entitled to file the suit as it was barred by res judicata. IN an additional written statement, the appellant raised a plea regarding the correctness of the Court-fee.

(3.) IT may now be considered whether the proceeding operating as res judicata must only be a suit. No doubt, Sec. 11, C. P. C. , uses the expressions'former suit'and'subsequent suit'and Sec. 26, C. P. C, refers to the institution of suits by the presentation of a plaint. The rule of res judicata is rested on considerations of public policy. No doubt, it has some technical aspects also. But the twin principles which form the foundation of the general rule of res judicata are that it is in the interest of the public at large that a finality should attach to binding decisions pronounced by courts of competent jurisdiction and it is also in public interest that individuals should not be twice vexed with the same kind of litigation. If these principles are borne in mind, it would at once be apparent that the principle of res judicata is not a technical principle, but a fundamental doctrine aimed at putting an end to litigation and that doctrine would apply equally in ail Courts irrespective of the form the proceedings have taken, provided it was on the same cause. IT will be useful in this connection to refer to Halsbury's Laws of England, IV Edition, Paragraph 1535 at page 1035 to the following effect: 'the doctrine applies equally in all Courts, and it is immaterial in what Court the former proceedings were taken, provided only that it was a Court of competent jurisdiction, or what form the proceeding took, provided it was really for the same cause". Thus, the form of the proceeding, whether it originated as a suit or even as an original petition, as in this case, is not really very material, but only the substance thereof. Viewed in that light, it is clear that in the proceedings under Exs. B-22 and B-24, the deceased first respondent had agitated the very same claim as is now sought to be agitated, namely, he had taken a lease of a vacant site from the appellant and had put up superstructure thereon. When the cause is the same, as in this case as well, there is no escape from the application of the principle of res judicata on the ground that the form of the action is not a suit. Indeed, there are several decisions of the Privy Council, the Supreme Court and other Court which have recognised the applicability of the principle of res judicata with reference to decisions rendered in proceedings not strictly suits. Sheoparsan Singh v. Ramnandan singh, 31 M. L. J. 77: (1916)43 Ind. App. 91, had to consider the effect of the grant of probate of a Will under the Probate and Administration Act V of 1881, on a subsequent suit for a declaration that the plaintiffs are the next reversioners to the estate of the testator. Upholding the view of the Calcutta high Court that the suit was barred by res judicata, Sir Lawrence Jenkins pointed out that the application of the rule of res judicata should not be influenced by technical considerations of form, but by matter of substance within the limits allowed by law. In Hook v. Administrator-General of Bengal, 40 m. L. J. 423: (1921)48 Ind. App. 187, the question arose whether an adjudication in an administration suit regarding the validity of a gift over would not operate as res judicata in a suit commenced after the annuitant's death by the next of kin. In holding that the prior decision would operate as res judicata, lord Buck master referred to the dictum of the Board in Ram Kirpal Sukul v. Rup kuari, (1883)11 Ind. App. 37: I. L. R. 6 All. 269 and stated that that the plea of res judicata still remains apart from the limited provisions of the Code. The following observations of Sir Barnes Peacock at Page 41 of Ram Kirpal Sukul v. Rup Kuari, (1883-84)11 Ind. App. 37: l. L. R. 6 All. 269, were quoted with approval: "the binding force of such a judgment in such a case as the present depends not upon Sec. 13 of Act X of 1877 (now replaced by Sec. 11 of the Code of Civil Procedure, 1908) but upon general principles of law. If it were not binding there would be no end to litigation. " In Ramachandra Rao v. Ramachandra Rao, 43 M. L. J. 78: 16 l. W. 1: A. I. R. 1922 P. C. 80: I. L. R. 45 Mad. 320: (1922)49 Ind. App. 129, the question arose was, whether the decision rendered on a reference under sec. 31 (2) of the Land Acquisition Act operated as res judicata in a subsequent suit between the same parties as to who was entitled to some property of considerable value. The Privy Council, while dealing with the argument that the previous decision was not rendered in a suit, observed as follows: "it has been suggested that the decision was not in a former suit, but whether this were so or not makes no difference, for it has been recently pointed out by this Board in Hook v. Administrator-General of bengal, 40 M. L. J. 423: (1921) 48 Ind. Appeal 187, that the principle which prevents the same case being twice litigated is of general application and is not limited by the Specific words of the Code in this respect;" This decision, therefore, lays down that a decision given in a proceeding, which is not a suit, may nevertheless operate as res judicata, if substantial rights of parties are decided. In Balakotayya v. Nag-ayya, (1946)1 M. L. J. 200: l. L. R. 1946 Mad. 566: 59 L. W. 67: A. I. R. 1946 Mad. 509, a division Bench of this Court applied the doctrine of res judicata to a final decision in a proceeding arising under Sec. 84 (2) of the Madras Hindu Religious endowments Act and also pointed out that a decision given in a proceeding where substantial rights of parties are determined may operate as res judicata, though such a proceeding was not a suit. In N. Seshamma v. K. Gangaraju, 1956 An. W. R. 899: A. I. R. 1957 A. P. 841, Viswanatha Sastri, J. , had occasion to consider the applicability of the principle of res judicata to an application for scaling down under the provisions of the Tamil Nadu Agriculturists Relief Act 4 of 1938. The learned Judge observed as follows: "a proceeding under Madras. Act IV of 1938 for scaling down the debt of an agriculturist and for the amendment of a decree passed against him on such scaling down, is an original proceeding, the decision in which is subject to appeal. A Proceeding for scaling dowr, the debt and amending the decree on such scaling down is not a suit and therefore might not fall within the literal terms of Sec. 11, Civil Procedure Code. At the same time, it has been held by the Judicial Committee that Sec. 11 is not exhaustive of the circumstances in which an issue may be res judicata. As observed by the judicial Committee, the application of the rule by the Courts in India should be influenced by no technical considerations of form, but by matter of substance within the limits allowed by law. See Kalipada v. Dmijapada, 58 m. L. J. 171: 31 L. W. 182: (1930) 57 I. A. 24: A. I. R. 1930 P. C. 22 and Sheoparsan v. Rama nandan, 31 M. L. J. 77: L. R. 43 L. A. 91: (1916) l. L. R. 43 Cal. 694: A. I. R. 1916 P. C. 78. The Judicial Committee laid down in Hook v. Administrator-General of Bengal, 40 M. L. J. 423: L. R. 48 L. A. 187: (1921) l. L. R. 48 Cal. 499: A. I. R. 1921 P. C. 11: 14 L. W. 221, that the plea of res Judicata still remained apart from the limited provisions of Sec. 11, Civil Procedure Code and referred with approval to an earlier decision of the Board in Ram Kirpal v. Rup Kuari, (1883-84) L. R. 11 i. A. 37: (1884) I. L. R. 6 All. 269 (P. C.), which held that the binding force of an interlocutory judgment in execution proceedings depended not upon the section of the Civil Procedure Code but upon general principles of law. In ramachandra v. Ramachandra, 43 M. L. J. 78: 49 I. A. 129: (1922) I. L. R. 45 Mad. 320: 16 L. W. 1: A. I. R. 1922 P. C. 80, the Privy Council again reiterated the principle that a decision in order to constitute res judicata need not necessarily have been given in a prior suit. The principle which prevents the same case being twice litigated is of general application, and is not limited by the specific words of Sec. 11, Civil Procedure Code, in this respect. IT is, therefore, clear that the decision of the Court scaling down the decree as 'regards the amount payable under it would be res judicata, between the parties in a subsequent proceeding. " Ultimately, it was held that the proceedings under Tamil nadu Agriculturists Act, IV of 1938, would operate as res judicata. In Kalipada de v. Dwijapada Das, 58 M. L. J. 171: (1930)57 Ind. App. 24: A. I. R. 1930 P. C. 22: 31 L. W. 182, the Privy Council was called upon to consider how far a finding rendered in contentious proceedings under the Probate and Administration Act, 1881 would be binding upon the parties in a subsequent suit and those claiming under them. Lord Darling observed at page 27 referring to Sheoparsan Singh v. Ramanandan Singh, (1916)43 Ind. App. 91, thus: 'it appears to their Lordships worthwhile to repeat what was said by Sir Lawrence Jenkins in delivering the judgment of the Board in sheoparsan Singh v. Ramnan-dan Singh, 31 M. L. J. 77: A. I. R. 1916 P. C. 78: (1916)43 Ind. App. 91: In view of the arguments addressed to them, their Lordships desire to emphasise that the rule of res judicata, while founded on ancient precedent is dictated by a wisdom which is for all time,'it hath has been well said,'declared Lord Coke,'interest reipublicae ut sit finis litium--otherwise, great oppression might be done under colour and pretence of law' (6 coke 9a ). Though the rule of the Code may be traced to an English source, it embodies a doctrine in no way opposed to the spirit of the law as expounded by the Hindu Commmentators. Vijnanesvara and Nilakantha include the plea of a former judgment among those allowed-by law, each citing for this purpose the text of Katyayana, who describes the plea thus:'if a person, though defeated at law, sue again, he should be answered,'You were defeated formerly.'This is called the plea of former judgment. (See the Mitakshara (Vyavahara), Bk. II, ch. I. , P. 11, edited by J. R. Charpure, P. 14, and the Mayuka, Ch. I. , s. 1, p. 11, of Mandlik's editions ). And so the application of the rule by the Courts in india should be influenced by no technical considerations of form, but by matter of substance within the limits allowed by law. " Finally, the Privy Council upheld the plea of res judicata.