NITIN KUMAR Vs. RAJENDRA KUMAR

JUDGEMENT

(1.) ONE Baldev had two sons Ram Prasad and Bhagwan Deen. Ram Prasad was succeeded by his widow Smt. Ram Sakhi and Bhagwan Deen by his daughter Smt. Sugiya Devi. Smt. Sugiya Devi executed two sale deeds on 13.6.1984, one in favour of Mahesh and the other in favour of Saligram transferring two separate parts of the property which is described as house ?, ?, ?, ? in the plaint map. Smt. Ram Sakhi instituted original suit No. 101 of 1984 for the cancellation of the sale deed which was in favour of Saligram and another original suit No. 102 of 1984 for the cancellation of the sale deed which was in favour of Mahesh. Both the suits were filed on the allegations that in the family partition between Baldev, Ram Prasad and Bhagwan Das the house in dispute was settled exclusively in favour of Ram Prasad therefore, Ram Sakhi had no right, title or interest in any part of it so as to execute the sale deeds. Original suit No. 102 of 1984 Smt. Ram Sakhi Vs. Mahesh and another was decreed ex-parte on 5.1.1987. The said decree between the parties is said to have become final. The other suit No. 101 of 1984 Smt. Ram Sakhi Vs. Saligram and another from which this appeal arises was decreed subsequently and the sale deed executed by Smt. Sugiya in favour of the Saligram was ordered to be cancelled. On appeal preferred by Saligram the decree has been reversed and the suit has been dismissed holding that Smt. Ram Sakhi was unable to prove partition and the settlement of the disputed house ?, ?, ?, ? exclusively in favour of her husband late Ram Prasad. Aggrieved by the judgment order and decree of the lower appellate Court, the plaintiff-appellant Smt. Sugiya now represented by her legal heirs and representative have come in this second appeal. Heard Sri S.K. Verma, Senior Advocate assisted by Sri Siddharth Verma, learned counsel for the plaintiff- appellants and Sri. R.K. Pandey, learned counsel for the defendant-respondents. The only point argued by Sri S.K. Verma is that as the decree passed in original suit No. 102 of 1984 for the cancellation of one of the sale deeds has become final, the present suit/appeal is barred by the principle of res judicata and as such the lower appellate Court has grossly erred in allowing the appeal and dismissing the suit. In reply Sri R.K. Pandey has submitted that the decree passed in other suit cannot operate as res judicata as the defendant-respondent was not a party in the said suit; it is an ex-parte decree which appears to be collusive; and the decree is not supported by any judgment within the meaning or Section 2(9) read with Order XX Rule 4(2) C.P.C. In view of the aforesaid facts and circumstances and the respective submissions of the parties the only point which arises for determination is as to whether the decree passed in original suit No. 102 of 1984 Smt. Ram Sakhi Vs. Mahesh and others will operate as res judicata so as to bar the other suit/appeal. The principle of res judicata is enshrined under section 11 of the Civil Procedure Code. The purpose behind the aforesaid provision is that there has to be an end to a litigation and that no person should be vexed twice for the same cause of action. Section 11 C.P.C. reads as under : "Res judicata.- No Court shall try any suit or issue in which the matter directly and substantially in issue has been 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." A plain reading of the aforesaid provision brings about the following essential conditions for applying the principle of res judicata :- (i) that the ligating parties in the two suits must be the same; (ii) that the subject matter of the suit must also be identical; (iii) the matter must be heard and finally decided by the Court; and (iv) the decision should be by a court of competent jurisdiction. In the instant case the perusal of the ex-parte decree establishes that the defendant-respondent Saligram was not a party in the former suit but Smt. Sugiya Devi was there under whom he is claiming title over the land in dispute. In order to sustain the plea of res judicata it is not necessary that all the parties to the two litigations must be common. All that is necessary is that the issue should be between the same parties or between the parties under whom they or any of them are claiming. Therefore, the first condition for applying the principle of res judicata stands satisfied. Secondly, both the suits are for the cancellation of the two sale deeds dated 13.6.1984 executed by Smt. Sugiya in favour of Mahesh and defendant-respondent Saligram and as such the issue in both of them appears to be directly and substantially the same. Therefore, the second ingredient for application of the principle of res judicata also apparently stand satisfied. There is no dispute with regard to the 4th condition i.e. the decision must be by a Court of competent jurisdiction. Thus, the only dispute which remains to be considered is whether the issue of the cancellation of the sale deed stood finally decided in the former of suit. For the purposes of satisfying the third condition for applying the principle of res judicata, it is necessary to first examine the case of the parties and then to find out as to what has been decided by the Court. The bar of res judicata applies apart from satisfaction of the other three conditions, when the matter directly and substantially in issue in the former suit "has been heard and finally decided" by a Court of competent jurisdiction. The important words are "has been heard and finally decided". This clearly indicates that the matter in issue must be adjudicated on an application of judicial mind. If the former suit is dismissed without such adjudication, for example on a technical ground, it cannot operate as res judicata. The Apex Court in the case of State of Maharastra and another Vs. National Construction Company, Bombay AIR 1996 SC 2367 clearly laid down that where the suit has been dismissed on a technical ground and there is no decision on the merits of the case such dismissal of suit and appeal would not operate as bar to subsequent suits/appeals. In Sheoden Singh Vs. Daryao Kunwar AIR 1966 SC 1332 two suits with common issue were decided by the trial Court on merits. Accordingly, two appeals were preferred, one of the appeals was dismissed on the ground of limitation/default and as such the judgment of the trial Court which was on merits became final and conclusive. In the said circumstances while ceased with the other appeal, it was held that the decision in the first suit rendered by the trial Court which has became final would operate as res judicata even though the appeal was not heard and decided on merits. In the said case the Supreme Court considering the expression "heard and finally decided" used in Section 11 C.P.C. held that in order to have the matter heard and finally decided the decision ought to be on merits and observed that where the former suit was dismissed by the trial Court for want of issue, or on the ground of non-joinder of parties and mis-joinder of parties or the multifarious or on the ground that the suit was badly framed or on the ground of the technical mistake or for failure on part of the plaintiff to produce probate or letters of administration or succession certificate when the same is required by law to entitle the plaintiff to a decree or for failure to furnish security for cost or on the ground of improper valuation or for failure to pay additional court fees on a plaint which was under valued or for want of cause of action or on the ground that it is premature and the dismissal is confirmed in appeal, if any, such a decision not being on merits would not be res judicata in a subsequent suit. In this context it may be relevant to state that an ex-parte decree has been held to be a case which has been heard and finally decided vide AIR 1947 Alld. 147 Radhamohan and others and Miss. Eliza Zen Hilt and others but it is equally settled that it is the finding or the decision which actually operates as res judicata and not the decree. A full Bench of the Allahabad High Court in Jai Narain Har Narain and another Vs. L. Bulaki Das AIR 1969 Alld. 504 while considering the expression "heard and finally decided" used in Section 11 C.P.C. clearly ruled that it is the decision and not the decree that creates bar of res judicata. Therefore, what is relevant for the purposes of applying the principle of res judicata is the decision on the issue which is supposed to be on merits. In case the decision is not on merit or the decision is otherwise it would not operate as a bar. The word "decision" is a popular word rather then a technical or a legal word. It refers to a determination arrived at after consideration of facts and law. A decision of the Court is its judgment. In other words, a judgment, decree, or order pronounced by a Court in settlement of a controversy submitted by way of authoritative answer to the question raised before it is a decision. It involves the power and right to deliberate to weigh the reasons for and against and to come to a definite conclusion. "Judgment" as defined under Section 2(9) C.P.C. means the statement given by the judge on the ground of decree or order. Therefore, it must contain the statement of facts and the reasons and the precise reasons for granting the relief. It must contain not only the findings on the issues involved but also the analysis of the evidence and the reasoning in support of coming to the conclusion or a finding. This is also the requirement of Order XX Rule 4(2) C.P.C. which provides that judgment of court must contain a concise statement of the case, the points for determination, the decision thereon, and the reasons for such decision. Therefore, recording of reasons in support of the conclusion or the decision is imperative. An order without such reasons as such would not be "judgment". The mere fact that the defendant absented and the suit had proceeded ex-parte would not be sufficient to pass a decree as prayed for unless the Court records reasons for the satisfaction thereof. The Court is obliged to apply its mind to the facts of the case, evidence on record and to come to a particular conclusion on analysis of the same. In other words a judgment of a Court should contain concise statement of a case points of decision, the reasons for such decision and the decision thereupon. However, where a decision is given without formulating the points of determination and recording finding, it was held not to be a judgment within the meaning of Section 2(9) C.P.C. Similarly, a judgment whether it is passed ex-parte or not affects the rights and the liabilities of the parties. Therefore, merely because the Court passed a judgment ex-parte the essential requisites of a judgment cannot be omitted. In the case at hand the judgment in support of the decree passed in original suit No. 102 of 1984 ex facie does not in any manner decides any issue on merits. In the said suit the written statement on behalf of the both the defendants i.e. Mahesh and Smt. Sugiya were filed separately disputing the claim of Smt. Ram Sakhi for the cancellation of the sale deed. However, the suit proceeded ex-parte and was decreed by a totally non speaking and unreasoned judgment which is reproduced hereinbelow: fu"d"kZ "ih0MCyw 01 Jherh jkel[kh okfnuh ds l'kiFk c;ku ,oa i=koyh ij miyC/k nLrkosth lk{; ds vk/kkj ij eSa lUrq"V gWw fd okfnuh viuk okn lkfcr dj ikus esa lQy gS vkSj ;kfpr vuqrks"k dh vf/kdkjh gSA vkns'k okn ,d&i{kh; :i ls lO;; fM h fd;k tkrk gSA vuqikyu lqfuf'pr djus gsrq vkKfIr dh ,d izfr lc jftLV kj dohZ dks izsf"kr gksA fnukad % 5-1-87 Jh ukjk;.k mik/;k; eqfUlQ] dohZ ckank vkt ;g fu.kZ; esjs }kjk [kqys U;k;ky; esa gLrk{kfjr] fnukafdr ,oa mn?kksf"krA fnukad 5-1-87 g0 Jh ukjk;.k mik/;k; eqfUlQ] dohZ ckank " A perusal of the aforesaid relevant portion of the judgment in unequivocal terms demonstrates that the same has been passed on account of the absence of the defendants which led the Court to record satisfaction with the plaint case. However, it does not even record the statements of the fact, the defence set-up in written statement, and the evidence adduced in support thereof as also the reasoning for arriving at the conclusion. Therefore, in nutshell the aforesaid judgment is not a decision within the meaning of Section 11 C.P.C. and does not even conform to the definition of the judgment as contained under Section 2(9) read with Order XX Rule 4(2) of the C.P.C. Accordingly, it cannot operate as a bar of res judicata. In a similar factual situation where an ex parte decree unsupported by reasons was passed, the single Judge of this Court in the case of Commissioner of Income-tax Vs. Surendra Singh Pahwa and others AIR 1995 All. 259 held that such an ex-parte decree does not confirm to the description of a judgment as per Order XX Rule 4(2) of C.P.C. and as such cannot be a judgment and went on to observe as under: "Even an ex parte judgment should satisfy the description of 'judgment' as laid down in Order 20, Rule 4(2), C.P.C., which visualises that the judgment of a Court other than the court of Small Causes "shall contain a concise statement of the case, points for determination, decision and the reasons for such decision." A 'judgment' for its sustenance must contain not only findings on the points, but must also contain what evidence consists of, and how does not prove plaintiff's case. A judgment unsupported by reasons is no judgment in the eye of law. It is well settled that reasons are the links between the material on record and the conclusion arrived at by the Court. Mere fact that the defendant absented himself on the date of hearing and the suit proceeded ex parte, did not by itself entitle the plaintiff to get a decree in his favour. The court was under an obligation to apply its mind to whatever ex parte evidence or affidavit filed under Order 19 of the Code is on the record of the case, and application of mind must be writ large on the fact of record. This is possible only if the court directs itself to whatever material is on record of the case, analyses the same and then comes to any conclusion on the basis of evidentiary value of the ex parte evidence or affidavit brought on record by the plaintiff. It may also be observed that the written statement already filed in this case would not be deemed to have been wiped off the record merely because the defendant did not appear on the date of issues and the suit was ordered to proceed ex parte. The trial court ought to have, on consideration of pleadings, formulated points for determination." The facts in which the above decision has been given squarely covers the present case and as such it can safely be held that the so called judgment and order in support of the decree passed in original suit No. 101 of 1984 is not a judgment in the eyes of law and cannot operate as res judicata for the purpose and the decision of the other suit i.e. original suit No. 101 of 1984 (Smt. Ram Sakhi Vs. Saligram) from which the present second appeal arises. In view of the above, I find no substance in the point raised by Sri S.K. Verma learned Senior Advocate. Accordingly, the appeal fails and is dismissed with no orders as to costs.