MOHINDER KAUR Vs. PIARA SINGH

JUDGEMENT

(1.) THE following question of law has been referred to this Full bench for decision:-" whether, in no case a decision under Order 22, Rule 5, Civil Procedure Code, would operate as res judicata between the same parties or their successors in interest or their privies in subsequent proceedings even when the contested issue in the earlier proceedings had been decided by the Court on merits after affording fair and due opportunity to the contesting parties to lead evidence and of hearing?" A few skeletal facts necessary to unfold the basic legal contention only are noticed as under.

(2.) THE present plaintiff-appellant (hereinafter referred to as the plaintiff) along with their mother Smt. Amar Kaur brought a suit on July 1, 1958 for maintenance against their grandfather, Ishar Singh with the allegation that since their father Milkhi was unheard of for the last more than thirteen years and was presumed to be dead, the defendant Ishar Singh was under a legal obligation to maintain them from the property in his hands. The said suit was decreed on August 30, 1961 by sub Judge 1st class, Garhshankar before an appeal could be filed against that decree Ishar Singh, judgment-debtor died. The present defendant claiming themselves to be the legal representatives of Ishar Singh deceased on the basis of a will, filed an appeal in this Court against the said decree. As a question with regard to the maintainability of the said appeal by the defendant arose, the matter was referred by this Court to the trial Court for a report on the point as to whether the defendant were the legal representative of Ishar Singh deceased judgment-debtor. The said Court, after recording evidence with regard to the genuineness of the will, reported in favour of the defendants. This report was accepted by this court with the following order: "in view of the report of the Court below pursuant to my order dated 19th July, 1962 Piara Singh and Sucha Singh Petitioners are directed to be impleaded as legal representatives of the deceased Ishar Singh and consequently permitted to file the appeal, The appeal has already been filed and appropriate orders ready been filed and appropriate orders have been made regarding its admission etc. 26-7-1963. Sd/-A. N. Grover Judge" As a result of this order, the appeal preferred by the defendant was held to be maintainable though ultimately the same was dismissed by this Court on April 29, 1971 with certain modification in the decree on account of death of Smt. Amar Kaur during the pendency of the appeal and the plaintiffs-grant daughters of Ishar Singh--having joined government service. Subsequently the plaintiff filed the present suit against the defendants the for declaration and possession of the property left by Ishar Singh deceased on the basis of their bring the sole heirs to the basis of their being the sole heirs to him. A specific Challenge to the will alleged to have been executed by the deceased in favour of the defendants, was also leveled. The pleadings of the parties necessitated the framing of the following issues : 1. Whether Ishar Singh deceased had executed a valid will in favour of Piara Singh ad Sucha Singh on 28-12-1960?o. P. D. 2. Whether the will dated 28-12-1960 is the result of undue influence and fraud as alleged?o. P. D.

(3.) WHETHER the plaintiffs are extopped from challenging the validity of the will as alleged and the matter is res judicata between them. O. P. D. The above-noted question of law posed before us, pertains to issue No. 3 only. 3. The learned Single Judge before whom this R. S. A. came up for final hearing felt that the inflexible and absolute rule laid down by a string of decisions of Lahore high Court and this Court that a decision under Order 22, Rule 5, Civil Procedure Code, would in no case operate as res judicata between the parties or their successors-in-interest in a subsequent suit required reconsideration in view of the newly added explanation 7 and 8 to Section 11 of the Civil Procedure Code and the decision of their Lordships of the Supreme court in Union of India v. Nanak Singh, AIR 1968 SC 1370. In the said case, the learned Judges of the Supreme Court while holding that a decision of the Court on the writ side deciding a particular issue involved therein would operate as res judicata regarding the said point raised subsequently in a civil suit-observed as follows: