RAMJILAL Vs. SUNDA

JUDGEMENT

(1.) This second appeal has been filed by the unsuccessful plaintiff whose suit for a permanent injunction was rejected by the trial court on the ground of res judicata, the first appellate court confirming the same in appeal.

(2.) We have heard the learned counsel for the parties and have examined the record as well. The only point involved for determination in the case is as to whether the plea of res judicata can be effectively based on a consent decree or not. It is an admitted fact that a consent decree between the parties in respect of this very dispute was passed. Both the lower courts have held that the present suit is therefore barred by res judicata.

(3.) The learned counsel for the appellant has placed his reliance on A.I.R. 1950 Patna 17 and 1924 Patna 758. In the former case a question arose as to whether a compromise decree dividing the amount of pension between the parties to suit was void ab initio or not regard being had to the provisions of section 12 Pension Act, 1871. Their Lordships observed that sec. 12 of the Pensions Act prevents traffic in pensions as it is opposed to public policy and hence if a compromise decree grants division of a pension between the parties it would tantamount to a traffic in the pension and will come within the mischief of sec. 23 of the Contract Act. The provisions of Sec. 4 of the Pensions Act were also examined and it was held that if a civil court could entertain a suit with regard to pensions the parties would be doing what is prohibited by law and thus the provision of law would be defeated. It was therefore, held that "It is no doubt true that a consent decree is as binding upon the parties thereto as to decree passed by invitum, but if the compromise is vitiated under the provisions of the Contract Act, that may not be binding on the parties as res judicata. It has been argued that as the previous decree was obtained by fraud or mis -representation res judicata would not govern the case. In the first place the ruling cited by the appellants counsel has no applicability to the present case. Secondly, the appellant has not yet obtained any relief from a competent civil court as regards the avoidance on the ground of fraud, misrepresentation etc. Hence he cannot be allowed to presume the existence of a fact which he is bound to establish to the satisfaction of a civil court in accordance with the prescribed procedure.