K R GOPALA PATTAR Vs. KSGOPALAKRISHNA PATTAR

JUDGEMENT

(1.) The only question that arises in this second appeal bears on the rule of res judicata. That rule was invoked against the plaintiff who is the appellant before us and both the lower Courts having found against him on the point, he has been nonsuited. Hence this second appeal. His present suit, which on the application of the rule of res judicata, he has been held by the lower Courts not entitled to maintain, is for a third share of a certain property and for the partition, ascertainment and delivery over of the same. His claim to such share is based on the allegation that the property belonged in common to his father, to defendant 1 and to the father of defendants 2 and 3 as relating to a kurchit of which the said three persons were the stakeholders or proprietors. The previous suit the adjudication in which has been put forward as a bar to the present claim of the plaintiff was instituted as plaintiff by the present defendant 1. The father of defendants 2 and 3 was defendant 2 in the previous suit and the present plaintiff was defendant 3 therein. Defendant 1 in that suit was the tenant in occupation of the suit property. The plaint in that former suit has been filed as Ex. C in the present case. The relief claimed in that action was for recovery of immediate possession of the land and for certain rents. Those reliefs were claimed on two grounds: firstly, that the property belonged to all the said three proprietors of the kurchit; and secondly, that till the termination of the kurchit he, the present defendant 1, was entitled to the management of the property and the receipt of the rents therefrom under the terms and conditions of a kararnama executed by and between the parties. The plaintiff in the present suit as defendant 3 in the previous suit did not appear or defend the action. But the father of the present defendants 2 and 3 did. His defence was that the present plaintiff as defendant 3 had no interest in it, that the present defendant 1 as plaintiff was not solely entitled to the possession of the property or the rents, but that both of them were so entitled. The decree in the previous suit has not been produced or filed as an exhibit in this case, but the judgment therein has been.

(2.) The District Munsif who tried that case accepted the defence of the father of the present defendants 2 and 3 and gave decree accordingly for possession and rents of the suit property in two equal moieties in favour of the present defendant 1 and the father of the present defendants 2 and 3. If is that judgment that is now contended, and has been found by the lower Courts, to operate as res judicata. The question before us, is, whether the decision of the lower Courts regarding this bar by the rule of res judicata is correct. Two observations with regard to the matter may be made in limine.

(3.) The first is that the previous suit, which was based on the plaint instituted by the present defendant 1, was not only in substance, but in terms, a complete admission of the basis of the plaintiff's claim in the present suit. The second is that on the present plaintiff's case, though it was clear that no contest arose, or could arise between him and defendant 1 as plaintiff in the previous suit, and though, therefore, he did not defend the action and consequently, though he was not a party to any adjudication arrived at in the suit, still there was in terms an adjudication, and it is now claimed on behalf of the defendants-respondents that he must be deemed to be barred by reason of such adjudication. It was admitted by Mr. K. P. M. Menon, learned Counsel for the respondents, that at first sight it no doubt appears to be unjust that a party should in such circumstances be held to be barred. But he argued that what seems so obvious is not really the law or the correct view. The rule of res judicata is a rule against multiplicity of legal proceedings and is designed to secure some kind of finality in certain circumstances to judicial decisions. It is this rule that is embodied and enacted in Section 11, Civil P.C. The principles underlying the rule may be generally stated to be that if two parties contest a point in Court and the Court gives final adjudication of the point between the parties, it must thereafter as between them be treated as final and is not liable to be re-agitated. As a corollary to this, the rule also provides that if a person had on a previous occasion an opportunity to agitate a particular point or question, and has failed or omitted to do so, then it must be assumed that ha did not do so because he could not and that, therefore, so far as such point or question is concerned, he must be regarded as being in the same position as a person who having raised or agitated a point or question the Court comes to find the same finally against him. It is having regard to these two cardinal principles of the rule that the rule of res judicata as between co-defendants has been postulated by Courts of law. It has been admitted before us that so far as co-defendants are concerned the decision of the Full Bench of this Court in the case of K. Ramasami V/s. Ponnusami A.I.R. 1922 Mad 452 (F.B.), is binding on us. The present Chief Justice, in delivering the judgment of the Full Bench, refers with approval to the rule as laid down by Vice-Chancellor Wigram in the leading case of Cottingham V/s. Earl of Shrewsbury. It is as follows: If a plaintiff cannot get at his right without trying and deciding a case between co- defendants, the Court will try and decide that case and the co-defendants will be bound. But if the relief given to the plaintiff does not require or involve a decision of any case between co-defendants, the co-defendants will not be bound as between each other by any proceeding which may be necessary only to the decree the plaintiff obtains.