Editor's Column

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This Blog is written by Ravikiran Shukre | Column Editor

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Court: Supreme Court of India

Citation: [AIR (1960) SC 941]

Delivered on: 20^th April 1960

Bench: Gupta, K. C. Das, Gajendragadkar P. B., Wanchoo K. N. JJJ

Relevant Article/Section: Sec. 28 of Calcatta Thika Tenancy Act, 1949, Sec. 11 & Sec. 105 of the Code of Civil Procedure, 1908

 

FACTS OF THE CASE[1]:

1. Current appeal is filed by the landlords who having obtained a decree for ejectment against tenants, Deorajin Debi and her minor son, on Feb. 10^th 1949, have not yet been able to get possession in execution thereof soon after the decree was made under the Calcatta Thika Tenancy Act, 1949.

2. On March 3^rd 1949, tenants made an application under Order 9 Rule 13 of the Code of Civil Procedure, 1908 for having the decree set aside but the said application was dismissed by the court on July 16^th On Sept. 9^th 1949, an application was made by the tenants under S. 28 of the Calcutta Thika Tenancy Act alleging that they were Thika tenants and praying that the decree made against them on February 2, 1949, may be rescinded.

3. This Application was resisted by the landlords (the decree-holders), and on Nov. 12^th, 1951 the Munsif holding that the applicants were not Thika Tenants within the meaning of the Thika Tenancy Act and accordingly the decree was not liable to be rescinded and hence dismissed their application.

4. Aggrieved by this, tenants moved the High Court of Calcutta under Sec. 115 of the Code of Civil Procedure, 1908. By the time the Review Application was taken up for the hearing the Calcutta Thika Tenancy Ordinance had come into force on Oct. 21^st 1952 and Calcutta Thika Tenancy (Amendment) Act, 1953, had come into force on March 14^th The 1953 Amendment Act inter alia omitted S. 28 of the original Act. In order to decide therefore whether the application under S. 28 was still active the High Court had to consider the effect of S. 1 (2) of the Calcutta Thika Tenancy Amendment Act which provided that the provisions of the Calcutta Thika Tenancy Act, 1949 as amended by the 1953 Act shall apply and be deemed to have always applied to proceedings pending on date of commencement of Calcutta Thika Tenancy Ordinance of 1952.

5. The learned judges of the High Court held that S. 1(2) of the Thika Tenancy Amendment Act did not affect the operation of S. 28 of the original Act to these proceedings and disposed of these applications on the basis that s. 28 was applicable. The High Court also held that in view of the amended definition of the term ” Thika tenant ” and the evidence which had been recorded by the Munsif the petitioners must be found to be Thika tenants. Accordingly, they allowed the application for revision, set aside the order of the Munsif by which he had dismissed the application under s. 28 and remanded the concerned case to the Munsif’s court for the disposal in accordance with the law.

6. After remand the Munsif rescinded the decree. The landlords’ application under s. 115 of the Code of Civil Procedure against the Munsif’s order was rejected by the High Court. The attempt of the landlords to raise before the High Court again the question of the applicability of s. 28 was unsuccessful, the learned judge who heard the matter in the High Court being of opinion that this question as between these parties was res judicata.

7. Aggrieved by the order of the High Court, the present appeal was filed by the landlords on the strength of special leave granted by this Supreme Court on Nov. 16^th

 

ISSUES RAISED:

Whether the appellant is barred by the principle of Res Judicata from raising before the Supreme Court the question, whether on the enactment of the Thika Tenancy Amendment Act, 1953, Sec. 28 of the original Act survives or not in respect of proceedings pending on the date of commencement of the Thika Tenancy Ordinance, 1952?

RULE OF LAW WHICH APPLIES:

1) Res Judicata[2] – 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 the parties under whom they or any of them claim, litigating under the same title, in a court competent to try such subsequent suit or suit in which such issue has been subsequently raised, and has been heard and finally decided by such court.  

2) Other Orders[3] – (1) Save as otherwise expressly provided, no appeal shall lie from any order made by a Court in the exercise of its original or appellate jurisdiction; but where a decree is appealed from, any error, defect or irregularity in any order, affecting the decision of the case, may be set forth as a ground of objection in the memorandum of appeal.

(2) Notwithstanding anything contained in sub-section (1), where any party aggrieved by an order of remand from which an appeals lies does not appeal therefrom, he shall thereafter be precluded from disputing its correctness.

3) In the case of Mahadeolal Kanodia v. The Administrator-General of West Bengal[4] the question regarding the Sec. 28 of the original Act, cannot after amending Act came into force, be applied to any proceedings pending on the date of commencement of Calcutta Thika Tenancy Ordinance, 1952 was considered by the Court and Court held that Sec. 28 of the Original Act is not applicable to such proceedings.

4) In the case of Maharaja Moheshur Singh v. The Bengal Government[5] decided by the Privy Council, a question is dealt in brief as to whether at an earlier stage of litigation; a Court has decided an interlocutory matter in one way and no appeal has been taken therefrom or no appeal did lie, a higher court cannot at a later stage of same litigation consider the matter again? The Privy Council held that it is open to the appellate court which had not earlier considered the matter to investigate in an appeal from final decision grievances of the party in respect of an interlocutory order.

 

STATING THE APPLICATION OF RULE OF LAW WHICH APPLIES:

The Principle of Res Judicata is based on the need of giving a finality to judicial decisions. It normally implies that, once a Res (thing) is Judicata (adjudicated), it shall not be adjudged again. Primarily, it is applicable to past litigation and future litigation. This principle of Res Judicata serves a noble cause to everyone because of its object as – (1) No man is vexed twice for the same cause of action, (2) There must be an end to litigation and, (3) Judicial decisions must be accepted as correct.

When a matter whether on a question of fact or a question of law has been already decided between two parties in one suit or proceedings and the decision is final, either because no appeal was taken to a higher court or because the appeal was dismissed, or no appeal lies, neither party will be allowed in coming future suit or proceedings between the same parties to drive the matter again.

The principle of Res Judicata applies also between two stages in the same litigation to this extent that a court, whether the trial court or higher court having at an earlier stage decided/adjudicated a matter in one way will not allow the parties to re-agitate the matter again at a subsequent stage of the same proceedings.

In future litigation, it will not be open to either of the parties to challenge the correctness of the decision on a matter finally decided in past litigation makes it important that in earlier litigation the decision must be final in the strict sense of the term. When a court has decided a matter it is certainly final as regards that court.

Privy Council in the case of Maharaja Moheshur Singh v. The Bengal Government[6] held that the effect of the rule that; at every stage of the litigation a decision not appealed from must be held to be finally decided even in respect of the superior courts, will put on every litigant against whom an interlocutory order is decided, the burden of running to the higher courts for redress of the grievances, even though it may very well be that though the interlocutory order is against him, the final order will be in his favor and so it may not be necessary for him to go to the appellate court at all.

An interlocutory order which had not been appealed from either because no appeal lay or even though an appeal lay an appeal was not taken could be challenged in an appeal from the final decree or order. A special provision was made as regards orders of remand and that was to the effect that if an appeal lay and still the appeal was not taken the correctness of the order of remand could not later be challenged in an appeal from the final decision.

If, however, an appeal did not lie from the order of remand the correctness thereof could be challenged by an appeal from the final decision as in the cases of other interlocutory orders.

The second sub-section did not apply to the Privy Council and can have no application to appeals to the Supreme Court, one reason the Supreme Court against an order of remand. There appears to be no reason therefore, the appellant should not be precluded from raising before this Supreme Court the question regarding the applicability of Sec. 28 merely because he had not appealed from the High Court’s order of remand, taking the view against him that the section was applicable.

 

CONCLUSION:

The Principle of Res Judicata is based on the need of giving a finality to judicial decisions. It normally implies that, once a Res (thing) is Judicata (adjudicated), it shall not be adjudged again. Primarily, it is applicable to past litigation and future litigation.

The principle of Res Judicata applies also between two stages in the same litigation to this extent that a court, whether trial court or higher court having at an earlier stage decided/adjudicated a matter in one way will not allow the parties to re-agitate the matter again at a subsequent stage of the same proceedings.

If this principle is not applied then, (1) There would be no end to the litigation, (2) No security will be there to any person as to enjoy his rights, (3) Rights of parties would be involved in the same litigation and great injustice would be done.

REFERENCES

[1] Satyadhan Ghosal and Ors. V. Sm. Deorajin Debi & Anr. [AIR (1960) SC 941]

[2] Sec. 11 of the Code of Civil Procedure, 1908

[3] Sec. 105 of the Code of Civil Procedure Code, 1908

[4] [(1960) 3 SCR 578]

[5] [(1859) 7 M.I.A 283]

[6] [(1859) 7 M.I.A 283]