PETITIONER:
NARAYANA PRABHU VENKATESWARA PRABHU
Vs.
RESPONDENT:
NARAYAN PRABHU KRISHNA PRABHU & ORS.
DATE OF JUDGMENT19/01/1977
BENCH:
BEG, M. HAMEEDULLAH
RAY, A.N. (CJ)
SHINGAL, P.N.
CITATION:
1977 AIR 1268 1977 SCR (2) 636
1977 SCC (2) 181
ACT
Code of Civil Procedure--s. 11 Explanations II and
Vl--Scope of--Existence of right of appeal--If a bar of
res-judicata.
HEADNOTE
Explanation II to s. 11 C.P.C. provides that for the
purposes of the section, the competence of a Court shall be
determined irrespective of any provision as to a right of
appeal from the decision of such Court. Explanation VI
provides that where persons litigate bona fide in respect of
a private right claimed in common for themselves and
others, all persons interested in such right shall, for the
purposes of this section be deemed to claim under the per-
sons so litigating.
The respondents and the appellant were brothers. The
respondents filed a suit for partition of the family proper-
ties in the Court of Additional Sub-Judge of competent
jurisdiction. The appellant on the other hand filed a money
suit against one of the brothers in the Court of a Munsiff
in which he impleaded his other brothers. Ultimately, the
money suit was transferred to the Court of the Additional
Sub-Judge, where the partition suit was Rending and both the
suits were tried together. In appeal, the High Court heard
and decided both the appeals together and pronounced sepa-
rate judgments in continuation but under separate headings
and a separate decree was prepared in each appeal. The
appellant filed an appeal in this Court under Art. 133(1)(a)
of the Constitution before its amendment, as a matter of
right, against the judgment of the High Court in the parti-
tion suit.
A preliminary objection was taken by the respondents in
this Court that the appeal was barred by res-judicata in
that the appellant did not file an appeal against the
judgment and decree in the money suit. The appellant on the
other hand contended that neither in law nor in equity was
he barred by res-judicata because he filed the appeal in the
partition suit as a matter of right, which was not available
to him in the money suit.
Dismissing the appeal,
HELD: The preliminary objection is supported by s. 11 of
the Code of Civil Procedure read in the light of Explana-
tions II and VI. [644 B]
1(a) Section 11 enables a party to raise the statutory
plea of res-Judicata if the conditions given therein are
fulfilled. Section 11 contains, in statutory form, with
explanations, a very salutary principle of public policy.
[641 C-D]
In the instant case, the incompetence of the Court, in
which the money suit was initially filed, to try the parti-
tion suit did not matter when the actual hearing of both the
cases took place in the same Court. That Court was compe-
tent to try both the suits. After the money suit had been
transferred, the second Additional Sub-Judge actually tried
and decided both of them. That was enough to make the
difference in the jurisdiction of the Court in which the
suits were initially filed, quite immaterial. Similarly the
High Court was competent to hear the appeals from judgments
in both cases. It heard and decided the appeals together.
[642 A-C]
Narhari & Ors. v. Shankar & Ors. [1950] S.C.R. 754 distin-
guished.
Lortankutty v. Thomman & Anr., A.I.R. 1976 SC
1645=[1976] Supp. S.C.R. 74 followed.
637
Sheoparsan Singh v. Ramnandan Prasad Singh, .AIR 1916 PC
78=43 I.A. 91, Govind Bin Lakshmanshet Anjorlekar v. Dhondba
’Ea’ V Bin Ganba’ RA ’17’ ’V’ Ta’ Mbve, ILR Vol. XV Bombay
104 and Avanasi Gounden & Ors. v. Nachammal, ILR 29 Madras
195 referred to.
Bhugwanbutti Chowdhrani v. A.H. Forbes ILR 28 Cal. 72 ap-
proved.
(b) The expression "former suit" in Explanation I of s.
11 makes it clear that, if a decision is given before the
institution of the proceeding which is sought to be
barred by res-judicata, and that decision is allowed to
become final or becomes final by operation of law, a bar of
res-judicata would emerge. [643 B]
(c) One of the tests in deciding whether the doctrine of
res-judicata applies to a particular case or not is to
determine whether two inconsistent decrees will conap into
existence if it is not applied. In a partition suit each
party claiming that the property is joint asserts a right
and litigates under a title which is common to others who
make identical claims. If that very issue is litigated in
another suit and decided, there is no reason why others
making the same claim cannot be held to be claiming the
right in common for themselves and others. Each of them can
be deemed, by reason of Explanation VI, to represent all
those the nature of whose claims and interests are common
or identical. To hold otherwise would mean that there
would be two inconsistent decrees. [643 G-H]
In the instant case, the fact that the other suit was a
money suit between the appellant and one of his brothers,
who was also the respondent in the partition suit, does not
make any difference to the applicability of the principle of
res-judicata. [643 C]
Kumaravelu Chettiar & Ors. v.T.P. Ramaswamy Ayyar & Ors,
A/R 1933 PC 183 followed.
Sheodhan Singh v. Smt. Daryao Kunwar, [1966] 3 S.C R.
300 and Bai Lakshmi Rani & Ors. v. Banamali Sen & Ors.,
[1953] S.C.R. 154 referred to.
2. The question whether there is a bar of res-judicata
does not depend on the existence of a right of appeal of the
same nature against each of the two decisions, but on the
question whether the same’ issue, under the circumstances
given in s. 11, has been heard and finally decided. [642 C-
D]
In the instant case, the High Court heard and finally
decided both the appeals before it. The mere fact that the
appellant could come up to this Court in appeal as of
right by means of a certificate of fitness under the unaa-
mended Art. 133(1)(c) in the partition suit, could not take
away the finality of the decision so far as the High Court
had determined the money suit and no attempt was made to
question the correctness or finality of that decision even
by means of an application for special leave. [642 D-E]
3. The appellant’s application for condonation of delay
in applying for leave to appeal against the High Court’s
judgment in the money suit must be dismissed. His delay in
waking up to the existence of the bar of res-judicata is
much too long to be condoned. The judgment of the High
Court based on the admissions of the appelant, does not
disclose any error of law so as to deserve the grant of
special leave to appeal. The partition suit was instituted
as long ago as 1947. If there is a case in which the prin-
ciple that litigation should have an end ought’to be
applied, it is this. [644 C-F]
JUDGMENT
CIVIL APPELLATE JURISDICTION: Civil Appeal No. 1763
of 1968.
(From the Judgment and Decree dated the 28th July, 1964
of the Kerala High Court in Appeal Suit No.. 843 of 1960).
T.C. Raghavan, Sardar Bahadur Saharya and V.B. Saharya,
for the appellant.
T.S. Krishnamoorthy Iyer and M.R. Pillai,. for Respondent
No. 1.
T.S. Krishnamoorthy, P.K. Pillai and N. Sudhakaran, for
Respondent No. 2.
638
The Judgment of the Court was delivered by
BEG, J. This is a defendent’s appeal by Certificate
granted by the Kerala High Court under Article 133(1)(a) of
the Constitution as a matter of course before its amendment
because the High Court had modified a decree in a partition
suit and the subject matter satisfied the requirements of
the unamended Article 133.
The parties to the partition suit are descendants of
Narayana Prabhu (hereinafter referred to as ’Narayana’).
Krishna, the plaintiff (now dead) was the 3rd son of Nara-
yana. The defendant-appellant, Venkateswara, was the eldest
of the four sons of Narayana. The partition suit related
to 72 items mentioned in schedule ’A’ to the plaint
claimed by the plaintiff to be joint family property. It
appears that there was no dispute with regard to certain
items, but, the defendant-appellant claimed other items as
his exclusive property on the ground that they had been
purchased from his personal income. due to his own enter-
prise and exertions and ability in carrying on business. The
Trial Court had accepted the case of the defendant-appellant
that all items, except No. 35 and a part of item No. 52
which belonged, to the 3rd defendant, were the self-acquired
properties of the defendant-appellant. The High Court re-
versed this finding on the ground that there was "little
reliable: evidence on record as to. the exact source of the.
fund with which the first defendant started the trade". The
High Court rejected the submission of the defendant-appel-
lant that, when the Tobacco business under consideration
was started, Narayana being the Karta of the family, the
fact that the eldest son, Venkateswara, the defendant-appel-
lant, was carrying on the business, raised a presumption
that it was the separate or self acquired business of Venka-
teswara. The High Court relying on certain documentary
evidence, including the letter-heads showing the business as
that of "P. N. Venkateswara Prabhu & Brothers" held that the
business was joint family business.
The partition suit was filed originally in another
Court but was sent to the Court of the Second Additional Sub
Judge of Alleppey in 1957, and the preliminary decree was
passed on 5th August, 1960. The High Court allowed the
appeal, modifying the decree to the extent that 3/4th share
of items 4 to 72 of the schedule, except item 35 and part of
52 standing in the name of the 3rd defendant, were held to,
be partible properties as part of Joint family business,
but it excluded assets which came into. existence after the
filing of the. partition suit which operated as a clear
unequivocal expression of intention to separate. It also,
left the extent of mesne profits of landed properties to be
decided in proceedings for the passing of the final decree.
It appeals that the defendant-appellant had also filed a
money suit in the Court of the Munsif only against defendant
No. 3, one of the four brother’s, but all of them were
impleaded in the partition suit. The money suit was, howev-
er, transferred to the file of the Additional Sub Judge and
tried together with the partition suit and was also de-
creed by the Additional Sub Judge of Alleppey on the same
date as the partition suit. The plaintiff-respondent had
appealed against both the decrees in the High Court. The
two appeals were heard and decided together by the High
Court. The High Court, after pro-
639
nouncing judgment in the partition suit, proceeded to give
judgment, under a new heading and number of the appeal in
the money suit. It said, in this separate judgment:
"The suit that gave rise to. this appeal
has been instituted by the respondent against
the appellant for money due on 14-10-1123 on
account of tobacco delivered to the latter’s
shop. The defence was that the trades run by
both the brothers were parts of the joint
family trade, and not separate to foster such
a claim by the respondent on the appellant.
The court below, having found in the other
suit the shops run by the parties to belong to
the concerned individuals, has decreed the
suit. As we have reversed that finding in
A.S. No. 843 of 1960 and found the shop stand-
ing in the name of each brother to be a branch
of the joint family trade. in tobacco and
directed ascertainment of the assets and
liabilities of the entire trade to be settled
as on 2-3-1124, the date of that partition
suit, this suit has to be dismissed".
The judgments were, therefore, two. separate ones given in
one continuation but under’ separate headings. Separate
decrees were prepared in each appeal relating to a separate
case.
As the defendant appellant did not seek leave to file
any appeal against the High Court’s judgment and decree in
the money suit and there is no appeal before us against the
decree in the money suit, a preliminary objection is taken
on the ground that the defendant’s appeal now before us
is barred by res-judicata.
Learned Counsel for the defendant-appellant urges that
the two suits were different in nature and were filed in
different Courts originally so that the Court trying the
partition suit and the Court in which the money suit was
triable were not Courts of coordinate jurisdiction. It was
also. objected that the partition suit was earlier and the
money suit having been filed sixteen days later could not be
deemed to be a suit decided earlier. Furthermore, it was
pointed out that the judgment was common. It was also
urged that. all the four brothers were parties to the parti-
tion suit but the money suit was only between two brothers.
It is true that the appeals against both the decrees of
the Trial Court were heard together in the High Court, and,
although, the appeal in the money suit is decided under a
separate. heading and the short judgment in it appears to be
practically consequential on the judgment in the partition
suit, yet, the judgments in the two appeals decide a
common issue and resulted in two decrees.
It is urged that, whereas the defendant-appellant had.
filed an appeal on the strength of a certificate granted to
him as a matter of right, following upon the modification of
the decree of the Trial Court by the High Court, the defend-
ant-appellant had no such right of appeal in this Court.
Hence, it was submitted that neither in law nor in equity
could the. defendant-appellant be. barred from putting
forward his objections to the decree in the partition suit.
640
Certain decisions were relied upon by learned Counsel
for, the defendant-appellant Venkateswara in support of the
contention that the plea of res-Judicata is not available as
a preliminary objection to the respondent to the hearing of
the appeal before us in the circumstances of this case. We
proceed to consider these cases.
Narhari & Ors. v. Shankar & Ors.,(1) is no doubt the
judgment of the Supreme Court of India, although it was, if
one may so put it, "the Hyderabad Wing" of it in a transi-
tional period when a learned Judge of this Court, Mr. Jus-
tice Mehr Chand Mahajan, presided over a bench of which
the other two Members were formerly Members of His Exalted
Highness the Nizam’s Judicial Committee. Technically,
however, it was this Court’s judgment. In that case, Naik,
J. had followed a decision of the Judicial Committee of the
Hyderabad State and held that, when there was only one suit
and the appeals had been disposed of by the same judgment,
it was not necessary to file two separate appeals. It
elaborated the ratio of the decision as follows (at p. 757-
758):
"It is now well settled that where there
has been one trial, one finding, and one
decision, there need not be two appeals even
though two decrees may have been drawn up. As
has been observed by Tek Chand J. in his
learned judgment in Mst. Lachmi v. Mst. Bhuli
(AIR 1927 Lah. 289) mentioned above, the
determining factor is not the decree but the
matter in controversy. As he puts it later
in his judgment, the estoppel is not created
by the decree but it can only be created by
the judgment. The question of resjudicata
arises only when there are two suits. Even
when there are two suits, it has been held
that a decision given simultaneously cannot be
a decision in the former suit. When there is
only one suit, the question of res-Judicata
does not arise at all and in the present case,
both the decrees are in the same case and
based on the same judgment, and the matter
decided concerns the entire suit. As such,
there is no question of the application of the
principle of res judicata. The same judgment
cannot remain effective just because it was
appealed against with a different number or a
copy of it was attached to a different appeal.
The two decrees in substance are one".
It seems to us that to be fair to confine the ratio deci-
dendi of the Hyderabad case to cases where there is only
one suit. In the case now before us, not only were the
decrees different but the suits were different. The mere
fact that the judgments in the two suits were given togeth-
er or in continuation did not matter. In fact, even in
form. the judgment in the appeal relating to the money suit
was separate from the rest of the judgment. And, in any
case, there were two separate decrees.
(1) [1950] S.C.R. 754.
641
We think that Section 11 Civil Procedure Code enables
the party to raise the statutory plea of res judicata if the
conditions given therein are fulfilled. The principle
embodied in the statute is not so much the principle of
"estoppel by record", which the British Courts apply, as one
of public policy, based on two maxims derived from Roman
jurisprudence: firstly, interest reipublicoe ut sit finis
litium--it concerns the State that there be an end to law
suits; and, secondly, "nemo debet bis vexari pro una et
eadem cause"--no man should be vexed twice over for the same
cause.
Sir Lawrence Jenkings pointed out, in Sheoparsan Singh
v. Ramnandan Prasad Singh(1), that the rule of res judicata
"while rounded on ancient precedent, is dictated by a wisdom
which is for all time". Litigation which has no end or
finality defeats its very object. This object is decision
of disputes or an end to each litigation. But, if there is
no finality to it, the dispute cannot be said to be really
decided at all. It is the duty of the State to see that
disputes brought before its judicial organs by citizens are
decided finally as early as possible. Hence, Section 11 of
our Civil Procedure Code contains in statutory form, with
illuminating explanations, a very salutary principle of
public policy. An "estoppel", even if it be "by record",
rests on somewhat different grounds. Even such an estoppel
savours of an equity or justice created by actions of par-
ties the results of which have become recorded formally
behind which they are not allowed to go.
Reliance was also placed on Govind Bin Lakshmanshet-
Anjorlekar v. Dhondba ’Ra’V Bin Ganba’ Ra’F’Ta’Mbye(2), on
behalf of the appellant. Here, it was held that decisions
in previous suits of the nature of small cause suits in
which there was no right of second appeal could not oper-
ate as res judicata in suits before Courts in which ques-
tions were elaborately litigated and decided in cases which
could go to the High Court in second appeal. We were also
referred to a Full Bench decision of the Madras High Court
in Avanasi Gounden & Ors. v. Nachamal(3), where it was
similarly held that: "A decision in a previous suit of a
small cause nature, in which no second appeal is allowed
by law, is no bar to a subsequent suit, in the same Court,
which, not being of a small cause nature, is open to
second appeal". We have to remember that Small Cause juris-
diction is a limited one exercisable only in specified
matters. Decisions given beyond Jurisdiction to try an
issue cannot operate as res ]udicata.
Our attention was drawn to explanation II of section
11, on behalf of the respondents. It reads:
"Explanation II. For the purposes of this
Section, the competence of a Court shall be
determined irrespective of any provision as to
a right of appeal from the decision of such
Court".
(1) A.I.R. 1961 P.C. 78=43 I.A. 91.
(2) I.L.R. Vol. XV Bombay 104.
(3) I.L.R. 29 Madras 195.
642
It seems to us that section 11 itself refers to. a Court
which actually tries the, two suits. We think that, in the
circumstances of the case before us, the incompetence of the
Court, in which the money suit was initially filed, to try
the partition suit did not matter when the actual hearing of
both the cases took place in the same Court. That Court
was, obviously, competent to try both the suits. After
the money suit had been transferred from the Court of the
Munsif, the Second Additional Sub Judge actually tried and
decided both of them. This was enough to make the differ-
ence in the jurisdictions of the Courts, in which the suits
were initially filed, quite immaterial. Similarly, the
High Court was competent to hear appeals from judgments in
both. It heard and decided the two appeals together.
So far as the question of appeal to this Court is con-
cerned, it is true that no appeal lay as a matter of right
against the judgment in the appeal in the money suit, but,
we think that the learned counsel for the respondents is
correct in submitting that the question Whether there is a
bar of res judicata does not depend on the existence of a
right of appeal of the same nature against each of the two
decisions but on the question whether the same issue, under
the circumstances given in section 11, has been heard and
finally decided. That was certainly purported to be done by
the High Court in both the appeals before it subject, of
course, to the rights of parties to appeal. The mere fact
that the defendant-appellant could come up to this Court in
appeal as of right by means of a certificate of fitness of
the case under the unamended Article 133(1)(c) in the parti-
tion suit, could not take away the finality of the decision
so far as the High Court had determined the money suit and
no attempt of any sort was made to question the correctness
or finality of that decision even by means of an application
for Special Leave to appeal.
Learned counsel for the respondents appears to us to have
rightly relied upon Bhugwanbutti Chowdhrani v. A.H.
Forbes(1), where it was held that "in order to make a matter
res judicata it is not necessary that the two suits must be
open to appeal in the same way". He also relied on Lonan-
kutty v. Thomman & Anr.(2), a recent decision of three
Judges of this Court, where Chandrachud, J., observed (at
p. 1650):
"Respondents did not file any further
appeal against the decree passed by the Dis-
trict Court in the appeals arising out of
their suit. They filed a second appeal in the
High Court only as against the decree passed
by the District Court in A.S. 66 of 1958
which arose out of the decree passed by the
trial’ Court in the appellant’s suit. Thus,
the decision of the District Court rendered in
the appeal arising out of the respondent’s
suit became final and conclusive".
It was also observed there:
"The decision of the District Court was
given in an appeal arising out of a suit
which, though instituted subse-
(1) I.L.R. 28 Cal. 78.
(2) A.I.R. 1976 S.C. 1645=[1976] Supp. S.C.R.
74.
643
quently, stood finally decided before the High
Court disposed of the second appeal. The
decision was, therefore, one in a ’former
suit’ within the meaning of section 11,
Explanation I, Civil Procedure Code".
The expression "former suit" according to explanation
I of section 11, Civil Procedure Code, makes it clear that,
if a decision is given before the institution of the pro-
ceeding which is sought to be barred by res judicata, and
that decision is allowed to become final by operation of
law, a bar of res judicata would emerge. This as learned
counsel for the respondents rightly submits, follows from
the decision of this Court in Lonankutty’s case (supra).
The only other point which we need consider is whether
the fact that the money suit was only between the
defendant-appellant and one of his brothers, who was also a
respondent in the partition suit, makes any difference to
the applicability of the principle of res judicata in
this case. Learned Counsel for the appellant submits that
the defendant-appellant could not come within the ambit of
Explanation VI of section 11, Civil Procedure Code which
provides as follows:
"Where persons litigate bona fide in
respect of a public right or of a private
right claimed in common for themselves and
others, all persons interested in such right
shall, for the purposes of this section, be
deemed to claim under the persons so litigat-
ing".
On the other hand, learned counsel for the respondent sub-
mits that the case of the respondents fully covered by this
explanation and relies on Kumaravelu Chettiar & Ors. T.P.
Ramaswamy Ayyar & Ors. C) where it was held:
"Explanation 6 is not confined to cases
covered by O. 1, R. 8 but extends to include
any litigation in which apart from the Rule
altogether, parties are entitled to represent
interested persons other than themselves".
We think that the submission made by the learned counsel
for the respondents is sound. In a partition suit each
party claiming that the property is joint, asserts a right
and litigates under a title which is common to others who
make identical claims. If that very issue is litigated in
another suit and decided we do not see why the others making
the same claim cannot be held to be claiming a right "in
common for themselves and others". Each of them can be
deemed, by reason of Explanation VI, to represent all those
the nature of whose claims and interests are common or
identical. If we were to hold otherwise, it would neces-
sarily mean that there would be two inconsistent decrees.
One of the tests in deciding whether the doctrine of res
judicata applies to a particular case or not is to determine
whether two inconsistent decrees will come into existence if
it is not applied. We think this will be the case here.
(1) A.I.R. 1933 P.C. 183.
7--112SCI/77
644
We need not deal with other cases of this Court cited,
including Sheodan Singh v. Smt. Daryao Kunwar(1), which
supports the respondents’ submissions, and Raj Lakshmi Bai &
Ors. v. Banamali Sen & Ors.(-), which is not directly ap-
plicable inasmuch as that was a case in which the general
principles of res judicata, and not section 11 Civil Proce-
dure Code, were applied. The preliminary objection in the
case before us is fully supported, for the reasons given
above, by section 11, Civil Procedure Code read in the light
of the Explanation mentioned above. Consequently, the
preliminary objection must prevail.
Learned counsel for the appellant, conscious of the
difficulties in his way, filed after the hearing of the
appeal was begun before us, an application for condonation
of delay in applying for leave to appeal against the judg-
ment of the High Court in the money suit. He submits
that, in view of the uncertain position in law, we should
try to extend equities as much as possible in his client’s
favour. On the other hand, learned counsel for the respond-
ents points out that the objection based on the bar of res
judicata was taken as long ago as 1968 by the respondents.
It seems to us that the delay in waking up to the existence
of the bar on the part of the appellant is much too long to
be condoned. Moreover, we also find that the judgment of
the High Court, based on the admissions of the appellant,
does not disclose any error of law so as to deserve grant of
special leave to appeal. Indeed, in so far as we could
express any opinion at all upon the merits of the judgment
of the High Court, based as it is upon documents containing
admissions of the defendant-appellant, it seems to us that
the appellant would have a very uphill task indeed in argu-
ing his appeal even in the partition suit. We may mention
here that the partition suit was instituted as long ago as
1947 and was only given a new number in 1957. If there is a
case in which the principle that litigation should have an
end ought to be applied, it is this on the face of facts of
the case apparent to us. We, therefore, reject the Civil
Miscellaneous Petition No. 8585 of 1976, the application for
condonation of delay in the filing the Special Leave Peti-
tion. We dismiss the Civil Miscellaneous Petition No. 8586
of 1976 as well as the over-delayed special leave petition
No. 2816 of 1976.
The result is that this appeal must be and is hereby
dismissed, but, in the circumstances of the case, the par-
ties will bear their own costs.
P.B.R.
Appeal dismissed.
(1) [1966] 3 S.C.R. 300
(2) [1953] S.C.R. 154.
645