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PETITIONER: AVTAR SINGH & ORS.

       Vs.

RESPONDENT: JAGJIT SINGH & ANR.

DATE OF JUDGMENT27/07/1979

BENCH: UNTWALIA, N.L. BENCH: UNTWALIA, N.L. SEN, A.P. (J)

CITATION:  1979 AIR 1911            1980 SCR  (1) 122  1979 SCC  (4)  83

ACT:      Code of  Civil  Procedure-Res  judicata-In  appellant’s suit issues  were framed  by civil court-Civil Court held it had no  jurisdiction-Petition filed in revenue court-Held it had no  jurisdiction-Appellants again  filed suit  in  civil court-Issue raised and decided in the first suit if operates as res judicata.

HEADNOTE:      The  appellants   filed  a  suit  in  the  court  of  a subordinate judge.  At the instance of respondent no. 1 (who was  the   defendant  in  the  suit)  an  issue  as  to  the jurisdiction of  the court  to  try  the  suit  was  framed. Holding that  it had  no jurisdiction  to try  the suit  the civil court  returned the plaint to the appellants for being presented to the proper revenue court. The revenue court, on presentation of  a petition  by appellants, held that it had no jurisdiction  to try  it. Thereupon  the appellants again filed a  suit in  the court  of subordinate  judge. The suit failed on  the ground  of res  judicata. On  appeal the High Court upheld the view of the civil court.      On the question whether the decision of the subordinate judge on the preliminary issue operated as res judicata.      Dismissing the appeal, ^      HELD: If  in a  case, the defendant does not appear and the Court,  on its  own, returns the plaint on the ground of lack of jurisdiction, the order in a subsequent suit may not operate as res judicata; but if the defendant appears and an issue is  raised  and  decided  then  the  decision  on  the question of  jurisdiction will  operate as res judicata in a subsequent suit  although the  reasons for  its decision may not be so. [124G]      In the  instant case,  in the first suit the appellants ought to  have consisted  that the suit was triable by civil court, or, they should have taken the matter before a higher Court in the revenue proceeding. The appellants did neither. The revenue  court had  no jurisdiction  to  go  behind  the decision of the civil court. [123G]      Upendra Nath  Bose v.  Lall &  Ors., AIR 1940 P.C. 222; held inapplicable.      Jwala Debi  v. Amir  Singh,  AIR  1929  All.  132;  not

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approved.

JUDGMENT:      CIVIL APPELLATE  JURISDICTION: Civil Appeal No. 2021 of 1969.      Appeal by  Special Leave  from the  Judgment and  Order dated 15th  January, 1969  of the  Punjab and  Haryana  High Court in S.A. No. 905 of 1963. 123      R. K. Garg for the Appellants.      Hardev Singh for Respondent No. 1.      N. S. Bindra and T. S. Arora for Respondent No. 2.      The Judgment of the Court was delivered by      UNTWALJA J.-This  appeal arises  out of  an unfortunate litigation where  the plaintiff appellant in this appeal has got to fail in this Court too on some technical grounds.      One Sardar  Balwant Singh  died  on  10th  March,  1955 leaving only three sons according to the case of appellants, namely, the  two appellants and respondent No. 2. Respondent No. 1  claimed to  be a fourth son of Balwant Singh entitled to 1/4th  share in  the property left by him. The appellants filed Suit No. 41 of 1958, in the Court of Sub Judge, Bassi. The Civil  Court on the objection of Respondent No. 1 framed a preliminary  issue whether the said Court was competent to try the  suit or was it a matter which could be decided only by the  Settlement Commissioner. By Order dated 7.7.1958 the learned Subordinate  Judge decided  that the Civil Court had no jurisdiction  to try this suit and directed the return of the plaint  for presentation  to the  proper Revenue  Court. When the  appellants filed  their claim in the Revenue Court their petition  was returned  holding that the Revenue Court had no  jurisdiction to  try it.  Thereupon  the  appellants instituted suit  No. 13  of 1960  in the Court of Sub Judge, First  Class,  Bassi  on  2-4-1960.  This  suit  has  failed throughout on the ground of res judicata. The High Court has affirmed the  dismissal on  the view that the decision dated 7-7-1958 given  by the Civil Court in Suit No. 41 of 1958 on the point of Civil Court’s jurisdiction to try the suit will operate as  res judicata.  In our  opinion the High Court is right.      The learned  counsel for  the appellants submitted that the appellants  were driven  from pillar  to  post  for  the redress of  their grievances.  When they instituted the suit in Civil  Court, that Court held that it had no jurisdiction to try it. When the suit was filed in the Revenue Court, the said Court  took a contrary view. Where could the appellants then go?  We do  sympathise with the appellants’ dilemma but they were  wrongly advised  to do  as they  did. Either they ought to  have followed  the matter  in the First Civil Suit and insisted  up to  the end  that the suit was triable by a Civil Court,  or, they  would have  taken the matter further before the  higher authorities  and Court  from the order of the Revenue  Court and persisted that the matter whether the Civil Court  had jurisdiction  to decide the dispute between the parties  or not  was res judicata; the Revenue Court had no jurisdiction  to go  behind the  decision  of  the  Civil Court. The appellants did 124 neither. It is unfortunate that due to the wrong paths which they followed  under wrong  advice they  have ultimately  to fail on the technical ground of res judicata but there is no way out.      It was pointed out by Lord Russell of Killowen, Upendra

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Nath Bose  v. Lall  and Others,(1)  that there  could be res judicata in  regard to  the question of lack of jurisdiction of the Civil Court to try a matter but-           "A Court  which declines  jurisdiction cannot bind      the parties  by its reasons for declining jurisdiction:      such reasons  are not  decisions, and are certainly not      decisions by  a Court of competent jurisdiction." (vide      page 225). The above passage does not help the appellants, rather, goes against them.  Mr. Garg  had also  placed  reliance  upon  a Single Judge  decision of  the Allahabad High Court in Jwala Debi v.  Amir Singh,  (2) wherein the Learned Judge observed at page 132:-           "Looked at  closely, a  question of  jurisdiction,      alongwith it  may be  raised by  the  defendant,  is  a      question that  virtually arises  between the  plaintiff      and  the   Court  itself.  The  plaintiff  invokes  the      jurisdiction of the Court. The defendant may or may not      appear. If  the Court finds that it has no jurisdiction      to entertain the plaint, it will order the return of it      for presentation to the proper Court. The defendant, if      he appears,  and if he so chooses, may point out to the      Court that  it has  no jurisdiction.  A decision on the      question of jurisdiction does not affect in any way the      status of  the parties  or the  right of  one party  to      obtain redress  against the  other.  The  fact  that  a      decision as  to jurisdiction  is  not  binding  on  the      parties in  a subsequent  litigation will  be  apparent      from this."      We do  not approve at all the views as expressed by the learned  Single  Judge  of  the  Allahabad  High  Court.  If defendant does  not appear  and the Court on its own returns the plaint  on the  ground of lack of jurisdiction the order in a  subsequent suit may not operate as res judicata but if the defendant  appears and  an issue  is raised  and decided then the  decision on  the  question  of  jurisdiction  will operate as  res judicata  in a  subsequent suit although the reasons for its decisions may not be so.      For the reasons stated above we dismiss this appeal but direct the parties to bear their own costs throughout. P.B.R.                                     Appeal dismissed. 125