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PETITIONER: MST.  GULAB BAI

       Vs.

RESPONDENT: MANPHOOL BAI

DATE OF JUDGMENT: 05/09/1961

BENCH: GAJENDRAGADKAR, P.B. BENCH: GAJENDRAGADKAR, P.B. SINHA, BHUVNESHWAR P.(CJ) DAYAL, RAGHUBAR

CITATION:  1962 AIR  214            1962 SCR  (3) 483  CITATOR INFO :  RF         1981 SC2198  (13)

ACT: Res Judicata-Suit’, Meaning of-if can denote part of a  suit or  an issue in it-Code of Civil Procedure, 1,908 (Act V  of 1908), s. 11.

HEADNOTE: The  respondent had sued the appellant 2 on a rent  note  in the Munsiff’s court for recovery of Rs. 700/- as arrears  of rent and ejectment.  That suit was dismissed on the prelimi- nary  objection  of defect of party as appellant  1,  a  co- lessor  in  the rent note, had not been made a  party.   The respondent  then  brought  the present  suit  in  the  Civil Judge’s  court for recovery of Rs. 2400 as arrears  of  rent from and for ejectment of appellant 2, making appellant 1  a proforma  defendant  in the suit.  The appellant  2  pleaded that  the suit was barred by res judicata and could  not  be decreed  since appellant 1 had not joined the respondent  in the claim.  The High Court, in finally decreeing the suit in second  appeal, hold that it was not barred by res  judicata since the Munsiff had not the pecuniary jurisdiction to  try the suit and that appellant 1 on a true construction of  the rent  note, was not a a co-lessor with the respondent.   It’ was  urged on behalf ’of the appellants in this  Court  that the  word  suit’  in s. 11 of the Code  of  Civil  Procedure should  be liberally, and not literally, construed so as  to include part of the suit or ;An issue 484 raised in the suit and that since the Munsiff who had tried; the  previous  suit was competent to try that  part  of  the subsequent  suit  which  formed the relevant  issue  in  the earlier suit, !he present suit was barred by res judicata. Held,  that:  the High Court was right in holding  that  the present suit was not barred by res judicata. The  word  ’suit’ occurring in s. 11 of the  Code  of  Civil Procedure must be literally, and not liberally, construed so as to mean the entire suit and not a part. of it or an issue arising  in it’.  The legislative history of  that  section, clearly  shows  that  them  is  no  scope  for  any  liberal construction of that word.

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Duchess  of  Kingston’s case, 2 Smith Lead.  Cas.  13th  Ed. 644,  Misir Rughubardial v. Rajah Sheo Baksh  Singh,  (1882) LR.  9 I.A. 197 and Gokul Mandar v. Pudmanund Singh,  (1902) I.L.R. 29 Cal. 707, discussed. Mussamut  Edun  v. Mussamut Bechun, 8 W. R. 175,  Ram  Dayal v.Jankidas, (1900) I.L.R. 24 Bom. 456, Shibo Raul v.   Baban Raut, (1908) I.L.R. 35 Cal.. 353, referred to. Sheikh  Maqsood  Ali v. H. Hunter, A.I.R.  1943  Oudh.  338, considered.

JUDGMENT: CIVIL APPELLATE JURISDICTION : Civil Appeal No. 201/1956 Appeal from the judgment and decree dated January 2,1962, of the, Rajasthan High Court in D.   B. CIVIL Second Appeal No. 459; of 1949. S.N.  Andley,  Rameshwar Nath and P.L.  Vohra.,  for  the appellants Nos. 2 and 3. N.C. Chatterjee and Mohan Behari Lal, for respondent. 1961.  September 5. The Judgment of the Court was  delivered by GAJENDRAGADRAR, J.-This appeal by a certificate given by the Rajasthan  High  Court  arises from the suit  filed  by  the respondent  Mst.  Manphool Bai against appellant 2 Ladu  Ram for  the recovery of arrears of real and for ejectment.   To this  suit the respondent joined appellant 1 her  mother-in- law  Gulab  Bai as a proforma defendant.   The  property  in question  is a, shop situated in the Johri  Bazar.   Jaipur. Thia  property originally belonged to Chhogalal, and  after, him it devolved on his 485 adopted  a on Phool Chand.  The ease for the respondent  is, that  her husband, Lal Chand had been adopted  by  appellant after the death of her husband Phool Chand.  Appellant 2 had executed  a  rent noted (Ex. 24) in favour of Lal  Chand  in Samvat Year 1939.  On Lal Chand’s death the respondent  held the property as his widow and as such she served a notice on appellant  2  on May 31, 1938, calling upon him to  pay  the arrears  of rent dire from him and asking him to vacate  the shop  (Ex. 16).  It appears that soon thereafter  on  August 27,1938,  appellant 2 executed a rent note in favour of  the respondent (Ex. 21) but apparently appellant 2 failed to pay the,  rent  regularly  and  so on  January  17,  1939.)  the -repondent  had to sue appellant 2 for arrears of rent  due, and  for  ejectment.  This suit was filed in  the  Court  of Munsiff,  East  Jaipur.  The amount due by  way  of  arrears which  was  claimed in that suit was  Rs.700/-  Appellant  2 resisted the said claim made by the respondent mainly on the ground  that the rent note on which the stilt was based  had been executed by Appellant 2 in favour of the respondent and her  mother-in-law and that the suit was detective for  want of  a necersary party inasmuch as the mother-in-law had  not been joined to it.  Appellant 2 claimed that the  respondent acting  by  herself, was not entitled to  claim  either  the arrears  or  to ask for, ejectment.  Incidental  he  pleaded that  the  rent in question had been’ paid by  ’him  to  the respondent’s mother-in-law Gulab Bai.  This litigation  went up  to the Jaipur, Chief Court in second appeal.   All  this Courts  upheld  the   principal plea raised by  appellant  2 that  Gulab Bai was a necessary party to the suit and so  on the,   preliminary  ground  that  for  non-joinder  of   the necessary  party the suit was detective. the claim  made  by the  respondent  was rejected.. The decision  of  the  Chief Court  was pronounced on May 26, 1941.  It was  under  these

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circumstances that the respondent filed the present suit  on November  15,  1943,  in the Court  of  Civil  Judge,  Sawai Jaipur, claiming to 486 recover  Rs. 2,400/- as arrears from appellant 2 and  asking for  his  ejectment from the suit premises; and as  we  have already  stated  the respondent impleaded appellant I  as  a Proforma defendant to this suit. Several  pleas were raised by appellant 2 against the  claim made by the respondent.  In the present appeal, however,  we are concerned only with two of these pleas.  It was urged by appellant 2 that the present suit was barred by res judicata and  so since appellant I had not joined the  respondent  in making  the  claim the suit was incompetent.   It  was  also urged  in  the alternative that on the merits it  should  be held that the rent note had been executed by appellant 2  in favour  of two lessors, appellant I and the  respondent  The trial  court  rejected these pleas and passed  a  decree  in favour of the respondent and against both the appellants for Rs.1,800/-.  It  also  directed appellant 2  to  vacate  the premises  by  the  end of March,  1948,  failing  which  the respondent  was given a right to execute the decree  against him.   Against this decree both the appellants preferred  an appeal  in  the Court of the District  Judge.   The  learned District Judge held that the respondent’s suit was barred by res judicata and so he allowed the appeal and dismissed  the respondent’s  suit.  Then the matter reached  the  Rajasthan High  Court  at  the instance of the  respondent  in  second appeal.   The High Court has reversed the conclusion of  the District Court on the question of res judicata and has  held that  the present suit was not barred by res  judicata.   On the  construction of the rent note the High Court  has  held that the rent note on which the suit is based was passed  by appellant  2  in  favour  of the  respondent  and  that  the reference  to the name of appellant I in the said rent  note does   not  constitute  her  into  a  co-lessor   with   the respondent.   On  these findings the decree  passed  by  the District Court has been reversed and that of the trial court has  been restored. The appellants then moved the  Rajasthan High                             487 Court  for a certificate and a certificate has been  granted to  them principally on the ground that the question of  res judicata which the,, appellants seek to raise is a  question of general importance.  It is with this certificate that the appellants have come to this Court by their present appeal. Pending the appeal appellant I Gulab Bail, died on April 19, 1959.  Thereupon an application was made by appellant 2  and Dhan  Kumar who claims to have been adopted by Gulab Bai  in her  lifetime applied for a certificate declaring that  Dhan Kumar was the heir and legal representative of appellant  1. The  High  Court refused. to grant the  certificate  on  the ground that the deceased appellant I was merely a pro  forma defendant  to the suit and since no relief had been  claimed against  her the High Court thought that her death  did  not cause  any defect in the record in the appeal  preferred  to this Court and all that was needed to be done was to  remove her  name  from the cause title.  The High Court  also  held that Dhan Kumar may seek his remedy by a proper suit if  lie so desired.  Dhan Kumar and appellant 2 then applied to this Court  (Civil Miscellaneous Petition.  No. 267 of 1961)  for substitution  of  Dhan  Kumar  in  the  place  of   deceased appellant  1. The respondent objects to the introduction  of the  name  of  Dhan  Kumar on the record  in  place  of  the deceased  appellant 1. It is urged on her behalf that  Gulab

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Bai  had no authority to make an adoption and fact had  made no adoption a alleged by Dhan Kumar.  In ordinary course  we might have called for findings on issues arising between the parties  on this application, but since the matter  is  very old  we  do not wish to give it a further lease of  life  by adopting  that  course.  We have,  therefore,  allowed  Dhan Kumar  to join the present proceedings without deciding  the question  as  to  the  factum or  validity  of  his  alleged adoption.   We  may, also add that the  question  about  the factum  and  validity of the adoption  of  the  respondent’s husband Lal Chand was also put in issue in the Courts  below and in fact 488 the  District Court had made a finding against  Lal  Chand’s adoption.   The High Court thought it unnecessary to  decide this matter.  Thus there is a dispute between Dhan Kumar and the respondent on two grounds: Dhan Kumar seeks to challenge the factum and validity of Lal Chand’s adoption, whereas the respondent  seeks  to challenge the factum and  validity  of Dhan  Kumar’s  adoption.  Both these points  have  not  been considered by us, and so the parties would be at liberty  to agitate  them in proper proceedings if they are so  advised. In  the  present  appeal we, propose to  consider  only  two points,  crime  of  res judicata and  the  other  about  the construction of the rent note. The  decision of the question of res judicata lies within  a very narrow compass.  The relevant facts necessary to decide that  point  are not in dispute.  It is clear  that  in  the earlier  litigation  it was held by the Jaipur  Chief  Court -that, the rent note in question had been executed in favour of both appellant I and the respondent and that  necessarily meant  that appellant 2 was a tenant of the two  co-lessors. It was also held that the respondent acting by by alone  was not  entitled  to  claim  arrears of  rent  or  to  ask  for ejectment,  so  that if the decision of the said  issue  can operate  as res judicata the present suit would  be  clearly barred.  On the other hand, it is conceded by the appellants that  the  Munsiff  who  tried the  earlier  suit  was  riot competent  to  try  the present suit having  regard  to  the limits  of  his pecuniary jurisdiction, and, so one  of  the conditions prescribed by s.11 of the Code of Civil Procedure is absent.  Section 11 requires, inter alia, that the  prior decision  of the material issue should have been given by  a court competent to try the subsequent suit, and that is  the basis on which the respondent has successfully urged  before the  High  Court  that the plea  of  resjudicata  cannot  be sustained.   It has been urged before us by,  Mr.  Rameshwar Nath that in construing the material clause in s.11. the 489 High Court was in error in putting a literal construction on the  words  "subsequent suit".  The High Court  should  have construed the said words liberally and should have held that the  words "suit" includes even a part of a suit.   If  this contention  is right then the relevant issue decided in  the earlier  litigation would be a part of the subsequent  suit, and  since  the  Munsiff who tried  the  earlier  suit,  was competent  to  try  this part of  the  subsequent  suit  the requisite condition is satisfied and the suit is thus barred by  res judicata. Thus the narrow question’ which calls  for our decision is whether the word ",suit" in the context  can be liberally construed to mean even a part of the suit. Let us first read s.11. which runs thus:               "No Court shall try any suit or issue in which               the matter directly and substantially in issue               has  been directly and substantially in  issue

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             in  a former suit between the same parties  or               between  parties  under whom they  or  any  of               them, claim, litigating under the same  title,               in  a Court competent to try  such  subsequent               suit or the suit in-which such issue has  been               subsequently  raised, and has been  heard  and               finally decided by such Court." The  appellant’s argument is that in construing  the  clause "in  a  Court competent to try such subsequent suit  or  the suit  in which issue has been subsequently raised" it  would be relevant to remember that this clause is really  intended to  emphasise the consideration that the Court  which  tried the earlier suit and the Court in which the subsequent  suit is  filed should be Courts of concurrent  jurisdiction,  and the   concurrence  of  jurisdiction  should  be  tested   by reference to the matter in issue which has been tried in the earlier  suit  and  which also falls to be  decided  in  the subsequent  suit.  In support of this argument reliance  has been  placed  on  the classical  statement  of  the  general principle , of res judicata 490 enunciated  in the Duchess of Kingston’s case(1).   In  that case it was observed that from the variety of cases relative to  judgments being given in evidence in civil suits,  these two  deductions seem to follow as generally true :  "’First, that  ;the judgment of a Court of  concurrent  jurisdiction, directly  upon  the  point,  is as a  plea,  a  bar,  or  as evidence, conclusive between the same parties, upon the same matter,  directly in question, in another  Court,  secondly, that  the  judgment of a Court  of  exclusive  jurisdiction, directly upon the point, is in like manner conclusive  ’upon the   same  !matter,  between  the  same   parties,   coming incidentally  in question in another Court for  a  different purpose".  The basis of the rule of res judicata is that an individual should not be vexed twice for the same cause, and the  liberal  construction  of the  word  ,suit"  would  be consistent  with this basis, otherwise if the competence  of the earlier Court is going to be judged by reference to  its competence   to   try  the  entire  suit   as   subsequently instituted,  in  many cases where the  matter  directly  and substantially in issue has been tried between the parties by the  earlier  Court  it  may have to be  tried  again  in  a subsequent   suit   because  the  earlier   Court   had   no jurisdiction  to try the :subsequent suit having  regard  to its  pecuniary  jurisdiction.  That, it is urged,  would  be anomalous and inconsistent with the principle underlying the doctrine of res judicata. The word ,,suit" has not been defined in the Code, but there can  be  little  doubt that in the  context  the  plain  and grammatical  meaning of the word would include the whole  of the suit and not a part of the suit, so that giving the word "suit" its ordinary meaning it would be difficult to  accept the  argument that a part of the suit or an issue in a  suit is  intended to be covered by the said word in the  material clause.   The  argument  that there should  be  finality  of decisions and that a person (1)  2 Smith Lead.  Cas., 13th ,Ed., pp. 644, 645.                             491 should not be vexed twice over with the same cause can  have no material bearing on the construction of the word ,’suit". Besides if considerations of anomaly are relevant it may  be urged  in  support of the literal construction of  the  word ,,,suit"  that the finding recorded on a material  issue  by the Court of the lowest jurisdiction is intended not to bar the  trial  of  the same issue in a  subsequent  suit  filed

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before a Court of unlimited jurisdiction.  To hold otherwise would itself introduce another kind of anomaly.   Therefore, it  seems  to  us  that as  a  matter  of  construction  the suggestion   that  the  word  "suit"  should  be   liberally construed  cannot  be  accepted.   This  position  would  be abundantly clear if we consider the legislative history  and background of s. 11. In that connection it would be relevant to cite the material provisions  in  regard  to res  judicata  contained  in  the earlier  Codes.  Section 2 which dealt with res judicata  in the Code of 1859 (Act VIII of 1859) read thus :               "The Civil Courts shall not take cognisance of               any  suit brought on a cause of  action  which               shall  have  been heard and  determined  by  a               Court  of competent jurisdiction in  a  former               suit between  the same  parties  or  between               parties under whom they claim." In the Code of 1877 (Act X of 1877) s. 13 provided;that  "no Court  shall  try  any suit or issue  in  which  the  matter directly  and  substantially  in issue has  been  heard  and finally  decided by a Court of competent jurisdiction, in  a former  suit  between the same parties, or  between  parties under  whom they or any of them claim, litigating under  the same title". Then  followed the Code of 1882 (Act XIV of’1882) in.  which s. 13 dealt with the principle of res judicata.  Section  13 is substantially in the same terms as s. 1 1 of the  present Code of 1908 (Act V of 1908). 492 The  question about the construction of the word  "competent jurisdiction" occurring in s.2. of the Code of 1869 as  well as s. 13. of the Code of 1877 fell to be considered in Misir Raghobardial,  V. Rajah Sheo Baksh Singh (1).  In that  case the  Privy  Council  took  the  view  that  the   expression "competent  jurisdiction"  must be taken to  mean  competent jurisdiction  as regards the pecuniary limit as well as  the subject-matter,  and they pointed out that if the  pecuniary limit  of  jurisdiction  was ignored it would  lead  to  the anomalous consequence that ",the decision of a Munsiff  upon (for instance) the validity of a will, or of an adoption, in a  suit for a small portion of the property affected by  it, should be conclusive in a suit before a District Judge or in the High Court, for property of a large amount, the title to which  might  depend upon the will or  the  adoption".   The judgment  further  pointed out that "in India  there  are  a large number of Courts, and the one main feature in the  Act constituting  them is that they are of various  grades  with different pecuniary limits of jurisdiction; and that by  the Code of Procedure a suit must be instituted in the Court  of the  lowest  grade  competent to try it".   That  being  so, unless  the concept of competent jurisdiction included  con- siderations of pecuniary jurisdiction of the Court it  would inevitably  mean that a finding recorded by a Court  of  the lowest pecuniary jurisdiction on an issue arising in a  suit before it would bind the parties in a subsequent suit  where the  claim involved may be very much higher.  It would  thus be  seen that in dealing with s. 2 of the Code of  1859  the Privy   Council.   introduced  the  notion   of   concurrent jurisdiction  though  the words used in the section  were  a Court  of competent jurisdiction, and it was held  that  the jurisdiction  must  be concurrent as regards  the  pecuniary limit   as  well  as  the  subject-matter.   This   decision proceeded on the assumption that "in order to (1)  (1882) L. R. 9 I. A. 197.                             493

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make  the  decision of one Court, final  and  conclusive  in another Court, it must be a decision of a Court which  would have had jurisdiction over the matter in the subsequent suit in  which  the  first  decision is.  given  in  evidence  as conclusive" (vide : Mussamut Edun v. Mussamut Bechun(1)], Heaving   thus   interpreted   the   expression   "competent jurisdiction"  the  Privy  Council  proceeded  to   consider whether  any change in the; low was intended to be  effected by  a. 13 of the Code of 1877 ;,and they observed  that  the intention  of  the said section ,,,,seems to  have  been  to embody  in the Code of Procedure by es. 1,2 and 13  the  law then in force in India instead of the imperfect provision in s. 2 of, the Code of 1859" and they added that "as the words in  the section do not clearly show an intention to.  alter the  law  their  Lordships do not think it right  to  put  a construction upon them which would cause an alteration."  It would  thus be seen that this decision in an  authority  for the proposition that the rule of res judicata as interpreted even  under the Code of 1877 was held to be the same  as  it obtained under the Code of 1859 as interpreted by the  Privy Counsel  I in the light of the general considerations as  to res  judicata enunciated in the case of Duchess of  Kingston (2). , This position has been clearly stated in another decision of the  Privy Council in Gokul Mandar v. Pudmanund  Singh  (3). On  this  occasion  the Privy Council had  to  consider  the effect  of is. 13 of the Code of 1882.  The  argument  which was  urged  before the Privy Council on’ s. 13 was  that  "a decree  in a previous suit cannot be pleaded a res  judicata in  a subsequent suit unless the judge by whom it  was  made had  jurisdiction to try and decide not only the  particular matter in issue but also the subsequent suit itself in which the  issue  is subsequently raised", and in  upholding  this argument their Lordships observed that ,in this respect (1) 8 W.R. 175. (2) 2 Smith Lead.  Cas. 13th Ed., pp. 644, 645. (3)  (1902) I. L. R. 29 Cal, 707. 494 the  enactment  goes beyond s. 13 of the previous Act  X  of 1877,and,  also, as appears to their Lordships,  beyond  the law  laid, down by the judges in the Duchess  of  Kingston’s case  (1)".  In other words, this decision would  show  that even  though in the earlier Codes there may have  been  some doubt about the test of competent jurisdiction which has  to be  applied to the Court which tried the earlier  suit,  the position  under the Code of 1882 is absolutely  clear.   The question to be asked under s. 13 of the said Code is : could the  Court  which  tried the earlier  suit  have  tried  the subsequent suit if it had been then filed ? In other  words, it  is  the  whole of the suit which should  be  within  the competence  of the Court at the earlier time and not a  part of  it.  Having regard to this legislative background of  s. 11 we feel no hesitation in holding that the word "suit"  in the  context must be construed literally and it denotes  the whole  of the suit and not a part of it or a material  issue arising in it. Several  decisions  have  been cited before  us  where  this question  has been considered.  We do not think  any  useful purpose  would be served by referring, to them.  It  may  be enough  to state that in a large majority of  decisions  the word  "suit" has been literally construed [vide : Ram  Dayal v. Jankidas (2) and Shibo Raut v. Baban Raut (3)] though  in some  cases  and  under  special  circumstances  a   liberal construction has been accepted [vide : Sheikh Maqsood Ali V. H.  Hunter  (4)].  We must accordingly hold  that  the  High

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Court was right in coming to the conclusion that the present suit is not barred by res judicata. That  takes  us to the question of the construction  of  the rent note.  The High Court has, held (1)  2 Smith Lead.  Cas. 13th Ed., pp. 644, 645. (2)  (1900) 1. L. R. 24 Bom 456. (3)  (1903) I.L.R. 35 Cal. 353. (4)  A.I.R. 1943 Oudh. 338. 495 that  on a fair and reasonable construction of  document  it must  be.  held  that  the rent  not  has  been passed  by appellant  2  in  favour  of  the  respondent  alone  though incidentally  out  of respect ,the name of appellant  I  has been  introduced  in it. In our opinion this  conclusion  is right.  it is true  that the rent note has been executed  in favour  of  both appellant  and the respondent  but,  it  is significant that the rent note stipulates that when the rent is paid by appellant 2 he has to obtain, a receipt from  the owner.   The  word  "’owner" is’ used in  singular  and  not plural  and that indicates that the rent note  proceeded  on the  assumption  that the property which  was  the  subject- matter  of the rent note belonged to one owner and not  two. There  is another clause in the rent note which  is  clearer still.  This clause reads ’,therefore, I have executed in my proper  senses this rent note on a stamped paper valued  Rs. 51-  in the names of each of the two, mother-in-law and  the daughterin-law, Sethanji Gulab Bai widow of Phoolchandji  in the  capacity  of  being elder in the  family  and  Sethanji Manphool Bai ajias Bhanwar Bai widow of Lalchandji the  heir in  the  family  and the owner of the  property  which  will stand  and may be used in times of need." This clause  makes it  perfectly  clear  that  the inclusion  of  the  name  of appellant’,  was merely formal and it was intended to  ,-how respect  to the elderly lady in the family.  It  also  shows that the respondent was treated as the owner of the property as the heir of her deceased husband Lal Chand.  Reading this clause  together with the earlier clause as to  the  receipt for the payment of rent which we hive already considered  it is  absolutely  clear that the name of appellant I  was  not included  in the rent note because she had any right to  the property let out but solely as a matter of respect which the respondent showed to appellant I Therefore, in our  opinion, the contention that the rent note has been passed by 496 appellant  2    favour of the respondent  and  ,appellant  1 cannot be sustained.  If that be the true position there can be  no  doubt whatever that appellant 2 is  precluded  from, disputing  the  title  of the’respondent  "in  the  present. proceedings.   As  the  High Court  has  pointed  out  the sequence of events leading to the execution of the suit rent note unambiguously shows that appellant 2 has recognised the respondent  as the lessor and as such the principles  of  s. 116 of the Evidence Act clearly apply. The result is the appeal fails and is. dismissed with costs.                                     Appeal dismissed. 497