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CASE NO.: Appeal (civil)  2395 of 2000

PETITIONER: Swamy Atmananda & Ors.

RESPONDENT: Sri Ramakrishna Tapovanam & Ors.

DATE OF JUDGMENT: 13/04/2005

BENCH: B.P. Singh & S.B. Sinha

JUDGMENT: J U D G M E N T

WITH CIVIL APPEAL NO. 3740 OF 2000

S.B. SINHA, J :  

       The question as to whether the jurisdiction of the Civil Court stands  ousted in terms of  Sections 53 and 53A of the Tamil Nadu Recognized  Private Schools (Regulation) Act, 1973 (hereinafter referred to as ’the Act’)  falls for consideration  in this appeal which arises out of a judgment and  order dated 13.10.1999 passed by a Division Bench of the Madras High  Court in A.S. No.568 of 1998 whereby and whereunder the appeal preferred  by the Appellants herein from a judgment and decree dated 7.8.1998 passed  in O.S. No.1254 of 1994 by the Subordinate Judge, Tiruchirapally decreeing  the plaintiff-Respondents’ suit,  was dismissed.

BACKGROUND FACTS :

       The First Respondent herein (hereinafter referred to as ’Tapovanam’)  is a registered Society.  It was founded by Swamy Chidbavananda.  It has  been functioning since 1942.   The said Swamy Chidbavananda used to  propagate the ideals of Swamy Ramakrishna Param Hans and Swamy  Vivekananda.  It started functioning at Ooty and later shifted to  Thiruparaithurari.  A number of branches were established at various places,  namely, Thiruvedagam, Courtallam, Chitraichavadi, Thirunelveli,  Kodaikanal, Ramanathampuram, Rameshwaram, Salem and Karur.   Educational institutions and ashrams as well as dispensaries were established  at all these places.  Swamy Chidbavananda  during his life time acquired  various properties by collecting funds from the public, which partook the  character of Trust  property.    

The  First Appellant herein was an employee in a mill at Coimbatore.   He joined ’Tapovanam’ as an ordinary member.  He became Sanyasi in 1970  whereupon he was assigned a job at Thiruvedagam  and later transferred to  Karur in the year 1976.  ’Tapovanam’ established a number of educational  institutions at Karur from donations collected from the public as also with  the funds available through the trusts called Vairaperumal Trust and  Tathinagireswarar Trust, the object whereof was to dedicate their properties  to Tapovanam to enable it to establish educational institutions.   

       It is not in dispute that in the year 1987, the First Appellant herein got  a Trust registered known as ’Sri Ramakrishna Ashramam Trust’.  A claim  was set up by him to the effect that all the institutions at Karur had been  founded by him from his own money as well as the money collected by him  individually.  He filed a suit in the Court of  the Subordinate Judge, Karur,  marked as O.S. No.251 of 1991, for a declaration that he along with other  members were the owners as well as founders of the educational agencies of

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the six educational institutions mentioned in the plaint.  The said suit was  dismissed as withdrawn whereupon he filed another suit, marked as O.S.  No.1368 of 1990 in the Court of the District Munsif at Karur, which was  subsequently transferred to the Court of Subordinate Judge, Karur and re- numbered as O.S. No.459 of 1991,  the subject-matter whereof  was two  educational institutions, namely, Sri Vivekananda Higher Secondary School  for Boys and Sri Sarada Girls Higher Secondary School at  Pasupathipalayam.  In the said suit a question arose as regard the status of  the First Appellant vis-‘-vis the First Respondent  herein (Tapovanam) as  regard  ’educational agency’ in terms of the provisions of the said Act.   

In the said suit the Trial Judge framed the following issues :

(i)     Whether the Plaintiff No.1-trust was in management and  whether it was in existence? (ii)    Whether it was legally constituted?

(iii)   Whether the plaintiffs were the owners of the suit Schedule  Institutions? (iv)    Whether the Defendant No.1 was not the Educational Agency  of the Plaint Schedule Schools? (v)     Whether the Plaintiff No.2 functioned as an agent of the  Defendant No.1? (vi)    Whether the Defendant No.1 had no right over the Plaint  Schedule Schools?         (vii)   Whether the suit was maintainable?

(viii)  Whether the Plaintiffs were entitled to the declaration prayed  for? (ix)    To what relief the Plaintiffs were entitled to?    

The said suit was dismissed by a judgment and order dated 30.4.1992,   by the Court of Subordinate Judge, Karur, inter alia, holding :

(i)     The Appellant No.2 Trust was not legally constituted and was  never in existence.

(ii)    The Appellant No. 1 was an agent of  Tapovanam and   Tapovanam was the owner and Educational Agency of the   Schools in question.

The Appellants preferred an appeal thereagainst in the Court of the  District Judge, Trichirapally,  which was marked as A.S. No.288 of 1992.   The said appeal was also dismissed by a judgment and order dated  17.2.1993,  inter alia, on the following findings :

(i)     Defendants 3 and 4, were misguided by 2nd Plaintiff in forming  the 1st Plaintiff  Trust.

(ii)    The Trust deed, Ext. A-1 was not proved, not genuine and did  not come into existence.         

The Appellant Nos. 1 and 2 preferred a Second Appeal thereagainst  in the High Court of Madras which was also dismissed by a judgment and  order dated 28.4.1997, holding :          (i)     Appellant No.1 herein was only an agent of Tapovanam.   

(ii)    Appellant No.2 herein did not come into existence.            A Review Petition filed thereagainst was also dismissed by an order  dated 13.9.1999.

During the pendency of the said proceeding before the High Court,  Tapovanam  filed a suit in the Court of Sub Judge, Karur,  marked as O.S.

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No. 273 of 1992 on or about 6.7.1992, which was subsequently transferred   to the Court of Subordinate Judge, Trichirapally and renumbered as O.S.  No.1254 of  1994,  against the Appellants and 13 others for a declaration  that it was the absolute owner of the suit properties more fully and in details  described in Schedule-A therein, and furthermore it was the educational  agency in respect of the institutions mentioned therein.  The Appellants  herein in their written statement, inter alia, contended that the Appellant  Nos. 2 and 3 were independent trusts and no money in relation thereto was  contributed by Tapovanam for establishing the institutions and furthermore    the Appellant No.1 herein was not its agent.             In said suit filed before the learned Subordinate Judge, Trichirapally,  the following issues were framed :

"(i)    Whether the Plaintiff is  entitled for declaration and  possession as prayed for?

(ii)    Whether the Plaintiff is entitled for an injunction  as  against the 1st defendant from projecting himself as the  Secretary and Correspondent?

       (iii)   Whether the Plaintiff is  entitled for accounting relief? (iv)    Whether assignment deeds dated 22.5.1987 and  15.7.1989 are enforceable against the Plaintiff?

(v)     Whether the Plaintiff is the owner of the B-Schedule  properties or any other properties acquired by the 1st  defendant?

       (vi)    To what relief?

(vii)   Whether the suit claim had been valued properly and  whether correct Court fee had been paid on the Plaint?"

       The said suit filed by Tapovanam was decreed, inter alia, on the  premise that the finding in the earlier suit the First Appellant herein having  been held to be an agent of Tapovanam being  binding upon the Appellants,  the same would attract the principle of res judicata.  An appeal preferred by  the Appellants before the High Court of Madras,  marked as A.S. No.568 of  1998 was dismissed by the impugned judgment holding :

(i)     The earlier judgment is O.S. No.459 of 1991 confirmed in A.S.  No.288 of 1992 and Second Appeal No.604 of 1993 constituted  res judicata.

(ii)    In view of Rule 3 of the Rules of Tapovanam the properties  belonged to the Appellant Nos. 2 and 3 automatically became  the property of  Tapovanam.

(iii)   The suit could not be dismissed for non-compliance with Order  31 Rule 2 CPC since the same was not raised before the trial  court.                          The Appellants are, thus, before us. SUBMISSIONS :

       Mr. K. Sukumaran, the learned Senior Counsel appearing on behalf of  the Appellants, would principally raise two contentions in support of this  appeal.  Firstly, relying on V. Rajeshwari (Smt.) vs. T.C. Saravanabava  [(2004) 1 SCC 551], the learned counsel  contended that  no issue as regard  applicability of the principle of res judicata having been framed by the Trial  Court, the impugned judgment is vitiated in law.  Secondly the jurisdiction  of the Civil Court being barred in view of Sections 53 and 53A of the Act,  the judgment and decree passed in the earlier suit being a nullity, the  principle of res judicata will have no application.  Reliance, in this behalf,

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has been placed on Mohanlal Goenka vs. Benoy Krishna Mukherjee and  Others [(1953) SCR 377].

       Mr. L. Nagheshwar Rao, the learned Senior Counsel appearing on  behalf of the Respondents, on the other hand, would support the judgment  under appeal contending that although no issue as regard res judicata was  framed, the parties proceeded at the trial knowing fully well  that such an  issue is involved and in fact all the relevant documents pertaining to  the  earlier suit were brought on record and in that view of the matter, the  Appellants cannot be said to have been prejudiced thereby.

       The learned counsel would urge that the findings of the learned  Subordinate Judge in the instant case would come within the purview of the  exception carved out by this Court in V. Rajeshwari (supra).   It was  submitted that Section 53A of the Act being an exception to Section 53  thereof, the Civil Court had the necessary jurisdiction to determine the issue  as to whether the plaintiffs or the defendants were the educational agencies  in terms of the provisions of the said Act.            

RES JUDICATA :

O.S. No.1368 of  1990 was filed by the Appellant Nos. 1 and 2 against  Tapovanam and three others, namely, Swamy Bodhananda Swamy  Guhananda and Swamy Amalananda.   

In the said suit, it was accepted that the First Appellant was a disciple  of Swamy Chidbhavananda.  It was claimed that the six educational  institutions, namely Vivekananda Primary School having standard 1 to 5 in  Pasupathipalayam, Karur Taluk; (2) Vivekananda English School having  standard 1 to 5 at Pasupathipalayam, Karur Town, Karur Taluk; (3)  Vivekananda Higher Secondary School (Boys); (4) Vivekananda  Matriculation Higher Secondary School at Pasupathipalayam, Kaur Taluk;  (5) Sri Saratha Girls Higher Secondary School at Pasupathipalayam, Karurn  Taluk, and (6) Sri Saratha Nikathan College of Science for Women at Sri  Sarathapuri, Karur, were founded by the First Appellant herein alleging that  the funds for the educational institutions and ashrams were raised from  donations of the devotees and general public.  He stated that he was a  Correspondent and Secretary of the educational institutions ever since they  were established.  It was contended that Tapovanam neither established nor  administered the said institutions, nor contributed any money for the  establishment thereof.    It was alleged that the Trust had been founded to  manage the Ashrams, temples, schools and colleges by the First Appellant  herein and Tapovanam had no right, title or interest over the ashrams and the  educational institutions established by him.  The said suit was filed on the  premise that Tapovanam had been claiming to be the educational agency of  the schools.  The cause of action for the said suit is said to have arisen on the  dates of establishment of plaintiff’s ashram and on various dates when all  the educational institutions were established as also on 17.11.1990 when the  defendants threatened to interfere with the administration of educational  institutions.

       Tapovanam in its written statement not only denied and disputed the  said claim of the Appellants but set up a title over the properties involved  therein in itself.  It was averred that Tapovanam was the educational agency  in respect of these institutions.   

       The parties, therefore, in the aforementioned suit litigated, inter alia,  on the question of existence of the trust said to have been founded by the  First Appellant  as also right of the parties to act as educational agency of the  schools.  The High Court in its judgment dated 28.4.1997 passed in Second  Appeal No.604 of 1993 noticed all the contentions of the parties and  recorded that a concession had been made by the Appellants herein that

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Tapovanam was the educational agency in respect of the educational  institutions and all the documents stood in its name.  The plea of the  Appellants herein that the documents were created in the name of  Tapovanam by the Appellant No.1 out of respect  and his closeness with  its  founder Swamy Chidbhavananda, was negatived.

       In the Second Appeal, the High Court furthermore noticed that a  concurrent finding of fact had been arrived at to the effect that the schools in  question were recognized in the name of Tapovanam and even for the  recognition in the name of its officer, necessary application was filed by the  First Appellant herein, who was then the Correspondent-cum-Secretary of  the Schools, holding :

"\005It was also admitted that all the official records stand  in the name of the first defendant, and even the  correspondence for the same was taken only by the  second plaintiff.  It is also not disputed that second  plaintiff was acting as Correspondent cum Secretary of  these educational institutions.  The schools have been  constructed in a lease hold premises, and the lease deed  was also taken in the name of the first defendant.  It is in  this background, we have to consider how far the  plaintiffs’ case could be sustained in this case."     

       The High Court noticed the provisions of the Act as also those of the  Trust Act and in particular Section 88 thereof, and opined :

"\005If the person is bound to protect the interest of  another and gains any advantage, that advantage also  must go to the persons whose interest he is bound to  protect.  So, even if by chance second plaintiff can  contend that he is the owner, since he was acting  throughout only as an agent of the first defendant-society,  his claim for ownership cannot be put forward."   

       The Court negatived the contention of the Appellants herein as regard  title in respect of the schools in question observing :

       "Courts below have rightly come to the conclusion  that the second plaintiff has no claim as put forward and  as a Sanyasi, he should not have put forward such a  claim.  A person who is bound to promote the interest of  the Ashramam and who says that he was brought to this  world by his Guru, is now acting against its own interest.   The confidence reposed on the second plaintiff has really  been misused by him.  The courts below have rightly  dismissed his claim."     

       In its plaint, Tapovanam extensively referred to the factum of  institution of the earlier suit and also the concession of the First  Appellant herein to the effect that all the documents stood in its name.   It was categorically stated that all the contentions of the Appellants had  been rejected holding that Tapovanam alone was the owner, founder  and educational agency in respect of all the educational institutions and  the First Appellant herein was only its agent, correspondent and person  in charge.  The purported assignment made by the First Appellant  herein in favour of the other Appellants in relation to certain lands were  questioned, inter alia, on the premise that in the earlier suit such  assignments had been found to be invalid and the First Appellant herein  had been acting on behalf of Tapovanam in the fiduciary capacity and  had no independent right in himself.  In the said suit, the following  reliefs were claimed  :

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       (a)     Holding that the plaintiff is the absolute  owner of the suit properties and educational agency  with respect to the suit institutions described in  Schedule A and the properties in Schedule B and for  a consequential relief of possession and directing the  first defendant to hand over charge relating to the suit  institutions and properties described in Schedule A  and B.

       (b)     Directing the first defendant to render a  true and proper accounts with regard to the income  from the suit properties for the last three years and till  he actually hands over charge.

       (c)     Granting a permanent injunction  restraining the first defendant from interfering with  the right of the plaintiff to manage the suit  institutions and properties described in Schedule A  and B or collecting any amounts for and on behalf of  the suit institutions either projecting himself as the  founder, secretary or correspondent or in any other  capacity.

       (d)     Granting such further or other reliefs as  this Hon’ble Court may deem fit and proper in the  circumstances of the case and render justice.                   The fact giving rise to the cause of action for the said suit is  stated in paragraph 19 of the plaint and one of the facts constituting  cause of action was said to be the dismissal of the earlier suit and on  subsequent dates when the First Appellant refused to hand over the  collections made illegally in respect of the suit institutions in spite of  the judgment of the court.                  Osborn’s Concise Law Dictionary defines ’cause of action’ as the fact  or combination of facts which give rise to a right or action.

       In Black’s Law Dictionary it has been stated that the expression cause  of action is the fact or facts which give a person a right to judicial relief.  

       In Stroud’s Judicial Dictionary a cause of action is stated to be the  entire set of facts that give rise to an enforceable claim; the phrase comprises  every fact which, if traversed, the plaintiff must prove in order to obtain  judgment.

       A cause of action, thus, means every fact, which, if traversed, it  would be necessary for the plaintiff to prove in order to support his  right to a judgment of the Court.  In other words, it is a bundle of facts  which taken with the law applicable to them gives the plaintiff a right  to relief against the defendant.  It must include some act done by the  defendant since in the absence of such an act no cause of action can  possibly accrue.  It is not limited to the actual infringement of the right  sued on but includes all the material facts on which it is founded.

       The status of the First Appellant vis-‘-vis Tapovanam was, thus,  the subject matter of determination in the earlier suit.  A finding as  regard relationship between the parties rendered in the said suit  is  binding upon the First Appellant herein.  Similarly, the finding to the  effect that the  Second Appellant was constituted illegally and did not  derive any right, title or interest over any property standing in its name  is also binding upon the Appellants.  

The object and purport of principle of res judicata as contended

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in Section 11 of the Code of Civil Procedure is to uphold the rule of  conclusiveness of judgment, as to the points decided earlier of fact, or  of law, or of fact and law, in every subsequent suit between the same  parties.  Once the matter which was the subject-matter of lis stood  determined by a competent court, no party thereafter  can be permitted  to reopen it in a subsequent litigation.  Such a rule was brought into the  statute book with a view to bring the litigation to an end so that the  other side may not be put to harassment.   

The principle of res judicata envisages that a judgment of court of  concurrent jurisdiction directly upon the point would create a bar as  regard a plea between the same parties upon  some other matter directly  in question in another court and that the judgment of the court of  exclusive jurisdiction direct in point.   

The doctrine of res judicata is conceived not only in larger public  interest which requires that all litigation must, sooner than later, come  to an end but is also founded on equity, justice and good conscience.

       In Sulochana Amma vs. Narayanan Nair [(1994) 2 SCC 14], it  was held : "5. Section 11 of CPC embodies the rule of  conclusiveness as evidence or bars as a plea as issue tried  in an earlier suit founded on a plaint in which the matter  is directly and substantially in issue and became final. In  a later suit between the same parties or their privies in a  court competent to try such subsequent suit in which the  issue has been directly and substantially raised and  decided in the judgment and decree in the former suit  would operate as res judicata. Section 11 does not create  any right or interest in the property, but merely operates  as a bar to try the same issue once over. In other words, it  aims to prevent multiplicity of the proceedings and  accords finality to an issue, which directly and  substantially had arisen in the former suit between the  same parties or their privies, been decided and became  final, so that parties are not vexed twice over; vexatious  litigation would be put to an end and the valuable time of  the court is saved. It is based on public policy, as well as  private justice. They would apply, therefore, to all  judicial proceedings whether civil or otherwise. It equally  applies to quasi-judicial proceedings of the tribunals  other than the civil courts."          

The Appellants did not object to the raising of the said plea by  Tapovanam in the suit.  As the said plea had adequately been raised in  the plaint, in relation whereto the Appellants herein had adequate  opportunity to traverse and furthermore both the parties having brought  on records all the relevant documents the Appellants herein cannot be  said to have been prejudiced in any manner by reason of non-framing  of the issue as regard res judicata.  

       We have noticed hereinbefore that Tapovanam in its suit  extensively referred to the lis between the parties and the findings of  the court in the earlier proceedings.  The First Appellant herein in his  written statement, inter alia, contended that the matter was subjudice as   the Second Appeal was then pending adjudication.  It was specifically  stated :

       "This defendant has filed the 2nd appeal S.A.  No.604/93 on the file of the High Court of Judicature  at Madras against the judgment and decree in A.S.  No.288/92.  The 2nd appeal is pending adjudication.   It is therefore, clear that the entire matter is

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subjudice\005"

It was urged that no  relief would be granted with regard to the A  schedule properties unless and until an adjudication is made in Second  Appeal No. 604 of 1993.  Tapovanam, therefore, in its written  statement did not deny or dispute that the issues which were germane  for determination of the suit filed by Tapovanam arose for  consideration in the earlier suit.  It reiterated its claim that the  properties in suit were being held by him as the managing trustee of the  Appellants which plea, as noticed hereinbefore, had subsequently been  rejected by the court of competent jurisdiction.  The Trial Court while  determining the issues took into consideration the fact that the  documents mostly relied upon by the parties in the previous  proceedings had been reproduced and marked as exhibits in the said  suit also. It was held :

"\005The deeper probe and study of the bolts and nuts  of these material and vital documents, unequivocally  points to one and the only conclusion that from out of  the nucleus  of the plaintiff-Tapovanam, rather from  out of the seeds sown by the plaintiff-Tapovanam, all  these suit properties have emanated and emerged out,  of course with the each and every nerve of pain and  strain of the 1st defendant, as its member servant."

       The Court found the evidence of Appellant No. 1 herein as  unconvincing.  It observed that the entire case was a shallow.  The Court  took note of Clause 3(b) of Memorandum of Association of the First  Respondent which is as under:

"Monastic members shall not own personal  properties.  All properties gifted to them  automatically become the property of the  TapovanaM."

The Court furthermore considered the matter on merits holding  that the First Appellant has failed to prove his case.

In V. Rajeshwari (supra),  this Court while emphasizing the need  of raising the relevant plea as well as framing appropriate issues,  observed : "12. The plea of res judicata is founded on proof of  certain facts and then by applying the law to the facts so  found. It is, therefore, necessary that the foundation for  the plea must be laid in the pleadings and then an issue  must be framed and tried. A plea not properly raised in  the pleadings or in issues at the stage of the trial, would  not be permitted to be raised for the first time at the stage  of appeal [see (Raja) Jagadish Chandra Deo Dhabal Deb  v. Gour Hari Mahato, Medapati Surayya v. Tondapu  Bala Gangadhara Ramakrishna Reddi and Katragadda  China Anjaneyulu v. Kattaragadda China Ramayya].  The view taken by the Privy Council was cited with  approval before this Court in State of Punjab v. Bua Das  Kaushal. However, an exception was carved out by this  Court and the plea was permitted to be raised, though not  taken in the pleadings nor covered by any issue, because  the necessary facts were present to the mind of the parties  and were gone into by the trial court. The opposite party  had ample opportunity of leading the evidence in rebuttal  of the plea. The Court concluded that the point of res  judicata had throughout been in consideration and

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discussion and so the want of pleadings or plea of waiver  of res judicata cannot be allowed to be urged."

                                               (Emphasis supplied)

This is, therefore, not a case where there was not adequate  pleadings.  On the other hand, it is a case where the documents as also  the judgment produced in the previous suit were brought on record. The  judgment contained extensive details of statement of pleadings and  issues which could be taken as enough to prove the plea of res judicata.   Furthermore, the First Appellant in his written statement by necessary  implication accepted that the plea as regard title over the properties as  described in Schedule A of the plaint as also other issues raised by the  Tapovnam in his suit would depend upon the findings of the High  Court in the Second Appeal which was then pending.          One of the facts which was necessary to be pleaded and proved  relates to the relationship between the parties i.e. First Appellant was  agent of the First Respondent or he was acting of his own.  Such a  question was raised and answered in the suit filed by the First  Appellant herein.  His plea that he collected donations and also  invested his money in acquiring the properties albeit in the name of the  First Respondent was negatived.          Thus, the finding arrived at in the earlier suit, inter alia, was that  the First Respondent herein was not the benamidar of the First  Appellant but in effect and substance  was its agent.          This Court recently in Bhanu Kumar Jain vs. Archana Kumar and  Another,  [AIR 2005 SC 626],  while drawing a distinction between the  principles of  ’res judicata’ and ’issue estoppel’ noticed the principle of  cause of action estoppel  in the following terms :      

"There is a distinction between ’issue  estoppel’  and  ’res judicata’ [See Thoday vs. Thoday \026 1964 (1)   All. ER 341]

Res judicata debars a court from exercising its  jurisdiction to determine the lis if it has attained  finality  between the parties whereas the doctrine issue estoppel is  invoked against the party.  If such an issue is decided  against him, he would be estopped from raising the same  in the later proceeding.   The doctrine of res-judicata  creates a different kind of estoppel viz Estoppel By  Accord.

xxx                     xxx                     xxx

The said dicta was followed in Barber vs.  Staffordshire Country Council, (1996) 2 All ER 748.  A  cause of action estoppel arises where in two different  proceedings identical issues are raised, in which event,  the latter proceedings between the same parties shall be  dealt with similarly as was done in the previous  proceedings.  In such an event the bar is absolute in  relation to all points decided save and except allegation  of fraud and collusion.   [See C. (a minor) Vs. Hackney  London Borough Council,  (1996) 1 All ER 973].

       If the parties went to the trial  knowing fully well the real issues  involved and adduced evidence in such a case without establishing  prejudice, it would not be open to a party to raise the question of non- framing of particular issue.

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       In Nedunuri Kameswaramma vs. Sampati Subba Rao [AIR 1963  SC 884], it was observed :                  "No doubt, no issue was framed, and the one,  which was framed, could have been more elaborate;  but since the parties went to trial fully knowing the  rival case and led all the evidence not only in support  of their contentions but in refutation of those of the  other side, it cannot be said that the absence of an  issue was fatal to the case, or that there was that mis- trial which vitiates proceedings.  We are, therefore, of  opinion that the suit could not be dismissed on this  narrow ground, and also that there is no need for a  remit, as the evidence which has been led in the case  is sufficient to reach the right conclusion.  Neither  party claimed before us that it had any further  evidence to offer\005."

It is, however, beyond any doubt or dispute that if a court lacks  inherent jurisdiction, its judgment would be a nullity and, thus, the  principle of res judicata which is in the domain of  procedure will have  no application. [See Mohanlal Goenka (supra),  Ashok Leyland Ltd. vs.  State of Tamil Nadu and Another, (2004) 3 SCC 1 and Management of  M/s Sonepat Cooperative Sugar Mills Ltd. vs. Ajit Singh, 2005 (2)  SCALE 151 : 2005 (3) SCC 232].

       In Ishwardas Vs. the State of Madhya Pradesh and others [AIR 1979  SC 551], this Court held:

"\005In order to sustain the plea of res judicata it is  not necessary that all the parties to the two  litigations must be common.  All that is necessary  is that the issue should be between the same parties  or between parties under whom they or any of  them claim\005"

       We may now consider some of the decisions cited by Mr. Sukumaran.

       M/s. R.N. Ganekar & Co. Vs. M/s. Hindustan Wires Ltd. [AIR 1974  SC 303] relates to a reference under Arbitration Act.  The said decision is an  authority for the proposition as regard the interpretation of Section 33 of the  Arbitration Act, 1940.  In that case, the Court was concerned with the  validity of arbitration clause contained in a contract if the contract itself is  found to be illegal.

       In The Vulcan Insurance Co. Vs. Maharaj Singh and another [AIR  1976 SC 287], this Court was again concerned with the question as to  whether in view of the repudiation of liability by the Appellant therein under  Clause 13 of the insurance policy, a dispute could be referred to arbitration.

       The decisions referred under Industrial Disputes Act or the Arbitration  Act will, thus, have no application in the instant case.

JURISDICTION OF CIVIL COURT :

Sections 53 and 53A of the Act read as under :  

"53. No Civil court shall have jurisdiction to  decide or deal with any question which is by or under  this Act required to be decided or dealt with by any  authority or officer mentioned in this Act."

53A.    (1) Notwithstanding anything contained

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in section 53, whenever any dispute as to the  constitution of any educational agency, or as to  whether any person or body of persons, is an  educational agency, in relation to any private school,  or as to the constitution of a school committee, or as  to the appointment of secretary of the school  committee, arises, such dispute may be referred by  the persons interested or by the competent authority  to the civil court having jurisdiction, for its decision.

(2) Pending the decision of the civil court on a  dispute referred to it under sub-section (1), or the  making of an interim arrangement by the civil court  for the running of the private school, the Government  may nominate an officer to discharge the functions of  the educational agency, the school committee or the  secretary, as the case may be, in relation to the  private school concerned."       

Indisputably a dispute with regard to the title over immovable  property  will have to be adjudicated in the Civil Court alone.  Section  53 merely postulates that the Civil Court  will have no jurisdiction to  decide or deal with any question which is by or under the said Act  required to be decided or dealt with by any authority or officer  mentioned in the said Act.  Section 5 of the Act whereupon reliance has  been placed by Mr. Sukumaran for advancing the contention that the  matter relating to recognition of schools is required to be decided by an  authority created thereunder cannot be accepted.  Section 5 lays down a  procedure as regard necessity to file an application and the contents  thereof for permission to run such schools.  Section 4 of the Act  prohibits every person from establishing any school without obtaining  permission of the competent authority save and except in accordance  with the terms and conditions specified in such permission.                  A dispute as to who is the real educational agency in relation to a  private school is not a matter which in terms of the provisions of the  said Act would be determined by an authority under the provisions of  the said Act.  Section 53A of the Act carves out an exception to Section  53 thereof.  In terms of the said provision any dispute as to the  educational institution is to be determined by a Civil Court having  jurisdiction for its decision.  The submission of Mr. Sukumaran,  however, is that the jurisdiction of the Civil Court is required to be  invoked in such matters specified therein by way of reference by the  persons interested  or by the competent authority.  Mr. Sukumaran  would contend that such a reference would be akin to a dispute pending  under the Industrial Disputes Act.  We cannot accept the said  contention.  A party to a dispute may not join the other in referring the  same to the Civil Court.  The party may agree or may not agree  therefor.  A person having a grievance as against other must have a  remedy. The maxim ’ubi jus ibi remedium’ is not an empty formality.   The jurisdiction of the Civil Court exemplifies the said doctrine.  The  jurisdiction of the Civil Court cannot be held to have been ousted  unless it is so, expressly or by necessary implication, stated in the  statute.  In terms of Section 53A of the Act, a dispute as to educational  agency is concededly required to be decided by a Civil Court.  How the   jurisdiction of the Civil Court is required to be invoked  is a matter to  be examined by the Civil Court. Unlike a private tribunal or a statutory  tribunal which would not derive a jurisdiction unless a reference in  terms of the provisions of the Act is made to it, the Civil Court enjoys a  plenary jurisdiction.  Furthermore, if and when a dispute arises before  the competent authority as regard entitlement of an educational agency  in relation to educational institutions, the same must also be referred to  the Civil Court.  Statutory authority in terms of Section 5 of the Act  cannot be said to have any jurisdiction to determine such a dispute.  A

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statute, as is well-known, must be read in such a manner so as to give  effect to the provisions thereof.  It must be read reasonably.  A statute  must be construed in such a manner so as to make it workable.  The  wordings "referred by the persons interested" would, thus, mean a  person who has a grievance as regard claim of other side relating to  educational agency of the educational institutions.  It can be done by  filing a suit before the Civil Suit.  The term "persons" which is plural  has been used having regard to the fact that educational agency need  not be a person alone but would also include a society registered under  the Societies Registration Act or a body corporate in terms of the  Companies Act.  In any event, if such a dispute within the  contemplation of Section 53A has to be decided by a civil court, it will  not attract the bar under Section 53 which applies only to a question  which is required to be dealt with or decided by any authority or officer  mentioned in the Act.

       We may notice that after the Second Appeal was dismissed, the  Appellants herein sought to raise additional grounds in their review  application, as regard the lack of jurisdiction in a Civil Court.  The said  plea was negatived.

       In Principles of Statutory Interpretation, by G.P. Singh,  Ninth  Edition, page 630, it is stated :         "As a necessary corollary of this rule  provisions excluding jurisdiction of civil courts and  provisions conferring jurisdiction on authorities and  tribunals other than civil courts are strictly construed.   The existence of jurisdiction in civil courts to decide  questions of civil nature being the general rule and  exclusion being an exception, the burden of proof to  show that jurisdiction is excluded in any particular  case is on the party raising such a contention.  The  rule that the exclusion of jurisdiction of civil courts is  not to be readily inferred is based on the theory that  civil courts  are courts of general jurisdiction and the  people have a right, unless expressly or impliedly  debarred, to insist for free access to the courts of  general jurisdiction of the State.  Indeed, the principle  is not limited to civil courts alone, but applies to all  courts of general jurisdiction including criminal  courts\005"

       In Dhulabhai and Others vs. The State of Madhya Pradesh and  Another [(1968) 3 SCR662], Hidayatullah, CJ summarized the  following principles relating to the exclusion of jurisdiction of civil  courts :          (a)     Where the statute gives a finality to the orders of the special  tribunals, the civil court’s jurisdiction must be held to be  excluded if there is adequate remedy to do what the civil courts  would normally do in a suit.  Such provision, however, does not  exclude those cases where the provisions of the particular Act  have not been complied with or the statutory tribunals has not  acted in conformity with the fundamental principles of judicial  procedure. (b)     Where there is an express bar of the jurisdiction of the court, an  examination of the scheme of the particular Act to find the  adequacy or the sufficiency of the remedies provided may be  relevant but is not decisive to sustain the jurisdiction of the Civil  Court.  Where there is no express exclusion, the examination of the  remedies and the scheme of the particular Act to find out the  intendment becomes necessary and the result of the inquiry may  be decisive.  In the latter case, it is necessary to see if the statute

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creates a special right or a liability and provides for the  determination of the right or liability and further lays down that  all questions about the said right and liability shall be determined  by the tribunals so constituted, and whether remedies normally  associated with actions in Civil Courts are prescribed by the said  statute or not. (c)     Challenge to the provisions of the particular Act as ultra vires  cannot be brought before tribunals constituted under that Act.   Even the High Court cannot go into that question on a revision or  reference from the decision of the tribunals. (d)     When the provision is already declared unconstitutional or the  constitutionality of any provision is to be challenged, a suit is  open.  A writ of certiorari may include a direction for refund if  the claim is clearly within the time prescribed by the Limitation  Act but it is not a compulsory remedy to replace a suit. (e)     Where the particular Act contains no machinery for refund of tax  collected in excess of constitutional limits or illegally collected, a  suit lies.  (f)     Questions of the correctness of the assessment, apart from its  constitutionality, are for the decision of the authorities and a civil  suit does not lie if the orders of the authorities are declared to be  final or there is an express prohibition in the particular Act.  In  either case, the scheme of the particular Act must be examined  because it is a relevant enquiry. (g)     An exclusion  of the jurisdiction of the civil court is not readily to  be inferred unless the conditions above set down apply. [See Rajasthan State Road Transport Corporation and Another vs.  Krishna Kant and Others \026 (1995) 5 SCC 75,  Dwarka Prasad Agarwal  vs. Ramesh Chand Agarwal  - (2003) 6 SCC 220, Sahebgouda vs.  Ogeppa (2003) 6 SCC 151 and Dhruv Green Field Ltd. vs. Hukam  Singh (2002) 6 SCC 416].  

       This case does not fulfil the said conditions and the jurisdiction  of the Civil Court was not excluded by reason of Sections 53 and 53A  of the Act.

       The reliance placed by the Appellant on the decision of this Court in  Math Sauna and others Vs. Kedar Nath alias Uma Shankar and others [AIR  1981 SC 1878] is wholly erroneous.  In that case the Court had held that the  question whether properties in possession of a mahant were math or personal  was to be decided on the basis of facts and circumstances of the case.

       For the reasons aforementioned, we do not find any merit in this  appeal, which is dismissed accordingly.  However, in the facts and  circumstances of the case, there shall be no order as to costs.

CIVIL APPEAL NO. 3740 of 2000

       This appeal has been filed against certain observations made by the  High Court in paragraph 50 of its judgment.  In view of  the dismissal of   Civil Appeal 2395 of 2002,  this appeal also fails and is dismissed  accordingly.