REPORTABLE

IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NOS.     6757-6758       OF 2008 (Arising out of S.L.P.(C) Nos. 1147-1148 of 2005)

State of U.P. &Anr.          ….Appellants

Versus

Jagdish Saran Agrawal & Ors. ….Respondents

J U D G M E N T

DR. ARIJIT PASAYAT, J.

1. Leave granted.

2. Challenge in this appeal is to the judgment of a learned Single Judge

of the Allahabad High Court dismissing the writ petitions filed by the State

of Uttar Pradesh and the Municipal Board Nagar Palika Lalitpur (hereinafter

referred to as the ‘Board’).  Both the writ petitions were directed against the

order dated 11th February, 1994 passed by the District Judge, Lalitpur.  By

the said order learned District Judge allowed appeal No.23 of 1992 filed by

the respondent No.1 Jagdish Sharan Agrawal and two others.  State of U.P.

and 27 others were parties.  It was held in that order that the proceedings

initiated by the State against Jagdish Sharan Agrawal and others under the

Uttar Pradesh Public Premises (Eviction of Unauthorized Occupants) Act,

1971 (in short the ‘Act’) were barred by the principle of resjudicata, in view

of the decision of the proceedings, which were initiated earlier by the Nagar

Palika, Lalitpur, being suit No. 25 of 1960 as also in view of the dismissal

of the proceedings which were initiated by the State of Uttar Pradesh being

case  No.  521-353  under  Section  3(1)  of  the  Uttar  Pradesh  Public  Land

(Eviction  and  Recovery  of  Rent  and  Damages)  Act,  1959  (in  short  the

‘Eviction Act’).   

3. The stand of the State before the High Court was that the disputed

land  which  is  a  Nazul  property  is  owned  by the  State  and  is  under  the

management of the Board.  Nagar Palika has filed the Original Suit No.25 of

1960  in  the  court  of  Munsif  for  permanent  injunction  against  Savai

Mahendra Maharaja Sri Devendra Singh Joodev for restraining him from

auctioning the land being the property of the State.  The said suit filed by

2

the Nagar Palika was dismissed.  The High Court noted that the judgment of

the Trial Court was not brought on record and it was also not stated as to

whether any appeal against the said judgment was filed or not.  Thereafter,

State of Uttar Pradesh initiated proceedings against the Maharaja under the

Eviction Act which was numbered as DES Case No.521 of 1970 before the

prescribed authority.  

4. During  the  pendency  of  the  proceedings,  the  aforesaid  Act  was

declared ultra vires by this court and as a result thereof the State of Uttar

Pradesh  made  necessary  amendments  and  proceeded  with  the  case  after

taking steps under the provisions of the Act and the case was re-numbered

as  Case  No.521-353.  Proceedings  were  dismissed  for  default  by  the

Prescribed Authority by order dated 26th November, 1976. An application

to recall  the  said order was filed which was dismissed for default  on 3rd

January,  1977  by the  Prescribed  Authority.  Thereafter  the  State  initiated

proceedings  under  the  Act  which  was  numbered  as  Case  No.1/1988-89.

Before the Prescribed Authority preliminary objection was raised on behalf

of the alleged occupants contending that the proceedings were barred by the

principles of resjudicata as well as on the principles of Order IX Rule 9 of

the Code of Civil Procedure, 1908 (in short the ‘CPC’) and consequently the

3

case cannot be proceeded with.  The Prescribed Authority by Order dated

14th January, 1992 rejected the aforesaid objections and held that the orders

passed  in  the  Case  No.521  of  1970  and  25  of  1960  do  not  operate  as

resjudicata.  

5. Against  the  said  order,  Jagdish  Sharan  Agrawal  and  others

approached the High Court by a Writ Petition which was dismissed by order

Dated 18th February, 1992 on the ground that  the alternative remedy was

available.  Appeal No.23 of 1992 before the District Judge, Lalitpur, was

filed under Section 9 of the Act.  District Judge held that the proceedings

initiated  by  the  State  under  Case  No.1  of  1988-89  was  barred  by  the

principles of res judicata in view of the earlier orders passed in Suit No. 25

of 1960 and 521 of 1970.  The present appellants took the stand that the

judgment in question does not operate as resjudicata between the parties in

as much as in the said suit filed by the Nagar Palika, State of Uttar Pradesh

was not a party.  The State being the owner of the land and the land being

only under the management of Nagar Palika, in view of paragraph 47 of the

Nazool Manual, any proceeding initiated by the Nagar Palika to which the

State of Uttar Pradesh is not a party cannot be said to be binding on the

State.

4

6. The High Court found that admittedly in suit No.25 of 1960, the State

was not a party and therefore if any finding was recorded therein the same

was not binding on the State.  But so far as proceeding in Case No.521 of

1970 is concerned, the Eviction Act itself was held to be ultra vires by this

Court and consequently all proceedings taken therein are null and void and

cannot be said to be binding on any person whatsoever, including the parties

which were litigating there under.

7. The High Court found that there was substance in the aforesaid plea

raised by Jagdish Sharan Agrawal and others. However after going through

the  records,  it  was  established  that  although  initially  a  notice  under  the

provisions of the Eviction Act was issued and proceedings were initiated

against the alleged unauthorized occupants, yet the Act itself having been

declared ultra vires by this Court, the State chose to proceed with the matter

after making necessary amendments and taking necessary steps under the

Eviction  Act.  It  is  thus  established  that  the  original  proceedings  were

converted to proceedings under the Act.  The proceedings were dismissed

for default by the Prescribed Authority on 26.11.1976.  An application for

recall of the orders was also dismissed for non-prosecution.  The High Court

5

was of the view that proceedings initiated by issuance of notice under the

provisions  of  the  Eviction  Act  having  been  converted  into  proceedings

under the Act, the order of dismissal has become final between the parties

and  was  not  challenged  further.   It  was  held  that  if  proceedings  were

permitted to be initiated and proceedings are decided directing eviction, it

would amount to conflicting orders between the same parties in respect of

same premises which is not justified. It was held that to take care of such

situations,  the requisite  principles  are  enshrined  under  Order  IX Rule  9,

CPC. Though the provisions do not directly apply to proceedings under the

Eviction Act, they will apply with full force to the facts of the present case

and the State cannot be permitted to file such an application against some

person after its earlier application is dismissed for whatever reasons may be.

Therefore, the Writ Petition was dismissed.

8. Learned counsel for the appellant submitted that dismissal for default

does not  operate as resjudicata. It  is  pointed out  that there is  a recurring

cause  of  action.  Since  1959  Act  was  declared  to  be  ultra  vires,  the

proceedings were initiated, State was not a party in the suit by Nagar Palika

and the High Court was wrong in holding that the principles of resjudicata

apply so  far  as  State  is  concerned.  It  is  submitted  that  the  principles  of

6

resjudicata do not apply to the facts of the case as there was no decision on

merit.  One remedy was restoration and other remedy was the second suit

because  of  continuing  cause  of  action.  There  is  no  finding  that  the  non

official respondents were authorized occupants.

9. Learned counsel for the respondents on the other hand supported the

judgment, taking the stand that the proceedings are summary in nature.  The

effect  of  the  order  dated  10.10.1959  by the  Government  of  India,  Uttar

Pradesh in appeal under Section 7(1) of the Uttar Pradesh Roads and Lands

(Control) Act, 1943 (in short the ‘Road Act’) clearly applies to the facts of

the case and the order in question has become final.  

10. In  Ram Gobinda Dawan v.  Bhaktabala [1971 (1) SCC 387] it  was

held as follows:

“21. It is  interesting to note that  though it  was urged that  the  decision  of  the  Privy  Council  was  given  in default  of  appearance  of  B and  his  mortgagee  C and therefore  the  said  decision  will  not  operate  as  res judicata,  this  Court  did  not  hold  that  a  decision  given even in the first  instance in default  of appearance of a party will operate as res judicata. On the other hand, this Court  categorically  held  that  C,  the  mortgagee  had fought out the title of mortgagor B, both before the Land Acquisition Court and the High Court and had obtained a judgment in his favour after a full contest.

7

22. It is the view of this Court that the mere fact that the mortgagee  did  not  choose  to  appear  before  the  Privy Council and the decision of the Privy Council was given in the absence of the mortgagee, is of no consequence as the decisions  of the High Court  and the District  Court have been given after contest. Therefore it will be seen that the decision of this Court relied on by Mr Mukherjee is no authority for the wide proposition that even if there has been no hearing and final decision by any court, at any stage, after contest, the decision will operate as res judicata. 23. For an earlier decision to operate as resjudicata it has been  held  by  this  Court  in  Pulavarthi  Venkata  Subba Rao v. Valluri Jagannadha Rao [ AIR 1967 SC 591] that the same must have been on a matter which was “heard and finally decided”. 24. In Sheodan Singh v. Daryan Kunwar [AIR 1966 SC 1332] the question whether a decision given by the High Court  dismissing  certain  appeal  on  the  ground of limitation or on the ground that the party had not taken steps  to  prosecute  the  appeal  operates  as  res  judicata, was  considered  by  this  Court.  In  that  case  A had instituted  against  B two  suits  asserting  title  to  certain property.  B contested  those  claims  and  also  instituted two other suits to establish his title to the same property as against  A. A’s suits were decreed and  B’s suits were dismissed.  B filed four appeals, two appeals against the decision given in  A’s suits and two appeals against the dismissal of his two suits. It is seen that all the appeals were  taken  on the  file  of  the  High  Court  but  the  two appeals  filed  by  B against  the  decision  in  the  suits instituted by him were dismissed by the High Court on the  grounds  that  one  was  filed  beyond  the  period  of limitation and the other for non-prosecution. At the final hearing the High Court took the view that the dismissal of  B’s  two appeals,  referred  to  above,  operated  as  res judicata  in  the  two  appeals  filed  by  B against  the decision  in  A’s suits  on  the  question  of  title  to  the property. It was urged before this Court on behalf of  B that  the  dismissal  of  his  appeals  on  the  ground  of

8

limitation and non-prosecution by the High Court does not operate as res judicata as the High Court cannot be considered  to  have  “heard  and  finally  decided”  the question of title. This contention was not accepted. This Court  referred  to  instances  where  a  former  suit  was dismissed by a trial court for want of jurisdiction or for default of plaintiff’s appearance etc. and pointed out that in respect of such class of cases, the decision not being on merits, would not be res judicata in a subsequent suit. It  was  further  pointed  out  that  none  of  those considerations apply to a case where a decision is given on the merits by the trial court and the matter is taken in appeal and the appeal is dismissed on some preliminary ground, like limitation or default in printing. It was held that such dismissal by an appellate court has the effect of confirming the decision of the trial court on merits, and that  it  “amounts  to  the  appeal  being  heard  and finally decided on the merits  whatever may be the ground for dismissal of the appeal”.

11. The position was reiterated in State of U.P. v. Civil Judge [1986(4)

SCC 558].

12. So far as the recurring cause of action is concerned this Court in State

of U.P. v. Rup Lal Sharma [1997(2) SCC 1962] held as follows:

“Public  premises”  is  defined  in  Section  2(e)  of  the Act as meaning any premises “belonging to or taken on lease  or  requisitioned  by  or  on  behalf  of  the  State Government ...”. The first respondent never disputed that the building belongs to the Government and all  he has said was that it belongs to the Government Estate. It does

9

not matter. The definition of public premises is so wide as  to  hedge  in  all  such  buildings  whether  it  actually belongs to Government as such or only to a government department  or  even  a  building  belonging  to  a  private individual  if  the  Government  have  requisitioned  it  or some  person  on  behalf  of  the  Government  has requisitioned  it.  Hence  there  is  no  escape  from concluding  that  the  building  in  question  is  public premises. 7. “Unauthorised occupation” is defined in Section 2(g). The definition comprises within its contours occupation of the public premises by any person without authority for  such  occupation,  and  also  the  continuance  in occupation  of  such  premises  by  any  person  after  the authority (under which or the capacity in which he was allowed to hold or occupy the premises) has expired or has  been  determined  for  any  reason  whatsoever.  Thus continuance  in  occupation  after  the  determination  of such  authority  would  also  make  the  occupation unauthorised for the purpose of the said Act.”

13. In  the  present  case,  the  suit  filed  by  Nagar  Palika  was

dismissed on technical  ground and in any case the State was

not  a  party.  So far  the  suit  where  the  state  was  a  party and

amendments  were  made,  the  same  was  dismissed  for  non-

prosecution. But the same was not dismissed under Order IX

Rule 8.

14. Order IX Rule 8 and Order IX Rule 9 of CPC read as follows:

10

Rule 8. Procedure where defendant only appears

Where  the  defendant  appears  and  the  plaintiff  does  not appear when the suit is called on for hearing, the Court shall make  an  order  that  the  suit  be  dismissed,  unless  the defendant admits the claim or part thereof, in which case the Court shall  pass a decree against the defendant upon such admission,  and,  where  part  only  of  the  claim  has  been admitted,  shall  dismiss  the  suit  so  far  as  it  relates  to  the remainder.

Rule 9. Decree against plaintiff by default bars fresh suit

(1) Where a suit is wholly or partly dismissed under rule 8, the plaintiff shall be precluded from bringing a fresh suit in respect of the same cause of action. But he may apply for an order to set the dismissal aside, and if he satisfies the Court that there was sufficient cause for his non-appearance when the suit was called on for hearing, the Court shall make an order setting aside the dismissal upon such terms as to costs or  otherwise  as  it  thinks  fit,  and  shall  appoint  a  day  for proceeding with suit.

(2) No order shall be made under this rule unless notice of the application has been served on the opposite party.

15. Therefore Order IX Rule 9 can not  be said  to be applicable.

The dismissal of the suit for non-prosecution was not a decision on

merit. Consequently, the said order cannot operate as Resjudicata.

11

16. Above being the position the High Court’s order is clearly unsustainable

and is set aside.  The matter is remitted to the District Judge, Lalitpur to

decide the proceeding on merit.  Appeals  are allowed but  without  any

order as to costs.  

             ………….....................................J.

(Dr. ARIJIT PASAYAT)              

         ……

…..........................................J. (Dr. MUKUNDAKAM SHARMA)

New Delhi, November 25, 2008

12