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TMI Blog1960 (4) TMI 49X X X X Extracts X X X X X X X X Extracts X X X X ..... Application was resisted by the landlords, the decree-holders, and on November 12, 19519 the Munsif holding that the applicants were not Thika Tenants within the meaning of the Thika Tenancy Act and accordingly the decree was not liable to be rescinded dismissed the application. Against this order the tenants moved the High Court of Calcutta under S. 115 of the Code of Civil Procedure. By the time the Revision Application was taken up for hearing the Calcutta Thika Tenancy Ordinance had come into force on October 21, 1952, and the Calcutta Thika Tenancy (Amendment) Act, 1953, had come into force on March 14, 1953. The 1953 Amendment Act inter alia omitted S. 28 of the original Act. In order to decide therefore whether the application under S. 28 was still alive the High Court had to consider the effect of S. 1 (2) of the Calcutta Thika Tenancy Amendment Act which provided that the provisions of the Calcutta Thika Tenancy Act. 1949 as amended by the 1953 Act shall apply and be deemed to have always applied to proceedings pending on the date of the commencement of the Calcutta Thika Tenancy Ordinance of 1952. The learned judges of the High Court held that S. 1(2) of the Thika Tenanc ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e of the commencement of the Thika Tenancy Ordinance, 1952. He has relied in support of this contention on the decision of the Privy Council in Ram Kripal Shukul v. Muss Umat Rup Kuari ([1883] I.R 11 I.A 37.). The principle of res judicata is based on the need of giving a finality to judicial decisions. What it says is that once a res is judicata, it shall not be adjudged again. Primarily it applies as between past litigation and future litigation. When a matter-whether on a question of fact or on a question of law-has been decided between two parties in one suit or proceeding and the decision is final, either because no appeal was taken to a higher court or because the appeal was dismissed, or no appeal lies, neither party will be allowed in a future suit or proceeding between the same parties to canvass the matter again. This principle of res judicata is embodied in relation to suits in s. 11 of the Code of Civil Procedure; but even where s. 11 does not apply, the principle of res judicata has been applied by courts for the purpose of achieving finality in litigation. The result of this is that the original court as well as any higher court must in any future litigation proceed ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... onceive himself aggrieved, under the penalty, if he does not so do, of forfeiting forever the benefit of the consideration of the appellate court. No authority or precedent has been cited in support of such a proposition, and we cannot conceive that anything would be more detrimental to the expeditious administration of justice than the establishment of a rule which would impose upon the suitor the necessity of so appealing; whereby on the one hand he might be harassed with endless expense and delay, and on the other inflict upon his opponent similar calamities, We believe there have been very many cases before this Tribunal in which their Lordships have deemed it to be their duty to correct erroneous interlocutory orders, though not brought under their consideration until the whole cause had been decided, and brought hither by appeal for adjudication." This view was re-affirmed by the Privy Council in Forbes v. Ameeroonissa Begum ([1865] 10 M.I.A. 340.). A decree for possession with mesne profits having been made against the defendant by the Civil Judge, Purneeha, on December 18, 1834, the defendant appealed to the Sadar Diwani Adalat. That Court by its order dated January 22, 18 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... and that in the meantime they bad remained with the appellant as incomplete instruments. The Trial Judge held however that the Farighkuttees had been executed on the footing of actual partition and division of the joint property, that these had been executed without taint of fraud and dismissed the suit. An appeal was taken to the Judicial Commissioner he affirmed the Civil Judge's decision on all points adding however that " there was one account between the parties still unadjusted, viz., the division of the outstandings which was left open at the time of the division of the assets." In this view he remanded the case to the Judge to decide what sum should be awarded to the plaintiff in satisfaction of all claims on this account and directed that if possible a decision should be obtained from the arbitrators previously appointed by the parties. After remand the Civil Judge referred the question involved to certain arbitrators but the defendant did not acquiesce inthis order and petitioned the Judicial Commissioner against it, stating that he objected to the arbitrators to whom the Civil Judge had referred the case, and requesting that other arbitrators might be appointed. This o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nt that in the earlier litigation the decision must be final in the strict sense of the term. When a court has decided the matter it is certainly final as regards that court. Should it always be treated as final in later stages of the proceeding in a higher court which had not considered it at all merely on the ground that no appeal lay or no appeal was preferred? As was pointed out by the Privy Council in Moheshur Singh's Case (supra) the effect of the rule that at every stage of the litigation a decision not appealed from must be held to be finally decided even in respect of the superior courts, will put on every litigant against whom an interlocutory order is decided, the burden of running to the higher courts for redress of the grievances, even though it may very well be that though the interlocutory order is against him, the final order will be in his favour and so it may not be necessary for him to go to the appeal court at all. Apart from the inevitable delay in the progress of the litigation that such a rule would cause, the interests of the other party to the litigation would also generally suffer by such repeated recourse to the higher courts in respect of every interlocu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y order which had not been appealed from either because no appeal lay or even though an appeal lay an appeal was not taken could be challenged in an appeal from the final decree or order. A special provision was made as regards orders of remand and that was to the effect that if an appeal lay and still the appeal was not taken the correctness of the order of remand could not later be challenged in an appeal from the final decision. If however an appeal did not lie from the order of remand the correctness thereof could be challenged by an appeal from the final decision as in the cases of other interlocutory orders. The second sub-section did not apply to the Privy Council and can have no application to appeals to the Supreme Court, one reason the supreme Court against an order of remand. There appears to be no reason therefore why the appellant should be precluded from raising before this Court the question about the applicability of s. 28 merely because he had not appealed from the High Court's order of remand, taking the view against him that the section was applicable. We are unable to agree with the learned Advocate that the decision of the Privy Council in Ram Kirpal Shukul's C ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... contention on behalf of the next of kin that the gift over was invalid, as creating a perpetuity; the decree provided that the determination of the destination of the income or corpus of the fund upon the death of the annuitant should be deferred until after that event. In further proceedings in the suit after the annuitant's death the next of kin contended that under the reservation in the decree they were entitled again to raise the contention that the gift over was invalid. The Privy Council held that the validity of the gift over was res judicata. It will be noticed that in all these three cases, viz., Ram Kirpal Shukul's Case, Bani Ram's Case and Hook's Case, the previous decision which was found to be res judicata was part of a decree. Therefore though in form the later proceeding in which the question was sought to be raised again was a continuation of the previous proceeding, it was in substance, an independent subsequent proceeding. The decision of a dispute as regards execution it is hardly necessary to mention was a decree under the Code of Civil Procedure and so in Ram Kirpal's Case and Bani Ram's Case, such a decision being a decree really terminated the previous proc ..... X X X X Extracts X X X X X X X X Extracts X X X X
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