TMI Blog2004 (12) TMI 676X X X X Extracts X X X X X X X X Extracts X X X X ..... P.P. Mukherjee, (original plaintiff) and daughter Smt. Archana Kumar, (original defendant No. 2). The family is said to be governed by Dayabhag School of Hindu Law. The original plaintiff filed a suit for partition in the year 1976. The original defendants filed their written statements. Respondent No. 2 herein, Surender Nath Kumar who is husband of Smt. Archana Kumar, Respondent No. 1 herein also filed a written statement and counterclaim by setting up a plea of mortgage by deposit of title deeds in respect of property in suit said to have been created by his mother in law (original defendant No. 1). Smt. Suchorita Mukherjee died on 15.9.1984 whereupon Respondent No. 1 herein was transposed as defendant No. 1; whereas Respondent No. 2 was transposed as defendant No. 2 therein. In the suit, the defendant No. 1 did not file any document. Respondent No. 2 also did not file any document in support of his purported counter claim. Having regard to the rival contentions raised in the pleadings of the parties, the following issues were framed: 1(a) Whether partition of property owned by late Shri NN Mukherjee had taken place during his life time? (b) If so, what property ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... whereafter an application was filed by the plaintiff that he had closed his evidence. It was further contended that the burden to prove the additional issue rested on the defendant and if any evidence is to be adduced, he should adduce evidence first. It appears that the plaintiff was also not cross- examined by Respondent No. 1 herein. As the plaintiff was attending to the court proceedings from Calcutta, a cost of ₹ 200/- was imposed on the defendants. It was further directed that if the costs were not paid, the right of cross-examination will be closed. The matter was again posted on 7.10.1985 on which day again the counsel for the defendant was not present. Even the costs awarded against them was not paid. Having regard to the fact that the Respondent No. 1 herein was absent and did not cross-examine the plaintiff; the case was directed to be posted ex-parte against her and the right of cross-examination was forfeited. The case was fixed for final argument on 11.10.1985. Yet again on 11.10.1985 the plaintiff was present but the defendants were not. Allegedly, owing to strike of the advocates the case was adjourned for 14.10.1985. On 14.10.1985 the learned Judge fixed the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ter claim filed by the defendants under Order 8 Rule 6(D) of the Code was dismissed by the learned Trial Judge, the First Appeal should not have been entertained by the High Court at the instance of the Respondent No. 2 and, thus, the impugned judgment must be set aside. The learned counsel would urge that the subject matter of an application under Order 9, Rule 13 of the Code and the subject matter of the appeal being same, it is against public policy to allow two parallel proceedings to continue simultaneously. Reliance in this behalf has been placed on Badvel Chinna Asethu and another Vs. Vettipalli Kesavayya and another [AIR 1920 Madras 962], Munassar Bin Jan Nisar Yarjung (died) his L.Rs Marian Begum and others Vs. Fatima Begum and others [AIR 1975 AP 366], M/s. Mangilal Rungta, Calcutta Vs. Manganese Ore (India) Ltd., Nagpur [AIR 1987 Bombay 87], Dr. M.K. Gourikutty and etc. Vs. M.K. Raghavan and Others [AIR 2001 Kerala 398], Rani Choudhury Vs. Lt.-Col. Suraj Jit Choudhury [(1982) 2 SCC 596] and P.Kiran Kumar Vs. A.S. Khadar and Others [(2002) 5 SCC 161]. In any event, Mr. Choudhari would contend that the Respondents' claim would be hit by the doctrine of Issue Esto ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... it that, in the event if it be held that the Respondents are not entitled to question the order of the learned Trial Judge to pass an ex-parte decree against both the Respondents, the matter may be remitted to the High Court for a decision on merit of the matter. In reply, Mr. Choudhari would point out that only two contentions were raised before the High Court and its findings thereupon being ex facie erroneous, no purpose would be served by remitting the matter back to the High Court for determination of the merit of the matter. It was argued that the Respondents have not raised any contention on merit of the matter and in any event, they having not adduced any evidence, there is no material on the record of the appeal enabling the court to determine the same on merit. It was further contended that even the deed in terms whereof the purported mortgage was created was not annexed with the written statement of the Respondent No. 2 as it was mandatorily required under Order 8, Rule 1 of the Code, he cannot raise any contention on merit of the counter claim and furthermore even no evidence was produced in support thereof. Order 9, Rule 7 of the Code postulates an application fo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sequent state of that proceeding... In Vijayabai (supra), it was held: 13. We find in the present case the Tahsildar reopened the very question which finally stood concluded, viz., whether Respondent 1 was or was not the tenant of the suit land. He further erroneously entered into a new premise of reopening the question of validity of the compromise which could have been in issue if at all in appeal or revision by holding that compromise was arrived at under pressure and allurement. How can this question be up for determination when this became final under this very same statute ?... Yet again in Hope Plantations Ltd. (supra), this Court laid down the law in the following terms: 17One important consideration of public policy is that the decisions pronounced by courts of competent jurisdiction should be final, unless they are modified or reversed by appellate authorities; and the other principle is that no one should be made to face the same kind of litigation twice over, because such a process would be contrary to considerations of fair play and justice. It was further held: 31. Law on res judicata and estoppel is well understood in India and there are ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he Trial Court merges with the order passed by the appellate court, having regard to Explanation appended to Order 9, Rule 13 of the Code a petition under Order 9, Rule 13 would not be maintainable. However, the Explanation I appended to said provision does not suggest that the converse is also true. In an appeal filed in terms of Section 96 of the Code having regard to Section 105 thereof, it is also permissible for an Appellant to raise a contention as regard correctness or otherwise of an interlocutory order passed in the suit subject to the conditions laid down therein. It is true that although there may not be a statutory bar to avail two remedies simultaneously and an appeal as also an application for setting aside the ex-parte decree can be filed; one after the other; on the ground of public policy the right of appeal conferred upon a suitor under a provision of statute cannot be taken away if the same is not in derogation or contrary to any other statutory provisions. There is a distinction between 'issue estoppel' and 'res judicata' [See Thoday vs. Thoday 1964 (1) All. ER 341] Res judicata debars a court from exercising its jurisdiction to determin ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... been passed ex parte can proceed in succession under O.9, R.13, as well as by taking objection to the order placing him ex parte in his appeal against the substantive decree has been dealt with. On principle it would appear that he could only do so at the expense of the rules as to res judicata; and there can be no reason why the adjudication on his application under O.9, R.13, if there were one should not be conclusive against him for the purpose of any subsequent appeal. In the present case it is suggested that the facts that his application under O.9, R.13, was not carried further than the District Munsif's Court and that he acquiesced in the District Munsif's unfavourable order, would make a difference to his right to appeal against the decree on this ground. The answer to this is that the District Munsif's order not having been appealed against, has become final. It seems to me that it would be a matter for great regret if a party could pursue both of two alternative remedies in succession and that the recognition of a right to do so would be a unique incident in our procedure. I am accordingly relieved to find that such a right has not been recognized by authorit ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f the opinion that although the judgment of the High Court cannot be sustained on the premise on which the same is based, the Respondents herein are entitled to raise their contentions as regards merit of the plaintiff's case in the said appeal confining their contentions to the materials which are on records of the case. We, however, do not agree with Mr. Ranjit Kumar that the Appellant herein has no locus standi to maintain this appeal. In terms of Order 22, Rule 10 of the Code he could have been substituted in place of the plaintiff. Even if he was not substituted in terms of the aforementioned provision, an application under Order 1, Rule 10 of the Code on his behalf was maintainable as he became the legal representative of the original plaintiff. For the view we have taken, it is not necessary for us to examine the claim of the original plaintiff for partition of suit properties or claim of the Respondent No. 2 herein as regard creation of a mortgage in relation thereto by the original defendant No. 1 and/ or efficacy thereof. We refrain ourselves from even considering the submission of Mr. Choudhari to the effect that even otherwise the Respondent No. 2 herein could ..... X X X X Extracts X X X X X X X X Extracts X X X X
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