TMI Blog2005 (4) TMI 608X X X X Extracts X X X X X X X X Extracts X X X X ..... 2. 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 i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y, 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. 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, an ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... le 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, 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 except ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 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 : It was also admitte ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 : (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 c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... uent 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 t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d 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 : The 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. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 Coun ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 in section 53, whenever any dispute as to the constitution of any educational agency, or as ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... jurisdiction including criminal courts 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 n ..... X X X X Extracts X X X X X X X X Extracts X X X X
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