TMI Blog2008 (5) TMI 700X X X X Extracts X X X X X X X X Extracts X X X X ..... id Gaddi. First respondent claimed himself to be the `Pota Chela' of the said Mahant Mani Ram Swami. 4. Disputes and differences between the parties having arisen as regards succession and management of the Gaddi, first respondent filed a suit in the Court of Senior Sub Judge, Rohtak . It was registered as Suit No. 295/2 of 1964. Another suit was filed by Mahant Mani Ram Sadhu Dadu Panthi which was marked as Suit No. 46 of 1967. The said suits were filed for grant of permanent injunction. 5. Appellant has claimed its entitlement to the management of the said Gaddi under a Will purported to have been executed by Mahant Mani Ram Swami. The main controversy between the parties, therefore, was which party was entitled to manage the Gaddi at Kalanaur of the said Trust. The matters relating to management of another Gaddi situated at another place, i.e., Makhora, however, is not in dispute. 6. The learned trial judge, having regard to the pleadings of the parties inter alia, framed the following issues: 1. Whether the plaintiff is the Chela of Lahar Dass and Pota Chela of Mahant Mani Ram? 2. Whether the plaintiff is entitled to succeed to Mahant Nitya Nand according ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 8. A second appeal was preferred thereagainst before the High Court which was registered as Regular Second Appeal No. 800 of 1973. The High Court allowed the purported register of the `Bhaik' to be produced as additional evidence. It entered into the merit of the matter and held as under: The oral evidence produced by the plaintiff to prove this fact in the Trial Court, was discussed by the lower Appellate Court as well, but as observed earlier, the lower Appellate Court did not believe those witnesses because all of them had stated that such a writing was made in the register when the plaintiff was appointed as Mahant and that writing was attested by some of the members of the Bhaik, yet the same was not produced in the Trial Court. Thus their testimony was never disbelieved as such. Because of the non-production of the writing Exhibit PW 14/A the finding was given against the plaintiff by the two Courts below. Since this Court allowed the additional evidence to be produced in this Court and the said writing has been duly proved, the findings of the Courts below under issue No. 1 are liable to be set aside. 9. The matter came up before this Court by way of Civil Appe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he ownership and possession and, thus, the suit for injunction was dismissed. Such finding was affirmed in appeal as well. This Court in second appeal reversed the findings recorded by the learned first Appellate Court after admitting additional evidence and held that the plaintiff is in possession of the suit property. In the said circumstance, above said order of Hon'ble Supreme Court was passed whereby judgment and decree passed by the High Court was set aside and liberty was given to the plaintiff to file a suit for possession. A perusal of order passed by the Hon'ble Supreme Court shows that the finding that plaintiff was not in possession in a suit for injunction recorded by this Court was set aside and, therefore, it was clarified that the judgment of the Court will not come in the way of the plaintiff to file a suit for possession. Meaning thereby in a suit for possession, the plaintiff could establish his title. The order of Hon'ble Supreme Court has to be read in its entirety. Once it is ordered that the judgment will not come in the way for suit for possession, the suit for possession could not be dismissed on the basis of previous judgment in a suit for i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... - i) The High Court could not have reversed the finding of the first appellate court that the plaintiff was not in possession of the suit property on the date of the filing of the suit. ii) In view of the said finding a decree for injunction for which the suit was filed could not have been granted. iii) The judgment and decree of the first appellate court shall be restored after setting aside the judgment and decree of the High Court. iv) The said judgment would not come in the way of the plaintiff/respondent in filing a suit for possession, if he so is so advised. 19. The judgment of a court, it is trite, should not be interpreted as a statute. The meaning of the words used in a judgment must be found out on the backdrop of the fact of each case. The Court while passing a judgment cannot take away the right of the successful party indirectly which it cannot do directly. An observation made by a superior court is not binding. What would be binding is the ratio of the decision. Such a decision must be arrived at upon entering into the merit of the issues involved in the case. 20. If the judgment and order of the first appellate court dated 2nd January, 1973 was res ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of Rajshahe dismissed the suit for want of evidence , and we cannot allow any words of the Judge to override the law, and give to parties indulgencies which the law of procedure does not sanction. It cannot for a moment be argued that, as the law stood in 1857, a Plaintiff was at liberty to claim a non-suit if, after the issues were recorded, be neglected to supply evidence in support of his case, and we are of opinion that the law and practice of the Courts there was to act upon the maxim `De non aparentibus et non existentibus eadum est ratio' (a); and if evidence was wanting, to dismiss the claim for want of proof. Such order is in reality a decision on the merits, just as much as if Plaintiff had produced evidence which the Court considered inadequate as proof, and dismissed it upon that ground. 25. The Privy Council In Fateh Singh and Ors. v. Jagannath Baksh Singh and Anr. observed: When the plaintiffs brought their first suit, they had to show their title to impeach the widow's gift. For this purpose they had to show either that they were some at least of the nearest reversionary heirs, or that the only nearer reversionary heir had colluded with the widow. In ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y claim for damages, in our opinion, the plaintiff cannot be permitted to get the same indirectly. 22. Law in this behalf is absolutely clear. What cannot be done directly cannot be done indirectly. 27. The question which was posed by the Privy Council was: Be that, however, as it may, the first question is, whether the High Court was right in holding that, notwithstanding the reservation contained in the decree dismissing the suit of 1856, the question was to be treated as res judicata. The Court noticed that at that point there was no authority which sanctioned the exercise by the Country Courts of India of that power which Courts of Equity in that Country occasionally exercise, of dismissing a suit with liberty to the plaintiff to bring a fresh suit for the same matter. 28. Having noticed the effect of a stray observation made by a superior court viz-a-viz applicability of the principle of res judicata we may also notice the applicability of the principle of issue estoppel. In Sheodan Singh v. Daryao Kunwar [1966]3SCR300 , this Court laid down the ingredients of Section 11 of the Code of Civil Procedure stating: 9. A plain reading of Section 11 shows that to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... only a public but also a private purpose by obstructing the reopening of matters which have once been adjudicated upon. It is thus not permissible to obtain a second judgment for the same civil relief on the same cause of action, for otherwise the spirit of contentiousness may give rise to conflicting judgments of equal authority, lead to multiplicity of actions and bring the administration of justice into disrepute. It is the cause of action which gives rise to an action, and that is why it is necessary for the courts to recognise that a cause of action which results in a judgment must lose its identity and vitality and merge in the judgment when pronounced. It cannot therefore survive the judgment, or give rise to another cause of action on the same facts. This is what is known as the general principle of res judicata. Noticing that the same set of facts may also give rise to two causes of actions, it was held: That, in turn, led the High Court to the conclusion that the principle of constructive res judicata could not be made applicable to a writ petition, and that was why it took the view that it was competent for the plaintiff in this case to raise an additional plea in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... origin. Again, once an issue has been finally determined, parties cannot subsequently in the same suit advance arguments or adduce further evidence directed to showing that the issue was wrongly determined. Their only remedy is to approach the higher forum if available. The determination of the issue between the parties gives rise to, as noted above, an issue estoppel. It operates in any subsequent proceedings in the same suit in which the issue had been determined. It also operates in subsequent suits between the same parties in which the same issue arises. Section 11 of the Code of Civil Procedure contains provisions of res judicata but these are not exhaustive of the general doctrine of res judicata. Legal principles of estoppel and res judicata are equally applicable in proceedings before administrative authorities as they are based on public policy and justice. This Court opined that the Law of England as enunciated by the House of Lords in Arnold v. National Westiminster Bank Plc. (1991) 2 AC 93 : (1991) 3 All ER 41, HL to hold that the said principle will have no application in India stating: 30. Mr Salve's assertions based on the aforesaid decision of the House o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... use was directly and substantially in issue in the former suit or not. In the subsequent suit undoubtedly the foundation of claim is title acquired by the present appellant under registered sale deed dated 28-2-1983 from Muthuswami. 33. Even in a case of title, Explanation IV to Section 11 would apply. (See also Sulochana Amma v. Narayanan Nair 1994ECR195(SC) ). 34. Furthermore in terms of Section 5 of the Specific Relief Act, 1963 a suit for possession must be filed having regard to the provisions of the Code of Civil Procedure. If the statute provides for the applicability of the Code of Civil Procedure, there cannot be any doubt whatsoever that all the relevant provisions thereof shall apply. (See Shamsu Suhara Beevi v. G. Alex and Anr. (2004)8SCC569 ) Hardesh Ores (P) Ltd. v. Hede and Company (2007)5SCC614 ). 35. We have, therefore, no hesitation to hold that the impugned judgment cannot be sustained. The same is set aside. The appeal is allowed with costs. Counsel's fee assessed at ₹ 25,000/- (Rupees Twenty Five Thousand only). 36. We, however, do not find any specific ground to initiate contempt proceedings against the respondent at this stage. Contemp ..... X X X X Extracts X X X X X X X X Extracts X X X X
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