TMI Blog1996 (1) TMI 460X X X X Extracts X X X X X X X X Extracts X X X X ..... udgment and decree dated May 7, 1979. The appeals (A.S. No. 623-24 of 1979) filed by the appellants against the said judgment and decree of the Subordinate Judge were dismissed by the Andhra Pradesh High Court by judgment dated June 16, 1992. 3. The London Missionary Society (for short LMS') was founded by people belonging to different protestant Christian Denominations in England in 1795 for spreading the Christian faith in various countries including India. LMS missionaries, in course of their activities, started churches, hospitals, educational institutions in various parts of India. In 1899 the London Missionary Society Corporation (for short 'LMSC') was registered as the Trustee under the Companies Act of the United Kingdom for administering the properties of LMS. In 1908 the churches founded by different Missionary Societies, including LMS in South India, united formed a single body known as South India United Church (for short SIUC). SIUC became the apex body of various Church Councils. TCC was one of the Church Councils under SIUC in respect of churches in the Telugu speaking area of the former Madras Presidency. The case of the appellant is that on June 2 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... .S. No. 2 of 1961), hereinafter referred to as the first suit', was filed by the respondent against LMS and the Chartered Bank, Madras, in the Court of Subordinate Judge, Cuddapah which suit, on transfer to the Court of Second Additional District Judge, Cuddapah, was numbered as O.S. No. 12 of 1964, wherein a decree was sought that the defendants or either of them be directed to render an account to the plaintiff (TCC) of the funds deposited in various accounts with the defendant Bank in the joint name of TCC and LMS and standing to the credit as up to date and for a decree in favour of TCC against the defendants for recovery of such sums of money as may be found due on taking account and also for delivery of such securities and deposits that should be belonging to TCC and held by the defendant Bank. The said suit was contested by LMS on the ground that by resolution dated June 19, 1947 TCC had dissolved itself and had ceased to exist and, therefore, the plaintiff (respondent herein) had no right to bring an action. The said suit was decreed by the Second Additional District Judge, Cuddapah by his judgment dated December 3, 1996. The Second Additional District Judge held that ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 6. In the meanwhile, the respondent had filed the two suits giving rise to these appeals, O.S. No. 41 of 1968 was filed by the respondent in the Court of the Subordinate Judge, Cuddapah against the appellant and Ors. for a declaration that the plaintiff (respondent herein) is entitled to hold the suit properties and institutions as a trustee for the benefit of the Congregationalist churches in Cuddapah district and for a direction to the defendants to put the plaintiff in possession of the same. The other suit (O.S. No. 135 of 1968) was filed by the respondent in the Court of the Subordinate Judge, Anantpur against the appellant and LMS for a declaration that the plaintiff (respondent herein) is entitled to hold the suit properties and institutions as a trustee for the benefit of the congregationalist churches in Anantpur District and for a direction to the defendants to put the plaintiff in possession of the same. O.S. No. 135 of 1968 was subsequently transferred to the Court of Subordinate Judge, Cuddapah and it was renumbered as O.S. 26 of 1970 and it was tried alongwith O.S. 41 of 1968. 7. The case of the respondent in these two suits (O.S. 41 of 1968 and O.S. 26 of 1970) ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he Subordinate Judge also rejected the contention regarding the suit being barred by limitation. 11. The appeals (A.S. Nos. 623 and 624 of 1979) filed by the appellant against the said judgment and decree of the Subordinate Judge, Cuddapah, have been dismissed by the Andhra Pradesh High Court by the impugned judgment dated June 16, 1992. The High Court has held that the appellant is litigating as successor-in-interest of LMS and that the finding on the issue as regards merger recorded by the Additional District Judge, Cuddapah, in his judgment dated December 3, 1966 in O.S. No. 12 of 1964 which was confirmed by the Division bench of the Andhra Pradesh High Court in the judgment dated November 9, 1970 in A.S. No. 31 of 1967 binds the appellant. As regards the decision of the Division Bench of the Madras High Court dated September 2, 1976 in O.S.A. No. 20 of 1976 filed by the appellant it was held that the said decision would not operate as res judicata since no court in the State of Tamil Nadu can claim to exercise jurisdiction in respect of properties situate within the State of Andhra Pradesh. The High Court has held that LMS and LMSC were one and the same body, viz., the Lon ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... only if Question No. (i) is decided against the appellant and Question No. (ii) is decided in their favour. We will, therefore;, first deal with Question No. (i) and examine whether the judgement of the Madras High Court in the second suit operates as res judicata. 13. It is not disputed that the appellant as well as the respondent were both parties in the second suit O.S. No. 107 of 1971 in the Madras High Court. In the suits giving rise to the present appeals, the other defendant is the L.M.S. while in O.S. No. 107 of 1971 plaintiff No. 2 was the Rayalaseema Discussion Council claiming through L.M.S. The High Court has held that the judgment of the Madras High Court does not operate as res judicata for the reason that the two suits from which the present appeals arise relate to rights in immovable properties situate in the State of Andhra Pradesh and no court in the State of Tamil Nadu can claim to exercise jurisdiction in respect of properties situated within the State of Andhra Pradesh and the Madras High Court, not being a court competent to- try such subsequent suit within the meaning of Section 11 C.P.C., any finding recorded by it on any issue would not operate as res ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the learned senior counsel appearing for the respondent, has, on the other hand, urged that lack of territorial jurisdiction goes to the competence of the court for the purpose of applicability of the principle of res judicata Under Section 11 C.P.C. and that the High Court was right in holding that the judgment of the Madras High Court does not operate as res judicata since Madras High Court does not have territorial jurisdiction to deal with the suits giving rise to these appeals which relate to immovable properties lying in the State of Andhra Pradesh. Shri Sitaramiah has placed reliance on the decisions of this Court in Kiran Singh and Ors. v. Chaman Paswan and Ors. [1955]1SCR117 and Official Trustee, West Bengal and Ors. v. Sachindra Nath Chatterjee and Anr. [1969]3SCR92. 18. The principles governing the rule of res judicata in England were laid down in 1776 in Duchess of Kingston's case (2 Smith's L.C. 13th Edn. 644) wherein it was said : From the variety of cases relative to judgments being given in evidence in civil suits, these two deductions seem to follow as generally true : first that judgment of a court of concurrent jurisdiction, directly upon the poin ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sive. (p. 179) 21. The Code of 1859 was followed by Code of Civil Procedure, 1877 (hereinafter referred to as the Code of 1877') which contained the following provisions in Section 13 : No Court shall try any suit or issue in which the matter directly and substantially in issue has been heard and finally decided by a Court of competent jurisdiction, in a former suit between the same parties, or between parties under whom they or any of them claim, litigating under the same title. 22. The said provision came up for consideration before the Privy Council in Misir Raghobardial v. Rajah Sheo Baksh Singh (supra) wherein the observations of Sir Barnes Peacock C.J. in Mussumat Edun v. Mussumat Bechun (supra) have been referred with approval and it has been said : As to what is a Court of concurrent jurisdiction, it is material to notice that there is in India a great number of Courts, that one main feature in the Acts constituting them is that they are of various grades with different pecuniary limits of jurisdiction, and that by the Code of Procedure a suit must be instituted in the Court of the lowest grade competent to try it. For instance, in Bengal, by the Beng ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rpretation placed by the Privy Council on the expression competent jurisdiction , it has been said that the rule governing applicability of res judicata in India is more restricted than the rule law laid down in Duchess of Kingston's case (supra) in England. (See : Gokul Mandar v. Pudmanund Singh ILR (1902) Cal. 707 ; Mst. Gulab Bai v. Manphool Bai [1962]3SCR483 ). 26. There is no alteration in law in this field in the Code of Civil Procedure, 1908 (hereinafter referred to as the present Code ) because Section 11 of the present Code is substantially in the same terms as Section 13 of the Code of 1882. As regards competence of the Court to try the subsequent suit Under Section 11 of the present Code, the Law Commission in its fifty-fourth Report has observed that the principle behind this condition is sound one, namely, that the decision of a Court of limited jurisdiction ought not to be final and binding on a court of unlimited jurisdiction. (p. 21) 27. The question which, therefore, arises is whether the competence of the Court, as contemplated in Section 11 of the present Code, extends to territorial jurisdiction also and the Court which has decided the earli ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 751). In this context reference may also be made to Section 21(A) introduced by the Code of Civil Procedure (Amendment) Act, 1976, which lays down that no suit shall lie challenging the validity of a decree passed in a former suit between the same parties, or between the parties under whom they or any of them claim, litigating under the same title, on any ground based on an objection as to the place of suing. 28. Under Sub-clause (a) of Sub-section (1) of Section 24 of the Code, the High Court or the District Court can transfer any suit, appeal or other proceeding pending before it for trial or disposal to any court subordinate to it or competent to try or dispose of the same. Similarly, under Sub-clause (ii) of Clause (b) of Sub-section (1) of Section 24, the High Court or the District Court can withdraw any suit, appeal or other proceeding in any court subordinate to it and transfer the same for trial or disposal to any court subordinate to it and competent to try or dispose of the same. There is near unanimity amongst the High Courts that the words competent to try in Section 24 refer to pecuniary competence of the Court only and do not comprehend the territorial aspect ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... a way which could not have been intended and would deprive Explanation VI of all meaning. In that case, the decree of the court of a native State in respect of property situate within the jurisdiction of the native State deciding the question of adoption in favour of the plaintiff was held to operate as res judicata in a suit filed in British India in respect of property situate therein on the basis of the plaintiff being the adopted son. 31. In R. Viswanathan v. Rukn-ul-Mulk Syed Abdul Wazid [1963]3SCR22 , this Court has laid down that Section 13 incorporates a branch of the principle of res judicata and extends it within certain limits to judgments of foreign courts if competent in an international sense to decide the dispute between the parties. (at p. 54) 32. The acceptance of the contention urged on behalf of the respondent that for the purpose of Section 11 of the present Code, the competence of the Court which has decided the earlier suit also postulates the said court having territorial jurisdiction to try the subsequent suit, would mean that the judgment of a court in India which was competent to try the earlier suit would not operate as res judicata in the s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ata should be applied to the situations of proceedings in execution and independent proceedings and recommended insertion of Section 11-A for that purpose. Instead of inserting Sections 11-A and 23-A, the appoint Committee of Parliament suggested insertion of explanations to Section 11 and, on the basis of the said report, Explanations VII and VIII have been inserted in Section 11 by the C.P.C. (Amendment) Act, 1976. By Explanation VII the provisions of Section 11 have been made applicable to a proceeding for execution of a decree. Explanation VIII which has a bearing on the question under consideration provides as under : Explanation VIII.- An issue heard and finally decided by a Court of limited jurisdiction, competent to decide such issue, shall operate as res judicata in a subsequent suit , notwithstanding, that such Court of limited jurisdiction was not competent to try such subsequent suit or the suit in which such issue has been subsequently raised. 34. Earlier there was a conflict of views among the High Courts on the meaning of expression a Court of limited jurisdiction in Explanation VIII. The Calcutta High Court in Nabin Majhi v. Tela Majhi and Anr. AIR197 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in Andhra Pradesh. 36. Once it is held that the judgment of the Madras High Court would operate as res judicata, it follows that the decision in that said case regarding merger of TCC with the Church of South India as well as about the judgment of the Andhra Pradesh High Court in A.S. 31 of 1967 arising out of O.S. 12 of 1961, not being res judicata, would be binding on the respondent and the civil suits giving rise to these appeals which were filed by the respondent cannot succeed and have to be dismissed. In the circumstances, it is not necessary to consider Questions Nos. (ii) and (iii) referred to above. 37. The appeals are accordingly allowed, the impugned judgment of the Andhra Pradesh High Court dated June 16, 1992 in Appeals Nos. 623-624 of 1979 arising out of O.S. Nos. 41 of 1968 and 26 of 1970 are set aside and the said suits are dismissed. No orders as to costs. 38. S.L.P..../96 (CC No. 21473/93) 39. Delay condoned. 40. I.A. No. 3/94 is allowed and the legal heirs of the petitioner as mentioned in the application are brought on record. 41. The grievance of the petitioner in this petition for special leave to appeal against the judgment date ..... X X X X Extracts X X X X X X X X Extracts X X X X
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