TMI Blog1962 (11) TMI 89X X X X Extracts X X X X X X X X Extracts X X X X ..... , were the owners of the properties in suit, and for possession in the alternative. According to Ch. Bhagwan Sahai the recorded owner of these properties was his uncle Sri Harnam Singh. Sri Harnam Singh and his adopted son Ram Kishen used to live jointly with Ch. Bhagwan Sahai. Hence after the death of Sri Harnam Singh and his son, Ch. Bhagwan Sahai, and his son, became the owners of the entire joint family property by survivorship though the names of the widows of Sri Harnam Singh and Sri Ram Kishen were got entered in the revenue papers simply for their consolation and they had no right or title to any part of those properties. The plaint contained some other allegation also, but for the purposes of the present reference it is not necessary to mention them. On these, and the unmentioned allegations, Ch. Bhagwan Sahai prayed for the reliefs stated above. Shortly afterwards Ch. Bhagwan Sahai filed another Suit No. 42 of 1950, against Smt. Daryao Kuer and one other person, claiming the price of the crop which stood on some Sir and Khudkasht plots in villages Pirangarh and Kasimabad, on the allegations that Smt. Daryao Kuer had cut and misappropriated the Kharif crop standing on t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in suit No. 37 of 1950, he decreed suit No. 91 of 1950 in its entirety while Ch. Bhagwan Sahai's Suit No. 42 of 1950 and Smt. Daryao Kuer's Suit No. 77 of 1950 were decreed to the extent of half only and Smt. Daryao Kuer was also granted permanent injunction restraining Ch. Bhagwan Sahai from letting out the suit plots without her consent. Aggrieved by that decision, Ch. Bhagwan Sahai preferred First Appeals Nos. 365 and 366 of 1961 in this Court against the judgment and decrees in Suits Nos. 37 and 42 of 1950 respectively and Civil Appeal No. 452 of 1951 and Civil Appeal No. 453 of 1951 in the Court of the District Judge against the judgment and decrees in Suits Nos. 77 and 91 of 1950 respectively. By an order of this Court, the appeals pending in the Court of the District Judge were withdrawn from that Court to this Court. Appeal No. 453 of 1951 was rejected by this Court on the 9th of October 1953 as being time barred, while Appeal No. 452 of 1951 (later renumbered as First Appeal No. 434 of 1953) was dismissed by this Court on the 7th of October 1955 on account of the failure of Ch. Bhagwan Sahai to apply for the translation and printing of the record as required by ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... substantially in issue in the subsequent suit must have been heard and finally decided in the first suit. The first explanation then makes it clear that the expression former suit denotes a suit which has been decided prior to the suit in question, whether or not it was instituted prior thereto. The doctrine of res judicata, to quote a passage from Srinivas R. Acharya v. Purushottam Chaturbhuj AIR1953Bom393 , is not merely a technical 'doctrine. It is directly founded on the general rule that 'a man shall not be twice vexed for the same cause.' It is a fundamental doctrine based on the principle of conclusiveness of judgments and finality of litigation. (Also see in this connection the observations in Shankar Sahai v. Bhagwan Sahai AIR 1946 Oudh 33 (FB)). We have, therefore, to see whether the aforesaid five conditions essential for the application of the doctrine of res judicata are present in the instant case or not? 8. Now from the facts summarised above, it is clear that the two matters which were directly and substantially in issue in all the four suits were (1) whether Sri Harnam Singh and adopted son Sri Ram Kishan died in a state of jointness with Ch ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cannot be superseded except it be upon appeal in the regular course. This being so, if we acceded to the argument addressed to us we should have two inconsistent decrees on the files of the Court. This would be a most serious anomaly, and in execution proceedings would cause a complete impasse. The aforesaid view has been reiterated in Mohammad Mohtashim v. Joti Prasad AIR1941All277 and L P. A. No. 61 of 1951, D/- 13-10-1961 (All) the latter being one of the cases mentioned by the learned single Judge in his referring order. There is thus abundant authority for the proposition that where there are two or more suits involving common issues, then if the findings on those issues in one suit become final then if the other essentials of Section 11 are present they serve to operate as res judicata in a subsequent suit or appeal. 11. On behalf of the appellant, reliance was placed upon another Full Bench decision of this Court In Ghansham Singh v. Bhola Singh. We have carefully perused this judgment, but find that it is clearly distinguishable on facts from the present case, though it does contain some observations which favour the contention of the learned counsel for the appella ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ppellant, but as In that appeal there was only one suit, the said observations are clearly in the nature of obiter. Further in that appeal the appeal of the plaintiff against the decree refusing him costs having been allowed by the lower appellate court, he had no occasion to appeal against that decision and his omission to appeal from that decision could not, therefore, bar his own appeal. As observed by Banerji, J. No issue was decided in the plaintiff's appeal which was adverse to him and no issue which arose and was decided in that appeal, arose in the appeal before the High Court. There was thus no bar to the hearing of his appeal. Further that, as the suit was a mortgage suit and only one decree could be passed in it, the decree drawn up by the court below was the decree which was the result of the decision in the two appeals before it. We must look to the substance and not to mere form. Earlier that learned Judge had observed that he fully agreed with the decision in Zaharia ILR All 51 (FB), and could find nothing in the judgment of Stanley C. J. who delivered the main judgment in that case, from which one could dissent. In our opinion, therefore, the decision ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tter decided concerns the entire, suit. As such, there is no question of the application of the principle of res judicata. The same judgment cannot remain effective just because it was appealed against with a different number or a copy of it was attached to a different appeal. The two decisions in substance are one. 15. On behalf of the appellant reliance was placed on the sentence. 'Even when there are two suits, it has been held that a decision given simultaneously cannot be a decision in the former suit, and it was argued that as the decisions in the instant case were given by one and the same judgment, none of them could be regarded as a decision in a former suit, so as to operate as res judicata. We agree -- as we are bound to do -- that when a decision is given simultaneously in two suits, it cannot be a decision in a former suit, but the moment the decree passed on the basis of that judgment in one suit becomes final either because no appeal is preferred against it, or the appeal filed against It is dismissed, then at that point of time in our opinion there does come into existence a judgment which must be regarded as final between the parties so as to operate as re ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... peals. 18. This explanation clearly shows that the necessity of filing two appeals in the circumstances mentioned in the aforesaid quotation from Narhari's case [1950] 1 SCR 754 is dispensed with only when all the issues falling for determination in the appeal filed and that not filed are the same, but that if there are separate issues also, then appeals have to be filed against all the decrees. The fact that Supreme Court has thought it necessary to clarify the position in this regard clearly appears to us to show that the appeals thus filed must be pursued to the finish if the bar of res judicata is to be avoided. 19. The other observation in Narhari : [1950] 1 SCR 754 which the Supreme Court considered it necessary to explain is as follows:-- The question of res judicata arises only when there are two suits. Even when there are two suits it has been held that a decision given simultaneously cannot be a decision in the former suit. When there is only one suit, the question of res judicata does not arise at all and in the present case both the decrees are in the same judgment and the matter decided concerns the entire suit. As such there is no question of the appli ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
