Satyadhyan Ghosal vs Deorajin Debi - 1960 Supreme(SC) 124

Judicial Analysis Court Copy Headnote Facts Arguments Court observation

1960 Supreme(SC) 124

SUPREME COURT OF INDIA
P.B. GAJENDRAGADKAR, K.N. WANCHOO AND K.C. DAS GUPTA, JJ.
Satyadhyan Ghosal and others, Appellants
Versus
Smt. Deorjin Debi and another, Respondents.
Civil Appeal No. 257 of 1959.
20th April, 1960
Advocates Appeared
M/s. Nalini Ranjan Bhattacharjee and R. R. Biswas, Advocates, for Appellants; Mr. D. N. Mukherjee, Advocate for the Respondents.

Advocates:
D.N.MUKHERJI, N.R.Bhattacharji, R.R.BISWAS

Headnote:WHEN PRINCIPLES OF RES JUDICATA NOT APPLICABLE GENERALLY - GENERAL PRINCIPLES OF RES JUDICATA - WHERE SECTION 11 IS NOT EXHAUSTIVE - PRINCIPLES OF RES JUDICATA IN PROCEEDINGS IN SAME SUIT - SCOPE AND APPLICABILITY—REMAND - INTERLOCUTORY ORDER - ORDERS OF REMAND - ORDER OF REMAND PASSED BY HIGH COURT—POWERS OF SUPREME COURT - INTERLOCUTORY ORDERS - PRINCIPLES OF RES JUDICATA
       -for applicability of the principles of res judicata, the identity of title in both the suits must be established. A finding in an interlocutory order arrived at in a former suit will not operate as res judicata in a subsequent suit. Where the right claimed in a previous suit is different from the right claimed in the subsequent suit, the principle of res judicata does not apply - Satyadhan Ghosal v. Smt. Deorajin Debi, AIR 1960 SC 941; Sunderabai v. Devaji Shankar, AIR 1954 SC 82.
       -when Section 11 does not apply, the general principle of res Judicata can be invoked to confer finality of the litigation - Satyadhan v. Deorojin, AIR 1960 SC 941. The principles embodied in this Section requires that the Court whose decision is to operate as res judicata in a subsequent suit should be competent to hear the subsequent suit as well - Gulabchand v. State of Gujarat, AIR 1965 SC 1153; Rajlakshmi v. Banmali, AIR 1953 SC 33. A plea of res judicata on general principle can successfully be taken in respect of judgments of Courts of exclusive jurisdiction, like revenue Courts, land acquisition Courts, administrative Courts, land Tribunals, Small Causes Court etc. - Workmen of Balmer Lawrie v. Balmer Lawrie and Co. Ltd. AIR 1964 SC 728; Associated Cement Staff Union v. Associated Cements Co. Ltd., AIR 1964 SC 914; Workmen of the Straw Board Manufacturing Co. Ltd. v. Straw Manufacturing Co. Ltd., AIR 1974 SC 1132; Punjab Co-operative Bank Ltd. v. R.S. Bhatia, AIR 1975 SC 1898. As held in Gulabchand’s case (supra), the provisions of Section 11 of the Code are not exhaustive with respect to an earlier decision operating as res judicata between the same parties on the same matter in controversy in a subsequent regular suit, and on principles of res judicata, any previous decision on a matter in controversy, decided after full contest or after affording fair opportunity to the parties to prove their case by a Court competent to decide it, will operate as res judicata in a subsequent regular suit. It is not necessary that the Court deciding the matter formerly be competent to decide the subsequent suit or that the former proceeding and the subsequent suits have the same subject-matter. See also decisions in Union of India v. Nanak Singh, AIR 1968 SC 1370; Narayanan Chettiar v. Annamalal Chettiar, AIR 1959 SC 275; Daryao v. State of U.P., AIR 1961 SC 789; Arjun Singh v. Mohindra Kumar, AIR. 1964 SC 993; Lal Chand v. Radha Kishan, AIR 1977 SC 789; Workmen, CP Trust v. Board of Trustees, AIR 1978 SC 1283. The Court whose decision is to operate as res judicata in the subsequent suit must be competent to hear not only the suit in which the decision was given but also the one in which it is to operate as res judicata Mst Gulab Bai v. Manphool Bai, AIR 1962 S.C 214; Bhagwan Dayal v. Reoti Devi, AIR 1962 SC 289; Oriental Bank of Commerce v. Harcharan, AIR 1963 SC 1707. Only a decision by the Court can be res judicata whether statutory under Section 11 or constructive as a matter of policy on which the entire doctrine rests - Subba v. Jagannadha, AIR 1967 SC 591; Sailendra Narayan v. State of Orissa, AIR 1956 SC 346.
       -the principle applies also as between two stages in the same litigation to the extent that a Court, whether the trial Court or a higher Court having at an earlier stage decided a matter in one way, will not allow the parties to re-agitate the matter again in a subsequent stage at the same proceeding
       -sub-section (2) of this Section precludes an appellant from taking on an appeal from final decree, any objection that might have been urged by way of appeal from an order or remand
       -it is clear that an interlocutory order which had not been appealed from either because no appeal lay or even though an appeal lay an appeal was not taken could be challenged in an appeal from the final decree or order
       -a special provision was made as regards orders of remand and that was to the effect that if an appeal lay and still the appeal was not taken the correctness of the order of remand could not later be challenged in an appeal from the final decision. If however an appeal did not lie from the order of remand the correctness of the final decision as in the case of other interlocutory decisions
       -it cannot be disputed that the correctness of an order of remand passed by the High Court which could not then be questioned by filing an appeal in the Supreme Court against that order because such an appeal was not competent could nonetheless be challenged later in the appeal before the Supreme Court arising out of the final judgment pronounced in the action, vide Satyadhyan Ghosal v. Smt. Deorajin Debi, AIR 1960 SC 941; Conankutty v. Thomman, AIR 1976 SC 1645; Jasraj Inder Singh v. Hem Raj Multan Chand, AIR 1977 SC 1011. It does not, however, mean that the Supreme Court will, every time, exercise its discretionary power under Article 136 of the Constitution, merely because it finds that the High Court had wrongly passed an order of remand at an earlier stage of the case. If the Supreme Court is satisfied that as a result of remand substantial justice has been done to the parties in the consequential proceedings, the Supreme Court may decline to exercise its discretionary power to interfere. The jurisdiction under Article 136 is not meant to correct an illegality brought to the notice of the Supreme Court nor to undo, merely on account of such illegality, an adjudication which has done substantial justice to the parties. On the other hand Article 142 of the Constitution expressly confers powers upon the Supreme Court, in the exercise of its jurisdiction to pass such decree or make such order as is necessary for doing complete justice in any case or matter pending before it,

Judgement Key Points

Based on the provided legal document, here are the key points regarding the principles of Res Judicata and the specific facts of the case:

General Principles of Res Judicata: For the principle of res judicata to apply, there must be an identity of title in both suits. A finding in an interlocutory order from a former suit does not operate as res judicata in a subsequent suit if the right claimed is different. When Section 11 of the Code of Civil Procedure does not apply, the general principle of res judicata can still be invoked to confer finality on litigation (!) .
Competence of the Court: The court whose decision is to operate as res judicata must be competent to hear the subsequent suit. This applies whether the decision is statutory under Section 11 or constructive based on general principles (!) .
Interlocutory Orders and Final Decrees: The principle of res judicata applies between two stages of the same litigation; a court will not allow parties to re-agitate a matter decided at an earlier stage. However, an interlocutory order that has not been appealed from (either because no appeal lay or an appeal was not taken) can generally be challenged in an appeal from the final decree or order (!) (!) .
Specific Provision on Orders of Remand: While Section 105(2) of the Code precludes an appellant from taking an objection regarding an order of remand (if an appeal lay but was not taken) in an appeal from the final decree, this specific restriction did not apply to appeals to the Supreme Court, as no appeal lay to the Supreme Court against an order of remand (!) . Consequently, the correctness of a High Court's order of remand, which could not be questioned by a direct appeal to the Supreme Court, could still be challenged in an appeal arising from the final judgment (!) .
Distinction from Execution Proceedings: Previous decisions found to be res judicata in cases like Ram Kripal Shukul and Hook involved judgments that had, in effect, terminated the previous proceedings (having the force of a decree), unlike interlocutory orders which are merely steps toward a final decision. Therefore, those cases do not support the argument that an unappealed order of remand becomes res judicata (!) .
Application to the Present Case: The order of remand passed by the High Court was an interlocutory order that did not terminate the proceedings. Therefore, the landlords (appellants) were not precluded from raising the question of the applicability of Section 28 of the Calcutta Thika Tenancy Act in their appeal to the Supreme Court against the final order (!) .
Outcome on the Legal Question: The Supreme Court held that Section 28 of the original Act was not applicable to proceedings pending on the date of the commencement of the Calcutta Thika Tenancy Ordinance of 1952, based on the decision in Mahadeolal Kanodia. Consequently, the High Court's view was wrong, and the order rescinding the ejectment decree was set aside (!) .

Judgment

DAS GUPTA, J.: This appeal is by the landlords who having obtained a decree for ejectment against the tenants, Deorajin Debi and her minor son on February 10, 1949, have not yet been able to get possession in execution thereof. Soon after the decree was made the Calcutta Thika Tenancy Act, 1949, came on the statute book. On March 3, 1949, the tenants made an application under O. 9, R. 13 of the Code of Civil Procedure for having the decree set aside. That application was dismissed on July 16, 1949. On September 9, 1949, an application was made by the tenants under S. 28 of the Calcutta Thika Tenancy Act alleging that they were Thika tenants and praying that the decree made against them on February 2, 1949, (sic) may be rescinded. This application was resisted by the landlords, the decree-holders, and on November 12, 1951, the Munsif holding that the applicants were not Thika Tenants with- in the meaning of the Thika Tenancy Act and accordingly the decree was not liable to be rescinded dismissed the application.

2. Against this order tenants moved the High Court of Calcutta under S. 115 of the Code of Civil Procedure. By the time the Revision application was taken up for hearing the Calcutta Thika Tenancy Ordinance had come into force on October 21, 1952, and the Calcutta Thika Tenancy (Amendment) Act, 1953 had come into force on March 14, 1953.

3. The 1953 Amendment Act inter alia omitted S. 28 original Act. In order to decide therefore whether the application under S. 28 was still alive the High Court had to consider the effect of S.1 (2) of the Calcutta Thika Tenancy Amendment Act which provided that the provisions of the Calcutta Thika Tenancy Act, 1949 as amended by the 1953 Act shall apply and be deemed to have always applied to proceedings pending on the date of the commencement of the Calcutta Thika Tenancy Ordinance of 1952. The learned judges of the High Court held that S.1 (2) of the Thika Tenancy Amendment Act did not affect the operation of S. 28 of the original Act to these proceedings and disposed of these applications on the basis that S. 28 was applicable. The High Court also held that in view of the amended definition of the term "Thika tenant" and the evidence which had been recorded by the Munsif the petitioners must be found to be Thika tenants. Accordingly they allowed the application for revision, set aside the order of the Munsif by which he had dismissed the application under S. 28 and remanded the case to the Munsif s Court for disposal in accordance with law. After remand the Munsif rescinded the decree. The landlords application under S. 15 of the Code of Civil Procedure against the Munsif s order was rejected by the High Court. The attempt of the landlords to raise before the High Court again the question of the applicability of S. 28 was unsuccessful, the learned judge who heard the matter in the High Court being of opinion that this question as between these parties was res judicata.

4. Against this order of the High Court the present appeal has been preferred by the landlords on the strength of special leave granted by this Court on November 16, 1956.

5. On behalf of the appellant it is urged that on a proper interpretation of S.1 (2) of the Calcutta Thika Tenancy Amendment Act, 1953, it should be held that S. 28 of the Original Act cannot, after the amending Act came into force, be applied to any proceedings pending on the date of the commencement of the Calcutta Thika Tenancy Ordinance, 1952. This question has been considered by us in Mahadeolal Kanodia v. The Administrator-General of West Bengal, Civil appeal No. 303 of 1956: in which judgment has been delivered today, wherein we have decided that S. 28 of the original Act is not applicable to such proceedings. If therefore this argument is available to the appellant the appeal will succeed as in that view of the law no relief under S. 28 of the original Act is available to the tenants and the order made by the Munsif on December 12, 1955

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1960 Supreme(SC) 124

Cases Referred (2)