Back
1936 Supreme(SC) 62
PRIVY COUNCIL [ON APPEAL FROM THEEAST INDIES]
LORD BLANESBURGH, LORD THANKERTON, AND SIR SHADI LAL.
TALLURI VENKATA SESHAYYA - Appellant
Versus
THADIKONDA KOTISWARA RAO - Respondents
On appeal from the High Court at Madras.
Decided On : Nov. 20. 1936.
Solicitors for appellants :Hy. S. L. Polak & Co. Solicitor for respondents: Harold Shephard.
Res judicata under Section 11 of the CPC applies to representative suits for public rights unless fraud or collusion is proven under Section 44 of the Evidence Act. Gross negligence in conducting previous litigation does not constitute fraud or collusion and cannot be used to avoid the bar of res judicata.
Headnote:(A) Code of Civil Procedure, 1908 - Section 11, Explanation VI - Indian Evidence Act, 1872 - Section 44 - Res Judicata - Representative suit for public right - Suit for declaration that certain temples are public and endowment lands are temple property - Previous suit decided that temples were private - Present suit barred by res judicata unless previous litigation was not bona fide or obtained by fraud or collusion - Gross negligence in conducting a previous suit does not equate to fraud or collusion under Section 44 of the Evidence Act - The principle that negligence of a guardian does not bind a minor is not applicable to parties litigating on behalf of public interest.
(B) Bona fides in representative suits - To avoid the bar of res judicata under Explanation VI to Section 11 of the Code of Civil Procedure, the party must establish that the previous litigation was not bona fide or was obtained by collusion or fraud - Mere failure to produce certain documents or omission of evidence in appeal does not necessarily establish a lack of bona fides or collusion.
Facts of the case:
A suit was filed seeking a declaration that five temples and certain lands were public endowments and to set aside a permanent lease, mortgage, and subsequent court sale. A previous suit had already determined that the temples were private and the lands were a private foundation. The current plaintiffs claimed the previous suit was not bona fide due to gross negligence in the production of evidence and documents, arguing that such negligence should prevent the operation of res judicata.
Findings of Court:
The court found that there was no evidence to establish that the previous decrees were obtained by collusion or that the litigation was not bona fide. The finding of gross negligence by the lower court did not amount to intentional suppression of evidence or a lack of bona fides.
Issues: Whether the present suit is barred by res judicata based on a previous decision, and whether gross negligence in the conduct of a previous representative suit prevents the operation of res judicata.
Ratio Decidendi: The provisions of Section 11 of the Code of Civil Procedure are mandatory. A party claiming under a former suit can only avoid res judicata by proving fraud or collusion under Section 44 of the Evidence Act. Gross negligence is not equivalent to fraud or collusion unless such is the proper inference from the facts. The special protection afforded to minors regarding the negligence of guardians does not extend to representative suits for public rights.
Result: Appeal dismissed.
Legal Category Hierarchy
-
practice and procedure
-
civil procedure
- res judicata
-
evidence
- fraud and collusion
-
civil procedure
-
religious endowments
- public and private temples
Judgement
Consolidated Appeal (No. 6 of 1931) from a judgment and decree of the High Court (November 30, 1927) reversing a judgment and decree of the Subordinate Judge of Masulipatam (February 5, 1925).
The action out of which this appeal arose was instituted in 1923 by the appellants, as representing the interested public, under Order 1, r. 8, of the Code of Civil Procedure, seeking a declaration that five temples of the village of Vellatur, Guntur District, were public temples, and that certain inam lands in Kowthavaram village formed the endowment of the temples, and also claiming certain other relief.
The five temples were built by Thadikonda Seshayya, the grandfather of the first respondents adoptive father. During his lifetime T. Seshayya conducted the festivals and other affairs of the deities, and by his will he directed his widow to make a permanent endowment for the temples out of his self-acquired properties. She in due course purchased lands in Kowthavaram and another village and made a formal gift of the lands to the idols. In 1838, T. Seshayyas two sons, Ganapati and Gajanana, who as dharmakartas were then conducting the festivals and the affairs of the temples, executed a deed recognizing the gift of the above lands. Ganapati died in 1857, and in 1888 Gajanana and his adopted son granted a permanent lease of the Kowthavaram to one Gopalkrishnamma.
In 1891, two persons with leave of the Court under s. 18 of the Religious Endowments Act (XX. of 1863) instituted a suit against Gajanana, his adopted son and Gopalkrishnamma, claiming that the temples were public and the alienation invalid, and praying for the removal of the dharmakartas. The main defence was that the temples and lands were private property, and that the Act (XX. of 1863) did not apply. The District Judge, whose decision was affirmed by the High Court at Madras, dismissed the suit, holding that the temples were private and that the lands were a private foundation.
The present suit was instituted in 1923 for a declaration as above stated, and the defendants pleaded (inter alia) that the suit was barred as res judicata by the decision in the suit of 1891, it being conceded that the plaintiffs in the present suit must be deemed to be claiming under the plaintiffs in the 1891 suit within the meaning of Explanation VI. Of s. 11 of the Code of Civil Procedure, and that the matter in issue in the two suits was substantially the same. The appellants alleged, however, that the 1891 suit was not a bona fide litigation.
By s. 11 of the Code of Civil Procedure (V. of 1908) " No Court shall try any suit or issue in which the matter directly and substantially in issue has been directly and substantially in issue in a former suit between the same parties, or between parties under whom they or any of them claim, litigating under the same title, in a Court competent to try such subsequent suit or the suit in which such issue has been subsequently raised, and has been heard and finally decided by such Court.
" Explanation VI.—Where persons litigate bona fide in respect of a public right or of a private right claimed in common for themselves and others, all persons interested in such right shall, for the purposes of this section, be deemed to claim under the persons so litigating.
Sect. 44 of the Indian Evidence Act (I. of 1872) provides that " Any party to a suit or other proceeding may show that any judgment, order or decree which is relevant under s. 40, 41 or 42, and which has been proved by the adverse party, was delivered by a Court not competent to deliver it, or was obtained by fraud or collusion.
The facts appear more fully from the judgment of the Judicial Committee.
The Subordinate Judge held that the plaintiffs in the 1891 suit were guilty of gross negligence in the conduct of the proceedings before the Courts, and that therefore, in accordance with the statutory provisions, there was no res judicata.
On appeal, the High Court (Phillips and Ramesam JJ.) held
