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IN THE HIGH COURT OF JUDICATURE AT BOMBAY NAGPUR BENCH
B.P. DHARMADHIKARI, INDIRA JAIN, JJ.
Smt. Prabhatai wd/o Shankarrao Bodhankar- Appellants
Versus
M/s. Chimote & Sons, through its partner Shri Vinayak s/o Wasudeorao Chimote – Respondents
LPA NO.77, 78, 107, 126, 130, 141 OF 1995 IN FA NO.22, 23 OF 1980, IN FA NO.329, 328, 330, 331 OF 1989,
Decided On : 30-08-2016
Section 11 of Code of Civil Procedure embodies the doctrine of conclusiveness of the judgment as to the points decided, in every subsequent suit between the same parties. It is based on the need of giving finality to the judicial decisions.
The principle is founded on equity, justice and good conscience and based on maxim nemo debet bis vexari pro una et eadem causa, which means no man should be vexed twice for the same cause. Condition precedent to attract applicability of principle of res judicata lies in the requirements enumerated under Section 11 of the Code. These conditions are : (i) Matter directly and substantially in issue in the former suit must be directly and substantially in issue in the subsequent suit also (ii) Both the suits should be between the same parties or between parties under whom they or any of them claim litigating under the same title. (iii) Former suit should have been decided by a Court competent to try such subsequent suit. (iv) Any matter, which might and ought to have been made ground of defence or attack in such former suit shall be deemed to have been a matter directly and substantially in issue in such suit.
Civil Procedure Code, 1908-Order XX, Rule 1-Pronouncement of judgment.-Guidelines for pronouncing judgment given by Apex Court in 2001 Mh LJ online 4 required to be followed strictly.
It can be seen that mere unexplained delay in delivering judgment is not fatal and guidelines given by the Hon`ble Supreme Court in paragraph 21 of the judgment in the case of Anil Rai (supra) regarding pronouncement of judgments need to be strictly followed being mandate of the Hon`ble Supreme Court. These guidelines are :
(i) The Chief Justices of the High Courts may issue appropriate directions to the Registry that in a case where the judgment is reserved and is pronounced later, a column be added in the judgment where, on the first page, after the cause title date of reserving the judgment and date of pronouncing it be separately mentioned by the Court Officer concerned.
(ii) That Chief Justices of the High Courts, on their administrative side, should direct the Court Officers/Readers of the various Benches in the High Courts to furnish every month the list of cases in the matters where the judgments reserved are not pronounced within the period of that month.
(iii) On noticing that after conclusion of the arguments the judgment is not pronounced within a period of two months, the concerned Chief Justice shall draw the attention of the Bench concerned to the pending matter. The Chief Justice may also see the desirability of circulating the statement of such cases in which the judgments have not been pronounced within a period of six weeks from the date of conclusion of the arguments amongst the judges of the High Court for their information. Such communication be conveyed as confidential and in a sealed cover.
(iv) Where a judgment is not pronounced within three months from the date of reserving it, any of the parties in the case is permitted to file an application in the High Court with prayer for early judgment. Such application, as and when filed, shall be listed before the Bench concerned within two days excluding the intervening holidays.
(v) If the judgment, for any reason, is not pronounced within a period of six months, any of the parties of the said lis shall be entitled to move an application before the Chief Justice of the High Court with a prayer to withdraw the said case and to make it over to any other Bench for fresh arguments. It is open to the Chief Justice to grant the said prayer or to pass any other order as he deems fit in the circumstances.
Civil Procedure Code, 1908-Order XX, Rule 1-Pronouncement of judgment.-In absence of any grievance ever made by parties regarding alleged delay in delivering judgment, judgment pronounced not vitiated on ground of delay in delivering judgment.
In the present case, no grievance was ever made by the parties regarding alleged delay in delivering judgment. The facts of the case would show that while reversing the judgment and decree passed by the trial Court, single Judge has come to his own independent conclusion based on material placed on record. Moreover, it is too late for the plaintiffs to get up and say that delay has caused prejudice to them. In what way prejudice is caused is not explained. Order XX, Rule 1 of the Code nowhere mentions that delay vitiates the judgment. In this backdrop, Court does not find force in the submission of counsel for plaintiffs that delay is fatal and judgment in first appeals gets vitiated.
Civil Procedure Code, 1908-Order XXI, Rules 58 and 63-Right to property.-Scope of suit to enquiry under Rule 58 is not restricted by establishment of right to properly comprises in Rule 63.
True, under Order XXI, Rule 63 of the Code, the Legislature contemplated different period of limitation for reliefs claimed. If shorter period of limitation is applied, that would not mean that the suit under Order XXI, Rule 63 of the Code would be limited to an enquiry under Order XXI, Rule 58 of the Code. The shorter period prescribed under Order XXI, Rule 63 of the Code is only to expedite the execution proceedings.
In the present case "S" had borrowed loans from various creditors. "D" was one of them. A civil suit was filed in which decree was passed and "D" put the said decree to execution. In the execution proceedings by filing miscellaneous judicial case, objection was raised by "R" under Order XXI, Rule 58 of the Code contending therein that the house in question was not liable to attachment, attachment needs to be lifted and sale of the property was required to be postponed. Executing Court after hearing the decree holder and objector dismissed the contention of objector on 12.12.1953. On 17.12.1953 "R" filed a suit before the Civil Judge, Amravati for declaration that property belongs to him. On 18.1.1954, plaint was returned for presentation to proper Court. On 21.1.1954 plaint was presented to proper Court. Suit was registered. On 6.8.1955 "W", father of plaintiff "R", was joined as co-plaintiff in the suit and declaration was sought in respect of the house by both the plaintiffs. During pendency of suit, property was sold and purchased by "N". The suit was then decreed by Additional District Judge, Amravati.
In appeal, decree was set aside and the suit was dismissed. The order was carried to the Supreme Court and vide order dated 8.2.1967, the Supreme Court reversed the judgment of High Court and restored judgment and decree passed by the trial Court. All these chronological events would indicate that question of title raised by "R" and his father in suit under Order XXI, Rule 63 of the Code adjudicated by the trial Court was confirmed by the Supreme Court. Thus, adjudication of title in a suit under Order XXI, Rule 63 of the Code was not limited to an enquiry under Order XXI, Rule 58, but it was a complete suit in itself before the Court of regular jurisdiction.
Evidence Act, 1872 - Section 115-Principle of estoppel.-Since principle of estoppel is based on equity and good conscience hence a person cannot be allowed to approbate and reprobate.
The significant factor to be noted is conduct of `S` throughout. He was a party to the execution proceedings filed by `D`. He was also a party to the execution proceedings taken out by `K`. In a suit under Order XXI, Rule 63 of the Code, `S` was a necessary party. The decision was challenged before High Court and also before Supreme Court. Throughout `S` refrained himself from contesting the proceedings. His conduct is consistent.
It was convenient for him not to participate. Subsequently, with the aid of his son, he got up and raised the plea that the transaction in question was nominal and parties intended not to act upon the same. In this situation, he is estopped in law by his conduct and cannot be allowed to approbate and reprobate. In the facts established on record, principle of estoppel is squarely applicable and the same goes against the plaintiffs.
INDIRA JAIN, J.
These letters patent appeals take an exception to the judgment and order dated 9/3/1995 passed by the learned Single Judge of this Court in First Appeal Nos.22/1980, 23/1980, 328/1989, 329/1989, 330/1989 and 331/1989. The First Appeals arose against the common judgment and decree in Special Civil Suit No.20/1972 and Regular Civil Suit Nos.174/1969, 361/1969, 371/1969, 374/1969 and 375/1969 delivered by the learned Civil Judge, Senior Division, Amravati on 25/1/1979.
2. The case of appellants and certain disputed facts relevant for the purpose of deciding these appeals may be stated, in brief, as under:
Balkrishna Bodhankar, resident of Amravati was a Lawyer by profession. He died in the year 1918 leaving behind him son Shankarrao and widow Durgabai. Durgabai is step mother of Shankarrao. It is advantageous to reproduce genealogical tree of family of Balkrishna here to understand the controversy between the parties:
| Durgabai 2nd wife step mother of Shankarrao Defendant no.5 (died pending the suit) | Balkrishna (died in 1918)
| Gopikabai 1st wife (died in 1955) mother of Shankarrao
| ||
|
| Shankarrao Deft. No.1 | Prabhawati His wife Deft. No.2 | ||
|
| Jagdish (Deft. No.3) | Jaiprakash (Deft. No.4) | Deodatta (Plff.)
|
|
3. In the year 1918, when Balkrishna died, Shankarrao was aged about 3 years. During his life time, Balkrishna earned certain properties. So far as disputed agricultural lands are concerned, matters have been amicably settled between the parties. The controversy is now limited to a double storeyed house situated at Ambadevi Road, Amravati. Till Shankarrao attained majority in 1935, property was in possession and management of the Guardian appointed by the Court. In 1940, Shankarrao started legal practice at Amravati. In 1944-45, in partnership with B.H. Sabnis, Shankarrao entered into grain business under Government Control Scheme. He also entered in the business of distribution of cinema films in partnership with others and was dealing in American futures.
4. There was no positive response to the businesses started by Shankarrao and his partners and as they suffered losses, Shankarrao borrowed loans from Krishnarao Keole of Amravati, Govindrao and Narayanrao Shingore of Deulwada, Taluka Achalpur, Wasudeo Chimote of Amravati, People's Cooperative Bank, Amravati and others. The creditors were required to institute suits against Shankarrao as he could not repay the debts. The following decrees were passed against Shankarrao and his partners:
(i) Civil Suit No. 31/B of 1947, dated 8th August 1947, Krishnarao Keole vs. Shankarrao (alone) for Rs.7000 costs and future interest in Amravati Court.
(ii) Civil Suit No.3A of 1947, Dhapubai Bhoot vs. Shankarrao and others in the Court of Civil Judge, Wardha.
(iii) Civil Suit No. 65/1949, The Province of C.P. and Berar vs. S.B. Bodhankar and B.H. Sabnis dated 16th January 1951 for Rs.883.15 p. and costs in the Court of Civil Judge, Amravati.
(iv) An award for about Rs.4000 and costs in favour of People's Cooperative Bank vs. V.K. Painthankar and S.D. Bodhankar, as his surety.
5. In the suit instituted by Dhapubai Bhoot, decree was put to execution. Krishnarao Keole also filed execution proceedings and property was to be auctioned in these proceedings. On 24/1/1951, to pay Rs.2000/-to Krishnarao Keole, Shankarrao executed an agreement of sale of the house in question in favour of Wasudeo Chimote, took Rs.2000/-from him and paid the said amount to Krishnarao Keole. In May and June 1946, Shankarrao had borrowed loans from Wasudeo Chimote for business purpose. On 9/7/1951, after Dhapubai put the decree to execution, Shankarrao executed Sale Deed of the house in favour of Ramchandra Wasudeo Chimote, who paid Rs.6200/-to Krishnarao Keole for and on behalf of Shankarrao in full and final satisfaction of the decree passed in the suit institute
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