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IN THE HIGH COURT OF ORISSA
P. Ray, J.
GANTA SWAIN AND OTHERS - APPELLANT
Versus
KANDHUNI GOUDUNI AND OTHERS - RESPONDENT
First Appeal No. 145 of 1984
Decided On : 03-11-1995
RES JUDICATA - ORDER 14, RULE 2 (2), CPC - SECTION 11, CPC - SECTION 52, TRANSFER OF PROPERTY ACT - Whether an issue on res judicata can be decided as a preliminary issue or not depends upon the facts and circumstances of the particular case and no abstract proposition of law of universal application can be laid down.
Fact of the Case:
Plaintiffs filed a suit for a declaration that the judgment and decree passed in a partition suit relating to the suit lands are not binding on them, claiming that they purchased the suit lands from the original plaintiff during the pendency of the partition suit and had no knowledge of the pending suit.
Finding of the Court:
The court held that the suit was barred by the principle of res judicata as the plaintiffs were transferees pendente lite and were bound by the decree passed in the partition suit, even though they were not parties to the suit or had knowledge of it. The court also held that the plaintiffs could not seek a declaration to avoid the binding effect of the partition decree, but could accept the decree and institute another suit to claim other reliefs available under the law.
Issues: 1. Whether the suit was barred by the principle of res judicata? 2. Whether the plaintiffs could seek a declaration to avoid the binding effect of the partition decree?
Ratio Decidendi: 1. The court held that the suit was barred by the principle of res judicata as the plaintiffs were transferees pendente lite and were bound by the decree passed in the partition suit, even though they were not parties to the suit or had knowledge of it. This is because the purpose of Section 11 of the CPC is to prevent successive trials of a suit or an issue which has already been determined between the parties or persons claiming under them. 2. The court held that the plaintiffs could not seek a declaration to avoid the binding effect of the partition decree, but could accept the decree and institute another suit to claim other reliefs available under the law. This is because the effect of Section 52 of the Transfer of Property Act is not to wipe out the transfer altogether, but to subordinate the same to the rights based on the decree in the suit.
Final Decision: The appeal was dismissed.
JUDGMENT :
P. Ray, J. - The plaintiff-appellants filed Title Suit No. 90 of 1981 of the Court of the Subordinate Judge, Aska for a declaration that the judgment and decree passed in Title Suit No. 27 of 1971 relating to the suit lands are hot binding on them.
2. It appears that Siria Gouduni (since deceased) filed Title Suit No. 27 of 1971 against the co-sharers including the present defendants for partition. The said suit was decreed preliminarily on June 26, 1975 and final decree was passed on January 6. 1981. According to the plaintiffs, during the pendency of the partition suit being Title Suit Mo, 27 of 1971 they purchased the suit lands from the said Sis ia Gouduni on January 22, 1975 by registered sale deeds. It has been alleged in the plaint that the plaintiffs had no knowledge of the said pending suit at the time of their purchase nor they were informed of anything about the said pending suit.
3. The defendants contested the suit denying the allegations made in the plaint. The defendants contended that the present suit is hit by the principles of lis pendense and res judicata the same is not maintainable in view of Section 4 (4) of the Orissa Consolidation of Holdings and Prevention of Fragmentation of Land Act, 1972.
4. On the basis of the rival pleadings a preliminary issue about the maintainability of the suit was framed. The trial Court found that the suit cannot be said to be hit by Section 4 (4) of the aforesaid Consolidation of Holdings Act, because the Consolidation authority has no power or authority to declare a decree of the Civil Court as nullity or void. The Court below, however, held that the plaintiffs' claim is barred by the principle of res judicata and dismissed the suit. The plaintiff-appellants have filed the present appeal against the said judgment and decree.
5. On behalf of the appellants it has been argued that the plea of res judicata raises mixed question of fact and law accordingly, such question cannot be determined as a preliminary issue. In support of the said submission reliance has been placed on a decision reported in 72 (1991) CLT 172 (Dhruba Charan Hota v. Kanhu Charan Hota).
6. In the aforesaid decision reported in 72 (1991) CLT 172 (supra) the learned Judge relied upon two earlier decisions of this Court reported in Bairagi Ch. Das Vs. Kartik Chandra Das and Others Madhabananda Ray and Another Vs. Spencer and Company Ltd., in making an observation that an issue relating to res judicata is not an issue of law and cannot be decided as a preliminary issue. Upon a careful reading of the reported decision in Dhruba Charan's case it appears that the learned Judge's observation was confined to. the facts of the said case and he did not intend to lay down any general proposition. Moreover an analysis of the two decisions forming the basis of Dhruba Charars's case also Indicates that in none of the said two decisions any abstract principle of law has been laid down that a plea of res judicata can never be, a question of law or that it can never be decided as a preliminary issue.
7. In Batragi Ch. Das's case the trial Court rejected the prayer for determining the question of res judicata as a preliminary issue under Order 14, Rule 2 of the CPC. Against the said decision a revisionsl application was moved before this Court. It was held that a Court has the discretion to refuse to determine a question as a preliminary issue if it is satisfied that the issue is an Issue of fact or a mixed issue of fact and law and that the facts necessary for determination of the said issue are disputed and evidence are required to be led to establish those facts.
8. In Madhabananda Ray's case a Division Bench of this Court held that :
"The conscientious opinion was that in appellable cases piecemeal trial by taking up some of the issues preliminarily should be avoided as it may lead to protracted litigation and reported appeals in the same suit, the exception being where the issues of law going to the root of the case
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