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PUNJAB & HARYANA HIGH COURT
S.S.Sandhawalia, G.C.Mittal, I.S.Tiwana and D.S.Tewatia JJ.
Mohinder Kaur
Versus
Para Singh
Civil Regular Second Appeal No. 1347 of 1975,
Decided On : APRIL 22, 1980
Whether, in no case, a decision under Order 22, Rule 5, Civil Procedure Code, would operate as res judicata between the same parties or their successors-in-interest or their privies in subsequent proceedings even when the contested issue in the earlier proceedings had been decided by the Court on merits after affording fair and due opportunity to the contesting parties to lead evidence and of hearing?
Fact of the Case:
The plaintiffs, along with their mother, brought a suit for maintenance against their grandfather, Ishar Singh, with the allegation that since their father Milkhi was unheard of for the last more than thirteen years and was presumed to be dead, the defendant Ishar Singh was under a legal obligation to maintain them from the property in his hands. The said suit was decreed on August 30, 1961, by Sub-Judge Ist Class, Garhshankar. Before an appeal could be filed against that decree Ishar Singh, judgment-debtor, died. The present defendants, claiming themselves to be the legal representatives of Ishar Singh deceased on the basis of a will, filed an appeal in this Court against the said decree. As a question with regard to the maintainability of the said appeal by the defendants arose, the matter was referred by this Court to the trial Court for a report on the point as to whether the defendants were the legal representatives of Ishar Singh deceased, judgment-debtor. The said Court, after recording evidence with regard to the genuineness of the will, reported in favour of the defendants. This report was accepted by this Court with the following order :- "In view of the report of the court below pursuant to my order dated 19th July, 1962, Piara Singh and Sucha Singh, Petitioners are directed to be impleaded as legal representatives of the deceased Ishar Singh and consequently permitted to file the appeal. The appeal has already been filed and appropriate orders have been made regarding its admission etc. 26-7-1963. SD/- A.N. Grover Judge" As a result of this order, the appeal preferred by the defendants was held to be maintainable though ultimately the same was dismissed by this Court on April 29, 1971 with certain modifications in the decree on account of death of Smt. Amar Kaur during the pendency of the appeal and the plaintiffs - grand-daughters of Ishar Singh - having joined Government service, Subsequently the plaintiffs filed the present suit against the defendants for declaration and possession of the property left by Ishar Singh deceased on the basis of their being the sole heirs to him. A specific challenge to the will, alleged to have been executed by the deceased in favour of the defendants, was also levelled.
Finding of the Court:
In no case a decision under Order 22, Rule 5, Civil Procedure Code, would operate as res judicata between the same parties or their successors in interest or their privies in a subsequent proceeding, even when the said parties had been provided an opportunity to contest the issue and lead the evidence thereon.
Issues: Whether Ishar Singh deceased had executed a valid will in favour of Piara Singh and Sucha Singh on 28-12-1960?
Ratio Decidendi: A decision under Order 22, Rule 5, Civil Procedure Code, is only directed to answers an orderly conduct of the proceedings with a view to avoid the delay in the final decision of the suit till the persons claiming to be the representatives of the deceased party get the question of succession settled through a different suit and such a decision does not put an end to the litigation in that regard. It also does not determine any of the issues in controversy in the suit. Besides this it is obvious that such a proceeding is of a very summary nature against the result of which no appeal is provided for. The grant of an opportunity to lead some sort of evidence in support of the claim of being a legal representative of the deceased party would not in any manner change the nature of the proceedings.
Final Decision: The appeal was dismissed with no order as to costs.
I.S.TIWANA, J.
1. The following question of law has been referred to this Full Bench for decision :-
"Whether, in no case, a decision under Order 22, Rule 5, Civil Procedure Code, would operate as res judicata between the same parties or their successors-in-interest or their privies in subsequent proceedings even when the contested issue in the earlier proceedings had been decided by the Court on merits after affording fair and due opportunity to the contesting parties to lead evidence and of hearing?"
A few skeletal facts necessary to unfold the basic legal contention only are noticed as under.
2 The present plaintiff-appellants (hereinafter referred to as the plaintiffs), along with their mother, Smt. Amar Kaur, brought a suit on July 1, 1958 for maintenance against their grandfather, Ishar Singh, with the allegation that since their father Milkhi was unheard of for the last more than thirteen years and was presumed to be dead, the defendant Ishar Singh was under a legal obligation to maintain them from the property in his hands. The said suit was decreed on August 30, 1961, by Sub-Judge Ist Class, Garhshankar. Before an appeal could be filed against that decree Ishar Singh, judgment-debtor, died. The present defendants, claiming themselves to be the legal representatives of Ishar Singh deceased on the basis of a will, filed an appeal in this Court against the said decree. As a question with regard to the maintainability of the said appeal by the defendants arose, the matter was referred by this Court to the trial Court for a report on the point as to whether the defendants were the legal representatives of Ishar Singh deceased, judgment-debtor. The said Court, after recording evidence with regard to the genuineness of the will, reported in favour of the defendants. This report was accepted by this Court with the following order :-
"In view of the report of the court below pursuant to my order dated 19th July, 1962, Piara Singh and Sucha Singh, Petitioners are directed to be impleaded as legal representatives of the deceased Ishar Singh and consequently permitted to file the appeal. The appeal has already been filed and appropriate orders have been made regarding its admission etc. 26-7-1963. SD/- A.N. Grover Judge"
As a result of this order, the appeal preferred by the defendants was held to be maintainable though ultimately the same was dismissed by this Court on April 29, 1971 with certain modifications in the decree on account of death of Smt. Amar Kaur during the pendency of the appeal and the plaintiffs - grand-daughters of Ishar Singh - having joined Government service, Subsequently the plaintiffs filed the present suit against the defendants for declaration and possession of the property left by Ishar Singh deceased on the basis of their being the sole heirs to him. A specific challenge to the will, alleged to have been executed by the deceased in favour of the defendants, was also levelled. The pleadings of the parties necessitated the framing of the following issues. :-
1. Whether Ishar Singh deceased had executed a valid will in favour of Piara Singh and Sucha Singh on 28-12-1960? O.P.D.
2. Whether the will dated 28-12-1960 is the result of undue influence and fraud as alleged? O.P.D.
3. Whether the plaintiffs are estopped from challenging the validity of the will as alleged and the matter is res judicata between them? O.P.D.
The above-noted question of law posed before us, pertains to issue No. 3 only.
3 The learned single Judge, before whom this R.S.A. came up for final hearing, felt that the inflexible and absolute rule laid down by a string of decisions of Lahore High Court and this Court that a decision under Order 22, Rule 5, Civil Procedure Code, would in no case operate as res judicata between the parties or their successors-in-interest in a subsequent suit required reconsideration in view of the newly added explanations 7 and 8 to Section 11 of the Civil Procedure Code and the decision of
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