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2000(2) Supreme 121
SUPREME COURT OF INDIA
(From Gujarat High Court)
M. Jagannadha Rao & R.C. Lahoti, JJ.
Sajjadanashin Sayed Md. B.E. Edr. (D) by LRs. -Appellants
versus
Musa Dadabhai Ummer & Ors. -Respondents
Civil Appeal No. 5290 of 1985
Decided on 23-2-2000
Counsel for the Parties :
For the Appearing Parties : Dr.Y.S. Chitale, R.P. Bhatt, Sr. Advocates. S.A. Shroff, S.S. Shroff, Harish N. Salve, R. Sasiprabhu, S.K. Mehta, Aman Vachher, Atul Nanda, M.N. Shroff, Anip Sachthey, Mrs. P.S. Shroff, Ms. Monica Sharma, Sunil Dogra, Dhruv Mehta, Fazlin Anam, S. Bhowmick, Ms. H. Wahi, Ms. Neetu Singh, Ms. Nandini Mukherjee, Ms. Anu Sawheny, Ms. Shobha, E.C. Vidyasagar, Ms. Sayali Pathak, Ms. S. Hazarika, Advocates.
The words collaterally or incidentally in issue have come up for interpretation in several common law jurisdictions in the context of the principle of res judicata. While the principle has been accepted that matters collaterally or incidentally in issue are not ordinarily res judicata, it has however been accepted that there are exceptions to this rule. The English, American, Australian and Indian Courts and Jurists have therefore proceeded to lay down certain tests to find out if even an earlier finding on such an issue can be res judicata in a later proceedings. There appears to be a common thread in the tests laid down in all these countries. (Para 11)
The words used in Section 11 CPC are "directly and substantially in issue". If the matter was in issue directly and substantially in a prior litigation and decided against a party then the decision would be res judicata in a subsequent proceeding. Judicial decisions have however held that if a matter was only `collaterally or incidentally in issue and decided in an earlier proceeding, the finding therein would not ordinarily be res judicata in a latter proceeding where the matter is directly and susbtantially in issue. (Para 12)
The fundamental rule is that a judgment is not conclusive if any matter came collaterally in question. A collateral or incidental issue is one that is ancillary to a direct and substantive issue; the former is an auxiliary issue and the latter the principal issue. The expression collaterally or incidentally in issue implies that there is another matter which is directly and substantially in issue. (Paras 13 & 14)
In India, Mulla has referred to similar tests (Mulla, 15th Ed.p. 104). The learned author says : A matter in respect of which relief is claimed in an earlier suit can be said to be generally a matter directly and substantially in issue but it does not mean that if the matter is one in respect of which no relief is sought it is not directly or substantially in issue. It may or may not be. It is possible that it was directly and substantially in issue and it may also be possible that it was only collaterally or incidentally in issue, depending upon the facts of the case. The question arises as to what is the test for deciding into which category a case falls? One test is that if the issue was necessary to be decided for adjudicating on the principal issue and was decided, it would have to be treated as directly and substantially in issue and if it is clear that the judgment in fact based upon that decision, then it would be res judicata in a latter case. (Mulla, p.104) One has to examine the plaint, the written statement, the issues and the judgment to find out if the matter was directly and substantially in issue (Ishwar Singh v. Sarwam Singh, (AIR 1955 SC 948), Mohd. S. Labbai v. Mohd. Hanifa, (AIR 1965 SC 1569). We are of the view that the above summary in Mulla is a correct statement of the law. (Para 18)
(ii) Bombay Public Trust Act, 1950-Section 19 r/w Section 2(19) -Petition to declare Rozas as public trust-Preliminary objection that petition barred by principles of res judicata-Plea based on decision in earlier proceedings in 1931-Earlier proceedings under Section 92 of C.P.C.-Present proceedings under Section 19 of Bombay Trust Act-Earlier proceedings were question power and authority of Sajjadanashin or Mutavalli to deal with income of wakf-Incidental issue as to nature of wakf and finding wakf was private trust-Present proceedings to declare wakf as public trust-Finding in earlier proceedings does not operate as res judicata-Further definition of wakf stood changed after BPT Act-Present proceedings not barred by principles of res judicata.
Held : While the law of public wakfs as it stood in 1928 did not take within its meaning a wakf where the Sajjadanashin could spend the income for the maintenance of himself and his family members after expending for the purposes of wakf, the 1950 Act widened the definition of public wakf even to situations where under the grant the Sajjadanashin could expend the income for the maintenance of himself and the family members. The 1931 judgment arising out of the 1928 suit treated the Wakf as private on the ground that apart from other obligations and charitable purposes, the Sajjadanashin could spend the income for the pious purposes also, namely for maintenance of members of his family. But now the definition in Section 2(19) brings in such a wakf also into its fold. Thus, for this reason also, the 1931 judgment does not operate as res judicata. Point 2 is decided against the appellant. (Paras 26 & 27)
The decision of the Assistant Charity Commissioner on 19.1.1967 in Inquiry 14/64 filed by Peer Mohammed Fruitwala was no doubt in a case arising under the Bombay Act 1950. It is true that this very wakf was held to be private but the point is that that decision dated 19.1.67 gets superseded by the latter judgment of the Gujarat High Court in Sayed Mohammed v. Ali Miya, 1972(13) Guj.L.R. 285 dated 14.9.1970. The latter judgment governs. It is well settled that an earlier decision which is binding between the parties loses its binding force if between the parties a second decision decides to the contrary. Then, in the third litigation, the decision in the second one will prevail and not the decision in the first. We may also state that the 19.1.67 decision merely relied upon the 1931 decision without noticing the change in the definition. Hence, the 19.1.67 decision cannot become res judicata. (Para 28)
JUDGMENT
M. Jagannadha Rao, J.-This appeal arises out of orders passed rejecting the preliminary objection raised by the appellant. The preliminary objection was that the present proceedings initiated by the deceased first respondent on 21.8.1967 before the Assistant Charity Commissioner, Surat Region under Section 19 of the Bombay Public Trusts Act. 1950 to declare three Rozas (situated at three places Ahmedabad, Broach and Surat) were public trusts, were barred by res judicata in view of three decisions arrived at earlier-one in 1931, another dated 19.1.1967 and a third one initiated in 1965.
2. In the present proceedings, which relate to the Rozas at all the three places, the Assistant Commissioner in his orders in Inquiry No. 142/67 dated 26.7.68 accepted the preliminary objection of res judicata but the Joint Charity Commissioner, Gujarat in his order in Appeal No. 85/68 dated 17.12.73 did not accept the plea (before him, the plea was confined to the Rozas at Broach and Surat). He set aside the order and remanded the matter for inquiry. The said order of the Joint Commissioner was affirmed on 30.9.76 by the learned Assistant Judge in Misc. Civil Application No. 32 of 1974 and by the Division Bench of the Gujarat High Court in First Appeal No. 985 of 1976 on 27.7.85. As the preliminary objection was negatived, a direction was given to the Assistant Commissioner to dispose of the Inquiry No. 142 of 1967 on merits. Aggrieved by the above-said orders, the appellants (who was respondent in the main Inquiry No. 142/67) has filed this appeal and has raised the same plea of res judicata before us once again. In the present appeal, the plea of res judicata is confined to the Rozas at Broach and Surat.
3. As the contention of res judicata raised by the appellant concerns three earlier proceedings, we shall have to refer to them. But we may also point out that in certain other proceedings relied upon by the respondents a view has already been taken that principle of res judicata does not apply. These other proceedings were those started in 1954 under Section 19 of the Bombay Act (Appl. 289/54) by one Ali Miya Mahmadiya and others, in connection with the Ahmedabad Roza. There a similar plea of res judicata was raised by the appellant Sayed Mohumed Banquir E1-Edross and the said plea was rejected by the Deputy Commissioner on 23.4.56 and that decision was confirmed by the Charity Commissioner in Appeal 125/56 on 29.5.57,-reversed by the District Judge in 149/57 on 29.12.1959-but the plea of res judicata was once again rejected by a learned Single Judge of the Gujarat High Court on 24.4.67 in the case reported in Ali Miya v. Sayed Mohammed1, and that decision of the learned Single Judge was affirmed on 14.9.70 by a Division Bench in Sayed Mohammed v. Ali Miya2. In fact, in the present proceedings, the Joint Commissioner, the Assistant Judge and the High Court have all applied the ratio of those two decisions relating to Ahmedabad Roza-on the question of res judicata-in relation to the Broach and Surat Rozas as well. It was held that on the same ratio, that the earlier orders relied upon by the appellant declaring the Broach and Surat Rozas to be private trusts and not public trusts, were not res judicata.
4. We may also point out that special Leave petitions Nos. 2574, 2575/71 against the Division Bench Judgment of the High Court dated 14.9.70 were got dismissed by the appellant as withdrawn on 16.11.1971. No doubt, this Court observed that the plea of res judicata would be available to the appellant in the regular inquiry in that case. Later on, the District Judge renumbered the Petition 149/57 as CMA 352/67 and on merits held that the Ahmedabad Roza was a public trust, RFA 488/72 filed by the appellant was dismissed by the High Court on 4.5.73 and SLP (CA No. 1974/75) was dismissed for non-prosecution by this Court. Thus the rejection of the plea of res judicata and the finding on merits so far as the Ahmedabad Roza was concerned, beca
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