Mst. Gulab Bai Vs. Manphool Bai 
INSC 264 (5 September 1961)
SINHA, BHUVNESHWAR P.(CJ) DAYAL, RAGHUBAR
CITATION: 1962 AIR 214 1962 SCR (3) 483
CITATOR INFO :
RF 1981 SC2198 (13)
Res JudicataSuit', Meaning of-if can denote
part of a suit or an issue in it-Code of Civil Procedure, 1,908 (Act V of
1908), s. 11.
The respondent had sued the appellant 2 on a
rent note in the Munsiff's court for recovery of Rs. 700/as arrears of rent and
ejectment. That suit was dismissed on the preliminary objection of defect of
party as appellant 1, a colessor in the rent note, had not been made a party.
The respondent then brought the present suit in the Civil Judge's court for
recovery of Rs. 2400 as arrears of rent from and for ejectment of appellant 2,
making appellant 1 a Performa defendant in the suit. The appellant 2 pleaded
that the suit was barred by res judicata and could not be decreed since
appellant 1 had not joined the respondent in the claim. The High Court, in
finally decreeing the suit in second appeal, hold that it was not barred by res
judicata since the Munsiff had not the pecuniary jurisdiction to try the suit
and that appellant 1 on a true construction of the rent note, was not a a
co-lessor with the respondent. It' was urged on behalf 'of the appellants in
this Court that the word suit' in s. 11 of the Code of Civil Procedure should
be liberally, and not literally, construed so as to include part of the suit or
;An issue 484 raised in the suit and that since the Munsiff who had tried;
the previous suit was competent to try that
part of the subsequent suit which formed the relevant issue in the earlier
suit, !he present suit was barred by res judicata.
Held, that: the High Court was right in
holding that the present suit was not barred by res judicata.
The word 'suit' occurring in s. 11 of the
Code of Civil Procedure must be literally, and not liberally, construed so as
to mean the entire suit and not a part. of it or an issue arising in it'. The
legislative history of that section, clearly shows that them is no scope for
any liberal construction of that word.
Duchess of Kingston's case, 2 Smith Lead.
Cas. 13th Ed.
644, Misir Rughubardial v. Rajah Sheo Baksh
Singh, (1882) LR. 9 I.A. 197 and Gokul Mandar v. Pudmanund Singh, (1902) I.L.R.
29 Cal. 707, discussed.
Mussamut Edun v. Mussamut Bechun, 8 W. R.
175, Ram Dayal v.Jankidas, (1900) I.L.R. 24 Bom. 456, Shibo Raul v. Baban Raut,
(1908) I.L.R. 35 Cal.. 353, referred to.
Sheikh Maqsood Ali v. H. Hunter, A.I.R. 1943 Oudh. 338, considered.
CIVIL APPELLATE JURISDICTION : Civil Appeal
No. 201/1956 Appeal from the judgment and decree dated January 2,1962, of the, Rajasthan High Court in D. B. CIVIL Second Appeal No. 459; of 1949.
S.N. Andley, Rameshwar Nath and P.L. Vohra.,
for the appellants Nos. 2 and 3.
N.C. Chatterjee and Mohan Behari Lal, for
1961. September 5. The Judgment of the Court
was delivered by GAJENDRAGADRAR, J.-This appeal by a certificate given by the
Rajasthan High Court arises from the suit filed by the respondent Mst. Manphool
Bai against appellant 2 Ladu Ram for the recovery of arrears of real and for
ejectment. To this suit the respondent joined appellant 1 her mother-inlaw
Gulab Bai as a proforma defendant. The property in question is a, shop situated
in the Johri Bazar. Jaipur.
Thia property originally belonged to
Chhogalal, and after, him it devolved on his 485 adopted a on Phool Chand. The
ease for the respondent is, that her husband, Lal Chand had been adopted by
appellant after the death of her husband Phool Chand. Appellant 2 had executed
a rent noted (Ex. 24) in favour of Lal Chand in Samvat Year 1939. On Lal
Chand's death the respondent held the property as his widow and as such she
served a notice on appellant 2 on May 31, 1938, calling upon him to pay the
arrears of rent dire from him and asking him to vacate the shop (Ex. 16). It
appears that soon thereafter on August 27,1938, appellant 2 executed a rent
note in favour of the respondent (Ex. 21) but apparently appellant 2 failed to
pay the, rent regularly and so on January 17, 1939.) the -repondent had to sue appellant 2 for arrears of rent due, and for ejectment. This suit was filed
in the Court of Munsiff, East Jaipur. The amount due by way of arrears which
was claimed in that suit was Rs.700/Appellant 2 resisted the said claim made by
the respondent mainly on the ground that the rent note on which the stilt was
based had been executed by Appellant 2 in favour of the respondent and her
mother-in-law and that the suit was detective for want of a necersary party
inasmuch as the mother-in-law had not been joined to it. Appellant 2 claimed
that the respondent acting by herself, was not entitled to claim either the
arrears or to ask for, ejectment. Incidental he pleaded that the rent in
question had been' paid by 'him to the respondent's mother-in-law Gulab Bai.
This litigation went up to the Jaipur, Chief Court in second appeal. All this
Courts upheld the principal plea raised by appellant 2 that Gulab Bai was a
necessary party to the suit and so on the, preliminary ground that for
non-joinder of the necessary party the suit was detective. the claim made by
the respondent was rejected.. The decision of the Chief Court was pronounced on
May 26, 1941. It was under these circumstances that the respondent filed the
present suit on November 15, 1943, in the Court of Civil Judge, Sawai Jaipur,
claiming to 486 recover Rs. 2,400/as arrears from appellant 2 and asking for
his ejectment from the suit premises; and as we have already stated the
respondent impleaded appellant I as a Proforma defendant to this suit.
Several pleas were raised by appellant 2
against the claim made by the respondent. In the present appeal, however, we
are concerned only with two of these pleas. It was urged by appellant 2 that
the present suit was barred by res judicata and so since appellant I had not
joined the respondent in making the claim the suit was incompetent. It was also
urged in the alternative that on the merits it should be held that the rent
note had been executed by appellant 2 in favour of two lessors, appellant I and
the respondent The trial court rejected these pleas and passed a decree in
favour of the respondent and against both the appellants for Rs.1,800/-. It
also directed appellant 2 to vacate the premises by the end of March, 1948,
failing which the respondent was given a right to execute the decree against
him. Against this decree both the appellants preferred an appeal in the Court
of the District Judge. The learned District Judge held that the respondent's
suit was barred by res judicata and so he allowed the appeal and dismissed the
respondent's suit. Then the matter reached the Rajasthan High Court at the
instance of the respondent in second appeal. The High Court has reversed the
conclusion of the District Court on the question of res judicata and has held
that the present suit was not barred by res judicata. On the construction of
the rent note the High Court has held that the rent note on which the suit is
based was passed by appellant 2 in favour of the respondent and that the
reference to the name of appellant I in the said rent note does not constitute
her into a co-lessor with the respondent. On these findings the decree passed
by the District Court has been reversed and that of the trial court has been
restored. The appellants then moved the Rajasthan High 487 Court for a
certificate and a certificate has been granted to them principally on the
ground that the question of res judicata which the,, appellants seek to raise
is a question of general importance. It is with this certificate that the
appellants have come to this Court by their present appeal.
Pending the appeal appellant I Gulab Bail,
died on April 19, 1959. Thereupon an application was made by appellant 2 and
Dhan Kumar who claims to have been adopted by Gulab Bai in her lifetime applied
for a certificate declaring that Dhan Kumar was the heir and legal
representative of appellant 1.
The High Court refused. to grant the certificate
on the ground that the deceased appellant I was merely a pro forma defendant to
the suit and since no relief had been claimed against her the High Court
thought that her death did not cause any defect in the record in the appeal
preferred to this Court and all that was needed to be done was to remove her
name from the cause title. The High Court also held that Dhan Kumar may seek
his remedy by a proper suit if lie so desired. Dhan Kumar and appellant 2 then
applied to this Court (Civil Miscellaneous Petition. No. 267 of 1961) for
substitution of Dhan Kumar in the place of deceased appellant 1. The respondent
objects to the introduction of the name of Dhan Kumar on the record in place of
the deceased appellant 1. It is urged on her behalf that Gulab Bai had no
authority to make an adoption and fact had made no adoption a alleged by Dhan
Kumar. In ordinary course we might have called for findings on issues arising
between the parties on this application, but since the matter is very old we do
not wish to give it a further lease of life by adopting that course. We have,
therefore, allowed Dhan Kumar to join the present proceedings without deciding
the question as to the factum or validity of his alleged adoption. We may, also
add that the question about the factum and validity of the adoption of the
respondent's husband Lal Chand was also put in issue in the Courts below and in
fact 488 the District Court had made a finding against Lal Chand's adoption.
The High Court thought it unnecessary to decide this matter. Thus there is a
dispute between Dhan Kumar and the respondent on two grounds: Dhan Kumar seeks
to challenge the factum and validity of Lal Chand's adoption, whereas the
respondent seeks to challenge the factum and validity of Dhan Kumar's adoption.
Both these points have not been considered by us, and so the parties would be
at liberty to agitate them in proper proceedings if they are so advised.
In the present appeal we, propose to consider
only two points, crime of res judicata and the other about the construction of
the rent note.
The decision of the question of res judicata
lies within a very narrow compass. The relevant facts necessary to decide that
point are not in dispute. It is clear that in the earlier litigation it was
held by the Jaipur Chief Court -that, the rent note in question had been
executed in favour of both appellant I and the respondent and that necessarily
meant that appellant 2 was a tenant of the two co-lessors.
It was also held that the respondent acting
by alone was not entitled to claim arrears of rent or to ask for ejectment, so
that if the decision of the said issue can operate as res judicata the present
suit would be clearly barred. On the other hand, it is conceded by the
appellants that the Munsiff who tried the earlier suit was riot competent to
try the present suit having regard to the limits of his pecuniary jurisdiction,
and, so one of the conditions prescribed by s.11 of the Code of Civil Procedure
is absent. Section 11 requires, inter alia, that the prior decision of the
material issue should have been given by a court competent to try the
subsequent suit, and that is the basis on which the respondent has successfully
urged before the High Court that the plea of resjudicata cannot be sustained.
It has been urged before us by, Mr. Rameshwar Nath that in construing the
material clause in s.11. the 489 High Court was in error in putting a literal
construction on the words "subsequent suit". The High Court should
have construed the said words liberally and should have held that the words
"suit" includes even a part of a suit. If this contention is right
then the relevant issue decided in the earlier litigation would be a part of
the subsequent suit, and since the Munsiff who tried the earlier suit, was competent
to try this part of the subsequent suit the requisite condition is satisfied
and the suit is thus barred by res judicata. Thus the narrow question' which
calls for our decision is whether the word ",suit" in the context can
be liberally construed to mean even a part of the suit.
Let us first read s.11. which runs thus:
"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." The appellant's argument is that in construing the clause
"in a Court competent to try such subsequent suit or the suit in which
issue has been subsequently raised" it would be relevant to remember that
this clause is really intended to emphasise the consideration that the Court
which tried the earlier suit and the Court in which the subsequent suit is
filed should be Courts of concurrent jurisdiction, and the concurrence of
jurisdiction should be tested by reference to the matter in issue which has
been tried in the earlier suit and which also falls to be decided in the
subsequent suit. In support of this argument reliance has been placed on the
classical statement of the general principle , of res judicata 490 enunciated
in the Duchess of Kingston's case(1). In that case it was observed that from
the variety of cases relative to judgments being given in evidence in civil
suits, these two deductions seem to follow as generally true : "'First,
that ;the judgment of a Court of concurrent jurisdiction, directly upon the
point, is as a plea, a bar, or as evidence, conclusive between the same
parties, upon the same matter, directly in question, in another Court,
secondly, that the judgment of a Court of exclusive jurisdiction, directly upon
the point, is in like manner conclusive 'upon the same !matter, between the
same parties, coming incidentally in question in another Court for a different
purpose". The basis of the rule of res judicata is that an individual
should not be vexed twice for the same cause, and the liberal construction of
the word ,suit" would be consistent with this basis, otherwise if the
competence of the earlier Court is going to be judged by reference to its
competence to try the entire suit as subsequently instituted, in many cases
where the matter directly and substantially in issue has been tried between the
parties by the earlier Court it may have to be tried again in a subsequent suit
because the earlier Court had no jurisdiction to try the :subsequent suit
having regard to its pecuniary jurisdiction. That, it is urged, would be
anomalous and inconsistent with the principle underlying the doctrine of res
The word ,,suit" has not been defined in
the Code, but there can be little doubt that in the context the plain and
grammatical meaning of the word would include the whole of the suit and not a
part of the suit, so that giving the word "suit" its ordinary meaning
it would be difficult to accept the argument that a part of the suit or an
issue in a suit is intended to be covered by the said word in the material
clause. The argument that there should be finality of decisions and that a
person (1) 2 Smith Lead. Cas., 13th ,Ed., pp. 644, 645.
491 should not be vexed twice over with the
same cause can have no material bearing on the construction of the word
Besides if considerations of anomaly are
relevant it may be urged in support of the literal construction of the word
,,,suit" that the finding recorded on a material issue by the Court of the
lowest jurisdiction is intended not to bar the trial of the same issue in a
subsequent suit filed before a Court of unlimited jurisdiction. To hold
otherwise would itself introduce another kind of anomaly. Therefore, it seems
to us that as a matter of construction the suggestion that the word "suit"
should be liberally construed cannot be accepted. This position would be
abundantly clear if we consider the legislative history and background of s.
In that connection it would be relevant to
cite the material provisions in regard to res judicata contained in the earlier
Codes. Section 2 which dealt with res judicata in the Code of 1859 (Act VIII of
1859) read thus :
"The Civil Courts shall not take
cognisance of any suit brought on a cause of action which shall have been heard
and determined by a Court of competent jurisdiction in a former suit between
the same parties or between parties under whom they claim." In the Code of
1877 (Act X of 1877) s. 13 provided;that "no Court shall try any suit or
issue in which the matter directly and substantially in issue has been heard
and finally decided by a Court of competent jurisdiction, in a former suit
between the same parties, or between parties under whom they or any of them
claim, litigating under the same title".
Then followed the Code of 1882 (Act XIV
of'1882) in. which s. 13 dealt with the principle of res judicata. Section 13
is substantially in the same terms as s. 1 1 of the present Code of 1908 (Act V
492 The question about the construction of
the word "competent jurisdiction" occurring in s.2. of the Code of
1869 as well as s. 13. of the Code of 1877 fell to be considered in Misir
Raghobardial, V. Rajah Sheo Baksh Singh (1). In that case the Privy Council
took the view that the expression "competent jurisdiction" must be taken
to mean competent jurisdiction as regards the pecuniary limit as well as the
subject-matter, and they pointed out that if the pecuniary limit of
jurisdiction was ignored it would lead to the anomalous consequence that
",the decision of a Munsiff upon (for instance) the validity of a will, or
of an adoption, in a suit for a small portion of the property affected by it,
should be conclusive in a suit before a District Judge or in the High Court,
for property of a large amount, the title to which might depend upon the will
or the adoption". The judgment further pointed out that "in India
there are a large number of Courts, and the one main feature in the Act
constituting them is that they are of various grades with different pecuniary
limits of jurisdiction; and that by the Code of Procedure a suit must be
instituted in the Court of the lowest grade competent to try it". That
being so, unless the concept of competent jurisdiction included considerations
of pecuniary jurisdiction of the Court it would inevitably mean that a finding
recorded by a Court of the lowest pecuniary jurisdiction on an issue arising in
a suit before it would bind the parties in a subsequent suit where the claim
involved may be very much higher. It would thus be seen that in dealing with s.
2 of the Code of 1859 the Privy Council. introduced the notion of concurrent
jurisdiction though the words used in the section were a Court of competent
jurisdiction, and it was held that the jurisdiction must be concurrent as
regards the pecuniary limit as well as the subject-matter. This decision
proceeded on the assumption that "in order to (1) (1882) L. R. 9 I. A.
493 make the decision of one Court, final and
conclusive in another Court, it must be a decision of a Court which would have
had jurisdiction over the matter in the subsequent suit in which the first
decision is. given in evidence as conclusive" (vide : Mussamut Edun v.
Mussamut Bechun(1)], Heaving thus interpreted the expression "competent
jurisdiction" the Privy Council proceeded to consider whether any change
in the; low was intended to be effected by a. 13 of the Code of 1877 ;,and they
observed that the intention of the said section ,,,,seems to have been to
embody in the Code of Procedure by es. 1,2 and 13 the law then in force in India
instead of the imperfect provision in s. 2 of, the Code of 1859" and they
added that "as the words in the section do not clearly show an intention
to. alter the law their Lordships do not think it right to put a construction
upon them which would cause an alteration." It would thus be seen that
this decision in an authority for the proposition that the rule of res judicata
as interpreted even under the Code of 1877 was held to be the same as it
obtained under the Code of 1859 as interpreted by the Privy Counsel I in the
light of the general considerations as to res judicata enunciated in the case
of Duchess of Kingston (2). , This position has been clearly stated in another
decision of the Privy Council in Gokul Mandar v. Pudmanund Singh (3).
On this occasion the Privy Council had to
consider the effect of is. 13 of the Code of 1882. The argument which was urged
before the Privy Council on' s. 13 was that "a decree in a previous suit
cannot be pleaded a res judicata in a subsequent suit unless the judge by whom
it was made had jurisdiction to try and decide not only the particular matter
in issue but also the subsequent suit itself in which the issue is subsequently
raised", and in upholding this argument their Lordships observed that ,in
this respect (1) 8 W.R. 175.
(2) 2 Smith Lead. Cas. 13th Ed., pp. 644,
(3) (1902) I. L. R. 29 Cal, 707.
494 the enactment goes beyond s. 13 of the
previous Act X of 1877,and, also, as appears to their Lordships, beyond the law
laid, down by the judges in the Duchess of Kingston's case (1)". In other
words, this decision would show that even though in the earlier Codes there may
have been some doubt about the test of competent jurisdiction which has to be
applied to the Court which tried the earlier suit, the position under the Code
of 1882 is absolutely clear. The question to be asked under s. 13 of the said
Code is : could the Court which tried the earlier suit have tried the
subsequent suit if it had been then filed ? In other words, it is the whole of
the suit which should be within the competence of the Court at the earlier time
and not a part of it. Having regard to this legislative background of s.
11 we feel no hesitation in holding that the
word "suit" in the context must be construed literally and it denotes
the whole of the suit and not a part of it or a material issue arising in it.
Several decisions have been cited before us
where this question has been considered. We do not think any useful purpose
would be served by referring, to them. It may be enough to state that in a
large majority of decisions the word "suit" has been literally
construed [vide : Ram Dayal v. Jankidas (2) and Shibo Raut v. Baban Raut (3)]
though in some cases and under special circumstances a liberal construction has
been accepted [vide : Sheikh Maqsood Ali V. H. Hunter (4)]. We must accordingly
hold that the High Court was right in coming to the conclusion that the present
suit is not barred by res judicata.
That takes us to the question of the
construction of the rent note. The High Court has, held (1) 2 Smith Lead. Cas.
13th Ed., pp. 644, 645.
(2) (1900) 1. L. R. 24 Bom 456.
(3) (1903) I.L.R. 35 Cal. 353.
(4) A.I.R. 1943 Oudh. 338.
495 that on a fair and reasonable
construction of document it must be. held that the rent not has been passed by
appellant 2 in favour of the respondent alone though incidentally out of
respect ,the name of appellant I has been introduced in it. In our opinion this
conclusion is right. it is true that the rent note has been executed in favour
of both appellant and the respondent but, it is significant that the rent note
stipulates that when the rent is paid by appellant 2 he has to obtain, a
receipt from the owner. The word "'owner" is' used in singular and
not plural and that indicates that the rent note proceeded on the assumption
that the property which was the subjectmatter of the rent note belonged to one
owner and not two.
There is another clause in the rent note
which is clearer still. This clause reads ',therefore, I have executed in my
proper senses this rent note on a stamped paper valued Rs. 51in the names of
each of the two, mother-in-law and the daughterin-law, Sethanji Gulab Bai widow
of Phoolchandji in the capacity of being elder in the family and Sethanji
Manphool Bai ajias Bhanwar Bai widow of Lalchandji the heir in the family and
the owner of the property which will stand and may be used in times of
need." This clause makes it perfectly clear that the inclusion of the name
of appellant', was merely formal and it was intended to ,-how respect to the
elderly lady in the family. It also shows that the respondent was treated as
the owner of the property as the heir of her deceased husband Lal Chand.
Reading this clause together with the earlier clause as to the receipt for the
payment of rent which we hive already considered it is absolutely clear that
the name of appellant I was not included in the rent note because she had any
right to the property let out but solely as a matter of respect which the
respondent showed to appellant I Therefore, in our opinion, the contention that
the rent note has been passed by 496 appellant 2 favour of the respondent and
,appellant 1 cannot be sustained. If that be the true position there can be no
doubt whatever that appellant 2 is precluded from, disputing the title of the' respondent
"in the present.
proceedings. As the High Court has pointed
out the sequence of events leading to the execution of the suit rent note
unambiguously shows that appellant 2 has recognised the respondent as the
lessor and as such the principles of s.
116 of the Evidence Act clearly apply.
The result is the appeal fails and is.
dismissed with costs.