Phool Chand Sharma & Ors Vs.
Chandra Shanker Pathak& Ors  INSC 351 (7 December 1962)
AYYANGAR, N. RAJAGOPALA AYYANGAR, N.
RAJAGOPALA IMAM, SYED JAFFER SUBBARAO, K.
CITATION: 1964 AIR 782 1963 SCR Supl. (2) 828
Res Judicata-Rule-Appliration to appeals.
The father of respondent No. 1, who was the
Zamindar, filed a suit for the eviction of Ramprasad, the father of appellants,
from certain plots of land. The suit was decreed and the Zamindar took
possession of the land. Ramprasad filed an appeal before the Additional
Commissioner but the same was dismissed . He preferred a second appeal before
the Board of Revenue during the pendency of which the matter was compromised
where under he was recognised as tenant of the land in dispute and the order of
eviction was; thus nullified.
He applied for restitution of possession
under s. 144 of the Code of -Civil Procedure. The application was resisted by
Dataram and others who had been inducted as tenants on these plots of land
during the pendency of the appeals. The trial court allowed the application but
its order was reversed by the Additional Commissioner who held that the newly
inducted tenants could not be dispossessed. Its order was affirmed by the Board
of Revenue in revision. Thereafter fie filed a petition under Art. 226 of the
Constitution in the High Court challenging the decision of the Board of
Revenue, but that petition was dismissed on merits. No appeal was attempted to
be filed against the order of the High Court either by applying for a
certificate or moving this Court for special leave under Art. 136. The
appellants have instead come to this Court in appeal by special leave against
the order of the Board of Revenue. A preliminary objection was raised on behalf
of of the respondent that the appeal was not maintainable as it was barred by
Held, that the appeal was barred by res
judicata as the decision of the High Court was on merits and would bind the
parties unless it was modified or reversed in appeal or by other appropriate
829 Daryao v. State of U. P., [19621 1 S. C.
R. 574 and Indian Aluminium Co. Ltd. V. The Commissioner of Income-tax, West
Bengal, (1961) 43 1. T. R. 532, relied on.
Chandi Prasad Chokhani v. State of Bihar,
 2 S. C. R.
CIVIL APPELLATE JURISDICTION: Civil Appeal
No. 310 of 1960.
Appeal by special leave from the judgment and
decree dated July 24, 1954, of the Board of Revenue (Uttar Pradesh) Allahabad,
in Revision No. 20A of 1952/53.
S. P. Sinha and J. P. Goyal, for the
appellants, N. N. Keswani, for respondent No. 2.
1962. December 7. The Judgment of the Court
was delivered by AYYANGAR, J.-This is an appeal by special leave against an
order of the Board of Revenue, Uttar Pradesh which declined to order
restitution under s. 144, Civil Procedure Code in the following circumstances.
The father of the 1st respondent was the Zamindar who filed a suit in the court
of SubDivisional Officer, Tehsil Iglas at Aligarh for the eviction of Ram
Prasad-father of the appellants from certain plots of land situated in village
Kanchiraoli in The district of Aligarh. The suit was decreed and in execution
of that decree the Zamindar took possession. Thereafter Ram Prasad filed an
appeal to the Additional Commissioner but this was dismissed in November, 1944.
He then preferred a further appeal to the Board of Revenue but before it came
on for hearing the dispute was settled and on March 28 1948 an application was
filed for recording this compromise. The term of the compromise which is of
relevance to the present appeal is that Ram Prasad was to be recognised as
tenant of the land in dispute; in other words, the order for evicton 830 was
nullified. The compromise was recorded and a decree in terms thereof was
passed. Some attempt was made by the Zamindar to have the compromise set aside
on grounds which it is not necessary to mention, but these attempts failed with
the result, that it left the compromise decree passed by the Board in full
force. It might however, be mentioned that the Zamindar immediately obtained
possession in execution of the decree of the Sub-Divisional officer, admitted
one Data Ram and certain others as tenants and put them in possession of the
property and this has led to all the subsequent complications in this case.
On the strength of the compromise decree Ram
Prasad applied for restitution of possession under s. 144 of the Civil
Procedure Code. This application was resisted particularly by Data Ram and
others who had been inducted as tenants on the land, while the eviction
proceedings were pending before the Additional Commissioner on appeal. The
trial court allowed the application on the ground that Data Ram and others were
bound by the rule of lis pendens and were not, therefore, entitled to retain
the possession which they obtained during the proceedings for ejectment. From
this order an' appeal was taken by Data Ram and others to the additional
commissioner who, for reasons which it is not necessary now to canvass, held
that the newly inducted tenants could not be dispossessed and that Ram Prasad
was entitled only to Symbolical possession as against the Zamindar. This order
was taken to the Board in revision where, however, it was dismissed. It is to
challenge the correctness of this order that this appeal has been filed.
Learned Counsel for the respondent raised two
preliminary objections to the hearing of this appeal The first objection was
that this appeal was barred by res judicate. To understand this objection it is
831 necessary to state a few more facts. When the Board of Revenue upheld the
order of the Additional Commissioner declining the prayer of the appellants for
restitution they filed an application for review and when this was dismissed
they brought the matter before the High Court by an application made to it
under Art. 226 of the Constitution.
The actual judgment rendered by the High
Court is not on record but it was admitted before us by learned Counsel for the
appellant that the High Court dismissed the petition after 'elaborately
discussing the merits of the contentions raised and on that ground Data Ram and
others who had been let into possession by the Zamindar obtained a statutory
right to possession under the U. P. Zamindari & Land Reforms Act, 1950 and could
not therefore be evicted by the application of the rule of lis pendens. No
attempt was made by the appellant to prefer any appeal against this judgmentby
either applying to that court and obtaining a certificate of fitness or by
moving this Court for the grant of special leave. The result is that there is
now a decision of the High Court which has become final and binding on the
parties. Learned Counsel for the respondent therefore contends that without the
correctness of the decision of the High Court being challenged before us and
the finality of that judgment impaired, the appellant is not entitled to bypass
that decision and seek to practically obtain a reversal of it by attacking the
correctness of the decision of the Board of Revenue.
We consider this preliminary objection well founded.
Learned Counsel for the respondent relied in support of his submission on the
decision of this Court in Daryao v. The State of U. P. (1). The question before
the Court was whether, when the High Court dismissed a writ petition under Art.
226 after hearing a matter on the merits on the ground that no fundamental
right was proved or contravened, (1)  1 S.C.R,574.
832 a subsequent petition to the Supreme
Court under Art. 32 of the Constitution on the same facts and for the same
reliefs filed by the same party was permissible. This Court held that where
such a petition-was heard on the merits and dismissed by the High Court the
decision pronounced was binding on the parties unless it was modified or
reversed in appeal or by other appropriate proceedings. If thus the rule of res
judicata were a bar even to a petition under Art. 32 which is a
Constitutionally guaranteed right, it looks to us that it would be afortiori so
as regards an appeal under Art. 136 where the right to relief is discretionary.
Learned Counsel for the appellant invited our
attention to the decision of this Court in Chandi Prasad Chokhani v. State of
Bihar (1) as lying down a rule not quite so inflexible as the decision in
Daryao's case' would suggest, that it depended upon the facts of each case and
that in a proper case dependent upon the discretion of the Court, this Court
was competent to waive this rule and here the appeal notwithstanding that it
meant that the decision of the High Court was bypassed. No doubt, there are a
few observations of S. K. Das, J., who spoke for the Court which are capable of
being understood in the manner suggested by learned Counsel but as ultimately
the learned judges upheld the preliminary objection and dismissed the appeal,
these observations are only by way of obiter and cannot outweigh the express decision
on the point in Daryao's case. We might, however, point out that in Indian
Aluminium Co.Ltd. v. Commissioner of Income-tax, West Bengal (2) in which also
the judgment was delivered by S. K. Das,J., the reasoning of the learned judge
who upheld a similar preliminary objection is more in line with the decision in
Daryao's(3) case though the latter judgment which was delivered on the same day
as in the Indian Aluminium Co.'s case (2) is not naturally referred to. The
learned judge observed :
(1)  2 S.C.R. 276 (1961) 43 I.T.R. 332
(3) [1962) I S.C.R, 574.
833 "The question which has arisen in
this appeal by way of a preliminary objection is whether in the circumstances
set out above-(no appeal was preferred against the order of the High Court
refusing to make a reference under s.
66(2) of the Income Tax Act)-special leave to
appeal from the decision of the Tribunal dated May 29, 1956, was properly given
under article 136 of the Constitution and whether the appellant is entitled to
ask this Court to exercise its discretion under the said article when it did
not move against the subsequent orders of the Board and the High Court under
section 66 of the Act..................... We hold that special leave to appeal
from the decision of the Tribunal dated May 29, 1956, was not properly granted
in this case and the appellant is not entitled to ask us to exercise our power
under article 136 of the Constitution, when it did not move against the
subsequent orders of the Board and the High Court." This preliminary
objection therefore has to be upheld.
The other preliminary objection raised was
this. The application for special leave filed by the appellant was out of' time
and the delay in filing it was condoned by this Court without notice to the
respondent. Learned Counsel sought to urge that there were no grounds for
condoning the delay and that for this reason the leave granted should be
revoked. In view, however, of our decision on the first objection raised we do
not consider it necessary to deal with this.
The result is that the appeal failes and is
dismissed with costs.