The Church of South India trust Association Vs. The Telugu Church Council [1996] INSC 44 (10 January 1996)
Punchhi,
M.M.Punchhi, M.M.Manohar Sujata V. (J)
CITATION:
1996 AIR 1002 1996 SCC (1) 720 JT 1996 (1) 205 1996 SCALE (1)235
ACT:
HEAD NOTE:
[WITH
Special Leave Petition (C) No...../96 (CC 21473/93)]
S.C.
AGRAWAL, J. :- Special Leave granted in S.L.P. (C) Nos. 14501-02 of 1992.
These
appeals arise out of two suits (O.S. No. 41 of 1968 and O.S. No. 26 of 1970)
filed by the Telegu Church Council (for short `TCC'), respondent herein, in
respect of properties of congregationalist churches in the districts of Cuddapah
and Anantpur in the State of Andhra Pradesh.
O.S.No. 41 of 1968 was in respect of properties and institutions situated in Cuddapah
district and O.S. No. 26 of 1970 was in respect of properties situated in Anantpur
district. Both the suits were decreed in favour of TCC by the Subordinate
Judge, Cuddapah by judgment and decree dated May 7, 1979.
The apeals
(A.S. NO. 623-24 of 1979) filed by the appellants against the said judgment and
decree of the Subordinate Judge were dismissed by the Andhra Pradesh High Court
by judgment dated June 16, 1992.
The
London Missionary Society (for short `LMS') was founded by people belonging to
different Protestant Christian Denominations in England in 1795 for spreading the Christian faith in various
countries including India. LMS missionaries, in course of
their activities, started churches, hospitals, educational institutions in
various parts of India. In 1899 the London Missionary
Society Corporation (for short `LMSC') was registered as the Trustee under the
Companies Act of the United
Kingdom for
administering the properties of LMS. In 1908 the churches founded by different
Missionary Societies, including LMS in South India, unitedly formed a single body known as South India United Church (for short `SIUC'). SIUC became the
apex body of various Church Councils. TCC was one of the Church Councils sunder
SIUC in respect of churches in the Telugu speaking area of the former Madras
Presidency. The case of the appellant is that on June 29, 1945, pursuant to the
efforts to bring about a larger union of Churches involving SIUC, the Church of
India, Burma and Ceylon and Methodist Church of South India, a scheme of union was
proposed and the said proposal of union was discussed both at the level of
various Church Councils as well as at the level of SIUC General Assembly and
that TCC, at a meeting, accepted the recommendation of its Executive Committee
and resolved by two-third majority to accept the scheme of Church Union. The
case of the appellants is further that on September 28, 1946, SIUC resolved to
enter into Church Union on the basis of the scheme prepared by the Joint
Committee and on February 12/13, 1947 the Executive Body of TCC at its meeting
held at Gooty resolved to form a Continuation Committee to carry on TCC's work
until the formation of Diocesan Council as per the scheme of Union and to wind
up the affairs of TCC and that on June 26 to 28, 1947 resolutions were passed
in TCC General Body meeting at Cuddapah to joint the Union and to dissolve TCC
from that day and that TCC ceased to exist thereafter and Continuation
Committee constituted by resolution dated February 12/13, 1947 took over its
activities until merger. This fact of merger of TCC into the Church Union, as
claimed by the appellants, is, however, disputed by the respondent who claims
that the resolution was not passed by two-third majority and that TCC into the
Church Union, as claimed by the appellants, is, however, disputed by the
respondent who claims that the resolution was not passed by two-third majority
and that TCC has continued to exist. On September 27, 1947, the Church of South
India was inaugurated by special service held at St. George Cathedral, Madras
and on September 26, 1947 Church of South India trust Association (for short
`CSITA'), appellant herein, was incorporated under the Indian Companies Act,
1913 as trustee for the purpose of holding and administering the properties,
funds, etc. of the Church of South India. On June 29, 1949, TCC was registered as a Society under the Societies
Registration Act. On February
10, 1961, LMS
transferred the properties in the Cuddapah and Anantpur districts in favour of
CSITA. The case of the appellant is that LMS ceased to exist on June 1, 1966 as having merged in the
Congregation Council for World Mission.
Subsequent
to June 19, 1961, there arose disputes between the
respondent and LMS as well as the appellant in relation to properties of the
churches in the districts of Cuddapah and Anantpur in Andhra Pradesh. A suit (O.S.No.
2 of 1961), hereinafter referred to as `the first suit', was filed by the
respondent against LMS and the Chartered Bank, Madras, in the Court of
Subordinate Judge, Cuddapah which suit, on transfer to the Court of Second
Additional District Judge, Cuddapah, was numbered as O.S.No. 12 of 1964,
wherein a decree was sought that the defendants or either of them be directed
to render an account to the plaintiff (TCC) of the funds deposited in various
accounts with the defendant Bank in the joint name of TCC and LMS and standing
to the credit as up to date and for a decree in favour of TCC against the
defendants for recovery of such sums of money as may be found due on taking
account and also for delivery of such securities and deposits that should be
belonging to TCC and held by the defendant Bank. The said suit was contested by
LMS on the ground that by resolution dated June 19, 1947 TCC had dissolved itself and had
ceased to exist and, therefore, the plaintiff (respondent herein) had no right
to bring an action. The said suit was decreed by the Second Additional District
Judge, Cuddapah by his judgment dated December 3, 1966. The Second Additional District
Judge held that TCC, as it existed prior to 1947, did not dissolve itself and
did not cease to exist and continued to function even thereafter as before and
up to date without losing its representative character. The said judgment of
the Second Additional District Judge, Cuddapah was affirmed in appeal (A.S. No.
31 of 1967) by the Division Bench of the Andhra Pradesh High Court by judgment
dated November 9, 1970.
Another
suit (O.S. No. 107 of 1971), hereinafter referred to as `the second suit', was
filed by the appellant and the Rayalaseema Disocescan Council against the REV.
K. John, representing TCC, respondent herein, and the Chartered Bank, Madras,
on the original side of the Madras High Court for a declaration that the
plaintiffs are entitled to moneys and securities held by the defendant Bank in
its LMS-TCC joint account as in 1947 and for a direction to the defendant Bank
to pay to the plaintiffs the securities held in the said joint account or to
release Rs. 48,500/- and for a direction to the Ist defendant to pay to the
plaintiffs the sum of Rs. 13382.130. The said suit was decided by a learned
judge of the High Court (Vardarajan J., as the learned Judge then was) by
judgment dated March
24, 1975.
The
learned Judge held that TCC had voluntarily ceased to exist and had merged with
Church of South India inaugurated on September 29, 1947 and that the first
defendant association (respondent herein) which was registered only on June 29,
1949 does not represent the old TCC which was merged in the Church on South
India. The learned Judge was, however, of the view that the judgment of the
Andhra Pradesh High Court dated November 9, 1970 in A.S. 31 of 1967 operates as res judicate and he,
therefore, dismissed the suit on ground that it was barred by res judicate. On
appeal the Division Bench of the Madras High Court in its judgment dated
September 2, 1976, in O.S.A. 20 of 1976, while confirming the view of the
learned trial Judge on the question of merger of TCC in Church of South India,
set aside the finding that the suit was barred by re judicate and decreed the
said suit in favour of the plaintiffs. The learned Judges held that the
appellant and the Rayalaseema Diocesan Council, plaintiffs in the suit, were
not the parties in O.S. No. 12/64 and LMS which was the first defendant in O.S.
No. 12/64 could not have represented the Church of South India.
In the
meanwhile, the respondent had filed the two suits giving rise to these appeals.
O.S. No. 41 of 1968 was filed by the respondent in the Court of the Subordinate
Judge, Cuddapah against the appellant and others for a declaration that the
plaintiff (respondent herein) is entitled to hold the suit properties and
institutions as a trustee for the benefit of the Congregationalist churches in Cuddapah
district and for a direction to the defendants to put the plaintiff in
possession of the same. The other suit (O.S. No. 135 of 11968) was filed by the
respondent in the Court of the Subordinate Judge, Anantpur against the
appellant and LMS for a declaration that the plaintiff (respondent herein) is
entitled to hold the suit properties and institutions as a trustee for the
benefit of the Congregationalist churches in Anantpur District and for a
direction to the defendants to put the plaintiff in possession of the same.
O.S. No. 135 of 1968 was subsequently transferred to the Court of Subordinate
Judge, Cuddapah and it was renumbered as O.S. 26 of 1970 and it was tried alongwith
O.S. 41 of 1968.
The
case of the respondent in these two suits (O.S. 41 of 1968 and O.S. 26 of 1970)
was that the churches founded by LMS are Congregationalist churches and TCC is
the Council representing the Congregationalist churches founded in Telugu
speaking area of Madras Presidency and that the LMS and TCC jointly set up the
Telugu Combined Committee for managing properties and institutions with equal
number of representatives and that the Church of South India was formed in 1947
with a view to uniting several denominational church-es and even though TCC
originally approved the scheme to join the Church of South India it ultimately
declined and that the transfer of properties by LMS in favour of the appellant
by deed dated February 10, 1961 would amount to disclaimer of trust and breach
of trust since these properties were held in trust for the Congregationalist
churches by the LMS.
These
suits were contested by the appellant on the ground that TCC was a constituent
body of SIUC and that as a result of the decision taken by SIUC at the General
Assembly level and the TC at the Council level, the TCC had merged in the
Church of South India on June 19, 1947 and thereafter it had ceased to exist
and the respondent Council, as a subsequently registered body, had no
connection with original TCC. It was also contended by the appellant that all
the properties were vested in LMSC as Trustee and that LMS was only a
beneficiary and that the respondent is not entitled to represent the
Congregationalist churches of Anantpur and Cuddapah districts and the suit is
barred by limitation.
On
behalf of the Council for World Mission, the successor of LMS, it was submitted
that the judgment of the Andhra Pradesh High Court dated November 9, 1970 in
A.S. No.31 of 1967 was not binding on the appellant as it was not a party to
the said suit.
Both
the suits filed by the respondent were decreed by the Subordinate Judge, Cuddapah
on May 7, 1979 on the ground that LMS was a
Trustee and not a beneficiary and there was no merger of TCC with the Church of South India. The Subordinate Judge further held that the judgment of
the Division Bench of the Andhra Pradesh High Court dated November 9, 1970 in
A.S. No. 31 of 1967 operates as res judicate and that the subsequent judgment
of the Division Bench of the Madras High Court in O.S.A. 20 of 1976 dated
September 2, 1976 on the issue of merger of TCC in the Church of South India
would not operate as res judicate. The Subordinate Judge also rejected the
contention regarding the suit being barred by limitation.
The
appeals (A.S. Nos. 623 and 624 of 1979) filed by the appellant against the said
judgment and decree of the Subordinate Judge, Cuddapah, have been dismissed by
the Andhra Pradesh High Court by the impugned judgment dated June 16, 1992. The
High Court has held that the appellant is litigating as successor-in-interest
of LMS and that the finding on the issue as regards merger recorded by the
Additional District Judge, Cuddapah, in his judgment dated December 3, 1966 in
O.S. No. 12 of 1964 which was confirmed by the Division Bench of the Andhra
Pradesh High Court in the judgment dated November 9, 1970 in A.S. No. 31 of
1967 binds the appellant. As regards the decision of the Division Bench of the
Madras High Court dated September 2, 1976 in O.S.A. No. 20 of 1976 filed by the
appellant it was held that the said decision would not operate as res judicate
since no court in the State of Tamil Nadu can claim to exercise jurisdiction in
respect of properties situate within the State of Andhra Pradesh. The High
Court has held that LMS land LMSC were one and the same body, viz., the London
Missionary Society and that Churches founded by LMS were Congregationalist
churches and, therefore, the suits filed by the respondent seeking declaration
to hold the suit properties and institutions as trustee for the benefit of
Congregationalist churches was maintainable. Feeling aggrieved by the said
judgment of the High Court the appellant has filed these appeals.
The
matter in issue between the parties is regarding the merger of TCC in the
Church of South India because the case of the appellant is that the original
TCC had merged in the Church of South India and has dissolved itself in June
1947 and that respondent which was registered as a society in 1949 is not the
same tcc while the respondent disputes the merger and dissolution of the
original TCC and claims that the TCC continued to exist. This dispute has been
adjudicated earlier in two suits referred to above, viz., O.S. No. 12 of 1964
decided in favour of the respondent and O.S. No. 107 of 1971 decided in favour
of the appellant.
Therefore,
the questions which fall for consideration in these appeals are :
[i]
Whether the judgment of the Madras High Court dated September 2, 1976 in Appeal
(O.S.A. No. 20 of 1976) arising out of O.S.No. 107 of 1971 operates as res judicata
so as to preclude the respondent from asserting that the T.C.C. had not merged
in the Church of South India;
[ii]
Whether the judgment of the Andhra Pradesh High Court dated November 9, 1970 in A.S.No. 31 of 1967 arising out
of O.S. No. 12 of 1964 operates as res judicata so as to preclude the appellant
from asserting that TCC had merged in the Church of South India; and
[iii]
Whether there was a merger of TCC in the Church of South India in 1947 and the TCC has ceased to
exist thereafter.
If
Question No. [i] is decided in favour of the appellant, it would not be necessary
to go into Question Nos. [ii] and [iii] because in that event the judgment of
the Madras High Court would conclude the questions regarding the merger of TCC
as well as the judgment of Andhra Pradesh High Court operating as res judicata.
If Question No. [i] is decided against the appellant, it will be necessary to
consider Question No. [ii]. If Question No. [ii] is decided against the
appellant and in favour of respondent, it would not be necessary to go into
Question No. [iii]. Question No.[iii] would thus be required to be considered
only if Question No. [i] is decided against the appellant and Question No. [ii]
is decided in their favour. We will, therefore, first deal with Question No. [i]
and examine whether the judgment of the Madras High Court in the second suit
operates as res judicata. It is not disputed that the appellant as well as the
respondent were both parties in the second suit O.S.No. 107 of 1971 in the Madras High Court. In the suits giving
rise to the present appeals, the other defendant is the L.M.S.
while
in O.S.No. 107 of 1971 plaintiff No. 2 was the Rayalaseema Diocession Council
claiming through L.M.S. The High Court has held that the judgment of the Madras
High Court does not operate as res judicata for the reason that the two suits from
which the present appeals arise relate to rights in immovable properties
situate in the State of Andhra Pradesh and no court in the State of Tamil Nadu
can claim to exercise jurisdiction in respect of properties situated within the
State of Andhra Pradesh and the Madras High Court, not being a court competent
to try such subsequent suit within the meaning of Section 11 C.P.C., Any
finding recorded by it on any issue would not operate as res judicata. It is,
therefore, necessary to examine the provisions of Section 11 C.P.C. in order to
determine whether lack of territorial jurisdiction in the court which had
decided the earlier suit to try the subsequent suit excludes the applicability
of Section 11 C.P.C.
We
may, at the outset, mention that even though Shri F.S. Nariman, the learned
senior counsel appearing for the appellant, had at one stage submitted that
apart from the provisions of Section 11 C.P.C. general principle of res judicata
can also be invoked but subsequently, in view of the decision of this Court in
L. Janakirama Iyer & Ors. v. P.M.Nilakanta Iyer & Ors., 1962 Supp. [1]
SCR 206, he conceded that the general principles of res judicata cannot have an
application in cases where the earlier judgment in a suit is relied upon in a
subsequent suit and that in such a situation the matter has to be examined on
the basis of provisions contained in Section 11 C.P.C. only. We will,
therefore, confine ourselves to the provisions of Section 11 C.P.C.
Section
11 C.P.C. (excluding the Explanations) provides as under :
"Section
11. Res Judicata.- 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." Shri Nariman has urged that for the purpose of Section 11 C.P.C.
the competence of the court to try the subsequent suit mans competence in the
matter of pecuniary jurisdiction and the subject matter and the fact that the
court which decided the earlier suit does not have territorial jurisdiction in
respect of the subsequent suit would not preclude the applicability of the
principle of res judicata under Section 11 C.P.C. In support of his aforesaid
submission Shri Nariman has placed strong reliance on the judgment of the Privy
Council in Misir Raghobardial v. Rajah Sheo Baksh Singh,(1881-82) 9 I.A. 197
and the decisions of this Court in Gulabchand Chhotalal Parikh v. State of
Bombay(Now Gujarat), 1965 (2) SCR 547 and Seth Hiralal Patni v. Sri Kali Nath,
1962 (2) SCR 747.
Shri Sitaramiah,
the learned senior counsel appearing for the respondent, has, on the other
hand, urged that lack of territorial jurisdiction goes to the competence of the
court for the purpose of applicability of the principle of res judicata under
Section 11 C.P.C. and that the High Court was right in holding that the
judgment of the Madras High Court does not operate as res judicata since Madras
High Court does not have territorial jurisdiction to deal with the suits giving
rise to these appeals which relate to immovable properties lying in the State
of Andhra Pradesh.
Shri Sitaramah
has placed reliance on the decision of this Court in Kiran Singh & Ors. v. Chaman
Paswan & Ors., 1955 (1) SCR 117 and Official Trustee, West Bengal & Ors. v. Sachindra Nath Chatterjee
& Anr., 1969 (3) SCR 92.
The
principles governing the rule of res judicata in England were laid down in 1776 in Duchess of Kingston's case (2
Smith's L.C. 13th Edn. 644) wherein it was said :
"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
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
law governing the said rule in India is,
however, slightly different. We would, therefore, briefly refer to the
legislative history of the provisions regarding res judicata in Indian law. The
earliest enactment governing the procedure in civil courts in India was the Code of Civil Procedure of
1859 (hereinafter referred to as `the Code of 1859'). Section 2 of the said
Code provided :
"The
civil courts shall not take cognizance of any suit brought on a cause of action
which should have been heard and determined by a Court of competent
jurisdiction in a former suit between the same parties or between the parties
under whom they claim litigating under the same title." In Mussumat Edun
v. Mussumat Bechun, 8 Suth. W.R. 175, Chief Justice Sir Barnes Peacock has
considered the said provisions. After referring the rule laid down in Duchess
of Kingston's case (supra) and the limited nature of the jurisdiction conferred
on various courts in India the learned Chief Justice has observed
:
"It
appears to me to be of much more importance in this country than it would be in
England, that, in order to render a judgment between the same parties, upon the
same point in one Court, conclusive in another Court, the two Courts must be
Courts of concurrent jurisdiction. If it were not so, the whole procedure, as
regards appeals, might be entirely changed." [p. 178] "It appears to
me, therefore, that the rule which is laid down, viz., that to render a
judgment of one Court between the same parties upon the same point conclusive
in another Court, the two Courts must be Courts of concurrent jurisdiction.
Concurrency of jurisdiction is a necessary part of the rule which creates an estoppel
in such a case." "It is quite clear that, in order to 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 given in evidence as
conclusive. [p. 179] The Code of 1859 was followed by Code of Civil Procedure. 1877
(hereinafter referred to as `the Code of 1877) which contained the following
provisions in Section 13 :
"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." The said provision came up for consideration before the Privy Council
in Misir Raghobardial v. Rajah Sheo Baksh Singh (supra) wherein the
observations of Sir Barnes Peacock C.J. in Mussumat Edun v. Mussumat Bechun
(supra) have been referred with approval and it has been said :
"As
to what is a Court of concurrent jurisdiction, it is material to notice that
there is in India a great number of Courts, that one main feature in the Acts
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. For instance,
in Bengal, by the Bengal Civil Courts Act, No. VL of 1871,
the jurisdiction of a munsif extends only to original suits in which the amount
or value of the subject matter in dispute does not exceed Rs.1000. The
qualifications of a munsif and the authority of his judgment would not be the
same as those of a district or of a subordinate judge, who have jurisdiction in
civil suits without any limit of amount. In their Lordships' opinion it would
not be proper that the decision of a munsif 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." [p. 203] Keeping in view the aforesaid position in India, the Privy Council has held :
"By
taking concurrent jurisdiction to mean concurrent as regards the pecuniary
limit as well as the subject-matter, this evil or inconvenience is
avoided." "By Court of competent jurisdiction Act X of 1977 means a
Court which has jurisdiction over the matter in the subsequent suit in which
the decision is used as conclusive, or in other words, a Court of concurrent
jurisdiction." [pp. 204-05] In the Code of Civil Procedure, 1882
(hereinafter referred to as `the Code of 1882') provision regarding res judicata
are found in Section 13 but the words "Court of competent jurisdiction"
which were contained in Section 13 of the Code of 1877 were replaced by the
words "Court of jurisdiction competent to try such subsequent suit or the
suit in which such issue has been subsequently raised." This change in the
language was in consonance with the observations made by Sir Barnes Peacock
C.J. in Mussumat Edun v. Mussumat Bechun (supra) and the Privy Council in Misir
Raghobardial v. Rajah Sheo Baksh Singh (supra). Explaining the expression
"competent jurisdiction" Sir Dinshah F. Mulla in his nommentary on
the Code of 1882 (published in 1900) has said :
"The
test in this case is this : Is the second suit such as could have been tried by
the first Court? If yes, the matter can be res judicata.
This can only be the case if the jurisdiction of the first court is concurrent
with that of the second Court both as regards its pecuniary limit and the
subject-matter of the suit." In view of the aforesaid interpretation
placed by the Privy Council on the expression "competent jurisdiction",
it has been said that the rule governing applicability of res judicata in India is more restricted than the rule
law laid down in Duchess of Kingston's case (supra) in England. [See : Gokul Mandar v. Pudmanund
Singh, (1902) ILR 29 Cal. 707 P.C.,; Mst. Gulab Bai v. Manphool
Bai, 1962 (3) SCR 183, at pp. 493-94].
There
is no alteration in law in this field in the Code of Civil Procedure, 1908
(hereinafter referred to as "the present Code") because Section 11 of
the present Code is substantially in the same terms as Section 13 of the Code
of 1882. As regards competence of the Court to try the subsequent suit under
Section 11 of the present Code, the Law Commission in its fifty-fourth Report
has observed that "the principle behind this condition is sound one,
namely, that the decision of a Court of limited jurisdiction ought not to be
final and binding on a court of unlimited jurisdiction." (p.21) The
question which, therefore, arises is whether the competence of the Court, as
contemplated in Section 11 of the present Code, extends to territorial
jurisdiction also and the Court which has decided the earlier suit should be a
Court having territorial jurisdiction to try the subsequent suit. Juridically
speaking, the concept of jurisdiction of a court comprehends
(i) pecuniary
jurisdiction,
(ii) territorial
jurisdiction, and
(iii) jurisdiction
of the subject-matter.
[See :
Hirday Nath Roy v. Ramachandra Barma Sarma, ILR 58 Cal. at p. 146; Official
Trustee, West Bengal v. Sachindra Nath Chatterjee,
(supra) at p. 100]. When Section 11 of the present Code talks of the competence
of the Court, does it mean the competence in all the three aspects of the
jurisdiction of the Court including the territorial jurisdiction of the Court?
In order to answer this question, it is necessary to take note of some other
provisions of the present Code which given an indication that the present Code
makes a distinction between territorial jurisdiction and other aspects of the
jurisdiction of the Court. In Section 21 of the present Code, it has been
provided that "no objection as to the place of suing shall be allowed by
any appellant or revisional court unless such objection was taken in the Court
of first instance at the earliest possible opportunity and in all cases where
issues are settled at or before such settlement, and unless there has been a
consequent failure of justice." Having regard to the said provision, it
has been held that though the defect of jurisdiction, whether it is pecuniary
or territorial, or whether it is in respect of subject-matter of the action,
strikes at the very authority of the Court to pass any decree and such a defect
cannot be cured even by consent of parties, the policy of the Legislature has
been to create objections to territorial jurisdiction as technical and not open
to consideration by an appellant Court, unless there has been a prejudice on
the merits. [See : Kiran Singh & Ors. v. Chaman Paswan & Ors. (supra)
at pp 121-22]. In that case, this Court has also taken note of Section 11 of
the Suits Valuation Act, 1887, to hold that even objection as to the pecuniary
jurisdiction is technical in nature and not open to consideration by an
appellant court, unless there has been a prejudice on the merits. To the same
effect in the decision in Seth Hiralal Patni v. Sri Kali Nath (supra) wherein
it has been held that "the objection to its territorial jurisdiction is
one which does not go to the competence of the Court and can, therefore, be
waived". [at p. 751]. In this context, reference may also be made to
Section 21(A) introduced by the Code of Civil Procedure (Amendment) Act, 1976,
which lays down that "on suit shall lie challenging the validity of a
decree passed in a former suit between the same parties, or between the parties
under whom they or any of them claim, litigating under the same title, on any
ground based on an objection as to the place of suing." Under sub-clause
(a) of sub-section (1) of Section 24 of the Code, the High Court or the
District Court can transfer any suit, appeal or other proceeding pending before
it for trial or disposal to any court subordinate to it or competent to try or
dispose of the same. Similarly, under sub-clause (ii) of clause (b) of
sub-section (1) of Section 24, the High Court or the District Court non
withdraw any suit, appeal or other proceeding in any court subordinate to it
and transfer the same for trial or disposal to any court subordinate to it and
competent to try or dispose of the same. There is near unanimity amongst the
High Courts that the words "competent to try" in Section 24 refer to
pecuniary competence of the Court only and do not comprehend the territorial
aspect of jurisdiction. [See : Krishna Lal v. Balakrishan, AIR 1932 All. 660 at
p. 661 per Sulaiman C.J.; P.M. Unni v. M.J. Nadar, AIR 1973 Mad. 2 (F.B.); Mulraj
Doshi v. Gangadhar Singhania, AIR 1982 Orissa 191; Prabha Singh v. S.Narasimha Rao,
AIR 1957 Andhra Pradesh 992; Mohd. Ali v. Bhanwari Bai, AIR 1981 Raj. 176] In
some cases, the competence of the court for the purpose of Section 11 of the
present Code has been construed to refer to pecuniary jurisdiction and not to
territorial jurisdiction. [See : In re. Aiyisha Bohi Ammal, AIR 1925 Mad. 1167;
Kishorlal v. Balkishan (supra); Raghu v. Gajraj Singh, AIR 1939 All. 202; Prabha
Singh v. S. Narashmha RAO, (supra)] Reference may also be made to Section 13 of
the present Code which relates to conclusiveness of foreign judgments.
Under
that Section, except in cases falling under clauses (a) to (f), a foreign
judgment is conclusive as to matter thereby directly adjudicate upon between
the same parties or between parties under whom they or any of them claim
litigating under the same title. Exception (a) denies such conclusiveness to a
foreign judgment where it has not been pronounced by a court of competent jurisdiction.
In the Code of 1882 provisions relating to conclusiveness of foreign judgments
were part of the provision regarding res judicata contained in Section 13 and
in Explanation VI to the said Section it was prescribed that where a foreign
judgment is relied on the production of the judgment duly authenticated is
presumptive evidence that the Court which made it had competent jurisdiction,
unless the contrary appear on the record; but such presumption may be removed
by proving the want of jurisdiction. In Babanbhat v. Narharbhat & Ors., ILR
(1889) 13 Bom. 224, a Division Bench of the Bombay High Court has held that a
Court of competent jurisdiction with the Court trying the subsequent suit,
whether as regards the pecuniary limit of its jurisdiction or the
subject-matter of the suit, to try it with conclusive effect." Construing
the expression "Court of competent jurisdiction" in Explanation VI to
Section 13, the Court rejected the contention that it means the court of
jurisdiction competent to try the subsequent suit and held that such an
interpretation would restrict the application of Section 13 in a way which
could not have been intended and would deprive Explanation VI of all meaning.
In that case, the secree of the court on a native State in respect of property
situate within the jurisdiction of the native State deciding the question of
adoption in favour of the plaintiff was held to operate as res judicata in a
suit filed in British India in respect of property situate therein on the basis
of the plaintiff being the adopted son.
In R.Viswanathan
v. Rukn-Mulk Syed Abdul Wajid. 1963 (3) SCR 22, this Court has laid down that
"Section 13 incorporates a branch of the principle of res judicata and
extends it within certain limits to judgments of foreign courts if competent in
an international sense to decide the dispute between the parties." [at p.
54] The acceptance of the contention urged on behalf of the respondent that for
the purpose of Section 11 of the present Code, the competence of the court
which has decided the earlier suit also postulates the said court having
territorial jurisdiction to try the subsequent suit, would mean that the
judgment of a court in India which was competent to try the earlier suit would
not operate as res judicata in the subsequent suit because the court which
decided the earlier suit did not have territorial jurisdiction to try the
subsequent suit but the said judgment, if rendered by a foreign court, would be
conclusive in an Indian Court in a subsequent suit even though the foreign
court which decided the earlier suit does not have territorial jurisdiction to
try the subsequent suit. This anomaly would be avoided if competence of the
court which has decided the earlier suit for the purpose of Section 11 of the
present Code is construed as not referring to the territorial jurisdiction of
the court.
While
construing Section 11 of the present Code, we must bear in mind that the rule
of res judicata is founded on considerations of public policy and that is in
the interest of the public at large that a finality should attach to the
binding decisions pronounced by courts of competent jurisdiction and that it is
also in the public interest that individuals should not be vexed twice over
with the same kind of litigation. [See : Daryao & Ors. v. The State of U.P. & Ors., 1962 (1) SCR 574, at pp. 582-83].
The
amendments that have been introduced in the present Code by the Code of Civil
Procedure (Amendment) Act, 1976, indicate an intention on the part of the
Legislature to enlarge the field of applicability of the rule of res judicata
contained in Section 11. In this regard, it may be mentioned that in its
fifty-fourth Report on the present Code, the Law Commission has expressed the
view that the existence of the conditions regarding the competence of the court
to try the subsequent suit to a certain extent detracts from the finality of
the judgments and gives rise to a certain amount of multiplicity of
proceedings. [at p.21]. According to the Law Commission, the problem is
inherent in co-existence of the courts with limited or unlimited jurisdiction
and that it con be solved if a court of limited jurisdiction is required to
submit the case to the district court - which is a court of unlimited
jurisdiction - whenever the former is satisfied that the suit involves a
question of such a nature that if a suit had been brought for relief based
principally on that question, the court would have been incompetent to try the
suit. [at p. 25]. The Law Commission suggested the insertion of Section 23-A
making a provision on these lines. The Law Commission also recommended that the
principle of res judicata should be applied to the situations of proceedings in
execution and independent proceedings and recommended insertion of Section 11-A
for that purpose. Instead of inserting Section 11-A and 23-A, the Joint
Committee of Parliament suggested insertion of explanations to Section 11 and,
on the basis of the said report, Explanations VII and VIII have been inserted
in Section 11 by the C.P.C.
(Amendment)
Act, 1976. By Explanation VII the provisions of Section 11 have been made
applicable to a proceeding for execution of a decree. Explanation VIII which
has a bearing on the question under consideration provides as under :
"Explanation
VIII.- An issue heard and finally decided by a Court of limited jurisdiction,
competent to decide such issue, shall operate as res judicata in a subsequent
suit, notwithstanding, that such Court of limited jurisdiction was not
competent to try such subsequent suit or the suit in which such issue has been
subsequently raised." Earlier there was a conflict of views among the High
Courts on the meaning of expression "a Court of limited jurisdiction"
in Explanation VIII. The Calcutta High Court in Nabin Majhi v. Tela Majhi &
Anr., AIR 1978 Cal. 440, had taken the view that the expression "a Court
of limited jurisdiction" in Explanation VIII means the Courts other than
ordinary civil courts and refers to Revenue Courts, Land Acquisition Courts,
Administrative Courts, Insolvency Courts, Guardianship Courts, Probate Courts,
etc. which are trying certain specific matters. The High Courts of Kerala, Orissa
and Madras placed a wider construction on the said expression and held that it
includes limited pecuniary jurisdiction also. The said conflicts has now been
resolved by this Court in Sulochana Amma v. Narayanan Nair, 1994 (2) SCC 14,
wherein, agreeing with the view of the High Courts of Kerala, Orissa and
Madras, this Court has held that the expression "a Court of limited
jurisdiction" would also cover a court of limited pecuniary jurisdiction.
(pp.19-20) Explanation VIII thus removes the litigations that were placed on
the principle of res judicata as applicable in India by the Privy Council in Misir
Raghobardial v. Rajah Sheo Baksh Singh (supra). It would be rather incongruous
to read a limitation in the applicability of the said principle by construing
the competence of the court to mean that the court which has decided the
earlier suit must have the territorial jurisdiction to try the subsequent suit.
Such a construction would be running against the trend in the development of
law in this field. We are, therefore, of the opinion that Section 11 of the
present Code [excluding Explanation VIII] envisages that the judgment in a
former suit would operate as a res judicata if the court which decided the said
suit was competent to try the same by virtue of its pecuniary jurisdiction and
the subject-matter to try the subsequent suit and that it is not necessary that
the said court should have had territorial jurisdiction to decide the
subsequent suit. On that view of the matter, it must be held that the judgment
of the Madras High Court in O.S.A. 20 of 1976 dated September 2, 1976 arising
out of second suit (O.S.No. 107 of 1971) operates as res judicata in as much as
Madras High Court had pecuniary jurisdiction as well as jurisdiction over the
subject-matter to try the subsequent suit and it cannot be held that the said
judgment does not operate as res judicata for the reason that the Madras High
Court does not have territorial jurisdiction to try the subsequent suit
relating to properties in Andhra Pradesh.
Once
it is held that the judgment of the Madras High Court would operate as res judicata,
it follows that the decision in that said case regarding merger of TCC with the
Church of South India as well as about the judgment of the Andhra Pradesh High
Court in A.S. 31 of 1976 arising out of O.S.12 of 1961, not being res judicata,
would be binding on the respondent and the civil suits giving rise to these
appeals which were filed by the respondent cannot succeed and have to be
dismissed. In the circumstances, it is not necessary to consider Questions Nos.
(ii) and (iii) referred to above.
The
appeals are accordingly allowed, the impugned judgment of the Andhra Pradesh
High Court dated June
16, 1992 in Appeals
Nos. 623-624 of 1979 arising out of O.S.Nos.41 of 1968 and 26 of 1970 are set
aside and the said suits are dismissed. No orders as to costs.
S.L.P.
............../96 [CC No. 21473/931 Delay condoned.
I.A.No.3/94
is allowed and the legal heirs of the petitioner as mentioned in the
application are brought on record.
The
grievance of the petitioner in this petition for special leave to appeal
against the judgment date June 16, 1992 passed in Appeal No. 623 of 1979 is
that the petitioner is claiming title on the basis of adverse possession and
enjoyment in respect of certain immovable properties lying in District Anantapur
and that the said properties have been included in the schedule to the plaint
of the Suit No.O.S.No. 26 of 1970 and by the impugned judgment the said
properties have been held to be of respondent No. 1, the plaintiff in the said
suit. It is submitted that the petitioner was not impleaded as a party in that
said suit and that in respect of the properties over which the petitioner is
claiming title by adverse possession another suit [O.S. No. 31/80] filed by
respondent No. 1 is pending.
Having
regard to the fact that O.S. 26 of 1970 has been dismissed by this judgment the
petitioner can have no subsisting cause for grievance. The special leave
petition is, therefore, dismissed.
Back
Pages: 1 2