State of U.P. &
ANR Vs. Jagdish Saran Agrawal & Ors.  INSC 2015 (25 November 2008)
IN THE SUPREME COURT
OF INDIA CIVIL APPELLATE JURISDICTION CIVIL APPEAL NOS. 6757-6758 OF 2008
(Arising out of S.L.P.(C) Nos. 1147-1148 of 2005) State of U.P. &Anr.
....Appellants Versus Jagdish Saran Agrawal & Ors. ....Respondents
DR. ARIJIT PASAYAT,
in this appeal is to the judgment of a learned Single Judge of the Allahabad
High Court dismissing the writ petitions filed by the State of Uttar Pradesh
and the Municipal Board Nagar Palika Lalitpur (hereinafter referred to as the
`Board'). Both the writ petitions were directed against the order dated 11th
February, 1994 passed by the District Judge, Lalitpur. By the said order learned
District Judge allowed appeal No.23 of 1992 filed by the respondent No.1
Jagdish Sharan Agrawal and two others. State of U.P. and 27 others were
parties. It was held in that order that the proceedings initiated by the State
against Jagdish Sharan Agrawal and others under the Uttar Pradesh Public
Premises (Eviction of Unauthorized Occupants) Act, 1971 (in short the `Act')
were barred by the principle of resjudicata, in view of the decision of the
proceedings, which were initiated earlier by the Nagar Palika, Lalitpur, being
suit No. 25 of 1960 as also in view of the dismissal of the proceedings which
were initiated by the State of Uttar Pradesh being case No. 521-353 under
Section 3(1) of the Uttar Pradesh Public Land (Eviction and Recovery of Rent and
Damages) Act, 1959 (in short the `Eviction Act').
stand of the State before the High Court was that the disputed land which is a
Nazul property is owned by the State and is under the management of the Board.
Nagar Palika has filed the Original Suit No.25 of 1960 in the court of Munsif
for permanent injunction against Savai Mahendra Maharaja Sri Devendra Singh
Joodev for restraining him from auctioning the land being the property of the
State. The said suit filed by the Nagar Palika was dismissed. The High Court
noted that the judgment of the Trial Court was not brought on record and it was
also not stated as to whether any appeal against the said judgment was filed or
not. Thereafter, State of Uttar Pradesh initiated proceedings against the
Maharaja under the Eviction Act which was numbered as DES Case No.521 of 1970
before the prescribed authority.
the pendency of the proceedings, the aforesaid Act was declared ultra vires by
this court and as a result thereof the State of Uttar Pradesh made necessary
amendments and proceeded with the case after taking steps under the provisions
of the Act and the case was re-numbered as Case No.521-353. Proceedings were
dismissed for default by the Prescribed Authority by order dated 26th November,
1976. An application to recall the said order was filed which was dismissed for
default on 3rd January, 1977 by the Prescribed Authority. Thereafter the State
initiated proceedings under the Act which was numbered as Case No.1/1988-89.
Before the Prescribed Authority preliminary objection was raised on behalf of
the alleged occupants contending that the proceedings were barred by the
principles of resjudicata as well as on the principles of Order IX Rule 9 of
the Code of Civil Procedure, 1908 (in short the `CPC') and consequently the
case cannot be proceeded with. The Prescribed Authority by Order dated 14th
January, 1992 rejected the aforesaid objections and held that the orders passed
in the Case No.521 of 1970 and 25 of 1960 do not operate as resjudicata.
the said order, Jagdish Sharan Agrawal and others approached the High Court by
a Writ Petition which was dismissed by order Dated 18th February, 1992 on the
ground that the alternative remedy was available. Appeal No.23 of 1992 before
the District Judge, Lalitpur, was filed under Section 9 of the Act. District
Judge held that the proceedings initiated by the State under Case No.1 of
1988-89 was barred by the principles of res judicata in view of the earlier
orders passed in Suit No. 25 of 1960 and 521 of 1970. The present appellants
took the stand that the judgment in question does not operate as resjudicata
between the parties in as much as in the said suit filed by the Nagar Palika,
State of Uttar Pradesh was not a party. The State being the owner of the land
and the land being only under the management of Nagar Palika, in view of
paragraph 47 of the Nazool Manual, any proceeding initiated by the Nagar Palika
to which the State of Uttar Pradesh is not a party cannot be said to be binding
on the State.
High Court found that admittedly in suit No.25 of 1960, the State was not a
party and therefore if any finding was recorded therein the same was not
binding on the State. But so far as proceeding in Case No.521 of 1970 is
concerned, the Eviction Act itself was held to be ultra vires by this Court and
consequently all proceedings taken therein are null and void and cannot be said
to be binding on any person whatsoever, including the parties which were
litigating there under.
High Court found that there was substance in the aforesaid plea raised by
Jagdish Sharan Agrawal and others. However after going through the records, it
was established that although initially a notice under the provisions of the
Eviction Act was issued and proceedings were initiated against the alleged
unauthorized occupants, yet the Act itself having been declared ultra vires by
this Court, the State chose to proceed with the matter after making necessary
amendments and taking necessary steps under the Eviction Act. It is thus established
that the original proceedings were converted to proceedings under the Act. The
proceedings were dismissed for default by the Prescribed Authority on
26.11.1976. An application for recall of the orders was also dismissed for
non-prosecution. The High Court was of the view that proceedings initiated by
issuance of notice under the provisions of the Eviction Act having been
converted into proceedings under the Act, the order of dismissal has become
final between the parties and was not challenged further. It was held that if
proceedings were permitted to be initiated and proceedings are decided
directing eviction, it would amount to conflicting orders between the same
parties in respect of same premises which is not justified. It was held that to
take care of such situations, the requisite principles are enshrined under
Order IX Rule 9, CPC. Though the provisions do not directly apply to
proceedings under the Eviction Act, they will apply with full force to the
facts of the present case and the State cannot be permitted to file such an
application against some person after its earlier application is dismissed for
whatever reasons may be.
Therefore, the Writ
Petition was dismissed.
counsel for the appellant submitted that dismissal for default does not operate
as resjudicata. It is pointed out that there is a recurring cause of action.
Since 1959 Act was declared to be ultra vires, the proceedings were initiated,
State was not a party in the suit by Nagar Palika and the High Court was wrong
in holding that the principles of resjudicata apply so far as State is
concerned. It is submitted that the principles of resjudicata do not apply to
the facts of the case as there was no decision on merit. One remedy was
restoration and other remedy was the second suit because of continuing cause of
action. There is no finding that the non official respondents were authorized
counsel for the respondents on the other hand supported the judgment, taking
the stand that the proceedings are summary in nature. The effect of the order
dated 10.10.1959 by the Government of India, Uttar Pradesh in appeal under
Section 7(1) of the Uttar Pradesh Roads and Lands (Control) Act, 1943 (in short
the `Road Act') clearly applies to the facts of the case and the order in
question has become final.
Ram Gobinda Dawan v. Bhaktabala [1971 (1) SCC 387] it was held as follows:
"21. It is
interesting to note that though it was urged that the decision of the Privy
Council was given in default of appearance of B and his mortgagee C and
therefore the said decision will not operate as res judicata, this Court did
not hold that a decision given even in the first instance in default of
appearance of a party will operate as res judicata. On the other hand, this
Court categorically held that C, the mortgagee had fought out the title of
mortgagor B, both before the Land Acquisition Court and the High Court and had
obtained a judgment in his favour after a full contest.
22. It is the view of
this Court that the mere fact that the mortgagee did not choose to appear
before the Privy Council and the decision of the Privy Council was given in the
absence of the mortgagee, is of no consequence as the decisions of the High
Court and the District Court have been given after contest. Therefore it will
be seen that the decision of this Court relied on by Mr Mukherjee is no
authority for the wide proposition that even if there has been no hearing and
final decision by any court, at any stage, after contest, the decision will
operate as res judicata.
23. For an earlier
decision to operate as resjudicata it has been held by this Court in Pulavarthi
Venkata Subba Rao v. Valluri Jagannadha Rao [ AIR 1967 SC 591] that the same
must have been on a matter which was "heard and finally decided".
24. In Sheodan Singh
v. Daryan Kunwar [AIR 1966 SC 1332] the question whether a decision given by
the High Court dismissing certain appeal on the ground of limitation or on the
ground that the party had not taken steps to prosecute the appeal operates as
res judicata, was considered by this Court. In that case A had instituted
against B two suits asserting title to certain property. B contested those
claims and also instituted two other suits to establish his title to the same
property as against A. A's suits were decreed and B's suits were dismissed. B
filed four appeals, two appeals against the decision given in A's suits and two
appeals against the dismissal of his two suits. It is seen that all the appeals
were taken on the file of the High Court but the two appeals filed by B against
the decision in the suits instituted by him were dismissed by the High Court on
the grounds that one was filed beyond the period of limitation and the other
for non-prosecution. At the final hearing the High Court took the view that the
dismissal of B's two appeals, referred to above, operated as res judicata in
the two appeals filed by B against the decision in A's suits on the question of
title to the property. It was urged before this Court on behalf of B that the
dismissal of his appeals on the ground of 8 limitation and non-prosecution by
the High Court does not operate as res judicata as the High Court cannot be
considered to have "heard and finally decided" the question of title.
This contention was not accepted. This Court referred to instances where a
former suit was dismissed by a trial court for want of jurisdiction or for
default of plaintiff's appearance etc. and pointed out that in respect of such
class of cases, the decision not being on merits, would not be res judicata in
a subsequent suit.
It was further
pointed out that none of those considerations apply to a case where a decision
is given on the merits by the trial court and the matter is taken in appeal and
the appeal is dismissed on some preliminary ground, like limitation or default
in printing. It was held that such dismissal by an appellate court has the
effect of confirming the decision of the trial court on merits, and that it
"amounts to the appeal being heard and finally decided on the merits whatever
may be the ground for dismissal of the appeal".
position was reiterated in State of U.P. v. Civil Judge [1986(4) SCC 558].
far as the recurring cause of action is concerned this Court in State of U.P.
v. Rup Lal Sharma [1997(2) SCC 1962] held as follows:
premises" is defined in Section 2(e) of the Act as meaning any premises
"belonging to or taken on lease or requisitioned by or on behalf of the
State Government ...". The first respondent never disputed that the
building belongs to the Government and all he has said was that it belongs to
the Government Estate. It does 9 not matter. The definition of public premises
is so wide as to hedge in all such buildings whether it actually belongs to
Government as such or only to a government department or even a building
belonging to a private individual if the Government have requisitioned it or
some person on behalf of the Government has requisitioned it. Hence there is no
escape from concluding that the building in question is public premises.
occupation" is defined in Section 2(g).
comprises within its contours occupation of the public premises by any person
without authority for such occupation, and also the continuance in occupation
of such premises by any person after the authority (under which or the capacity
in which he was allowed to hold or occupy the premises) has expired or has been
determined for any reason whatsoever. Thus continuance in occupation after the
determination of such authority would also make the occupation unauthorised for
the purpose of the said Act."
the present case, the suit filed by Nagar Palika was dismissed on technical
ground and in any case the State was not a party. So far the suit where the
state was a party and amendments were made, the same was dismissed for non-
prosecution. But the same was not dismissed under Order IX Rule 8.
IX Rule 8 and Order IX Rule 9 of CPC read as follows:
10 Rule 8. Procedure
where defendant only appears Where the defendant appears and the plaintiff does
not appear when the suit is called on for hearing, the Court shall make an
order that the suit be dismissed, unless the defendant admits the claim or part
thereof, in which case the Court shall pass a decree against the defendant upon
such admission, and, where part only of the claim has been admitted, shall
dismiss the suit so far as it relates to the remainder.
Rule 9. Decree
against plaintiff by default bars fresh suit (1) Where a suit is wholly or
partly dismissed under rule 8, the plaintiff shall be precluded from bringing a
fresh suit in respect of the same cause of action. But he may apply for an
order to set the dismissal aside, and if he satisfies the Court that there was
sufficient cause for his non-appearance when the suit was called on for
hearing, the Court shall make an order setting aside the dismissal upon such
terms as to costs or otherwise as it thinks fit, and shall appoint a day for
proceeding with suit.
(2) No order shall be
made under this rule unless notice of the application has been served on the
Order IX Rule 9 can not be said to be applicable.
The dismissal of the
suit for non-prosecution was not a decision on merit. Consequently, the said
order cannot operate as Resjudicata.
being the position the High Court's order is clearly unsustainable and is set
aside. The matter is remitted to the District Judge, Lalitpur to decide the
proceeding on merit. Appeals are allowed but without any order as to costs.
(Dr. ARIJIT PASAYAT)
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