Vinayagar Temple & Ors. Vs. Meenakshi Ammal & Ors.  INSC 1529 (3
SUPREME COURT OF INDIA CIVIL APPELLATE JURISDICTION CIVIL APPEAL NO. 4227 OF
2003 Gangai Vinayagar Temple & .... Appellants Others Versus Meenakashi
Ammal & Others .... Respondents
O R D E R
of divergence of opinion in terms of detailed separate judgments, we direct
that this matter may be placed before another Bench, to be nominated by Hon'ble
The Chief Justice.
.....................J. (MARKANDEY KATJU)
.....................J. (ASOK KUMAR GANGULY)
SEPTEMBER 03, 2009
IN THE SUPREME COURT OF INDIA CIVIL APPELLATE JURISDICTION CIVIL APPEAL NO.4227
OF 2003 Gangai Vinayagar Temple & others .. Appellant (s) -vs- Meenakashi
Ammal & others .. Respondent (s)
This appeal by special leave against the impugned judgment and
order dated 6.1.2003 of the High Court Madras passed in L.P.A. No. 17 of 1998.
Heard learned counsel for the parties and perused the record.
The appellants are the Trustees of Shri Gangai Vinayagar Temple,
Thirumudi Nagar, Pondicherry. They had executed a lease deed on 8.11.1967 in
favour of one Kanniah Chettiar in respect of a plot of land on which the lessee
was to erect a theatre. The lease was for a period of 15 years commencing
The original lessee died after constructing the theatre and his
widow filed a suit being O.S 125 of 1976, which came to be later renumbered as
Suit No. 5 of 1978, impleading therein the temple as the first respondent and
the members of the Trust Committee as respondent Nos. 2 to 6. Three persons who
were alleged to be those to whom the site on which the theatre stood was sought
to be sold by the Trustees, were also impleaded as defendant Nos. 7 to 9. The
prayer made in Suit No. 5 of 1978 was for an injunction restraining the
defendants from interfering with the plaintiff's possession till the expiry of
the period of lease.
During pendency of the said suit (Suit No. 5 of 1978), the
Trustees filed two suits being numbered as O.S. Nos. 6 of 1978 and 7 of 1978,
claiming arrears of rent from the lessee. All these three suits were tried
together and a common judgment was delivered. The trial court held that the
lessee was entitled to retain possession of the property for the duration of
the lease. This finding was given in view of the statement made by the
defendants in their written statement that they had no intention to interfere
with the plaintiff's possession till the expiry of the lease. Accordingly, Suit
No. 5 of 1978 was dismissed.
The Trustees in their additional written statement filed in O.S
No. 5 of 1978 had pleaded that the property was the personal property of the
temple and the Trustees. Taking note of this plea the trial court framed an
issue being issue No. 2 in O.S. No. 5 of 1978 as follows:
the suit property is not the personal property of Sethuraman Chettiar and
whether the plaintiffs are not estopped from questioning the title of the
landlord or his vendors ?"
The lessee or the plaintiff did not question the title of the
Trust at any point of time.
In O.S. Nos. 6 of 1978 and 7 of 1978, the trial court framed issue
No. 3 which was decided along with issue No. 2 in O.S. No. 5 of 1978. In deciding
issue No. 2, the trial court went into the question whether the temple was a
public temple or a private temple, and whether permission from the statutory
authorities was required for effecting the sale of the property to defendant
Nos. 7 to 9. Suit O.S. No. 6 of 1978 was decreed in part while O.S. No. 7 of
1978 was dismissed.
The lessee filed an appeal against the decree in O.S. No. 6 of
1978. No appeal was filed against the judgment in O.S. No. 5 of 1978. The
lessor also did not file any appeal against the dismissal of his suit, O.S. No.
7 of 1978.
The learned Single Judge of the High Court who heard the appeal
against the judgment in O.S. No. 6 of 1978 rejected the objection raised by the
learned counsel for the temple and its Trustees that the appeal was barred by
the principle of res judicata. That objection was on the ground that the
finding recorded on issue No. 2 in O.S. No. 5 of 1978 had become final as no
appeal had been filed against the judgment in O.S. No. 5 of 1978.
The learned Single Judge also held that the temple is a public
temple and that the property belonging to the temple cannot be alienated
without obtaining the requisite permission from the statutory authorities. The
learned Single Judge, thus, reversed the judgment of the trial court on issue
No. 3 in O.S. No. 6 of 1978.
The appellant then filed an appeal before the learned Division
Bench of the High Court against the judgment and order of the learned Single
Judge which was also dismissed. Hence, this appeal before us by way of special
We have heard learned counsel for the parties at great length.
Shri Jaideep Gupta, learned senior counsel appearing for the appellant
submitted that the finding in the judgment in O.S. No. 5 of 1978 had become res
judicata because no appeal had been filed against the judgment in the aforesaid
suit. On the other hand, Shri L. Nageshwar Rao, learned senior counsel,
assisted by Shri G. Masilamani, learned senior counsel, submitted that the
finding in O.S. No. 5 of 1978 had not become res judicata.
I am not inclined to agree with the submission of the learned
counsel for the appellant for the simple reason that the prayer in O.S. No. 5
of 1978 was only that the plaintiff/lessee should not be evicted by the
defendants' landlord forcibly. In their written statement in the aforesaid
suit, the defendants (appellants before us) stated that they were not going to
forcibly evict the plaintiff-lessee. Once this statement was given in the
written statement by the defendants in O.S. No. 5 of 1978, the aforesaid suit
(O.S. No. 5 of 1978) should have been straightway dismissed, as the defendants
had stated that they were not going to forcibly evict/dispossess the plaintiff.
It was wholly unnecessary for the trial court to go into any other question,
including the question of title in O.S. No. 5 of 1978.
In this connection we may refer to Section 11 of the CPC which
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 6 parties under whom they or any of
them claim, litigating under the same tile, 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 question sometimes arises as to the meaning of the expression
"matter directly and substantially in issue". One of the tests to
decide whether a matter is directly and substantially in issue or only
collaterally and incidentally in issue, as laid down in the decision of this
Court in Sajjadanashin Sayed (D) by Lrs. vs. Musa Dadabhai Ummer and others
(2000) 3 SCC 350 (vide paragraph 18), is whether it was necessary to decide the
In the present case, it is obvious that once the defendants had
conceded that they were not going to forcibly evict the plaintiff-respondents,
then the suit should have been straightway dismissed on this ground alone, and
it was not necessary for the trial court to have gone into any other issue,
including the issue of title.
In Tamil Nadu Wakf Board vs. Larabsha Darga, Panruti (2007) 13 SCC
416, the facts were that the plaintiffs claimed that the suit property was
their private property and was not wakf property. The High Court in the
impugned judgment gave a finding that the suit property was wakf property and
was not a private trust property.
Court held that the High court had no occasion to consider whether the property
was private wakf or public wakf. This Court held that the subsequent suit for a
declaration that the property belongs to wakf-alal-aulad is not barred by the
principle of res judicata.
In my opinion, the trial court unnecessarily went into the question
of title etc. when it should have straightway dismissed the suit being O.S. No.
5 of 1978 in view of the fact that the defendants had stated in their written
statement that they were not going to forcibly evicit the plaintiff, but would
only take action in accordance with law.
For the foregoing reasons I find no merit in this appeal and the
same is accordingly dismissed. No costs.
03 September, 2009
IN THE SUPREME COURT OF INDIA CIVIL APPELLATE JURISDICTION CIVIL APPEAL NO.4227
OF 2003 Gangai Vinayagar Temple & Ors. ...Appellant(s) Meenakshi Ammal
& Ors. ...Respondent(s)
I have read the draft judgment prepared by my learned brother,
Justice Markandey Katju in this appeal and which was sent to me on 14.8.2009.
Unfortunately, I cannot agree with the draft judgment, rendered by His
Lordship, dismissing the appeal.
I am of the view that the appeal should be allowed and the reasons
for the said view are stated herein below.
This appeal has been filed on behalf of the temple by the trust
committee and also by one of the trustees impugning the judgment and order of
Madras High Court 9 dated 6.1.2003 whereby the High Court dismissed the appeal
filed by the present appellants, inter-alia, holding that there is no merit in
The question involved in the appeal would appear from the
discussion of the relevant facts in this case.
The property in question belonged to the appellants and was leased
out to respondent Nos. 1 to 6 for a period of 15 years with effect from
8.11.1967 and which expired in 1983.
On or before 1.7.1976, the property in question was sold by the
appellants to defendant Nos. 7, 8 and 9 and to that effect a notice was given
to the lessees on 14.10.1976 calling upon them to pay the outstanding arrears
of rent upto 1st July, 1976 to the appellants.
Thereupon, the lessees, the respondent Nos. 1 to 6 filed a Suit
which was ultimately numbered as OS 5 of 1978, inter-alia, alleging that the
appellants have illegally transferred the property to the defendant Nos. 7 to 9
who were seeking to interfere with the possession of the respondents and as
such an injunction was sought against such interference.
The appellants also filed two Suits, namely, OS 6 and OS 7 of 1978
claiming the arrears of rent till the date of transfer of property to defendant
Nos. 7 to 9 i.e 1.7.1976 from the respondent Nos. 1 to 6.
All the Suits were heard together.
Of these three Suits, OS 5 of 1978 filed by the respondent Nos. 1
to 6 was dismissed and no appeal was filed therefrom. OS 7 of 1978 was also
dismissed, no appeal was filed from it either.
OS 6 of 1978 was partially allowed and only against the judgment
and decree in OS 6 of 1978, an appeal was filed by the respondents 1 to 6.
These facts are not disputed.
The questions which arise for consideration in this case is
whether the Court while entertaining an appeal from judgment and decree in Suit
`A' can reverse a finding rendered in Suit `B', especially, when no appeal was
filed from the findings rendered in Suit 'B'?
As a necessary corollary to the aforesaid issue is whether the
findings reached in Suit `B', being 11 binding between the parties inter-se,
can be modified in an appeal from Suit `A' in view of the bar of Res- Judicata.
Arising out of these two questions is a third question of general
importance about the importance of the principle of Res-judicata which is based
on high principle of public policy in the administration of justice. Whether
such principles can be ignored by courts, inter-alia, on the ground that the
finding reached by a Court of competent jurisdiction in another Suit was
unnecessary and whether this Court in exercise of its discretionary
jurisdiction under Article 136 should step in to prevent an erosion of the
doctrine of Res-judicata.
Before answering these questions, I would like to examine the
necessary pleadings, the issues framed and the findings in the Suits in
OS 5 of 1978 In this suit the plaint has been filed by respondent
Nos. 1 to 6 challenging the sale of the property by the appellants in favour of
defendant Nos. 7 to 9 and while challenging the same the following averments
have been made:
".....They (the appellants herein) have no right to sell the property as
the same is trust property belonging to the 1st defendant and such alienation
would be totally void being a breach of trust....."
In paragraph 5 of the plaint, it is further averred as under:
alienation in favour of the defendants 7 to 9 being void, they have no title to
Opposing the plaint, in the written statement which was filed by
the present appellants it was stated that the suit is highly speculative in
nature. It was also asserted that the sale made by the present appellants in
favour of defendant Nos. 7 to 9 is valid in law and it was made clear that the
plaintiff in the said suit (respondent No. 1 to 6 herein) have no right to
challenge the transfer of ownership by the landlord as they admitted the title
of the defendants (the appellants herein).
An additional written statement was filed in that suit by the
appellants herein in which in paragraph (1) the following averments were made:
These defendants submit that the plaintiff is estopped from either questioning
the title of these defendants 13 with respect to suit schedule mentioned property
or about transfer of the suit schedule mentioned property in favour of
defendants 7 to 9."
In the written statement which was filed in the said suit by the
defendant Nos. 7 to 9, it was stated that the plaintiffs (respondents 1 to 6)
have no cause of action for filing the suit and it is also asserted that the
alienation made in favour of defendant Nos. 7 to 9 is legal and valid.
On the basis of those pleadings between the parties, several
issues are framed. The relevant issue for our consideration and which was
framed in OS 5 of 1978 is as follows:
"Whether the suit property is not the personal property of
Sethurama Chettier and whether the plaintiffs are not estopped from questioning
the title of the landlord or his vendors?"
OS 6 of
1978 23.The relevant issue No. 3 in OS 6 of 1978 is as follows:
"Whether the suit property belongs to a public temple
governed by the Act? If so whether the Suit is maintainable for want of
sanction under Section 26 of the Hindu Religious Institutions Act."
OS 7 OF
1978 24.Similarly, Issue No. 3 in OS 7 of 1978 is as follows:
"Whether the suit property belongs to a public temple governed by the Act?
If so whether the Suit is maintainable for want of sanction under Section 26 of
the Hindu Religious Institution Act."
As noted above, all the Suits were tried together and after trying
all these issues, the learned trial Court reached the following finding:
suit property is therefore not a public temple governed by the act and since the
property is found to be the private property of Sethurama Chettiar, sanction
u/s. 26 of the Hindu Religious Institutions Act is therefore not necessary. The
suit property being the personal property of Sethurama Chettiar and the same
having been sold to defendants 7 to 9, the latter have become the absolute
owners of the suit property and the plaintiffs in O.S. 5/78 are stopped from
challenging the title of the present landlord and they are bound to attorn the
tenancy. They have no right to question the title of the landlord or his
26.After reaching the aforesaid findings in the operating portion
of the judgment, the trial Court by its order dated 6.11.1982 held as under:
the result, O.S. 5/78 is dismissed with cost. O.S. 6/78 is decreed in part with
cost as per the calculation above.
O.S. 7/78, since the court has held that the entire property is one, there
cannot be any lease amount for the 15 rear portion and it dismissed with
Against the said judgment and decree, an appeal was filed by the
lessees i.e respondent Nos. 1 to 6 herein only against the decree of the II
Addl. District Court, Pondicherry dated 6.11.1982 in O.S. No. 6/78.
clear from page 84 of the paper book.
In the said appeal before the learned Single Judge of the Madras
High Court, the present appellants were parties and they specifically raised
the question that the finding of title in favour of the present appellants by
trial Court cannot be disturbed by the High Court as it was not hearing any
appeal from the judgment in O.S. 5 of 1978.
Ignoring that objection, the learned Single Judge of the High
Court held there was no occasion or need for the learned trial Judge to frame
the issue, namely, "whether the suit property is not the personal property
of Sethurama Chettiar and whether the plaintiffs are not estopped from
questioning the title of the landlord or his vendors....." The learned
Single Judge of the High Court held that the finding given by learned trial
judge on the private nature of the property and on title in favour of the
appellant was 16 wholly irrelevant and unnecessary. In the concluding paragraph
of a rather lengthy judgment, the learned Single Judge held as follows:
the result, the appeal succeeds and stands allowed in part to the extent that
the findings of the learned trial Judge given under issue No.2 in O.S. No.5 of
1978 and issue numbers 3 and 4 in O.S. No.6 and 7 of 1978 alone are hereby set
aside and in respect of the relief claimed and decreed in part in O.S. No.6 of
1978, the appeal fails and accordingly it is dismissed partly. Parties to bear
It will thus appear that even though appeal was only from the
judgment and decree of trial Court in OS No.6 of 1978, the learned Single Judge
in appeal set aside findings reached in OS No.5 of 1978 and OS No.7 of 1978.
Against the judgment of the Single Judge, an appeal was filed
before the Division Bench of the High Court by the present appellants.
The Division Bench of the High Court also came to a finding that
the issue No.2 in O.S. 5 of 1978 was wholly unnecessary and is not reflective
of the pleas that had been taken by the parties and the findings on that issue
cannot be regarded as constituting the immediate foundation for the ultimate
decision in the 17 suit and therefore the bar of Res-judicata will not apply.
Hon'ble Justice Katju in the judgment prepared by His Lordship has
accepted the said view of the High Court and dismissed the appeal.
Unfortunately, I cannot concur with His Lordship.
Several questions fall for consideration in this case.
The first is one of the framing of issues. Issues can be of two
kinds; issues of fact and issues of law vide Order XIV Rule 1 (1) (a) (b) of
the Code of Civil Procedure (for short "the Code").
Order XIV Rule 1(1) of the Code enjoins that issues arise when a
material proposition of fact or law is affirmed by one party and denied by the
issue is a disputed question upon which the parties are at variance and it is
the duty of the Court to ascertain that, vide Order XIV, Rule 1(5) of the Code.
Therefore, issues are those disputed questions on which the parties are
desirous of obtaining the decision of the Court (Black's Law Dictionary 8th
In the instant case from the pleadings which have been discussed
above, it appears that in the plaint an issue relating to title of the present
appellant in respect of the temple property was raised by the lessees i.e.
respondent Nos. 1 to 6 herein and consequently a dispute has also been raised
about the character of the temple property and the lessees are claiming that
the property is a public trust.
The appellants herein in their written statement and in the
additional written statement controverted those contentions and specifically
questioned the competence of the lessees (respondent Nos. 1 to 6) to raise any
dispute as regards the title of the present appellant.
Therefore, within the meaning of Order XIV Rule 1 of the Code, an
issue has to be framed by the Court about (a) the title of the present
appellants and also about (b) the nature and character of the temple property.
issues are framed, it is the duty of the Court to pronounce its judgment on
those issues and the trial Court has done that and from which no appeal has
It has been held by the High Court and it has also been argued
before us on behalf of respondents No.1 to 19 6 that the bar of Res-judicata
will not apply as the aforesaid two questions were not `directly and
substantially in issue' in OS 5 of 1978. Now, what is `directly and
substantially in issue' has not been defined in Section 11 of the Code but it
has been explained in Explanation III as follows:
III- The matter above referred to must in the former suit have been alleged by
one party and either denied or admitted, expressly or impliedly, by the
Let us look at the provisions of Order XIV Rule 1(1), which is set
Framing of issues: (1) Issues arise when a material proposition of fact or law
is affirmed by the one party and denied by the other."
On a comparison between the two provisions set out above, I
discern a conceptual proximity between the two. It is thus clear when an issue
has been framed in a case by the Court and a finding has been reached on the
same issue, the said finding, in view of Explanation III to Section 11 of the
said Code, is one which has been directly and substantially in issue in a
former suit between the same parties.
Hon'ble Mr. Justice Katju in support of His Lordship's conclusion
that those two questions are not directly and substantially in issue in this
case relied on two judgments of this Court. The first decision on which
reliance has been placed was rendered in the case of Dadabhai Ummer and Ors. -
2000 (3) SCC 350.
In Sajjadanashin (supra) learned Judges considered the distinction
between something which is `directly and substantially in issue' and something
which is `collaterally and incidentally in issue'. In doing so, learned Judges
relied on Mulla's Civil Procedure Code and various other treaties. In paragraph
18 of Sajjadanashin (supra), learned judges summarized the principle by saying
"a matter in respect of which relief is claimed in an earlier suit"
can be said to be generally a matter "directly and substantially in issue
but it does not mean that if the matter is one in respect of which no relief is
sought it is not directly or substantially in issue. It may or may not
be". (Para 18, Page 359 of the report).
Therefore, it is clear that Mulla has not given any definite opinion
and made it clear that answer to such a question depends on "the facts of
each case". The test is to find out whether the issue was
21 to be
decided for adjudicating on the principal question and was decided.
In the instant case in the plaint, the respondents 1 to 6 directly
challenged the right of the trustees to alienate their property inasmuch as
they have averred that the property is a public trust and cannot be alienated
without sanction under Section 26 of the Act and alienation which has been made
by the trustees in favour of defendant Nos. 7 to 9 is void as they have no
title. This is the clear case in the plaint.
Therefore, unless a decision on this aspect and the title of the
trustees is rendered, the further decision, namely, the dismissal of the suit
cannot be reached. It may be a suit for injunction for an order restraining the
defendant Nos. 7 to 9 to interfere with the possession of the lessees but
nonetheless the question of title of the trustees was prominently raised and
the pleadings to that effect have already been referred to above.
As a legal proposition, it is well settled that a question of
title may arise even in a suit for injunction relating to possession. In this
connection 22 reference may be made to the decisions of this Court in the
Sajjadanashin Sayed Md. B.E. Edr(D) by Lrs. SCC 350.
and others - (2005) 6 SCC 202.
Tapovanam and others - (2005) 10 SCC 51. 5 SCC 647
It may be true in the instant case the trustees have taken a stand
before the Court that the possession of the lessees will not be interfered
during the tenure of the lease and save and except in accordance with law. But
that does not mean that the question of title of the trustees which has been
raised and decided is not a matter which is directly or substantially in issue.
In order to give a pronouncement for dismissal of OS 5 of 1978, it
was very crucial for the Court to come to a finding that defendant Nos. 7 to 9
in the suit were landlords having validly purchased the said property from the
trustees of the temple, as it was alleged in the plaint that the trustees of
the temple have 23 unlawfully transferred the property to the defendant Nos. 7
51.The trustees - appellants herein, can validly transfer the
temple property in favour of defendant Nos. 7 to 9 only if they have title to
the property and only if defendant Nos. 7 to 9 have acquired the valid title to
the property, they can initiate steps for dispossession of the lessees i.e.
respondent Nos. 1 to 6 herein.
52.Therefore, the question whether the appellants had title to the
property and can effect a valid transfer of the property in favour of defendant
Nos. 7 to 9 is inextricably connected with the ultimate decision of dismissal
of the suit.
It has been held by this Court in Vithal Yeshwant (2) SCR 285 at
is well settled that if the final decision in any matter at issue between the
parties is based by a Court on its decisions on more than one point - each of
which by itself would be sufficient for the ultimate decision - the decision on
each of these points operates as res judicate between the parties".
The said decision has further been relied on by this Vittal Rao
and others - (2005) 4 SCC 120.
In Sajjadanashin (supra) this Court held whether a question is
directly and substantially in issue has to be decided on examination of the
plaint, the written statements.
Going by this test, I am of the opinion that the question of title
of the appellant and the nature of the trust property is directly and
substantially in issue. The lessees - respondent Nos. 1 to 6 herein invited a
finding on these issues. Having done so, they cannot wriggle out of the same
just because the finding had gone against them in the judgment and more so when
they did not file any appeal against such finding. The said finding can only be
reversed by a competent court only in a manner known to law.
So the decision of this Court in Sajjadanashin (supra) does not
support the case of the lessees - respondent No. 1 to 6 in this case.
Darga, Panruti - (2007) 13 SCC 416, does not show throw any light on the
controversy in this case.
In Tamil Nadu Wakf Board (supra) it has been held in 25 paragraph
11 at page 421 of the report that in the earlier Second Appeal, the High Court
had no occasion to consider whether it was a private wakf or a public wakf. The
plaintiff's claim in this suit was that the suit property was a private
property and not a private wakf property. On these claims, the High Court
rendered its finding in the Second Appeal that the suit property was a wakf
property and is not a private trust property. The learned Judges expressed
their agreement with the conclusion of the High Court in the said Second Appeal
and held that the same has no bearing on the issue in the latter proceeding.
In the said judgment there is no discussion about the principle of
Res-judicata. Head Note `B' of the said judgment refers to Section 11 of the
Civil Procedure Code on Res-judicata, but in the said judgment there is no
discussion on the concept of Res-judicata.
in Tamil Nadu Wakf Board (supra) no point on law was decided. It was a decision
on the facts of that case. Therefore, the said decision has hardly any
relevance to decide the controversy in this case.
So the bar of Res-judicata under Section 11 of the Code is
Res-judicata is an ancient doctrine of universal application and
permeates every civilized system of jurisprudence. This doctrine encapsulates
the basic principles in all judicial systems which provide that an earlier
adjudication is conclusive on the same subject matter between the same parties.
The principles of Res-judicata reflect `a wisdom that is Ramnandan Prasad
Narayan Singh & Ors. - 43 I.A. 91, pg. 98]. In this judgment the Privy
Council traced the principle of Res-judicata from the Old Hindu Text of
Katyayana. Res-judicata was also expounded in Greek custom and also by the
Roman jurists. Reference may be made to Peter Barnett's treatise on `Res
Judicata, Estoppel, and foreign Judgments' Oxford University Press. In footnote
13 at page 8, the learned author has referred to Digest Book 50 Chapter 17,
which quotes the maxims : res judicata pro verifate accipitur (a thing
adjudicated is received as the truth); Justinian, Institutes IV 13.5: `si
judicio tecum actum fuerit sive in rem sive in personam, nihilominus ob id
actio durat, et ideo ipso jure posteo de eadem re adversus te agi potest: sed
debes per exceptionem adjurari': if a defendant omits, either intentionally or
negligently, to raise a question of res judicata by an exceptio, no such
question will be submitted whereas, if such a question 27 is properly raised, it
must be considered whether the issue has been rendered res judicata pro
English Common Law which is influenced by Roman Law also shares
the same concept and it has been held by 99, at 108 that `Res-judicata is
entirely consistent with the rule of the Civil Law'.
Paul A. McDermott in his famous treaties on Res- judicata and
Double Jeopardy referring to the concept of Res-judicata held:
an idea is not only a fundamental principle of the common law but is also to be
found in Roman law, Hindu law, African tribal law, Native American Indian law,
Canon law and many modern civil codes. Such apparently universal acceptance of
the need for a rule of this kind has led one English judge to eulogise it in the
rule of res judicata, while founded on ancient precedent, was dictated by a
wisdom which was for all time."
In the words of Coke, Res-judicata stands for the "inviolable
sanctity of the record" which was of "so 28 high and conclusive a
nature as to admit of no contradiction thereof". It has been said as
nature abhors a vacuum, so "the common law... abhors infiniteness".
[See page 19 of Paul A. McDermott - Res Judicata and Double Jeopardy].
In the recently published Woolf Report in England on Access to
Justice, the importance of this doctrine has been underlined, especially having
regard to the public interest content in this doctrine, namely finality in
Thus, the doctrine of Res-judicata is founded on three principles
which are non-negotiable in any civilized version of jurisprudence. They are:
debet bis vexari pro una et eadem causa: no man should be vexed twice for the
interest republicae ut sit finis litium: it is in the interest of the State
that there should be an end to a litigation; and
judicata pro veritate occipitur: a judicial decision must be accepted as
correct, if I may add, in the absence of a challenge.
Code of Civil Procedure Vol. I, Justice C.K. Thakker, Page 119) 29 67.In Corpus
Juris (Vol. 34 p. 743) explaining the importance of this doctrine, the
following principles have been laid down:
judicata is a rule of universal law pervading every well- regulated system of jurisprudence,
and is put upon two grounds, embodied in various maxims of the common law; the
one, public policy and necessity, which makes it to the interest of the State
that there should be an end to litigation; the other, the hardship to the
individual that he should be vexed twice for the same cause."
These very principles have been accepted by a Constitution Bench
of this Court in Daryao & Ors. V. State of U.P. & Ors. - AIR 1961 SC
In Daryao (supra), it has also been held that Section 11 of the
said Court is not exhaustive of the said principle of Res-judicata. And this
was pointed long - 1920-21 (48) I.A. 187 at page 194 of the report.
Therefore, the importance of the doctrine of Res- judicata can
hardly be over emphasized.
The question whether finding reached by a Court of competent
jurisdiction in a previous suit between the same parties should operate as
Res-judicata or not 30 does not depend on the reasons on which the said finding
is based. In this connection I may refer to the observations of Chief Justice
Rankin in a full Bench decision of the Calcutta High Court in the case The
Chief Justice held as under:
" ..the question whether the decision is correct or erroneous
has no bearing upon the question whether it operates or does not operate as
The learned Chief Justice further held as under:
say, as a result of such disorderly procedure, that the previous decision was
wrong on a point of law, and that therefore it may be disregarded, is an
indefensible form of reasoning."
If the Court reaching the finding has the jurisdiction to do so,
such a finding, in the absence of an appeal, cannot be diluted merely on the
ground that the reasoning is weak or that the finding is unnecessary, even though
it was on a question which was directly and substantially in issue between the
An action at law cannot be equated with a game of chess where the
players can change and choose their stand according to their convenience. Some
sanctity has to be attached to a finding which has been reached 31 by a Court
on the basis of the pleadings between the parties and if such a finding has
been invited at the instance of a party, that party must be held to be bound by
such finding unless an appeal is carried by the aggrieved party against such a
In a three Judge Bench decision in Premier Tyres 1993 Supp (2) SCC
146, this Court held that where two suits connected were tried together and a
finding has been reached in one suit, such a finding becomes final in the
absence of any appeal. In paragraph 4 of the report, the learned Judges have
laid down the following proposition, which I quote:
question is what happens where no appeal is filed, as in this case from the
decree in connected suit. Effect of non- filing of appeal against a judgment or
decree is that it becomes final. This finality can be taken away only in
accordance with law. Same consequences follow when a judgment or decree in a
connected suit is not appealed from".
The learned judges in coming to the said conclusion relied on the
principles laid down by a Constitution Bench in its decision in the case of
Badri Narayan SC 338.
Those principles apply on all fours in the present case.
Therefore, I am of the opinion that neither the Single Bench of
the Madras High Court nor the Division Bench of the same High Court took a
correct view in holding that the finding reached in OS 5 of 1978 or OS 7 of
1978 can be modified in the absence of any appeal from the aforesaid finding.
The following finding which has been reached by the learned trial
Judge and is set out below stands and binds the parties:
"The suit property is therefore not a public temple governed
by the act and since the property is found to be the private property of
Sethurama Chettiar, sanction u/s. 26 of the Hindu Religious Institutions Act is
therefore not necessary. The suit property being the personal property of
Sethurama Chettiar and the same having been sold to defendants 7 to 9, the
latter have become the absolute owners of the suit property and the plaintiffs
in O.S. 5/78 are stopped from challenging the title of the present landlord and
they are bound to attorn the tenancy. They have no right to question the title
of the landlord or his successors-in-title."
supplied) 33 80.The aforesaid finding cannot be diluted or watered down in the
manner in which has been done by the High Court.
The appeal is, therefore, allowed. There shall be no order as to