Doctrine of Res Judicata; Manakkal Nadakumar Vs. M. Subramanyan [Kerala High Court, 20-10-2016]

Civil Procedure Code, 1908 Order 23 Rule 1(4) & Section 11 – re judicata – Principle of – Suit is for partition – filing of earlier suit – dismissed the same as not pressed – Whether it will amount to abandonment of the claim – the permission of the court is not required as in the case of a partition suit, it will have recurrent cause of action and it cannot be said that the suit was filed on the same cause of action as well – the suit is not barred by doctrine of res judicata.

IN THE HIGH COURT OF KERALA AT ERNAKULAM

K. RAMAKRISHNAN, J.

C.R.P.No.365 of 2016

Dated this the 20 th day of October, 2016

ORDER DATED 20-07-2016 IN OS 256/2011 OF SUB COURT, PAYYANNUR

REVISION PETITIONER(S)/DEFENDANT NO.8

MANAKKAL NADAKUMAR, PAYYANNUR.

BY ADV. SRI.M.V.AMARESAN

RESPONDENT(S)/PLAINTIFF AND DEFENDANTS 1 TO 7,9-10

M. SUBRAMANYAN, PAYYANNUR AND 10 OTHERS

R1 BY ADVS. SRI..MOHAN JACOB GEORGE(CAVEATOR) SMT.P.V.PARVATHI SMT.REENA THOMAS SRI.T.K.NAVAS R10 BY ADVS. SRI.GRASHIOUS KURIAKOSE (SR.) SRI.M.M.ANTO

O R D E R

The 8 th defendant in OS.No.256/2011 on the file of the Sub Court, Payyannur is the revision petitioner herein. The plaintiff, who is the first respondent herein filed OS.No.256/2011 on the file of the Sub Court, Payyannur for partition of the plaint schedule properties and allotment of his share in the property. Earlier the same plaintiff filed OS.No.9/2009 for the same relief and in that suit. Contesting defendants appeared and filed written statement claiming certain right in themselves and denying the partibility of the properties and a commission was taken out and the commissioner filed a report and thereafter since the plaintiff felt that extensive amendment is required in the plaint for sustaining the plaint, he not pressed that suit and filed the present suit OS.No.256/2011 for the same relief.

2. The 8 th defendant and others entered appearance and filed a written statement denying the right of the plaintiff and also raised a plea that the present suit is barred by res judicata in view of the fact that the earlier suit OS.No.9/2009 was dismissed as not pressed which will amount to abandoning the right under

# Order 23 Rule 1(4) of the Code of Civil Procedure

On the basis of the plea along with other contentions regarding the availability of the properties for partition and denying the right to the plaintiff to claim partition of the plaint schedule properties, issues were framed of which the following issues namely whether the suit is maintainable and whether the suit is barred by res judicata were framed as issue No.1 and additional issue No.1 respectively and the same were heard as preliminary point under Order 14 Rule 2(2) of the Code and the court below after hearing both sides answered the issue in favour of the plaintiff holding that the suit is not barred by res judicata and the suit is maintainable. That finding of the court below is being challenged by the petitioner by filing the above revision.

3. Heard Sri. M.V. Amaresan, learned counsel appearing for the revision petitioner, Sri. Mohan Jacob George, learned counsel appearing for the first respondent and Sri. Gracious Kuriakose, senior counsel appearing for the 10 th respondent. Others remained absent.

4. Learned counsel appearing for the revision petitioner submitted that since an earlier suit OS.No.90/2009 which was filed by the present plaintiff for the same relief was dismissed as not pressed, that will amount to abandonment of the claim of the petitioner as provided under Order 23 Rule 1 (4) of the Code. Once he has abandoned his claim, it would be deemed to have been decided against him in view of explanation (1) to Section 11 of the Code as it was a former suit, which has been decided as contemplated therein. So the suit is barred by the doctrine of res judicata. He had also relied on the decision reported in

# Muhammed Master v. Abu Haji, 1981 KLT 578

in support of his case. He had also argued that the dictum laid down in

# Muhammed v. Canara Bank, 1991 KHC 435

is not applicable to the facts of this case.

5. On the other hand, learned counsel for the first respondent submitted that as far as the suit for partition is concerned even if it is dismissed for default, there is no bar for filing a fresh suit. Further in order to attract the doctrine of res judicata, the earlier suit must have been tried and decided on merit on the same subject matter and that decision must have become final and that was rendered by a competent court of jurisdiction. Unless the matter has been decided on merit but the same was dismissed on technicalities, even then that will not amount to res judicata in respect of the subsequent suit. Further, the subsequent suit was filed, so the earlier suit was not pressed and as such there is no res judicata arises. He had relied on the decisions reported in

# Mohammed v. Canara Bank, 1991 (2) KLT 455

# Soman Nair v. State of Kerala, 2008 (2) KLT 103

# Vasu v. Varghese, 2007 (2) KLT 1013

# State of U.P v. Jagdish Sharan Agrawal, (2009) 1 SCC 689

# Manohar Lal Behari v. Onkar Das alias Omkar Dass, AIR 1959 Punjab 252

# Shyamsunder v. Mst.Chand Bai, AIR 1962 Rajasthan 96

# Kuppuswamy v. Periannan, AIR 1996 Madras 342

# Thota China Subba Rao v. Mattapalli Raju, AIR 1950 Federal Court 1

# Rajah V. Maheswara Rao v. Rajah V. Rajeswara Rao, 1967 MLJ 175

in support of his case.

6. It is an admitted fact that the plaintiff herein earlier filed OS.No.90/2009 before the same court for partition of the plaint schedule properties against the defendants for effecting partition of the plaint schedule property into six equal shares and allotment of one such share to the plaintiff with mesne profits. It is also an admitted fact that the written statement was filed and the defendants was taken up a contention that the plaintiff has no right in the property and they also contended that the suit properties are not partible. It is also in a way admitted that a commission was taken out for identification of the properties. Later, the plaintiff had not pressed the suit. Thereafter he had filed the present suit OS.No.256/2011 for the same relief against the same defendants. Even in the plaint itself, in para-6 it was specifically mentioned about the filing of the earlier suit OS.No.90/2009 and also it is mentioned therein that in that suit an advocate commissioner was appointed and he had submitted a report that the plaint schedule properties are comprised in two survey numbers RS.No.55/6 and RS.No.56/1 but in the partition deed number 1302/1992, the survey number of the property of the plaint schedule is shown as RS.No.56/11 and he was carried away with an impression that the property partitioned was only in RS.No.56/2011 and not in RS.No.55/6. Further the total extent of the property as mentioned in the earlier paragraph included only 48 cents whereas the plaintiff is entitled to get one third share over 76 cents of the property all together. So, according to the plaintiff, 26 cents of property was not partitioned intentionally and misused by Narayana Warrier, the father of 9 th and 10 th defendants with an idea to cheat the other co-owners. Further in para-8, details of the derivation of right was mentioned which was not there in the earlier plaint. So the earlier suit was not pressed and the present suit was filed. It is not a case where the plaintiff had suppressed the factum of filing the earlier suit and not pressing the same, but he had specifically mentioned the reason for not pressing that suit.

7. Section 11 of the Code reads as follows:

# 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 for 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.

Explanation 1:- The expression “former suit” shall denote a suit which has been decided prior to the suit in question whether or not it was instituted prior thereto

Explanation II:- For the purposes of this section, the competence of a Court shall be determined irrespective of any provisions as to a right of appeal from the decision of such Court.

Explanation 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 other.

Explanation IV:- Any matter which might and ought to have been made ground of defence or attack n such former suit shall be deemed to have been a matter directly and substantially in issue in such suit.

Explanation V:- Any relief claimed in the plaint, which is not expressly granted by the decree, shall for the purposes of this section, be deemed to have been refused.

Explanation VI:- Where persons litigate bona fide in respect of a public right or of a private right claimed in common for themselves and others, all persons interested in such right shall, for the purposes of this section, be deemed to claim under the persons so litigating.

[Explanation VII:- The provisions of this section shall apply to a proceeding for the execution of a decree and references in this section to any suit, issue or former suit shall be construed as references, respectively, to a proceeding for the execution of the decree, question arising in such proceeding and a former proceeding for the execution of that decree.

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.]”

8. In order to attract the doctrine of res judicata, it must be proved that there was a former suit between the same parties and the issue or the subject matter in the first suit and the subsequent suit are directly and substantially in issue were the same and that issue has been decided by a competent court having jurisdiction to consider that issue and that has become final, then the subsequent suit between the same parties in respect of the same issue or subject matter is barred by the principle of res judicata on the principle that there must be a finality to the lis between the same parties and the same parties should not be vexed twice on the same issue. Explanation-1 to section 11 says that the expression former suit shall denote a suit which has been decided to the suit in question whether or not it was instituted prior thereto. So even if two suits were filed simultaneously one after other and even if later suit was disposed of between the parties and if the finding on the subject matter has become final between the parties, then it will act as res judicata in the suit which has not been decided between the same parties though filed in prior point of time. This was so held in the decisions reported in

# Sajjadanashin Syed Md.B.E.EDR (D) by Lrs v. Musa Dadabhai Ummer and others, (2003) 3 SCC 350

# Ramadhar Shrivas v. Bhagwandas, (2005) 13 SCC 1

Admittedly in this case, there is no decision on merit.

9. In the decision reported in

# Manohar Lal Behari v. Onkar Das alias Omkar Dass, AIR 1959 Punjab 252

it has been held that:

“There can be no doubt that an order under Order 9 Rule 8 cannot amount to res judicata for the simple reason that the suit cannot be deemed to have been heard and finally decided by means of this order. The only effect of an order passed under Order 9 Rule 8 is that a fresh suit based on the same cause of action is barred by the provisions of Order 9 Rule 9. However a suit for partition dismissed for default under Order 9 Rule 8 does not bar a subsequent suit for partition. The reason is that the right to enforce a partition is a continuous right which is a legal incident of a joint tenancy and which enures so long as the joint tenancy continues.”

10. In the decision reported in

# Shyamsunder v. Mst.Chand Bai, AIR 1962 Rajasthan 96

it has been held that:

“Where an earlier suit for partition has ended in a decree, but for some reason or another there has been no partition by metes and bounds and it is not possible to give effect to that decree and the parties continue in joint possession even thereafter, a second suit for partition does lie. The principle is that so long as a property is jointly held, until that time a right to partition continues intact or in other wards a right to partition is continuous and a recurring right and cannot be lost by mere non exercise of it. But this principle must be read as subject to an important qualification and that is that any question of right or title which might have been finally decided in the earlier suit cannot be allowed to be reopened in the second suit except perhaps where a case of fraud or the like may be alleged and proved. The earlier decree would operate as a resjudicata only to the extent pointed out above but not otherwise and where the earlier decree is not enforcible, a second suit for possession by partition will be perfectly maintainable so long as the parties joint interest continues”.

11. In the decision reported in

# Kuppuswamy v. Periannan, AIR 1996 Madras 342

it has been held that:

“When a suit for partition on behalf of the minor son by his mother was filed and on attaining majority the son not pressed the claim for partition but pressed for the claim for maintenance for the mother alone was proceeded it was held that he must have deemed to have revoked intention to separate and the subsequent suit by the son that he is divided in status and not a coparcener is not maintainable.”

12. The dictum laid down in

# Nabisha Begum v. Arumuga Thevar, AIR 1974 Mad. 273

was followed in the decision where it has been observed as follows:

“In a suit for partition where the preliminary decree itself has not been passed, the position is that though the next friend, in filing the suit for partition, has made an unequivocal declaration on behalf of the minor to separate, that declaration would not become an effective declaration because the law says that such a declaration is subject to approval by the Court. Till a preliminary decree is passed, the stage of the Court approving or disapproving the declaration made by the next friend of the minor would not arise. In such a case, when the minor on attaining majority abandons the suit, the position would be similar to a case where the Court holds that it is not in the interests of the minor to separate and refuses to grant a preliminary decree.”

13. The same view has been reiterated in the decision reported in

# Thota China Subba Rao v. Mattapalli Raju (AIR 1950 Federal Court 1).

That was a case where suit was for redemption was filed and on the date of fixing for argument, the counsel informed that the plaintiff is not proceeding with the case and the suit was dismissed and being a suit for redemption until the right is extinguished he will be getting cause of action to file the suit and so the subsequent suit filed by the plaintiff for the same releif was held to be not barred and it has been held that in such circumstances Order 23 Rule 1 is not applicable;

14. In the decision reported in

# Rajah V. Maheswara Rao v. Rajah V. Rajeswara Rao, 1967 MLJ 175

it has been held that:

“So far as suit for partition or suit for redemption is concerned it is axiomatic that, when the plaintiff withdraws his suit, he will be entitled to file a fresh suit as the cause of action is a recurring cause of action. Even if the plaintiff is not granted permission, under Order 23 Rule 1 of the Civil Procedure Code, he will nevertheless have a right to file the suit for partition at any time he pleases”.

15. In the decision reported in

# Soman Nair v. State of Kerala, 2008 (2) KLT 103

it has been held that:

“Earlier application for impleading dismissed as not pressed for the reason that there was defect of non issuance of notice which forced the plaintiff not to press the application. The second application for the same purpose is not bared by res judicata.”

In this case this court has distinguished the dictum laid down in the decision reported in Muhammed Master’s case (cited supra) relied on by the counsel for the revision petitioner.

16. In the decision reported in

# Muhammed v. Canara Bank, 1991 (2) KLT 455

it has been held that:

“Sub-rule ()4 of Rule 1 of Order XXIII CPC precluded the plaintiff from instituting a fresh suit where the earlier suit was withdrawn or abandoned without permission of the Court. It is clear that the prohibition is in regard to the institution of a fresh suit after the earlier suit on the same cause of action had been withdrawn without the leave of the court. But, where the subsequent suit was pending when the earlier one was dismissed as withdrawn, abandoned or as not pressed, the provisions of Order XXIII Rule 1 in terms would be inapplicable”.

17. This court has relied on the decision reported in

# Mangi Lal v. Radha Mohan, AIR 1930 Lahore 599

wherein it has been observed that:

“Order 23 Rule 1, refers to permission to withdraw the suit with liberty to institute a fresh suit after the first one has been withdrawn. O.23 Rule 1 cannot be said read so as to bar a suit which has already been instituted before the other suit has been abandoned or dismissed. The rule is clear and can only be applied to suits instituted after the withdrawal or abandonment of the previous suits”.

18. In the decision reported in

# Daryao v. State of U.P., AIR 1961 SC 1457

it has been held that:

“The dismissal of the earlier suit which was not on the merits could certainly not operate as a bar for the subsequent suit on the same cause of action”.

19. In the decision reported in

# State of UP v. Jagdish Sharan Agrawal, (2009) 1 SCC 689

it has been held that dismissal of the suit for non prosecution was not a decision on merit and that cannot operate as a res judicata.

20. In the decision reported in

# Vasu v. Varghese, 2007 (4) KLT 1013

it has been held that:

“The word ‘purport’ indicates that the decision should convey a meaning, substance, gist etc. When it is thus construed, the meaning of the term “purports to have been finally decided” indicates that the decision in a former proceeding should reflect a final decision on the issues raised and not a dismissal on technical grounds like “not pressed” etc. As the word ‘purports’ also indicates a proper decision as having been arrived at by the court, the contention that it would take dismissals like the one in question cannot be accepted. S.15 clearly bars reopening of decisions which have become final and if a petition is dismissed as not pressed, it cannot be taken that there was a final decision on the issues arising in the matter, as the court had no occasion to go into the contentions of the parties and render a decision on such issues”.

21. This was a case where the landlord filed an application for eviction and later it was dismissed as not pressed. Thereafter another application was filed on the same grounds and in such circumstances, this court has held that that will not be hit by section 15 of the Kerala Building (Lease and Rent Control) Act, 1965 which is akin to the principle of res judicata under section 11 of the Code of Civil Procedure.

22. In the decision reported in

# Alavi v. State of Kerala, 2014 KHC 3121

this court has distinguished the dictum laid down in the decision reported in

# Muhammed Master v. Abu Haji, 1981 KLT 578

and held that the principle of re judicata is not applicable.

23. So it is clear from the above dictums that in order to attract the bar of res judicata for a subsequent suit, it must be decided on merits and dismissal on technical grounds or it was dismissed as not pressed will not operate as res judicata in the subsequent suit as the issues have not been heard and decided finally on merit. Further it is also clear from the above dictums that in respect of suit for partition as well redemption of mortgage, the dismissal of an earlier suit as not pressed or dismissed on technical grounds will not amount to res judicata for filing a subsequent suit as it will be having recurring cause of action till the right to claim partition or redemption is totally extinguished.

24. The dictum in the decision reported in Mohammed Master’s case (cited supra) relied on by the counsel for the revision petitioner is not applicable to the facts of this case as it was filed challenging an election and certain allegations regarding the corruption made as ground of attack challenging the election was not pressed by the petitioner and subsequently in the appeal when it was attempted to be raised, it was held that since he had during the proceedings had not pressed those allegations, it will amount to deemed abandonment of that claim and as such he cannot re-agitate the same on a later occasion in the same proceedings as he had abandoned those grounds. So under such circumstances, the dictum laid down in the above decisions is not applicable to the facts of this case.

25. The fact that the present suit is one for partition is not in dispute. It is also mentioned in the plaint itself about the filing of the earlier suit and dismissing the same as not pressed and it was mentioned that certain amendments were required for claiming the right enlarging the claim for partition as a reason for not pressing the earlier suit. So under such circumstances, it cannot be said that it will amount to abandonment of the claim as contemplated under Order 23 Rule 1(4) of Code so as to bar the subsequent suit and in such circumstances, the permission of the court is not required as in the case of a partition suit, it will have recurrent cause of action and it cannot be said that the suit was filed on the same cause of action as well. So under such circumstances, the court below was perfectly justified in coming to the conclusion that the suit is not barred by doctrine of res judicata and the suit is maintainable and rightly answered the issues in favour of the plaintiff. There is no illegality committed by the court below warranting interference of this court invoking the revisional jurisdiction under section 115 of the Code. The revision lacks merit and the same is hereby dismissed.

In the result, the revision fails and the same is hereby dismissed.

Communicate a copy of this order to the court below at the earliest.

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