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Tuesday, December 9, 2014

Whether the Respondents/Tenants (‘Tenants’ for brevity) of the demised property are barred by the principle of res judicata from challenging the findings of the Trial Court especially the Trust’s ownership of the demised property, since the said Tenants have filed only one appeal, i.e. arising from O.S.6/78, without assailing identical conclusions arrived at by the Trial Court in O.S.5/78 and O.S.7/78.= We are of the opinion that having failed or neglected or concertedly avoided filing appeals against the decrees in O.S.5/78 and O.S.7/78 the cause of the Respondents/Tenants was permanently sealed and foreclosed since res judicata applied against them.=2014- Oct. Part - CIVIL APPEAL No.4227 OF 2003 SRI GANGAI VINAYAGAR TEMPLE & ANR. .…..APPELLANTS Versus MEENAKSHI AMMAL & ORS. …..RESPONDENTS

                                                                  REPORTABLE

                        IN THE SUPREME COURT OF INDIA

                        CIVIL APPELLATE JURISDICTION

                        CIVIL APPEAL No.4227 OF 2003


SRI GANGAI VINAYAGAR TEMPLE & ANR.       .…..APPELLANTS

      Versus

MEENAKSHI AMMAL & ORS.                               …..RESPONDENTS



                               J U D G M E N T



VIKRAMAJIT SEN, J.


1.     A maze of facts and events,  and  a  labyrinth  of  legal  conundrums
confront  us  in  the  course  of  the   determination   of   this   Appeal.
Essentially, it is the ambit and sweep of  the  principle  of  res  judicata
that is at the centre of controversy.   Additionally, Order  II  Rule  2  of
the Code of  Civil  Procedure  (“CPC”  for  brevity),  which  enshrines  but
another complexion of res judicata, also  requires  to  be  cogitated  upon.
The contention of the Appellant through its Trustees (hereafter referred  to
as ‘Trust’) is that the Respondents/Tenants (‘Tenants’ for brevity)  of  the
demised  property  are  barred  by  the  principle  of  res  judicata   from
challenging  the  findings  of  the  Trial  Court  especially  the   Trust’s
ownership of the demised property, since the said Tenants  have  filed  only
one  appeal,  i.e.  arising  from  O.S.6/78,  without  assailing   identical
conclusions arrived at by the Trial Court in O.S.5/78 and O.S.7/78.

2.     The  uncontroverted  facts  are  that  the  husband  of   the   first
Respondent/Tenants (namely, Kannaiya  Chettiar  along  with  another  person
Venkatarama Keddiar) the suit land  on  lease  from  Sethurama  Chettiar  on
1.3.1953 for a period of 12 years on  a  monthly  rent  of  Rs.150/-.    The
Tenants were permitted to construct a cinema theatre on  the  suit  land  at
their own cost, which they  have  done  in  the  name  and  style  of  ‘Raja
Talkies’, which is still in existence.  In 1959 one of  the  partners  died,
resulting in the husband of Respondent No.1 assuming sole proprietorship  of
‘Raja Talkies’.   On 8.11.1967 a fresh Registered  Notaire  Lease  Deed  was
executed for a period of 15  years  commencing  from  1.1.1968  between  the
husband of Respondent No.1 and the Appellant Trust, Gangai Vinayagar  Temple
through  its  Trustee’s   President   namely,   Shri   Sethurama   Chettiar.
Consequent on the death of the husband of Respondent No.1, she continued  as
the tenant along with her children as  legal  representatives  of  her  late
husband.   It is also not in dispute that the Trust sold the  suit  property
to Sarvashri P.Lakshamanan, P.Vadivelu and P.Saibabha who were impleaded  by
the Tenants as Defendants 7 to 9 in O.S. 5/78.  The  Tenants  were  informed
of this transaction on 14.10.1976, calling upon them to attorn  to  the  new
owners.  The repercussion  was  that  in  1976  itself,  the  Tenants  filed
O.S.5/78 (re-numbered) in which they had assailed the sale of the suit  land
on the predication that the legal formalities necessary for the transfer  of
trust property had not been adhered  to  as  it  was  a  Public  Trust,  and
further that, subsequent to  the  aforementioned  transaction,  the  Tenants
(Plaintiffs in O.S.5/78) apprehended their dispossession  therefrom  at  the
hands of the Defendants, including Defendants 7 to  9   (hereinafter  called
‘Transferees’).    The Prayers have been reproduced infra.   In  this  suit,
the Trust as well as the Transferees pleaded  in  their  respective  Written
Statements that they had neither threatened nor harboured any  intention  to
dispossess the Tenants without due process of law.

3.    The sequel of this first salvo of litigation was  the  filing  of  two
suits by the Trust, being O.S.6/78 and O.S.7/78, claiming  arrears  of  rent
from  the  Tenants  (Respondent  Nos.  1  to  6  before  us,  in  which  the
Transferees were not impleaded)  pertaining  to  the  period  prior  to  the
transfer of the suit  lands  by  them  to  the  Transferees.    Despite  the
pleadings therein as mentioned  above,  O.S.5/78  came  to  be  ‘dismissed’.
O.S.6/78 was partially decreed; whilst O.S.7/78 was dismissed on the  ground
that the alleged claim of arrears of rent in this suit was  not  tenable  as
the said land was part of and encompassed in the suit  land  which  was  the
subject matter of O.S.6/78 and,  accordingly,  the  claim  was  covered  and
subsumed therein.  The Tenants have not  filed  any  appeal  in  respect  of
O.S.5/78 and O.S.7/78; and the  Trust  has  not  filed  any  appeal  on  the
dismissal of their suit O.S.7/78.    All  three  suits  have  been  decided,
after  recording  of  common  evidence,  by  a  common  Judgment  passed  on
6.11.1982 by the Court of 2nd  Additional  District  Judge  at  Pondicherry.
Pursuant to this Judgment three different decrees have been drawn.

4.    The prayers contained in O.S.5/78 read as follows:
(i)   Establishing the leasehold right  of  the  plaintiffs  and  to  be  in
possession of the schedule mentioned property till  the  end  of  the  lease
period viz. 1-1-1983; and

For permanent injunction restraining the defendants, their agents,  servants
and other representatives from interfering  with  the  plaintiff’s  peaceful
possession and enjoyment of the suit property till 1-1-1983.

Directing the defendants to pay to the plaintiff the costs of the suit; and

Grant such other relief as this Honourable court may be pleased to order  in
the circumstances of the case.


It is noteworthy that the Trust had not pressed for the framing of an  Issue
predicated on Section 116 of the Evidence Act.   In the plaint in  O.S.5/78,
the Tenant had pleaded that the  Defendants  “have  no  right  to  sell  the
property as the same is Trust property belonging to the  1st  Defendant  and
as such the alienation would be totally void  being  a  breach  of  trust…..
The alienation in favour of the Defendants 7 to 9 being void, they  have  no
title to the property…..  The  cause  of  action  arose  on  30.6.1976  when
Defendants 2 to 6 purported to convey the suit property to Defendants  7  to
9  and,  thereafter,  when  Defendants  are  threatening  to   disturb   the
plaintiffs possession.”  Despite the  specificity  of  these  pleadings  the
Tenants had ostensibly not prayed for any relief with regard  to  the  title
of the Transferee.   Nevertheless, on careful consideration  it  appears  to
us  that,  awkwardly  worded  though  it  avowedly  is,  the  first   prayer
endeavours to articulate this very prayer.   In  any  event,  the  pleadings
are sufficient to lay the foundations for the assumption  that  the  Tenants
were desirous of assailing the transfer of the title  of  the  land.    That
being the position, the  embargo  of  Order  II  Rule  2  CPC  would  become
operative against the Tenants.  The Issue relevant for the present  purposes
(the burden of proof of which was set on the Tenants) reads thus:-
(2)   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.

We hasten to clarify that had the Tenants (in O.S. 5/78) merely expressed  a
fear or apprehension of dispossession at the hands of the persons  that  had
been arrayed as defendants, either  collectively  or  individually,  without
touching upon the legal character of the suit property as well as the  legal
propriety and capacity of Trust (Defendants 2 to 6) to transfer  it  to  the
Transferees (Defendants 7 to  9),  Order  II  Rule  2  would  not  had  been
attracted.   These questions could then have  been  subsequently  raised  in
the event the new owners, namely, Defendants  7  to  9  were  to  bring  any
action or claim before a court of law against the Tenants.   It is for  this
reason that we are unable to agree with the determination  of  the  Division
Bench in the Impugned  Order  that  this  Issue  was  not  central  to  Suit
O.S.5/78 and that,  therefore,  res  judicata  did  not  apply  despite  the
failure of the Tenants to  appeal  against  the  verdict  in  O.S.5/78.   We
cannot sustain the order of ‘dismissal’ of the Suit O.S.5/78  nay  even  the
necessity of conducting a trial in that lis in the wake of  the  Defendants’
averments in their Written Statement.  Ergo, it seems to us that  an  appeal
therefrom was essential.   We also think it to be  extremely  relevant  that
the Tenants did not assail the judgment and decree in O.S.7/78 since it  was
reiterated therein that the Trust  was  the  private  property  of  Sethuram
Chettiar.  This finding has therefore attained finality,  both  in  O.S.5/78
and O.S.7/78, which thereupon  assumed  the  character  the  “former  suit”.
Since the Trust had also not filed an appeal against O.S.7/78  res  judicata
became operative against it on two aspects – firstly  that  there  were  two
tenancies and secondly that any  arrears  of  rent  had  separately  accrued
other than what was claimed in O.S.6/78.

5.    It is in similar circumstances that a Coordinate Bench  had  concluded
in Premier Tyres Limited vs. Kerala State Road Transport  Corporation,  1993
(Suppl.) 2 SCC 146, that the effect of non-filing of  an  appeal  against  a
decree  is  that  it  attains  finality  and  that  this  consequence  would
logically ensue when a decree in a connected  suit  is  not  appealed  from.
It permeates, as in  the  case  in  hand,  into  the  sinews  of  all  suits
(O.S.5/78 and O.S.7/78) since common Issues had been framed, a common  Trial
had been conducted, common evidence was recorded, and a common Judgment  had
been rendered.   It seems to us that the  Division  Bench  had  adopted  the
dialectic of the challenge to the title  being  irrelevant  in  O.S.5/78  in
order to distinguish and then digress from the decision  in  Premier  Tyres.
Facially, all the factors are common to each suit, namely,  the  commonality
of Issues, Trial and Verdict rendering any effort to differentiate  them  to
be an exercise in futility.   A reading of the plaint and of Issue  No.2  in
O.S.5/78 (supra) will make it  impossible  to  harbour  the  view  that  the
contours of controversy in that case  concerned  only  the  apprehension  of
forcible  dispossession  of  the  Tenants  by  the  Trust  as  well  as  the
Transferees.    Otherwise,  Issue  No.2  was  palpably  irrelevant  to   the
decision  in  O.S.5/78  and  an  ignorable  surplusage.    Furthermore,  the
dismissal of the suit, even though it was  on  the  specious  and  untenable
ground that no  cause  of  action  had  arisen  to  justify  the  filing  of
O.S.5/78, would inexorably lead to the conclusion  that  the  Tenants  were,
thereafter, bereft of any right in the suit  property.    The  dismissal  of
O.S.5/78, arguably, would become fatal to the interest of the Tenant,  if  a
pedantic perspective is pursued.

6.    As outlined above, in the impugned Judgment the Division Bench of  the
High Court of Judicature at Madras had highlighted that  the  only  question
argued before it was that the principles of  res  judicata  applied  against
the Tenant since it negligently  if  not  concertedly  did  not  appeal  the
verdict in O.S.5/78.  At the threshold of its reasoning, it referred to  the
decision of this Court in  Premier  Tyres  and  pithily  observed  that  the
argument raised on behalf of the Trust would be “impeccable and  would  have
to be accepted, only if the Appellant succeeds in  establishing  that  Issue
No. 2 in O.S. 5/78 was, in fact, an issue which directly  and  substantially
arose for consideration  in  that  suit  and  that  the  findings  had  been
recorded thereon in favour of the Appellant”.   It would have been  expected
of learned Counsel for the parties to have cited two decisions of  different
coordinate Benches of this Court, namely, Lonankutty vs.  Thomman  (1976)  3
SCC  528  and  Narayana  Prabhu  Venkateswara  Prabhu  vs.  Narayana  Prabhu
Krishna Prabhu (1977) 2 SCC 181, which  throw  considerable  light  on  this
subject.    Regrettably,  learned  Senior  Counsel  for  the  parties   have
neglected to draw notice to these two precedents, even before us.

7.    Lonankutty concerned a dispute between two owners of  adjacent  lands.
The land of the Appellant was bounded on two sides  by  a  river  while  the
land of the respondents was landlocked, which prompted  the  respondents  to
construct a bund with sluice-gates on the border of  their  lands,  so  that
they could draw water from the Appellant’s land for the purposes of  fishing
and agriculture and thereafter divert the water back through the  same  land
to the river. The Appellant who was cultivating prawn-fishing  on  his  land
aggrieved by the construction of the bund believing it to have hampered  his
prawn fishing; therefore, he  filed  a  suit  for  perpetual  and  mandatory
injunction against the respondents. The respondents in  turn  filed  a  suit
for injunction against the appellants and claimed rights  of  easement.  The
two suits were disposed of separately by the Court  of  Munsif  and  decrees
were passed in both the suits to the effect that  the  respondents  were  to
have rights of easement  only  with  respect  to  agriculture  but  not  for
fishing. From the decrees, two set of appeals were  preferred  by  both  the
parties, leading to four appeals altogether.   The District Court  dismissed
all the appeals and thereby confirmed the  decrees.   The  respondents  then
filed second appeals against the decisions which arose from the  appellant’s
suit but no second appeal was preferred from the appeals arising from  their
own suit. Before the High Court in Second  Appeal,  the  Appellant  promptly
pressed the preliminary  objection  of  res  judicata  contending  that  the
decrees passed by the  District  Court  in  the  appeals  arising  from  the
respondents’ suit had  become  final.  The  High  Court,  however,  was  not
impressed with that contention, primarily keeping the  case  of  Narhari  in
perspective, and remanded the matter to the  District  Court  after  setting
aside the judgment and decree of the District Court. The District  Court  in
remand  confirmed  the  previous  view  taken  by  it,  against  which   the
respondent again filed a Second Appeal in the High Court which was  allowed,
resulting in filing of a SLP by the Appellant. The sole  and  central  issue
canvassed before this Court was whether the  Respondents’  right  to  divert
the flow of water through the  Appellant’s  land  for  fishing  purposes  is
barred by res judicata, and this Court answered  in  the  affirmative.  This
Court concluded that the Respondents, by not filing further appeals  against
the decree passed by the District Court in the appeals arising out of  their
own suit allowed that decision to become final and conclusive.  It  observed
further:
“That decision, not having been appealed against, could not be  reopened  in
the second appeal arising out of the appellant’s  suit.  The  issue  whether
respondents had the easementary right to  the  flow  of  water  through  the
appellant’s land for fishing purposes  was  directly  and  substantially  in
issue in the respondent’s suit. That issue was heard and finally decided  by
the District Court  in  a  proceeding  between  the  same  parties  and  the
decision was rendered before the High Court decided the second  appeal…..The
circumstance that the District Court disposed of the 4 appeals by  a  common
judgment cannot affect the application of Section 11…  The  failure  of  the
respondents to challenge the decision of the District Court  insofar  as  it
pertained to their suits attracts the application of Section 11  because  to
the extent to which  the  District  Court  decided  issues  arising  in  the
respondents’ suit against them, that decision would operate as res  judicata
since       it   was   not appealed against.”


8.    In Prabhu, the parties were descendants of  one  Narayan  Prabhu.  The
respondent, third son among four sons of Narayan Prabhu, filed  a  suit  for
partition against all the sons claiming all the concerned items to be  joint
family property. The appellant, the eldest son,  filed  a  money  suit  only
against the respondent on the ground that trade of tobacco shops run by  the
parties in that suit was his self-acquired property; consequently,  that  he
was  entitled  to  money  due  on  account  of  tobacco  delivered  to   the
respondent’s shop. The  Trial  Court  tried  both  the  suits  together  and
determined them by way of two decrees on the same  date,  holding  that  the
shops in question belonged to  the  concerned  individuals.  The  respondent
appealed against both the  decrees  before  the  High  Court,  and  the  two
appeals were decided in  continuation  under  separate  headings.  The  High
Court while reversing the findings of the Trial Court held the shops  to  be
part of joint family trade in tobacco and thus  dismissed  the  money  suit.
The appellant thereafter approached this Court assailing  the  judgment  and
decree passed in the partition suit, whilst leaving the judgment and  decree
in the money suit unchallenged. Expectedly, the issue of  res  judicata  was
evoked by the respondent, which was sought to be doused by the appellant  by
contending, inter alia, that no certificate of fitness under  the  unamended
Article 133(1)(c) of the Constitution of India was granted with  respect  to
the money suit and also that parties were not  common  in  both  the  suits.
This Court while disagreeing with the grounds taken by the  appellant  noted
that there were  two  separate  decrees  and  appellant  could  always  have
challenged the correctness or finality of the decision of the High Court  in
the money suit by means of an application for Special Leave  to  Appeal  and
approved the views taken by this Court in Lonankutty and reiterated:
“The expression “former suit”, according to Explanation I of Section  11  of
the Civil Procedure Code, makes it  clear  that,  if  a  decision  is  given
before the institution of the proceeding which is sought  to  be  barred  by
res judicata, and that decision is allowed to become final or becomes  final
by operation of law, a bar of res judicata would emerge.”


9.    O.S.6/78 was  a  suit  filed  by  the  Trust  claiming  an  amount  of
Rs.11468/- as arrears of rent from the Tenants.   Significantly,  the  three
Transferees (who were Defendants 7 to 9 in O.S.5/78) had not been  impleaded
by the Trust palpably because no relief had been claimed  against  them  and
additionally because their presence was not relevant for  the  determination
of the Issues  that  had  arisen  in  O.S.6/78  and  O.S.7/78.   The  claims
pertained to a period prior to the assailed transfer  of  the  demised  land
from the Trust to the Transferees.   It is also  noteworthy  that  even  the
Tenants did not seek their impleadments  despite  the  fact  that  they  had
already laid siege to the title of the said Transferees in their  plaint  in
O.S.5/78 and had specifically pleaded so  in  their  Written  Statements  in
O.S.6/78 and O.S.7/78.   In this Suit, it was averred  that  the  Trust  had
sold the suit  land  to  the  aforementioned  Sarvshri  P.  Lakshamanan,  P.
Vadivelu and P. Saibabha (Transferees being Defendants 7 to 9 in  O.S.5/78).
  It was, inter alia,  pleaded  that  the  advance  rent  of  Rs.7000/-  was
repayable/adjustable only at the time  of  the  handing  over  of  the  suit
property by the Tenant to the Trust.  Since relief claimed  in  O.S.6/78  or
O.S.7/78  had  no  causality  or  connection  with  the  Transferees   their
impleadment was not necessary, in our opinion.  The defence of  the  Tenants
was  that  the  Trust  was  a  public  temple  which  could  not  have  been
sold/transferred by Shri Sethurama Chettiar and  secondly  that  the  amount
claimed as arrears of rent was not due and payable.    Various  other  pleas
had been raised to which we need not advert as  they  are  not  germane  for
deciding the present Appeal.   It will  be  relevant,  however,  to  mention
that the Tenants had also denied that any additional land had been taken  on
rent.    Of the six Issues which came to be struck in  O.S.  6/78  and  O.S.
7/78, the following are relevant and, therefore, reproduced:-
“(2) Whether the entire suit property (‘A’ and ‘B’ schedule)  in  possession
of the defendants are covered by the lease deed  dated  8-11-67  or  whether
there was any subsequent oral agreement in respect of ‘B’ schedule  property
alone and if so, what is its lease amount?
(3)  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.”

10.   As already noted above,  O.S.6/78  was  decreed  only  for  a  sum  of
Rs.268/- holding, inter alia, that the Tenants cannot adjust the advance  of
Rs.7000/- as against the rent claim of Rs.11,468/- without the  sanction  of
the landlord; that since the suit property was not owned by a public  temple
but by a private trust,  being  the  personal  property  of  Shri  Sethurama
Chettiar, sanction under Section 26 of the Hindu Religious Institutions  Act
was not necessary; and that the Transferees had become the  absolute  owners
of the suit property by transfer/sale.   Most  significantly,  it  was  also
held that the Tenants  “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.”
It is also palpably perceptible that the common Judgment  entered  into  the
arena of title and  transferability  of  the  suit  property  owing  to  the
Tenants’ stance in all three suits, thereby rendering imperative the  filing
of Appeals against the decrees in O.S.5/78 as well as O.S.7/78.

11.   In O.S.7/78,  as  already  outlined,  the  Trust  sought  recovery  of
Rs.2600/- as arrears of rent in respect of an alleged  oral  lease  for  the
land mentioned in Schedule ‘B’ situated on the western side of the  Schedule
‘A’ property.   The defence of the Tenants  was  that  the  entire  property
comprising both Schedules ‘A’ and ‘B’ was a composite  whole,  and  was  let
out for a period of 15 years by means of the  Lease  Deed  dated  8.11.1967.
It was also pleaded that the suit had been filed  by  a  public  trust  and,
thus, was not competent as framed.  The Trial Court  held  that  the  entire
demised property was one, covered by  the  aforementioned  Registered  Lease
Deed, and, accordingly, O.S. 7/78 was dismissed with costs.    It  has  been
correctly observed in the common  Judgment  dated  6.11.1982  by  which  all
three Suits have been decided,  that  the  Issues  framed  in  O.S.6/78  and
O.S.7/78 were ‘one  and  the  same’.    In  a  nut-shell,  the  Trial  Court
returned the finding that the Trust was not a Public Trust governed  by  the
Hindu Religious Institutions Act, 1972 and that  the  sale  of  the  demised
suit land by the Private Trust through Shri Sethurama Chettiar to  Sarvashri
P. Lakshamanan, P. Vadivelu and P. Saibabha, was not contrary to law.

12.   As has already been reflected and  commented  upon,  the  Tenants  had
filed an Appeal only in respect of  O.S.6/78,  although  common  conclusions
had been arrived at in all three  Suits,  except  for  some  inconsequential
differences.  It is trite that the obligation and duty to  frame  Issues  is
cast solely on the Court which may, nevertheless,  elicit  suggestions  from
the litigating adversaries before it.    Issues settled by the  Court  under
Order XIV  CPC  constitute  the  crystallization  of  the  conflict  or  the
distillation of the dispute between the parties to the lis, and are  in  the
nature of disputed questions of fact and/or of law.  While discharging  this
primary function, the Court is expected  to  peruse  the  pleadings  of  the
parties in order to extract their essence, analyse the  allegations  of  the
parties  and  the  contents  of  the  documents  produced  by   them,   and,
thereafter, proceed to  frame  the  Issues.   In  our  opinion,  so  far  as
O.S.5/78 is concerned, the question of  the  title  of  the  property  would
ordinarily remain irrelevant to that litigation for two  reasons.   Firstly,
Section 116 of the Evidence Act bars the Lessee/Licensee  from  constructing
if not concocting a challenge vis-à-vis the title  of  the  Lessor/Licensor,
if  it  is  the  latter  who  has  put  the  former  in  possession  of  the
demised/licensed premises.  In  the  case  in  hand,  the  first  lease  was
executed by Shri Sethurama Chettiar and the renewal or the succeeding  lease
was between the Trust through its President,  Shri  Sethurama  Chettiar,  on
the one hand, and the Tenants  on  the  other.     The  Tenants,  therefore,
stood legally impeded and foreclosed from assailing the title of the  Trust,
as has been correctly concluded by the Trial Court, even though  a  specific
Issue had not been struck  in  this  context  in  O.S.5/78.    There  is  no
gainsaying that where parties are aware of the rival cases  the  failure  to
formally formulate an Issue fades into insignificance,  especially  when  it
is prominently present in connected matters and extensive evidence has  been
recorded on it without demur.  Secondly, on a proper perusal of the  plaint,
it ought  to  have  been  palpably  evident  that  the  Plaintiff/Tenant  in
O.S.5/78 feared dispossession from the  demised  premises  because  of  what
they considered to be an illegal transfer; but since all the Defendants  had
averred in their Written Statement that they had no intention of  doing  so,
the suit ought not to have been dismissed but ought  to  have  been  decreed
without more ado solely so far as the prayer of  injunction  was  concerned.
But, in the Trial Court the title to the leased land had become the  fulcrum
of the fight, owing  to  the  pleadings  of  the  Tenant  in  which  it  had
repeatedly and steadfastly challenged the title of the Trust as well as  the
Transferees.   The  Tenant  should  not  be  permitted  to   approbate   and
reprobate, as per its whim or convenience,  by  disowning  or  abandoning  a
controversy it has sought to have adjudicated.

13.   Chapter VIII of the Evidence  Act  under  the  heading  ‘Estoppel’  is
important for the present purposes.  This fasciculus  comprises  only  three
provisions, being Sections 115 to 117.   For  ease  of  reference  we  shall
reproduce Section 116:-
“116. Estoppel of tenant; and of licensee  of  person  in  possession.-   No
tenant of immovable  property,  or  person  claiming  through  such  tenant,
shall, during the continuation of the tenancy, be  permitted  to  deny  that
the landlord of such tenant had, at the beginning of the  tenancy,  a  title
to such immovable property; and  no  person  who  came  upon  any  immovable
property by the license of  the  person  in  possession  thereof,  shall  be
permitted to deny that such person had a title to  such  possession  at  the
time when such license was given.”

Plainly, this provision precludes the consideration of any challenge to  the
ownership of the Trust as the claim for arrears of rent  was  restricted  to
the period prior to  the  sale  of  the  suit  land  by  the  Trust  to  the
Transferees, namely Defendants 7 to 9 in O.S.5/78.  The position would  have
been appreciably different, were the said Defendants  7  to  9  to  lay  any
claim against the Tenants for arrears of  rent  or,  for  that  matter,  any
other relief.   This is for the reason that Section 116 of the Evidence  Act
would not come into play in any dispute between the Tenants on the one  hand
and the Transferees on the other.

14.   We think it prudent to extract the conclusion from the Judgment  dated
6.11.1982 common to  O.S.5/78,  O.S.6/78  and  O.S.7/78,  since  it  is  the
fountainhead, the fulcrum of the legal nodus which we have to  unravel.  The
Trial Court has opined thus -
When no trustee member or the Government is  claiming  any  right  over  the
suit property, it is not known why the Tenant should entertain  a  doubt  as
to whether real title has passed on to the present purchasers  of  the  suit
property.

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  Sethrama
Chettiar, sanction  O/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-life.

In the result, the ample evidence produced  by  the  defendant  would  prove
that the suit property is the private property  of  Sethurama  Chettiar  and
sale deed dated 30.6.76 in Ex.A.19 is valid and the defendants 7  to  9  are
now the real owners of the property who are entitled to take  possession  of
the property after expiry of the lease.   In  the  result,  the  issues  are
answered accordingly.
…………….
In 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.  Regarding O.S.7/78, since  the
court has held that the entire property is one, there cannot  be  any  lease
amount for the rear portion and it dismissed with cost.



15.   The Tenants filed Appeal 581 of 1983 in the High Court  of  Judicature
at Madras which came to be decided by  the  learned  Single  Judge  on  25th
April, 1997.   It is indeed significant that the Transferees  had  not  been
impleaded by the Tenants in the  First  Appeal,  although  the  former  were
parties before the Trial Court in the Tenants’ own  suit,  viz.  O.S.  5/78,
and since any decision favourable  to  the  Tenants  as  regards  the  legal
propriety of the transfer  of  title  would  severely  impact  upon  if  not
annihilate  the  Transferees’  rights,   and   since   O.S.5/78   had   been
‘dismissed’, yet, regardless, no appeal  thereagainst  had  been  preferred.
Shri Sethurama Chettiar was represented through  his  legal  representatives
in Appeal 581 of 1983 which  had  been  preferred  in  respect  of  O.S.6/78
specifically.   We have perused the contents of the Tenants Appeal,  and  as
we expected, the gravamen of  the  assault  was  the  public  character  and
nature of the Trust and the legal imperfection of its transfer.   This  also
fortifies the analysis that the dispute raised by the Tenants in their  suit
as well as their defence to the Trust’s suits  was  that  mentioned  in  the
preceding sentence.  This is indeed remarkable since the  Tenant  was  fully
alive to the detrimental nature of the decision in O.S.  5/78  and  that  it
critically crippled its rights and interests, as is evident  from  the  fact
that the Tenant filed a Review bearing CRA No. 1/1993, which by  a  detailed
Judgment dated 19.3.1999 was dismissed.    So far as the contentions of  the
parties are concerned, the First Appellate  Court  had  noted,  inter  alia,
that the Tenants had denied any liability towards the arrears of rent;  that
the Tenant had argued that the Trust’s Suits were not  maintainable  in  law
for want of necessary sanction under  Section  25  of  the  Hindu  Religious
Institutions Act, 1972; that the Tenant did not admit the  validity  of  the
Sale Deed dated 1.7.1976 on the grounds that, having regard  to  Section  25
of the Hindu Religious Institutions Act, 1972, it was a nullity.  The  First
Appellate Court conducted an elaborate and detailed discussions  as  to  the
nature of the  Temple/Trust  property  in  order  to  ascertain  whether  it
partook of a private or a public trust. We  have  already  highlighted  that
O.S.5/78 filed by the Tenants was “dismissed”,  nevertheless,  this  verdict
has not been appealed against. After recording  the  detailed  arguments  on
both sides, the First Appellate Court encapsulated the following points  for
consideration:-
(i)   Whether the present appeal by the plaintiff  canvassing  the  findings
of the trial court on issue numbers 2, 3 and 4 by the  learned  trial  Judge
is barred by the doctrine of res-judicata as contended by the respondents?
Whether findings given by the learned trial Judge on the  above  issues  are
correct, valid in law and as such it is sustainable?
Whether the plaintiff is entitled to question the validity of the  sale-deed
in favour of defendants 7 to 9 by the second defendant?
What relief, if any, the parties are entitled to?

Obviously, O.S. 5/78 was as focal as the other, otherwise (iii) above  would
not have arisen.  It is evident that all concerned erroneously assumed  that
O.S.5/78 had also been carried in Appeal.

16.   The First Appellate Court, in reversal, held  that  the  Plaintiff  in
O.S.6/78 was a Public Trust and, accordingly, fell within  the  purview  and
sweep of the Hindu Religious Institutions Act, 1972. So far as  the  failure
of the Tenants to appeal  against  the  dismissal  of  O.S.5/78,  the  First
Appellate Court held,  in  our  opinion  questionably,  that  that  was  not
necessary since there was no adverse findings against  the  Tenants.   While
we can appreciate that owing to  the  stands  of  the  defendants  in  their
Written Statements filed in O.S.5/78 there was, in actuality,  no  challenge
to  the  Plaint,  but  nevertheless,  the  suit  of  the  Tenants  had  been
‘dismissed’ and therefore, at the very least, it would have been proper  and
prudent to file an  appeal  and  at  least  in  abundant  caution  obtain  a
clarification thereon. The  'dismissal'  of  suit  O.S.5/78  cannot  but  be
indicative of the opinion that all the assertions of fact and  law  were  in
the opinion of the Trial Court legally untenable,  perforce  including  that
the Trust could not have transferred the suit  property  in  the  manner  it
did.   For this very reason the Tenant should  also  have  appealed  against
the verdict in O.S.7/78 in respect  of  the  findings  of  the  Trial  Court
common to O.S.6/78; since the Trust had not assailed the  rejection  of  its
plea that a separate tenancy governed the claim in  O.S.7/78  that  part  of
the verdict had attained finality.  The First Appellate  Court  has  opined,
in the event  erroneously,  that  the  doctrine  of  res  judicata  was  not
attracted to the facts of the instant case.   It  appears  to  us  that  the
First Appellate Court lost perspective of the position that Section  116  of
the Evidence Act rendered impermissible and  incompetent  any  challenge  to
the title of the Trust/Landlord which had put the  Appellant  in  possession
of the demised  property.   It  is  also  noteworthy  that  the  Tenant  had
contested the legal capacity of the Trust/Landlord to  convey  the  property
to the Transferees.   Ergo, it was nobody’s case  that  although  the  Trust
had  title  to  the  suit  property  at  the  inception  it  had   lost   it
subsequently.    There is in fact a stark omission to  discuss  this  aspect
in the Judgment of the First  Appellate  Court,  which  therefore  erred  in
concluding that the Trust/Landlord was a public trust and was,  accordingly,
incompetent to sell the Trust property. This is  all  the  more  significant
since it reversed the opinion of  the  Trial  Court  without  affording  any
opportunity of hearing to the Transferees who had not been impleaded by  the
Tenants in its Appeal although they were defendants  in  the  Tenants  suit;
they were not before the High Court because the Tenant  decided  to  not  to
appeal against the dismissal of O.S.5/78 in which it had also  raised  these
very questions.   If it is contended that all the three suits  were  covered
by a common judgment, the Tenant ought to have impleaded the Transferees  in
its Appeal.
17.   The Trust filed the Second Appeal before the  Division  Bench  of  the
High Court of Judicature  at  Madras,  but  inexplicably  and  conspicuously
restricted its challenge only to the opinion of the  First  Appellate  Court
vis-à-vis the impact and effect of the principle of  res  judicata  on  that
lis.  The Trust had by that time already sold the  property  and  remarkably
their only subsisting interest was for the recovery of the  paltry  decretal
sum of Rs.268/.   We would have expected  the  Trust  to  vehemently  assert
that a decision adverse to its  Transferees  could  legally  not  have  been
delivered in their absence;  and  that  Section  116  of  the  Evidence  Act
disabled the Tenants from challenging the Trust’s title or legal  character,
since it is the Trust which had put the Tenant in possession.   However,  as
it  has  transpired,  the   Second   Appellate   Court   agreed   with   the
interpretation given by the First Appellate Court that res judicata did  not
apply against the Tenants.

18.   For facility of reference Section 11 of the CPC is extracted below:
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.
Explanation I.- 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 in 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.

The decision rendered by three Co-ordinate Benches  of  this  Court,  namely
firstly Lonankutty, secondly Prabhu and thirdly Premier Tyres  have  already
been discussed above.

19.   We must additionally advert to a Four-Judge Bench decision in  Sheodan
Singh vs. Daryao Kunwar  (1966) 3 SCR 300, in which this Court  has  lucidly
enumerated five constituent elements of Section 11, namely:-
 (i) The matter directly and substantially in issue in the  subsequent  suit
or issue must be the same matter which was  directly  and  substantially  in
issue in the former suit;
(ii) The former suit must have been a  suit  between  the  same  parties  or
between parties under whom they or any of them claim;
(iii) The parties must have litigated under the same  title  in  the  former
suit;
(iv) The court which decided the former suit must be a  court  competent  to
try the subsequent suit or the suit in  which  such  issue  is  subsequently
raised; and
(v) The matter directly and substantially in issue in  the  subsequent  suit
must have been heard and finally decided by the court  in  the  first  suit.
Further Explanation 1 shows that it is not the date on  which  the  suit  is
filed that matters but the date on which the suit is decided, so  that  even
if a suit was filed later, it will be a former suit if it has  been  decided
earlier.

The conundrum in Sheodan Singh was only marginally  different  to  what  has
arisen before us.   The Appellate Court was  confronted  with  five  Appeals
from five different Suits between the same parties in which the Issues  were
common.   Two of the Appeals were dismissed, albeit,  not  on  merits.    It
was in those premises argued and accepted by this Court that the  principles
of res judicata became operational with regard to the decrees passed in  the
two suits in respect of  which  the  Appeals  filed  thereagainst  had  been
dismissed.   It was pithily observed that otherwise  “all  that  the  losing
party has to do to destroy the effect of  a  decision  given  by  the  trial
court on the merits is to file an appeal and let that  appeal  be  dismissed
on some preliminary ground, with the result that the decision given  on  the
merits also becomes useless as between the parties.”    Sheodan  Singh  took
note of several judgments of the High Courts, which  preferred  to  overlook
procedural technicalities ostensibly in the interests of the merits  of  the
matter, but did not state its final opinion, which has propelled  us  to  do
so in order so that the divergent opinions be  interred  and  dissonance  be
removed.

20.   On the issue of applicability of res judicata in cases  where  two  or
more suits have been  disposed  of  by  one  common  judgment  but  separate
decrees, and where the decree in one suit has been appealed against but  not
against  the  others,  various  High  Courts  have   given   divergent   and
conflicting opinions and decisions.  The High Court of Madras and  erstwhile
High Courts of Lahore, Nagpur and Oudh have held that there could be no  res
judicata in such cases whereas  the  High  Courts  of  Allahabad,  Calcutta,
Patna, Orissa and erstwhile  High  Court  of  Rangoon  have  taken  contrary
views.  It should also be noted that  there  are  instances  of  conflicting
judgments within the same High Court as well.  The decision  of  Tek  Chand,
J. in Full Bench Judgment of the Lahore High Court  in  Lachhmi  vs.  Bhulli
[AIR (1927) Lah 289] and Full Bench Judgment of the  Madras  High  Court  in
Panchanda Velan vs. Vaithinatha Sastrial [ILR (1906) 29 Mad 333] and of  the
Oudh High Court in B. Shanker Sahai v. B. Bhagwat Sahai [AIR  1946  Oudh  33
(FB)] appear to be the leading decisions against the  applicability  of  res
judicata.    Without  adverting  to  the  details  of  those  cases,  it  is
sufficient to note that the hesitancy or reluctance to the applicability  of
the rigorous of res judicata flowed from the notion that Section 11  of  the
Code refers only to “suits” and as such does not  include  “appeals”  within
its ambit; that since the decisions arrived  in  the  connected  suits  were
articulated simultaneously, there could be no “former  suit”  as  stipulated
by the said section; that substance, issues  and  finding  being  common  or
substantially similar in the connected suits tried together,  non-filing  of
an appeal against one or more of those  suits  ought  not  to  preclude  the
consideration of other appeals on merits; and  that  the  principle  of  res
judicata would be applicable to the judgment, which is common,  and  not  to
the decrees drawn on the basis of that common judgment.


21.   On the other hand, the verdict of Full Bench  of  the  Allahabad  High
Court in Zaharia vs. Debia ILR  (1911)  33  All  51  and  decisions  of  the
Calcutta High Court in Isup Ali vs. Gour Chandra Deb  37  Cal  LJ  184:  AIR
1923 Cal 496 and of the Patna High Court in  Mrs.  Getrude  Oastes  vs.  Mrs
Millicent D’Silva ILR 12 Pat 139 : AIR 1933  Pat  78  are  of  the  contrary
persuasion.  These decisions largely proceeded on the predication  that  the
phraseology “suit” is not limited to the Court of First  Instance  or  Trial
Court but encompasses within its domain  proceedings  before  the  Appellate
Courts; that non-applicability of res  judicata  may  lead  to  inconsistent
decrees and conflicting decrees, not only due  to  multiplicity  of  decrees
but also due to multiplicity of the parties, and thereby creating  confusion
as to which decree has to be given effect to in execution; that a decree  is
valid unless it is a nullity and the same cannot be overruled or  interfered
with in appellate proceedings initiated against  another  decree;  that  the
issue of res judicata has to be  decided  with  reference  to  the  decrees,
which are appealable under Section 96 of the CPC and not with  reference  to
the judgment (which has been  defined  differently),  but  with  respect  to
decrees  in  the  CPC;  that  non-confirmation  of  a  decree  in  appellate
proceedings has no consequence as far as it reaching finality upon  elapsing
of the limitation period is concerned in  view  of  the  Explanation  II  of
Section  11,  that  provides  that  the  competence  of  a  Court  shall  be
determined irrespective of any provisions as to right  of  appeal  from  the
decision of such Court; and that Section 11 of the CPC is not exhaustive  of
the doctrine of res judicata, which springs up from the  general  principles
of law and public policy.

22.   Procedural norms, technicalities and processal law evolve after  years
of empirical experience, and to  ignore  them  or  give  them  short  shrift
inevitably defeats justice.   Where a common judgment has been delivered  in
cases in which consolidation orders have specifically been passed, we  think
it irresistible that the filing of a  single  appeal  leads  to  the  entire
dispute becoming sub judice once again.  Consolidation orders are passed  by
virtue of the bestowal of inherent powers on the Courts by  Section  151  of
the CPC, as clarified by this Court in Chitivalasa  Jute  Mills  vs.  Jaypee
Rewa Cement (2004) 3 SCC 85.   In the instance  of  suits  in  which  common
Issues have been framed and a common Trial has been  conducted,  the  losing
party must file appeals in respect of all adverse decrees  founded  even  on
partially adverse or contrary speaking judgments.   While so opining  we  do
not intend to whittle down the principle that appeals are  not  expected  to
be filed against every  inconvenient  or  disagreeable  or  unpropitious  or
unfavourable finding or observation contained in a judgment, but  that  this
can be done by way of  cross-objections  if  the  occasion  arises.      The
decree not assailed thereupon metamorphoses into the character of a  “former
suit”.  If this is not to be so viewed, it  would  be  possible  to  set  at
naught a decree passed in Suit A by only challenging the decree in  Suit  B.
   Law considers it an anathema  to  allow  a  party  to  achieve  a  result
indirectly when it  has  deliberately  or  negligently  failed  to  directly
initiate  proceedings  towards  this  purpose.   Laws  of   procedure   have
picturesquely been referred to as handmaidens to justice, but this does  not
mean that they can be wantonly ignored because, if so  done,  a  miscarriage
of justice inevitably and inexorably ensues.   Statutory law  and  processal
law are two sides of the judicial drachma, each being  the  obverse  of  the
other.   In the case in hand, had the  Tenant  diligently  filed  an  appeal
against the decree at least in respect of O.S.  5/78,  the  legal  conundrum
that has manifested itself and exhausted so much judicial  time,  would  not
have arisen at all.

23.   Adverting in the impugned Judgment to the decision of  this  Court  in
Sajjadanashin Sayed vs. Musa Dadabhai Ummer AIR 2000 SC 1238,  the  Division
Bench delineated the distinction between an aspect of  the  litigation  that
is collaterally and incidentally,  as  against  one  that  is  directly  and
substantially focal to the  question  the  determination  of  which  is  the
immediate  foundation  of  the  decision.    Reference  was  also  drawn  to
enunciation of what constitutes res judicata in Hoag vs. New  Jersey  (1958)
356 U.S. 464, namely that this important legal principle  is  attracted  “if
the records of the formal trial show that the judgment could not  have  been
rendered without deciding the particular matter, it will  be  considered  as
having settled that matter as to all future actions  between  the  parties”.
The Division Bench also garnered guidance  from  the  observations  of  this
Court in Isher Singh vs.  Sarwan  Singh,  AIR  1965  SC  948  requiring  the
examination of the Pleadings and the Issues in order  to  ascertain  whether
the question was directly and substantially litigated upon.    The  Division
Bench also considered Asrar Ahmed vs. Durgah Committee, Ajmer, AIR  1947  PC
1 and Pragdasji Guru Bhagwandasji vs.  Patel  Ishwarlalbhai  Narsibhai,  AIR
1952 SC 143, before concluding that Issue  No.2  framed  in  O.S.  5/78  was
wholly unnecessary and faulty.   The Division Bench held that  the  findings
on that Issue were unnecessary, did not constitute  the  minimum  foundation
for  the  ultimate  decision  and,  therefore,  would  not  constitute   res
judicata.   We have  already  indicated  above  that,  in  our  opinion,  if
O.S.5/78 was merely a suit for injunction simpliciter, since the  Defendants
therein (both the Trustees as well as the Transferees) had posited in  their
respective Written Statements that they had no intention to  dispossess  the
Plaintiff/Tenant, that suit ought not to  have  been  dismissed  but  should
have been decreed.   We have also laid emphasis on the fact that the  Tenant
had made a specific and pointed assertion in the plaint  that  the  transfer
of the demised land by the Trust to the Transferees was  not  in  consonance
with Section 26 of the Puducherry Hindu Religious  Institutions  Act,  1972.
We have also noticed the fact that this was an  important  objection  raised
by  the  Tenant  in  their  Written  Statement  in  O.S.6/78  and  O.S.7/78.
It seems to be incongruous to  us  to  consider  ownership  of  the  demised
premises to be  irrelevant  in  O.S.5/78  but  nevertheless  constitute  the
kernel or essence or fulcrum of  the  disputes  in  O.S.6/78  and  O.S.7/78.
The dialectic adopted by the Court must remain  steadfastly  constant  –  if
title was irrelevant so far as a claim for injunction  simpliciter,  it  was
similarly so in relation to the party having the advantage  of  Section  116
of the Evidence Act in respect of its claim for arrears  of  rent  from  its
tenant.  It would not be logical to overlook that the  pleadings  on  behalf
of the Tenant were common in all  three  suits,  and  that  Issues  on  this
aspect of the dispute had been claimed by  the  Tenants  in  all  the  three
suits.   On a holistic and comprehensive reading of  the  pleadings  of  the
Tenant in all the three  suits,  it  is  inescapable  that  the  Tenant  had
intendedly, directly and unequivocally raised in its pleadings the  question
of the title to the demised premises and the legal capacity of the  Trustees
to convey the lands to the Transferees.   This is  the  common  thread  that
runs through the pleadings of Tenant in all three suits.   It is  true  that
if O.S.5/78 was a suit for injunction simpliciter, and in the  wake  of  the
stance of the Trustees and Transferees that no threat had been  extended  to
the Tenants regarding their  ouster,  any  reference  or  challenge  to  the
ownership  was  wholly  irrelevant.    But  the  ownership  issue  had  been
specifically raised by the Tenant, who had thus caused  it  to  be  directly
and substantially in issue in all three suits.  So far as the Suit  Nos.6/78
and 7/78 are concerned, they were also suits simpliciter  for  the  recovery
of rents  in  which  the  defence  pertaining  to  ownership  was  also  not
relevant; no substantial reason for the Tenant to file  an  appeal  in  O.S.
6/78 had arisen because the monetary  part  of  the  decree  was  relatively
insignificant.  Obviously, the Tenant’s resolve was to  make  the  ownership
the central dispute in the litigation and in these circumstances  cannot  be
allowed to equivocate on  the  aspect  of  ownership.    Logically,  if  the
question of ownership was relevant  and  worthy  of  consideration  in  O.S.
6/78, it was also relevant in O.S. 5/78.   Viewed in this manner,  we  think
it is an inescapable conclusion that an appeal ought to have been  filed  by
the Tenant even in respect of O.S. 5/78, for fear of  inviting  the  rigours
of res judicata as also for correcting  the  “dismissal”  order.     In  our
opinion, the Tenant had been completely non-suited once it was held that  no
cause of action had arisen in its  favour  and  the  suit  was  ‘dismissed’.
Ignoring that finding and allowing it to become final makes that  conclusion
impervious to change.  In  Sheoparsen  Singh  vs.  Ramnandan  Prasad  Singh,
(1915-16) 43 I.A.91, the Privy Council opined - “Res judicata is an  ancient
doctrine of universal application and permeates every  civilized  system  of
jurisprudence.   This doctrine  encapsulates  the  basic  principle  in  all
judicial systems which provide that an earlier  adjudication  is  conclusive
on the same subject matter between the same  parties.”   The  raison  d’etre
and public policy on which Res judicata is predicated is that the party  who
has raised any aspect in a litigation and has had  an  Issue  cast  thereon,
has lead evidence in that regard, and  has  argued  on  the  point,  remains
bound by the curial conclusions once they attain finality.   No  party  must
be vexed twice for the same cause; it is in the interest of the  State  that
there should be an end to litigation; a judicial decision must  be  accepted
as correct in the absence of a challenge.   The  aspect  of  law  which  now
remains to be considered is whether filing of an  Appeal  against  a  common
Judgment in one case, tantamounts to filing an appeal in all the matters.

The application of res judicata, so very often, conjures  up  controversies,
as is evident from the fact that even in this Court divergent opinions  were
expressed by the two Judge Bench, leading to the necessity of referring  the
appeal to a Larger Bench.  It  was  for  this  reason  that  we  thought  it
appropriate to deal with the dispute in detail.  It seems  to  us  that  had
the decisions of the  three  Judge  Bench  in  Lonankutty  and  Prabhu  been
brought to the attention  of  our  Learned  and  Esteemed  Brothers  on  the
earlier occasion when  this  appeal  was  heard  by  two  Judge  Bench,  the
dichotomy in opinion would not have arisen.    The  outcome  of  the  appeal
before the High Court would have  also  shared  a  similar  fate.    On  the
foregoing analysis, especially the previous enunciation of law by three  Co-
ordinate Benches, we are in  agreement  with  the  opinion  of  our  Learned
Brother Asok Kumar Ganguly that the appeal calls to be allowed.  We  are  of
the opinion that having failed or neglected or  concertedly  avoided  filing
appeals against the decrees in  O.S.5/78  and  O.S.7/78  the  cause  of  the
Respondents/Tenants  was  permanently  sealed  and  foreclosed   since   res
judicata applied  against  them.   We  accordingly  allow  this  Appeal  but
keeping the varying verdicts in view decline from making  any  order  as  to
costs.

…………………………..………J.
(ANIL R. DAVE)



…………………………..………J.
(VIKRAMAJIT SEN)



……………………..…………….J
(PINAKI CHANDRA GHOSE)
New Delhi,
October 09, 2014.


















ITEM NO             COURT NO.14               SECTION XII
(1A For judgment)
               S U P R E M E  C O U R T  O F  I N D I A
                       RECORD OF PROCEEDINGS

                       Civil Appeal No.4227/2003

GANGAI VINAYAGAR TEMPLE & ANR.                 Appellant(s)

                                VERSUS

MEENAKSHI AMMAL & ORS.                       Respondent(s)
(with office report)


Date : 09/10/2014 This appeal was called on for
pronouncement of judgment today.


For Appellant(s)     Mr. Sanjay R. Hegde,Adv.


For Respondent(s)    Mr. K. Ramamoorthy, Sr.Adv.
                        Mr. Senthil Jagadeesan, Adv.
                     Mr. V. Ramasubramanian,Adv.


         Hon'ble Mr. Justice Vikramajit Sen pronounced the judgment  of  the
Bench comprising Hon'ble Mr. Justice Anil R. Dave, His Lordship and  Hon'ble
Mr. Justice Pinaki Chandra Ghose.

            The appeal is allowed with no order as to costs in terms of the
signed judgment.

  (USHA BHARDWAJ)                             (SAROJ SAINI)
AR-CUM-PS                        (COURT MASTER)

            Signed reportable judgment is placed on the file.
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