In
Midnapur Zamindari Co. Ltd. vs. Naresh
Narayan Roy, it was observed as under:- "Their Lordships do not
consider that this will be found an actual plea of res judicata, for the
defendants, having succeeded on the other plea, had no occasion to go further
as to the finding against them: but it is the finding of a court which was
dealing with facts nearer to their ken than the facts are to the Board now, and
it certainly creates a paramount duty on the appellants to displace the finding,
a duty which they have now been able to perform."
In Devaki Amma and others v. K.P.
Sreedharan, referred to the earlier decision of the same High Court in Cherian
v. Kochuvareed, which observed as follows:
"If
a High Court remands a case to the lower court, the matters finally disposed of
by the order of remand cannot, any of them, be re-opened when the case comes
back from the lower court but, if at the time of remand, no final decision is
given on a point, though some observations only are made in respect of it, it
is open to another Bench, a court of coordinate jurisdiction, when finally
determining the case, to come to its own conclusions on it, and that even in a
case decided by the first court of appeal other than a case, decided by the
High Court, if a Judge on appeal decides certain points and remands the case,
his decision is binding on his successor, before whom the case comes up again
from the judgment after remand because such a court is a court of coordinate
jurisdiction, and, therefore, he cannot go behind the earlier final decision of
his predecessor before remand."
In
paragraph 11, it is stated as follows:
"The
test, therefore, in such a case, to ascertain if a particular finding given by
the Judge on appeal is a final decision, or not is to find out, if, by the
order of remand, the Judge on appeal has remanded the suit for determination of
all the points at issue, or, it has determined some points in controversy, and
remanded the suit for determination of the remaining points, which may include
the question of maintainability of the plaintiffs' suit itself, in which case
the decree of the first court has to be set aside, and, the suit remitted to
the court below for a fresh decision of the case according to law. If therefore
a final decision is rendered on any point in the order of remand which could
have been appealed against, that decision is binding on the parties and is not
open to challenge before the same court or even before a superior court in a
subsequent appeal. If however no final decision is given but only some
observations made on any point, Section 105(2) does not bar consideration of
that point in the subsequent stages of the proceeding. The test therefore is
whether there is a final decision on any particular point".
From
the above survey, the following broad legal principles emerge: (a) An appeal is
a creature of statute. Unless statutory conditions are fulfilled, a court of
justice has no jurisdiction to entertain an appeal. (b) If the statute
prohibits, the court has no jurisdiction to entertain an appeal. (c) A
successful party has no right of appeal against a finding against him. Such a
decision will not operate as res judicata in a subsequent suit. (d) A question
decided and a finding recorded against a losing party will operate as res
judicata against him if not challenged by him. (e) A remand order conclusively
deciding the rights of parties is a decree within the meaning of Clause (2) of
Section 2 of the Code of Civil Procedure and hence appealable. If not appealed
against it will operate as res judicata. If the appellate court purports to act
under Order 41, Rule 23, CPC an order of remand is appealable. (f) The grounds
available to an appellant in such appeals against findings are those which
would be available to him in a second appeal. (g) In appeals against orders of
remand, the findings of fact other than those relating to the order of remand,
cannot be pressed into service. (h) If findings on orders of remand are not
appealed against, they will become final and the party aggrieved will be
precluded from disputing their correctness. R. Maria Siluvai vs B. Sreekumari Amma And Three ... on 16 December,
1997
Ram Niwas And Ors. vs Shiksha Prasar
Samiti Ratangarh ... on 7 November, 2000
Para
13. Having considered the contentions raised by the learned counsel for the
appellants, I am of the opinion that in the first instance the finding recorded
by the trial court that principle of res judicata cannot be applied to this
case does not appear to be correct. It is true that ordinarily a finding recorded
against a successful party who has no opportunity to challenge that finding in
the appeal does not bind him and such a finding does not operate as res
judicata for him in the subsequent litigation but this rule is not without
exception and cannot be applied with a straight jacket mind. The principle is
well established through a large number of decisions that generally an adverse
finding against a defendant in a decree of dismissal of suit would not operate
res judicata but it is equally well settled that where such an adverse finding
form fundamental part of the decree itself, it operates as res judicata in
spite of the fact that the decree is one of dismissal.
Muthiya Pillai vs Ramalingam on 17
December, 2009
Firstly,
it is found that there was no finding that the suit properties were the joint
family properties in A.S.No.37 of 1996. Secondly, it is found that the said
appeal, in fact, ended in favour of the plaintiff herein. Even assuming for the
sake of argument that there was some adverse finding as against the plaintiff,
the plaintiff, who went on appeal, cannot prefer any appeal as against the mere
finding in the said judgment. In view of the above facts and circumstances, I
find that the principle of res judicata will not operate in this case.
Venkatachala Padoyachi
and Ors. v. Velayudha Padayachi A.I.R. 1935 Mad. 701, where Venkatasubba Rao, J., sitting
alone held as follows: An adverse finding against a successful party in a suit
on one issue cannot operate as res judicata so as to bind him in a subsequent
suit, for he could not have appealed against that finding, the decree having
been in his favour.
The
Chief Court in Pateshwari Din v. Mahant Sarju Doss, AIR 1938 Oudh 18 :
1937 OWN 1127 held that where a decree in previous suit is
wholly in favour of a person and gives him all the reliefs sought for by him,
he has no right of appeal against the decree so as to enable him to contest any
adverse finding against him in such suit. Hence, such adverse finding cannot
operate as res judicata as against him in a subsequent suit".
In Chandrika Singh v. Chokhe Singh, AIR
1930 Oudh 124, the finding was against the party who was
successful. He had no right of appeal. It was held that it would not operate as
res judicata. Following the latter decision, in Pateshwari Din v. Mahant Sarju
Doss, AIR 1938 Oudh 18 it was held that where a decree in a previous suit is
wholly in favour of a person and gives him all the reliefs sought for by him,
he has no right of appeal against the decree so as to enable him to contest any
adverse finding against him in such suit. Such decision cannot operate as res
judicata as against him in a subsequent suit".
In Banarasi Sah. v.
Bhagwanlal Sah, AIR 1977 Pat 206, it was held that where a
decree is absolutely in favour of a party but some issues are found against
him. he has no right of appeal against the decree and plea of res Judicata
cannot be founded on adverse decision against him because he had no occasion to
go in appeal.
Zamlndart Company Ltd, v. Naresh Ranjan
Roy, AIR 1922 PC 241 ; Sri
Pal v. Swami Nath, AIR
1968 All 282 ; Smt. Tarabai Mohata v. Union of India, AIR 1971 Col 225 ;
Mathura Bai v. Ram Krishna Bhaskar Barve, AIR 1961 Bom 97 ; Sukhani v.
Sukhbasi, AIR 1967 All 423, it was reiterated that when a party
succeeds in a suit or appeal, an adverse finding against him cannot be the
basis of a plea of res Judicata, for having succeeded he had no occasion to
prefer an appeal. In Commissioner for the Port of Calcutta v. Bhairadinram
Durga Prasad, AIR 1961 Col 39 (FB), it was held that such a party has no right
of appeal when a suit is dismissed on a finding that the plaintiff had no right
to sue, an adverse finding against the defendant Is not res Judicata, as was
held in Markanda Mohapatra v. Varada Kameshwar Rao Naidu. AIR 1949 Pat 197.
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