Prem Kishore & Ors. vs Brahm Prakash & Ors.

8 and Or. 17 Rule 3 resply of the CPC – Suit is revived. Code of Civil Procedure, 1908 – When it would not be Res judicata in a subsequent suit – Held: Where the former suit is dismissed by the trial court for want of jurisdiction, or for default of the plaintiff ’s appearance, or on the ground of non-joinder or misjoinder of parties or multifariousness, or on the ground that the suit was badly framed, or on the ground of a technical mistake, or for failure on the part of the plaintiff to produce probate or letter of administration or succession certificate when the same is required by law to entitle the plaintiff to a decree, or for failure to furnish security for costs, or on the ground of improper valuation, or for failure to pay additional court fee on a plaint which was undervalued, or for want of cause of action, or on the ground that it is premature and the dismissal is confirmed in appeal (if any), the decision, not being on the merits, would not be res judicata in a subsequent suit.

Allowing the appeal, the Court

HELD: 1. The guiding principles for deciding an application under Order 7 Rule 11(d) of the CPC can be summarized as follows:- (i) To reject a plaint on the ground that the suit is barred by any law, only the averments in the plaint will have to be referred to; (ii) The defence made by the defendant in the suit must not be considered while deciding the merits of the application; (iii) To determine whether a suit is barred by res judicata, it is necessary that (i) the ‘previous suit’ is decided, (ii) the issues in the subsequent suit were directly and substantially in issue in the former suit; (iii) the former suit was between the same parties or parties through whom they claim, litigating under the same title; and (iv) that these issues were adjudicated and finally decided by a court competent to try the subsequent suit; and (iv) Since an adjudication of the plea of res judicata requires consideration of the pleadings, issues and decision in the ‘previous suit’, such a plea will be beyond the scope of Order 7 Rule 11 (d), where only the statements in the plaint will have to be perused. [Para 33][653F-H; 654-A-B]

2. The general principle of res judicata under Section 11 of the CPC contain rules of conclusiveness of judgment, but for res judicata to apply, the matter directly and substantially in issue in the subsequent suit must be the same matter which was directly and substantially in issue in the former suit. Further, the suit should have been decided on merits and the decision should have attained finality. Where the former suit is dismissed by the trial court for want of jurisdiction, or for default of the plaintiff’s appearance, or on the ground of non-joinder or mis-joinder of parties or multifariousness, or on the ground that the suit was badly framed, or on the ground of a technical mistake, or for failure on the part of the plaintiff to produce probate or letter of administration or succession certificate when the same is required by law to entitle the plaintiff to a decree, or for failure to furnish security for costs, or on the ground of improper valuation, or for failure to pay additional court fee on a plaint which was undervalued, or for want of cause of action, or on the ground that it is premature and the dismissal is confirmed in appeal (if any), the decision, not being on the merits, would not be res judicata in a subsequent suit. [Para 34][654-C-E]

3. In the case on hand, after the first eviction petition was instituted, the defendants therein filed their written statement denying the relationship of landlord and tenant. After the written statement came on record, no further evidence was led by the plaintiffs. All that was on record was in the form of pleadings in the plaint. The Additional Rent Controller took the view that after the written statement came on record, it was the duty of the plaintiffs to establish or prove the landlord tenant relationship and having failed to adduce any evidence, the suit was liable to be dismissed and accordingly was dismissed. The High Court interpreted or rather construed the order of the Additional Rent Controller as one under Rule 3 of Order 17 and, therefore, took the view that the findings as regards the relationship of landlord and tenant could be said to be on merits. The power conferred on Courts under Rule 3 of Order 17 of the CPC to decide the suit on the merits for the default of a party is a drastic power which seriously restricts the remedy of the unsuccessful party for redress. It has to be used only sparingly in exceptional cases. Physical presence without preparedness to co-operate for anything connected with the progress of the case serves no useful purpose in deciding the suit on the merits and it is worse than absence. In any contingency, the discretion is always with the Court to resort to Rule 2 or 3 respectively or to grant an adjournment for deciding the suit in a regular way in spite of default. Rules 2 and 3 respectively are only enabling provisions. In order to decide the suit on the merits, the mere existence of the conditions enumerated in Rule 3 alone will not be sufficient. There must be some materials for a decision on the merits, even though the materials may not be technically interpreted as evidence. Sometimes the decision in such cases could be on the basis of pleadings, documents and burden of proof. Anyhow, it is appreciable for the Court to indicate by the judgment that the decision is for default or on the merits. The only alternative of the Court in cases covered by Rule 3 or the explanation to Rule

2 is not to decide on the merits alone. If such an interpretation is given, it will amount to an unjustified preference to one who purposely absents than to one who presents but unable to proceed with the case. ‘Appearance’ and ‘presence’ have well recognised meanings. They imply presence in person or through pleader properly authorised for the purpose of conducting the case. Rule

3 comes into play only when presence is to proceed with the case, but default is committed in any one of the three ways mentioned in Rule 2 or explanation to Rule 2 is extracted. Those are cases in which some materials are there for the Court to decide the case on the merits and not cases where decision could only be for default. That is clear from a combined reading of Rules

2 and 3 respectively and the explanation. In this case, none of these conditions were present and the decision was evidently for default. Rule 2 alone is attracted. The order did not purport to be one of dismissal for default or on merits and it cannot be taken to mean other than what it purported to be. It is in ordinary phraseology; not legal phraseology and it cannot be divested of its ordinary meaning. Its ordinary meaning is that the proceeding was closed and the suit would not count as a pending one. The later description would be redundant if the order was one of final disposal of the suit. The order did not purport to be a final disposal of the suit. It merely stopped the proceedings. It did nothing more. This is not final decision of the suit within the meaning of Order 9 Rule 8 and Order 17 Rule 3 resply of the CPC. [Paras 50, 52, 55][665-E-G; 666-B-G; 667-F-H; 668-A]

V. Rajeshwari v. T.C. Saravanabava (2004) 1 SCC 551 : [2003] 6 Suppl. SCR 927; Kamala & others v. K.T. Eshwara Sa (2008) 12 SCC 661 : [2008] 7 SCR 39; Church of Christ Charitable Trust & Educational Charitable Society v. Ponniamman Educational Trust (2012) 8 SCC 706 : [2012] 6 SCR 404; Soumitra Kumar Sen v. Shyamal Kumar Sen (2018) 5 SCC 644; Srihari Hanumandas Totala v. Hemant Vithal Kamat (2021) 9 SCC 99; B. Janakiramaiah Chetty v. A.K. Parthasarthi & Ors. (2003) 5 SCC 641 : [2003] 3 SCR 369; Prakash Chander Manchanda v. Janki Manchanda (1986) 4

SCC 699 : [1987] 1 SCR 288 – relied on.

Union of India v. Nanak Singh AIR 1968 SC 1370 : [1968] 2 SCR 887; Satyadhyan Ghosal & Ors. v. Smt. Deorajin Devi & Anr. AIR 1960 SC 941 : [1960] 3 SCR 590; Om Prakash Gupta v. Rattan Singh (1964) 1 SCR 259; Gulabchand Chhotalal Parikh v. State of Gujarat AIR 1965 SC 1153 : [1965] SCR 547 – referred to.

Har Dayal v. Ram Ghulam AIR (31) 1944 Oudh 39;

Nila v. Punun AIR 1936 Lahore 385; Govindoss

Krishnadoss v. Rajah of Karvetnagar & Anr. AIR 1929 Madras 404; Prativadi Bhayankaram Pichamma v. K. Sreeramulu AIR 1918 Mad 143 (FB); Mariannissa v. Ramkalpa Gorsin ILR 34 Cal 235; Gopi Kishan v.

Ramu, AIR 1964 Raj 147; Shidramappa Irappa

Shivangi v. Basalingappa Kushnapa Kumbhar AIR 1943 Bom 321 : 1943 SCC Online Bom 16 : ILR 1944 Bom

1 (FB); R. Ravindran v. M. Rajamanickam 2006 SCC Online Mad 169 – referred to.