Full Judgment Text
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PETITIONER:
PHOOL CHAND SHARMA AND OTHERS
Vs.
RESPONDENT:
CHANDRA SHANKER PATHAKAND OTHERS
DATE OF JUDGMENT:
07/12/1962
BENCH:
AYYANGAR, N. RAJAGOPALA
BENCH:
AYYANGAR, N. RAJAGOPALA
IMAM, SYED JAFFER
SUBBARAO, K.
MUDHOLKAR, J.R.
CITATION:
1964 AIR 782 1963 SCR Supl. (2) 828
ACT:
Res Judicata-Rule-Appliration to appeals.
HEADNOTE:
The father of respondent No. 1, who was the Zamindar, filed
a suit for the eviction of Ramprasad, the father of appell-
ants, from certain plots of land. The suit was decreed and
the Zamindar took possession of the land. Ramprasad filed
an appeal before the Additional Commissioner but the same
was dismissed . He preferred a second appeal before the
Board of Revenue during the pendency of which the matter was
compromised whereunder he was recognised as tenant of the
land in dispute and the order of eviction was; thus
nullified.
He applied for restitution of possession under s. 144 of the
Code of -Civil Procedure. The application was resisted by
Dataram and others who had been inducted as tenants on these
plots of land during the pendency of the appeals. The trial
court allowed the application but its order was reversed by
the Additional Commissioner who held that the newly inducted
tenants could not be dispossessed. Its order was affirmed
by the Board of Revenue in revision. Thereafter fie filed a
petition under Art. 226 of the Constitution in the High
Court challenging the decision of the Board of Revenue, but
that petition was dismissed on merits. No appeal was
attempted to be filed against the order of the High Court
either by applying for a certificate or moving this Court
for special leave under Art. 136. The appellants have
instead come to this Court in appeal by special leave
against the order of the Board of Revenue. A preliminary
objection was raised on behalf of of the respondent that the
appeal was not maintainable as it was barred by res
judicata.
Held, that the appeal was barred by res judicata as the
decision of the High Court was on merits and would bind the
parties unless it was modified or reversed in appeal or by
other appropriate proceedings..
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Daryao v. State of U. P., [19621 1 S. C. R. 574 and Indian
Aluminium Co. Ltd. V. The Commissioner of Income-tax, West
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Bengal, (1961) 43 1. T. R. 532, relied on.
Chandi Prasad Chokhani v. State of Bihar, [1962] 2 S. C. R.
276, explained.
JUDGMENT:
CIVIL APPELLATE JURISDICTION: Civil
Appeal No. 310 of 1960.
Appeal by special leave from the judgment and decree dated
July 24, 1954, of the Board of Revenue (Uttar Pradesh)
Allahabad, in Revision No. 20A of 1952/53.
S. P. Sinha and J. P. Goyal, for the appellants,
N. N. Keswani, for respondent No. 2.
1962. December 7. The Judgment of the Court was delivered
by
AYYANGAR, J.-This is an appeal by special leave against an
order of the Board of Revenue, Uttar Pradesh which declined
to order restitution under s. 144, Civil Procedure Code in
the following circumstances. The father of the 1st
respondent was the Zamindar who filed a suit in the court of
SubDivisional Officer, Tehsil Iglas at Aligarh for the
eviction of Ram Prasad-father of the appellants from certain
plots of land situated in village Kanchiraoli in The
district of Aligarh. The suit was decreed and in execution
of that decree the Zamindar took possession. Thereafter Ram
Prasad filed an appeal to the Additional Commissioner but
this was dismissed in November, 1944. He then preferred a
further appeal to the Board of Revenue but before it came on
for hearing the dispute was settled and on March 28 1948 an
application was filed for recording this compromise. The
term of the compromise which is of relevance to the present
appeal is that Ram Prasad was to be recognised as tenant of
the land in dispute; in other words, the order for evicton
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was nullified. The compromise was recorded and a decree in
terms thereof was passed. Some attempt was made by the
Zamindar to have the compromise set aside on grounds which
it is not necessary to mention, but these attempts failed
with the result, that it left the compromise decree passed
by the Board in full force. It might however, be mentioned
that the Zamindar immediately obtained possession in
execution of the decree of the Sub-Divisional officer,
admitted one Data Ram and certain others as tenants and put
them in possession of the property and this has led to all
the subsequent complications in this case.
On the strength of the compromise decree Ram Prasad applied
for restitution of possession under s. 144 of the Civil
Procedure Code. This application was resisted particularly
by Data Ram and others who had been inducted as tenants on
the land, while the eviction proceedings were pending before
the Additional Commissioner on appeal. The trial court
allowed the application on the ground that Data Ram and
others were bound by the rule of lis pendens and were not,
therefore, entitled to retain the possession which they
obtained during the proceedings for ejectment. From this
order an’ appeal was taken by Data Ram and others to the
additional commissioner who, for reasons which it is not
necessary now to canvass, held that the newly inducted
tenants could not be dispossessed and that Ram Prasad was
entitled only to Symbolical possession as against the
Zamindar. This order was taken to the Board in revision
where, however, it was dismissed. It is to challenge the
correctness of this order that this appeal has been filed.
Learned Counsel for the respondent raised two preliminary
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objections to the hearing of this appeal The first objection
was that this appeal was barred by res judicate. To
understand this objection it is
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necessary to state a few more facts. When the Board of
Revenue upheld the order of the Additional Commissioner
declining the prayer of the appellants for restitution they
filed an application for review and when this was dismissed
they brought the matter before the High Court by an
application made to it under Art. 226 of the Constitution.
The actual judgment rendered by the High Court is not on
record but it was admitted before us by learned Counsel for
the appellant that the High Court dismissed the petition
after ’elaborately discussing the merits of the contentions
raised and on that ground Data Ram and others who had been
let into possession by the Zamindar obtained a statutory
right to possession under the U. P. Zamindari & Land Reforms
Act, 1950 and could not therefore be evicted by the
application of the rule of lis pendens. No attempt was made
by the appellant to prefer any appeal against this judgment-
by either applying to that court and obtaining a certificate
of fitness or by moving this Court for the grant of special
leave. The result is that there is now a decision of the
High Court which has become final and binding on the
parties. Learned Counsel for the respondent therefore
contends that without the correctness of the decision of the
High Court being challenged before us and the finality of
that judgment impaired, the appellant is not entitled to
bypass that decision and seek to practically obtain a
reversal of it by attacking the correctness of the decision
of the Board of Revenue.
We consider this preliminary objection wellfounded. Learned
Counsel for the respondent relied in supportof his
submission on the decision of this Court in Daryao v. The
State of U. P. (1). The question before the Court was
whether, when the High Court dismissed a writ petition under
Art. 226 after hearing a matter on the merits on the ground
that no fundamental right was proved or contravened,
(1) [1962] 1 S.C.R,574.
832
a subsequent petition to the Supreme Court under Art. 32 of
the Constitution on the same facts and for the same reliefs
filed by the same party was permissible. This Court held
that where such a petition-was heard on the merits and
dismissed by the High Court the decision pronounced was
binding on the parties unless it was modified or reversed in
appeal or by other appropriate proceedings. If thus the
rule of res judicata were a bar even to a petition under
Art. 32 which is a Constitutionally guaranteed right, it
looks to us that it would be afortiori so as regards an
appeal under Art. 136 where the right to relief is
discretionary.
Learned Counsel for the appellant invited our
attention to the decision of this Court in Chandi Prasad
Chokhani v. State of Bihar (1) as lying down a rule not
quite so inflexible as the decision in Daryao’s case’ would
suggest, that it depended upon the facts of each case and
that in a proper case dependent upon the discretion of the
Court, this Court was competent to waive this rule and here
the appeal notwithstanding that it meant that the decision
of the High Court was bypassed. No doubt, there are a few
observations of S. K. Das, J., who spoke for the Court which
are capable of being understood in the manner suggested by
learned Counsel but as ultimately the learned judges upheld
the preliminary objection and dismissed the appeal, these
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observations are only by way of obiter and cannot outweigh
the expressdecision on the point in Daryao’s case. We
might, however, point out that in Indian Aluminium Co.Ltd.
v. Commissioner of Income-tax, West Bengal (2) in which also
the judgment was delivered by S. K. Das,J., the reasoning of
the learned judge who upheld a similar preliminary objection
is more in line with the decision in Daryao’s(3) case though
the latter judgment which was delivered on the same day as
in the Indian Aluminium Co.’s case (2) is not naturally
referred to. The learned judge observed :
(1) [1962] 2 S.C.R. 276 (1961) 43 I.T.R. 332
(3) [1962) I S.C.R, 574.
833
"The question which has arisen in this appeal
by way of a preliminary objection is whether
in the circumstances set out above-(no appeal
was preferred against the order of the High
Court refusing to make a reference under s.
66(2) of the Income Tax Act)-special leave to
appeal from the decision of the Tribunal dated
May 29, 1956, was properly given under article
136 of the Constitution and whether the
appellant is entitled to ask this Court to
exercise its discretion under the said article
when it did not move against the subsequent
orders of the Board and the High Court under
section 66 of the Act..................... We
hold that special leave to appeal from the
decision of the Tribunal dated May 29, 1956,
was not properly granted in this case and the
appellant is not entitled to ask us to
exercise our power under article 136 of the
Constitution, when it did not move against the
subsequent orders of the Board and the High
Court."
This preliminary objection therefore has to be upheld.
The other preliminary objection raised was this. The
application for special leave filed by the appellant was out
of’ time and the delay in filing it was condoned by this
Court without notice to the respondent. Learned Counsel
sought to urge that there were no grounds for condoning the
delay and that for this reason the leave granted should be
revoked. In view, however, of our decision on the first
objection raised we do not consider it necessary to deal
with this.
The result is that the appeal failes and is dismissed with
costs.
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