Reetha John and others v. Kunjappan @ Varathappan and others

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** **THE HONOURABLE MR. JUSTICE B.KEMAL PASHA** **FRIDAY, THE 21ST DAY OF JULY 2017/30TH ASHADHA, 1939** **RSA.No. 419 of 2011 (G) ------------------------** **AGAINST THE JUDGMENT AND DECREE DATED 21-01-2011 IN AS 409/ 2008 of ADDITIONAL DISTRICT COURT (ADHOC) FAST TRACK COURT No-1, THRISSUR** **AGAINST THE JUDGMENT AND DECREE DATED 21-10-2008 IN OS 584/2004 of MUNSIFF COURT, WADAKKANCHERRY** **APPELLANTS IN R.S.A./APPELLANTS IN A.S./PLAINTIFFS IN SUIT:** **-----------------------------------------------------------** **1. REETHA JOHN, D/O.PUTHOOR VEETTIL JOHN, NELLUVAI VILLAGE, THALAPPILLY TALUK.** **2. BRIJI CLETUS, S/O.DO. RESIDING IN DO. DO.** **3. SINDHYA JOHN,** - **D/O.DO. IN DO. DO.** **4. DARLEY JOHN, D/O. OF DO. IN DO. DO.** **5. ANIL JOHN, S/O. DO. IN DO. DO.** **6. SUNIL P.J., S/O. DO. IN DO. DO.** **BY ADVS.SRI.S.V.BALAKRISHNA IYER (SENIOR ADVOCATE) SRI.P.B.KRISHNAN SMT.GEETHA P.MENON SRI.P.B.SUBRAMANYAN** **RESPONDENTS IN R.S.A./RESPONDENTS IN A.S./DEFENDANTS IN SUIT: -------------------------------------------------------------** - **1. KUNJAPPAN @ VARATHAPPAN,** **WADAKKETHALAKKAL VEETTIL,, NELLUVAI VILLAGE & POST, TALAPPILLY TALUK, THRISSUR - 680584. (DIED) (LRS RECORDED).** ## **RSA.No. 419 of 2011 (G)** **------------------------** *** 2. AMMINI, W/O.WADAKKETHALAKKAL VEETTIL VARATHAPPAN, IN DO. (DIED) (LRS RECORDED).** **3. PAUL KUNJAN @ PAUL, WADAKKETHALAKKAL VEETTIL, IN DO. DO.** **4. RAJAN, IN DO. DO.** **5. PAPPACHAN, IN DO. DO.** **6. MOHANAN, IN DO. DO.** **7. YACOB, IN DO. DO.** **8. JOHNSON, IN DO. DO.** **9. SUJA, IN DO. DO.** **10. SUMA, RESIDING IN DO. DO. DO.** *** AS PER ORDER DATED 26.08.2014 IN MEMO CF 4163/2014 DATED 15.07.2014 R3 TO R10 ARE RECORDED AS LRS OF DECEASED R1 AND R2.** **R3 TO R10 BY ADVS. SRI.P.V.BALAKRISHNAN SRI.DINESH MATHEW J.MURICKEN** **THIS REGULAR SECOND APPEAL HAVING BEEN FINALLY HEARD ON 21-07-2017, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **DSV/-** ## **[CR]** ## **B. KEMAL PASHA, J.** ===================== R.S.A.No.419 of 2011 ===================== _Dated this the 21[st] day of July, 2017_ ## **J U D G M E N T** ## **--------------------** - (1) Is the issue regarding _res judicata_ a question of law alone, in all circumstances? - (2) Can the issue regarding _res judicata_ be considered as a preliminary issue in all suits? 2. Challenging the concurrent findings entered by the Munsiff’s Court, Wadakanchery in O.S.No.584 of 2004, followed by those of the Additional District Court in A.S.No.409/2008, the plaintiffs in the suit have come up with this Regular Second Appeal. 3. It seems that the Munsiff’s Court, after framing issues, considered Issue No.1 as a preliminary issue and held that the suit was barred R.S.A.419/11 : 2 : by res-judicata. Based on the aforesaid finding on the said issue, the Munsiff’s Court, dismissed the suit. Aggrieved by the dismissal, the plaintiffs preferred A.S.No.409/2008 before the District Court, Thrissur. The Additional District Court, Thrissur also concurred with the aforesaid finding entered by the learned Munsiff and dismissed the appeal, and hence this Regular Second Appeal. 4. This Court has admitted this Regular Second Appeal on the following substantial questions of law: “1) Whether courts below were justified in relying on records not admitted in evidence and dismissing the suit as barred by res-judicata, without admitting or marking in evidence the pleadings and judgment in the previous suit and that too when in the previous suit an issue on title was not framed. 2) Is the courts below justified in dismissing the suit for R.S.A.419/11 : 3 : declaration of title on the ground that suit is barred by res-judicata. 3) When Plaint B schedule property was not subject matter of the previous suit, whether the decision in the previous suit would operate as res-judicata.” 5. Heard the learned Senior Counsel Sri.S.V.Balakrishna Iyer for the appellants, and the learned counsel Sri.Dinesh Mathew J. Muricken for the respondents. 6. The learned Senior Counsel for the appellants has argued that the learned Munsiff has committed a grave error in not marking any of the documents to prove that the very same issue involved in the suit was directly and substantially in issue in the earlier suit. It has also been argued that the earlier suit was a simple suit for perpetual injunction, by which the plaintiffs herein, had sought for a relief for restraining the defendants from interfering with the R.S.A.419/11 : 4 : installation of fencing on the boundaries of the properties of the plaintiffs. 7. The trial court had considered the question of res-judicata as a preliminary issue, even when it involves a mixed question of law and facts in this particular case. It has also been argued that the question of title was not at all an issue in the earlier suit and therefore, the appellate court in the earlier suit also ought not to have decided the question of title. It has also been argued that in the earlier suit, the court fee was paid under Section 27(c) of the Kerala Court Fees and Suits Valuation Act only, which fortifies that it was a simple suit for injunction, in which the question of title had no role at all. The learned Senior Counsel has argued that the entire exercise made by the trial court as well as the lower appellate court in this matter have become futile and the matter has to be decided afresh by the trial court. R.S.A.419/11 : 5 : 8. Per contra, the learned counsel for the respondents has argued that in this particular case, the earlier judgment itself will speak the entire facts and therefore, the contention of res-judicata raised by the defendants was merely a question of law, which does not involve any mixed question of law and facts. According to the learned counsel for the respondents, there was nothing wrong on the part of the trial court in considering the issue of res-judicata in this case as a preliminary issue. 9. O.S.No.584 of 2004 is a suit for declaration of title and for perpetual injunction. According to the plaintiffs, plaint A and B schedule properties were scheduled in O.S.No.237/1997 of the Munsiff’s Court, Wadakanchery as plaint A schedule item. Even though, the survey number is the same in respect of plaint A and B Schedule properties in this suit, its sub-divisions are different. O.S.No.237/1997 is the earlier suit mentioned above. The said suit was R.S.A.419/11 : 6 : dismissed by the Munsiff’s Court, Wadakanchery. 10. The plaintiffs preferred A.S.No.28 of 2001 before the District Court, Thrissur. The Additional District Court considered the appeal and allowed the appeal in part. The respondents were restrained by a permanent prohibitory injunction from causing obstruction to the appellants in putting up fence on the DE line shown in Exhibit-C3 sketch. Exhibit-C3 sketch was ordered to form part of the decree. While granting the said relief, the appellate court inter alia held that the present plaint B schedule item did not belong to the appellants. The DE line is the eastern boundary of the present plaint A schedule property. 11. Virtually, through the appellate judgment in the earlier suit, it was held that the appellants have no title over the present plaint B schedule property in this suit. It is true that no second appeal was preferred against the decision in A.S.No.28/2001. At the same time, the very same appellants, as R.S.A.419/11 : 7 : plaintiffs, filed the present suit seeking a relief of declaration of title and perpetual injunction. A negative declaration has also been sought for by taking up the contention of adverse possession and limitation. The defendants contended that the suit is barred by res-judicata in view of the decision of the appellate court in A.S.No.28 of 2001. It was at that juncture, the trial court has decided to consider the first issue relating to res-judicata as the preliminary issue. 12. As rightly pointed out by the learned Senior Counsel for the appellants, both the courts below have not cared to mark any of the documents relied on by them and in fact, the issue of res-judicata has not been tried at all. It has also been pointed out that the judgment passed by the trial court in O.S.No.237/1997 was not produced in the suit. The appellate judgment alone was produced. Therefore, the trial court as well as the appellate court could not R.S.A.419/11 : 8 : have noted down as to what were the issues raised and considered by the trial court in O.S.No.237/1997. 13. Apart from the above, it seems that even though the plaintiffs in O.S.No.237/1997 had not sought for a relief of fixation of the eastern boundary of their property, it seems that the appellate court in A.S.No.28/2001 had gone to the extent of considering the question of fixation of boundary and for that limited purpose, considered the question of title also. It is true that either the trial court in O.S.No.237/1997 or the appellate court in A.S.No.28/2001 were not called upon to decide the question of fixation of boundary or title. 14. Evidently, the question of title would not have been raised by the trial court in O.S.No.237/1997. Even then the appellate court took the task and proceeded to decide the question of title as well as the question of fixation of boundary. As rightly pointed out by the learned Senior Counsel R.S.A.419/11 : 9 : for the appellants, when the court fee was paid under Section 27(c) of the Kerala Court Fees and Suits Valuation Act only, normally, the appellate court ought not to have decided the question of title as well as the relief of fixation of boundary. 15. When such exercises were done, presently, it cannot be said that the contention of res-judicata raised by the defendants in the present suit is merely a question of law alone. It can involve mixed question of law and facts. Presently, without the documents proved and marked, it cannot be said that the contention of res-judicata is merely a question of law alone in the suit. In all probability, considering the facts of the suit and considering the facts of the earlier suit, the said contention of resjudicata in this particular case is a mixed question of law and facts. 16. The next question to be considered is whether the courts below were justified in R.S.A.419/11 : 10 : considering the contention of res-judicata as a preliminary issue. The learned Senior Counsel for the appellants has invited the attention of this Court to the decision in Major S.S. Khanna v. Brig. F.J. Dillon [AIR 1964 SUPREME COURT 497], wherein it was held in paragraph 18 as follows: “The Judge of the Court of First Instance unfortunately assumed without a trial an affirmative answer to both these questions. Under O.14 R.2 Code of Civil Procedure, where issues both of law and of fact arise in the same suit, and the Court is of opinion that the case or any part thereof may be disposed of on the issues of law only, it shall try those issues first, and for that purpose may, if it thinks fit, postpone the settlement of the issues of fact until after the issues of law have been R.S.A.419/11 : 11 : determined. The jurisdiction to try issues of law apart from the issues of fact may be exercised only where in the opinion of the Court the whole suit may be disposed of on the issues of law alone, but the Code confers no jurisdiction upon the Court to try a suit on mixed issues of law and fact as preliminary issues. Normally all the issues in a suit should be tried by the Court: not to do so, especially when the decision on issues even of law depends upon the decision of issues of fact, would result in a lop-sided trial of the suit.” 17. No doubt, the position continues to be the very same, even after the 1976 amendment of the Code of Civil Procedure, as is evident from the decision in Ramesh B. Desai and Ors. v. Bipin Vadilal Mehta and Ors. [AIR 2006 SUPREME COURT 3672], R.S.A.419/11 : 12 : wherein the Apex Court had relied on the decision in Major S.S. Khanna(Supra). In Ramesh B. Desai (Supra), it was held that even after the Amending Act of 1976 whereby Order XIV Rule 2 CPC was amended, the principle enunciated in Major S.S. Khanna (Supra) still holds good and there can be no departure from the principle that the Code confers no jurisdiction upon the court to try a suit on mixed issue of law and fact as a preliminary issue. It was held that where the decision on issue of law depends upon the decision of fact, it cannot be tried as a preliminary issue. 18. In Ramesh B. Desai (Supra), it was further held that where the starting point of limitation has to be ascertained in a suit, the plea of limitation cannot be decided as a preliminary issue. In such case, a plea of limitation is a mixed question of law and fact. 19. The learned Senior Counsel has relied on the decision in Gunwantbhai Mulchand Shah and R.S.A.419/11 : 13 : Others v. Anton Elis Farel and Others [AIR 2006 SUPREME COURT 1556], wherein it was held in paragraph 11 as follows: “But again, these questions cannot be decided as preliminary issues and they are not questions on the basis of which the suit could be dismissed as barred by limitation. The question of limitation has to be decided only on the basis of Article 54 of the Limitation Act and when the case is not covered by the first limb of that Article, normally, the question of limitation could be dealt with only after evidence is taken and not as a preliminary issue unless, of course, it is admitted in the plaint that the plaintiffs had notice that performance was refused by the defendants and it is seen that the plaintiffs approached the court beyond three years of the date of R.S.A.419/11 : 14 : notice. Such is not the case here.” 20. A learned Single Judge of this Court had an occasion to consider the above question in Mary W/o. Thomas and another v. Mathew Joseph and Others [AIR 1992 KERALA 305 = 1992 (2) KLT 227], wherein it was held in paragraph 5 that: “ Even assuming that additional issue No.6 could be treated as once concerning res-judicata by reason of the finding in OS.711 of 1971, the same in the circumstance, cannot be a bar to the suit created by law within the meaning of sub-rule (2) of Order XIV, Rule 2. A judgment can operate as res-judicata if the conditions enjoined under Section 11, C.P.C. are satisfied, it should be proved that the issue in the suit was directly or substantially an issue in an earlier suit between the same R.S.A.419/11 : 15 : parties, or between parties under whom they claim, and that they were litigating under the same Title. A compromise decree creates an estoppel by judgment. Estoppel is a rule of evidence. In either case, the matter involves proof. Further res-judicata prevents only trial; it does not prevent institution or entertaining of the suit. Therefore, res-judicata or estoppel cannot be said to be a bar to the suit created by law within the meaning of clause (b) of sub-rule (2) of Order XIV, Rule 2, C.P.C. Thus, it cannot be said that the issue was one which could be tried as a preliminary issue.” 21. Learned counsel for the respondents has relied on the decision rendered by a learned Single Judge of this Court in Narayana Bhakthan v. Anantha Narayanapuram Thuravoor Thiruala Devaswom R.S.A.419/11 : 16 : [2008 (3) KLT 840], wherein it was held in paragraph 10 that: “In a suit, the question of res judicata can be raised as a preliminary point in certain circumstances. Sub-r.(2) of R.2 of O.XIV of the Code of Civil Procedure states that where issues, both of law and of fact, arise in the same suit, and the Court is of the opinion that the case or any part thereof may be disposed of on an issue of law only, it may try that issue first if that issue relates to:(a) the jurisdiction of the Court, or (b) a bar to the suit created by law for the time being in force. The said subrule also provides that the Court may, if it thinks fit, postpone the settlement of the other issues until after that issue has been determined, and may deal with the suit in accordance with the decision on that issue. In M.L.Sethi v. R.S.A.419/11 : 17 : R.P.Kapur [AIR 1972 SC 2379], it was held that it is well settled that a plea of res judicata is a plea of law which concerns the jurisdiction of the court and a finding on the plea in favour of the party raising it would oust the jurisdiction of the court. If the question of res judicata can be decided without reference to the disputed questions of fact and without the necessity of there being any evidence to be adduced, the Court would be justified in dealing with the said contention as a preliminary issue. However, if the Court finds that disputed questions of fact are involved or that the plea of res judicata is a mixed question of law and fact, the Court is not bound to decide the said question as a preliminary issue.” 22. From Narayana Bhakthan(Supra) as well as M.L.Sethi v. R.P.Kapur [AIR 1972 SC 2379], on which, reliance was placed by the learned Single Judge, it is R.S.A.419/11 : 18 : evident that if the question of res-judicata involved in a suit is a mixed question of law and facts, the same cannot be decided as a preliminary issue and in such case, the issue has to be tried along with the other issues. 23. It is strange to note that both the trial court as well as the appellate court has not cared to mark any of the documents pressed into service by the defendants, for raising the contention of res-judicata. Those documents were not proved or marked in evidence. Both the courts below have failed to consider the non-production of the judgment of the trial court in O.S.No.237/1997 also. On this point, the learned counsel for the respondents has argued that in every case, such documents are not required to be marked in evidence. The learned counsel has relied on the decision of a learned Single Judge of this Court in Avira Joseph v. Varghese Mathai and Others [2010 (3) KHC 564], wherein it was held that R.S.A.419/11 : 19 : when it is manifest from the judgment itself that an issue has been raised in that regard, there will be no justification for insisting that the pleadings in the earlier suit must be produced, in order to consider the question of res-judicata. 24. In Ramachandra Dagdu Sonavane (Dead) by L.Rs. & Ors v. Vithu Hira Mahar (Dead) by L.Rs. & Ors [AIR 2010 SUPREME COURT 818], a three Judge Bench of the Apex Court has held that: “If an earlier judgment has to operate as re-judicata in the subsequent proceedings, then all the necessary facts including pleadings of the earlier litigation must be placed on record in the subsequent proceedings.” 25. In view of the decision in Ramachandra Dagdu Sonavane (Supra), the courts below ought to have gone through the entire pleadings and records of the earlier suit in order to find out whether the R.S.A.419/11 : 20 : subsequent suit was barred by res-judicata. For considering those documents, necessarily those documents ought to have been proved and marked in evidence. In such case, the issue involved had to be tried. Here, in this particular case, the courts below have failed to try the issue regarding resjudicata. Matters being so, the issues involved in the suit have to be decided afresh, for which the judgments rendered by both the courts below have to be set aside. In the result, this Regular Second Appeal is allowed and the impugned judgments and decrees are set aside. The matter is remitted to the Munsiff’s Court, Wadakanchery for trying the issues involved in the suit afresh, by giving an opportunity to both the sides to adduce evidence, if any, and to produce further documents, if any. It is made clear that this Court has not formed or expressed any opinion with regard to the questions involved in the suit. All the R.S.A.419/11 : 21 : pending interlocutory applications in this Regular Second Appeal are closed. Being an old suit, the Munsiff’s Court, Wadakanchery, shall dispose of the suit as expeditiously as possible, at any rate, within a period of six months from the date of receipt of a copy of this judgment and records of the case. Parties shall appear before the Munsiff’s Court, Wadakanchery on 11.08.2017. Sd/- **B.KEMAL PASHA,** **JUDGE** DSV/25/7/17 // True Copy // P.A. To Judge