Aman vs Panna Lal

P.R. Sharma, J.—This is an appeal by the plaintiffs against the judgment and decree dated the 4th of February, 1959 passed by the Second Addl. District Judge Gwalior arising out of Civil Original Suit No. 512 of 1953 of the Court of the Addl. Civil Judge 1st Class City Lashkar.

The facts giving rise to this suit may briefly be stated thus. The plaintiffs had formerly filed a suit for possession of a house against the present respondent. On appeal the first appellate Court remanded the suit to the trial Court for decision as to the amount of compensation to be awarded to the defendant in respect of improvements made by him to the property in dispute. The decision of the appellate Court was affirmed on appeal by the High Court. The trial Court determined the amount of compensation to be awarded to the defendant but, due to in advertance, in the decree which was ultimately passed no mention was made that possession of the house was to be given to the plaintiffs. No appeal was preferred by the plaintiffs against this decree. After the period of limitation for filing an appeal had expired several unsuccessful attempts were made by the plaintiffs for an amendment of the decree passed by the trial Court. Thereafter they tried to get possession of the house in execution proceedings. But their claim for possession was finally rejected by the High Court. Ultimately the plaintiffs filed the present suit claiming (1) the correction of the decree passed in the previous suit or (2) an independent decree for possession or (3) for return of the costs of improvements and mesne profits already realised by the defendant. The trial Court dismissed the suit on the findings arrived at by it on issues Nos. 5,8 & 9. An appeal against the decree passed by the Court of first instance was also dismissed. The plaintiffs have now come up in Second appeal.

The first question which arises for consideration is whether the Courts below have rightly held that the suit out of which this appeal arises is barred by res-judicata. The plaintiff had in the former suit asked for possession and declaration of his title in respect of the house bearing Municipal No. 10 of 1712 situate at Madhoganj Lashkar. On appeal the District Judge Gwalior, by his judgment dated the 25th of May 1934, held that the property in dispute belonged to the plaintiffs, but that they were liable to pay costs of repairs made by the defendant. The suit was remanded to the Court of first instance with a direction to determine the said costs. The judgment of the first appellate Court was, as has been already observed above, on appeal affirmed by the High Court.

By his judgment dated the 24th of June, 1938 the City Sub-Judge, Lashkar held that the plaintiff''s should pay a sum of Rs. 90 to the defendant by way of cost of repairs to the house in suit. Neither the judgment passed by the original Court, nor the decree framed on its basis, however, made any mention about possession of the house in dispute being handed over to the plaintiffs. The defendant has admittedly recovered the amount of Rs. 90 awarded to him in execution of the decree passed by the trial Court.

The question is whether a subsequent suit could in these circumstances lie either for rectification of the decree passed in Civil Suit No. 123 of Samvat 1994 or independently of that decree for obtaining the relief as to possession of the house which was through oversight not decreed in the former suit. Reliance was placed by the learned counsel for the plaintiff on the case of Abde Ali vs. Taiab Ali (AIR 1951 Nag. 355) in support of the proposition that where the Court being under misapprehension as to the actual relief claimed by a party did not apply its judicial mind to that part of the parties claim, the omission by it to grant that particular relief cannot in law operate as res-judicata. In that case the judgment passed in the former suit made it clear that the Court treated the suit to be one merely for a declaration of the plaintiff''s share in the property in question. It was, therefore, held that the Court having not applied its mind to the claim for possession made in the plaint the omission on the part of the Court to grant relief would not operate as res judicata. In the present case the trial Court was obviously not labouring under any such misapprehension. The appellate Court by which the suit was remanded had clearly held the plaintiffs title to the property in dispute to be proved and had remanded the suit only for the purpose of determination of the costs of repairs made by the defendant. It cannot in the circumstances be said that the trial Court was oblivious of the fact that the plaintiff had claimed possession of the house and that his claim had been decreed by the first appellate Court and affirmed on appeal by the High Court. All that had to be done by the trial Court on remand of the suit was to determine the costs of repairs. The trial Court cannot by virtue of Explanation V to S. 11 CPC be deemed to have rejected the claim for possession; since it had in fact no power to do so. But the further question is whether the plaintiffs have a right to institute a fresh suit in order to secure a relief which could be sought in an appeal or review of the judgment passed by the trial Court.

In Dutches of Kingston (1 East P. C. 468) the following dictum was laid down by D''grey L. J. :- The judgment like all other acts of the highest judicial authority is impeachable from without, although it is not permitted to show that the Court was mistaken, it may be shown that they were misled. This dictum was cited with approval by Lord Selborne in Ochsenbein Popelier (21 W. R. 516). The judgment or decrees passed by a competent Court can, therefore, not be impeached on the ground of mistake unless the mistake occurred on account of fraud by a party thereto or collusion between the parties.

In the present case it is not alleged that the omission in the judgment and decree passed by the trial Court in the former suit to include the relief as to possession took place on account of any fraud by a party to that suit or collusion between the parties. A mere mistake on the part of the Court would not be any ground for entertaining a fresh suit. The party aggrieved by a mistake of the Court which has not been occasioned by any fraud or collusion must seek his remedy either by review, or in an appeal against that judgment and decree. If a party does not avail of the remedies open to him under the law it cannot be permitted to seek a rectification of the decree by a fresh suit. To permit him to do so would destroy the sense of finality of the judgments and decrees passed by Courts of competent jurisdiction. (See Kusadhaj Bhakta vs. Broja Mohan Bhakta; AIR 1916 CAL. 816).

I do not, therefore, see any force in this appeal. It is hereby dismissed; but in the circumstances I shall make no order as to costs.

Leave to appeal is granted.