Krishan Kumar vs Satish Kumar and Others

A.S. Nehra, J.—This appeal is directed against the judgment and decree dated 17th April, 1990 passed by the Additional District Judge Sangrur, by which the appeal filed by the Plaintiffs-Respondents was allowed and the judgment and decree dated 28th November, 1987 passed by the trial Court (dismissing the suit filed by the Plaintiffs-Respondents) was set aside and the suit filed by the Plaintiffs-Respondents was decreed.

The facts of the case, as given in the plaint, are that the property, including the suit property, was jointly owned by the Plaintiffs and Defendants Parkash Chand and Panna Lal, but the same was partitioned orally on 23rd August, 1959; that the suit property as well as some other property fell to the share of the Plaintiffs; that the partition effected was consented to by Daropadi also; that the suit property which fell to the share of the Plaintiffs, however, was allowed to be retained by. Parkash Chand Defendant for 15 years and the latter was to relinquish possession of the suit property (shop) thereafter in favour of the former. That, since possession of the suit property was not surrendered by Defendant Parkash Chand, a suit was filed for possession as well as for recovery of Rs. 1,800 towards damages for Use and occupation for the period from 1st October, 1980 to 31st October, 1983 at the rate of Rs. 50 per month.

Defendant Parkash Chand denied the material averments made in the plaint. However, he pleaded that the decision in Civil Suit No. 176 of 1979 between the parties could not operate as res judicata in any manner qua the factum of oral partition dated 23rd August, 1959, adding that, even if the said decision be taken to be res judicata, the suit of the Plaintiffs itself is hit by constructive res judicata in view of Explanation IV to Section 11 of the Code of Civil Procedure.

Defendant Panna Lal admitted the factum of oral partition, as pleaded in the plaint, but denied the other averments affecting him adversely. He also pleaded that he was arrayed improperly as no real had been claimed against him.

On the pleadings of the parties, the following issues were framed:

Whether the Plaintiffs are entitled to the injunction, prayed for ?

Whether the Plaintiffs are entitled to recover Rs. 1,800 on the basis of the judgment and decree dated 25th August, 1982 ?

Whether the suit of the Plaintiffs is barred by the principles of res judicata ?

3-A. Whether the judgment and decree dated 25th August, 1982 in case Panna Lal v. Parkash Chand, operates as res judicata ? If so, its effect ?

Whether the suit is not properly valued for the purpose of

Court-fee ?

4-A. Whether the Plaintiffs have not mentioned the shop, in dispute, accordingly in the plaint ? If so, its effect ?

Whether the suit is not maintainable in the present form ?

Relief,

The trial Court decided issues Nos. 1, 2, 3 and 3-A against the Plaintiffs. Issues Nos. 4, 4-A and 5 were not pressed by Defendant Parkash Chand and. therefore these issues were decided against Parkash Chand Defendant and the suit filed by the Plaintiffs-Respondents was dismissed by the trial Court on 28th November, 1987.

Mr. H.L. Sibal, Senior Advocate, has argued that the civil suit filed by the Plaintiffs-Respondents for mandatory injunction is not maintainable and, therefore, the suit filed by the Plaintiffs-Respondents is liable to be dismissed on this short ground. He has further submitted that the Plaintiffs-Respondents should have filed a suit for possession. In support of his argument, he has relied upon Section 5 of the Specific Relief Act, 1963, and Sections 16 and 17of the Code of Civil Procedure.

The learned Counsel for the Plaintiffs-Respondents, Mr. K.S. Saini, has argued that the Defendant-Appellant was under an obligation to deliver possession of the shop to the Plaintiffs-Respondents after 15 years of the partition. In support of his argument, he has relied upon Section 39 of the Specific Relief Act. which reads as under:

Mandatory injunctions. -When, to prevent the breach of an obligation, it is necessary to compel the performance of certain acts which the court is capable of enforcing, the court may in its discretion grant an injunction to prevent the breach complained of, and also to compel performance of the requisite acts.

After hearing the learned Counsel for the parties, I find force in the argument raised by Mr. K.S. Saini, learned Counsel for the Plaintiffs-Respondents, and hold that the Defendant-Appellant was under an obligation to return the possession of the shop to the Plaintiffs-Respondents after 15 years of the partition. The Plaintiffs Respondents had given the shop to their brother Parkash Chand Defendant to help him in his business. Therefore, it does not lie in the mouth of the Appellants that the present suit for mandatory injunction is not maintainable. Moreover, this plea cannot be allowed to be raised for the first time in the regular second appeal after 94 years of. the filing of the suit. The suit filed by the Plaintiffs-Respondents for mandatory injunction is maintainable.

The learned Counsel for the Appellants has further argued that the present suit filed by the Plaintiffs-Respondents is hit by the principles of res judicata in view of Explanation IV to Section 11 of the Code of Civil Procedure, because the Plaintiffs did not raise the plea of possession/damages for the use and occupation in Civil Suit No. 178 of 1979, which plea was available to the Plaintiffs because the period of 15 years from the date of oral partition had expired.

After giving due thought to the respective contentions advanced in this context, I have the least hesitation to hold that the instant suit cannot be said to be hit by Explanation IV to Section 11 of the Code of Civil Procedure. All the Explanation IV to Section 11 of the CPC provides is that any matter which might and ought to have been made ground of defence or attack in such former suit shall be deemed to have been a matter directly and substantially in issue in such suit and nothing beyond. The earlier suit, as the record shows, was instituted by Panna Lal against Parkash Chand Defendant Ram Sarup and Jagan Nath, present Plaintiffs, and others and that too simply for possession by way of partition but the suit was dismissed holding that oral partition had taken place in the year 1959, meaning thereby that it was not obligatory on the part of the present Plaintiffs to raise the plea of possession/damages for use and occupation from their co-Defendant Parkash Chand in that suit. Like wise, it also cannot be said that the Court in the earlier suit was, in fact, bound to grant the relief of possession/damages for use and occupation in favour of one Defendant against his co-Defendant. Still further, it cannot be said if the plea of possession/damages for use and occupation forming the subject matter of the instant suit in any manner is either a ground of defence or attack by one Defendant against the co-Defendant in a suit for partition at the instance of a person who is neither a Defendant nor co-Defendant but merely a Plaintiff.

It is only when the determination of the question as between Co-Defendants is necessary for the determination of the Plaintiff's claim that the decision as between Co-Defendants would operate as res judicata. If such determination as between Co-Defendants were not necessary for the decision of the Plaintiff's case, such decision would not operate as res judicata for the simple reason that is on a question which, in the language employed in Section 11, CPC Code, is, though substantially, not directly in issue. It would thus be clear that whenever the contest between Co-Defendants is not indicated and included in the Plaintiffs action itself, then it follows that, for the purpose of a decision operating as res judicata as between co-Defendants, there must have been actually a conflict or issue raised as -between them and that such conflict or issue must have been necessary for the determination of the Plaintiff's case or claim,

Therefore, the present suit is not barred by the principles of res judicata. There is no merit in the appeal and the same is dismissed with costs which are assessed at Rs. 5,000.