Cases referred :

1. Salubai v. Chandu, 1966 Mh.L.J. 289.

2. Radhabai v. State of Maharashtra, 1969 Mh.L.J. 933.

3. Shenphad Sadashiv v. Maharashtra Revenue Tribunal, 1970 Mh.L.J. 541.

4. Laxman v. Sk. Munir, Spl.C.Appl. No. 867 of 1968, dt. 4-2-1971.

5. Pandurang v. Maharashtra Revenue Tribunal, 1973 Mh.L.J. 792.

6. Balawant v. Secretary of State, X Bom.L.R. 531.

7. Chauli v. Meghoo, I.L.R. 1945 All. 798.

8. Newington v. Levy, 1870(6) C.P. 180.

9. Shrinivas v. Purshottam, A.I.R. 1953 Bom. 393.

10. Satyadhyan v. Smt. Deorajin, A.I.R. 1960 S.C. 941.

11. Mathura Prasad v. Dossibai, 1971 Mh.L.J. 37.

12. Quinn v. Leathem, 1901 A.C. 495.

13. Bhudhilal v. Jagannathdas, A.I.R. 1963 M.P. 344.

14. Bandhu v. Rahman, A.I.R. 1966 Pat. 209.

15. Konappa Mudaliar v. Kusalary, A.I.R. 1979 Mad. 328.

16. State of Madhya Pradesh v. Mulamchand, A.I.R. 1973 M.P. 293.

17. The United Provinces Electric Supply Co. Ltd. v. T.N. Chatterjee, 1972 S.C. 1201.

18. Jairam Kisan v. Chandrakaladevi, A.I.R. 1974 Bom. 49.

Advocates appeared :

J.N. Chandurkar, for petitioner.

C.P. Kalele, for respondents Nos. 1 & 2.

Per DESHPANDE V.S., J.: - The petitioners in both these applications are tenureholders. Each of them applied for possession of land from their protected lessees for personal cultivation, under section 36 read with section 38 of the Bombay Tenancy and Agricultural Lands (Vidarbha Region) Act, 1958, (hereinafter referred to as the "Tenancy Act"). They claim title to the pieces of lands in dispute under partition of their joint family property dated 28-3-1959. Tenure-holders acquiring title to the lands after 1-8-1953 are prevented from claiming such possession under section 38(7) if their tenant happens to be protected lessee. It was a moot point originally whether acquisition of title under a "partition" after 1-8-1953 also fell within the mischief of this provision. However, it was so expressly included therein under Amendment Act 44 of 1964. Scope of this amended section 38(7) came up for consideration before this Court in the case of (Smt. Salubai v. Chandu)1, 1966 Mah.L.J. 289. It was held that the word partition in section 38(7) did not cover partition of the joint family property, as such member cannot be said to have acquired title to the property for the first time under such partition. Several cases then pending before the High Court and Revenue Tribunal (hereinafter referred to as the Tribunal) involving this point were remanded to the Tahsildar for enquiry, holding on the authority of Salubais case that claims for possession such tenure-holders were not barred under section 38(7). These two cases were also remanded accordingly by the Tribunal on 17-1-1966. By the time the litigation reached the Tribunal thereafter in revision, after orders passed in compliance with such remand orders Salubais case (supra) was overruled by the Full Bench of this Court in the case of (Smt. Radhabai v. State of Maharashtra)2, 1969 Mah.L.J. 933. It is held that the word partition in section 38(7) includes partition of the joint family property and acquisition of the title to the land under such partition after 1-8-1953 also is hit by sub-section 7 of section 38. Following this judgment of the Full Bench, the Tribunal, inter alia, held that claims in these applications were bared under section 38(7) of the Tenancy Act and were liable to be rejected. It is the validity of this order that is challenged in these Special Civil Applications.

2. In all such cases coming up in second round of litigation, the High Court and the Tribunal is faced with a vexed question as to its compentency to ignore its remand order based on Salubais case, to give effect to the law laid down in Radhabais case. There has been no unanimity in finding out an answer to the same. In the case of (Shenphad Sadashiv v. Maharashtra Revenue Tribunal)3, 1970 Mah.L.J. 541, Chandurkar, J., held that such remand order operated as res-judicata and precluded the Tribunal and also the High Court from following the dicta in Radhabais case. This view was followed by him in his unreported judgment dated 2-8-1972 in Special Civil Application No. 156 of 1970 between Gowardhandas v. Amjadbeg and also in his judgment dated 4-2-1971 in Special Civil Application No. 867 of 1968 (Laxman v. Sk. Munir)4, in a slightly different context holding that remand order based on the earlier High Court view as to the applicability of section 38 to the leases already terminated under section 8 of the Berar Regulation of Agricultural Leases Act of 1951 precluded the Revenue Tribunal from following Supreme Court, overruling the same, at subsequent stage after remand. Masodkar, J., on the other hand, in the case of (Pandurang v. Maharashtra Revenue Tribunal)5, 1973 Mah.L.J. 792, held that such remand order of the High Court based on Salubais case cannot preclude it from giving effect to the dicta in Radhabais case if the matter comes before it again after the remand. This conflict necessitated reference of these cases to this Bench.

3. The question, therefore, that arises for consideration is :

Would remand order operate as res-judicata and preclude the remanding Court from re-opening it at the subsequent stage of the same continuing proceedings even when the law underlying remand order is differently interpreted by the large Bench or by the Supreme Court?

Ordinarily, the decision once recorded, whether on issue of law or issue of fact, is conclusive and binding on the parties. This is so even apart from the statutory principle of res-judicata of section 11 of the Code of Civil Procedure. This is a Rule of procedure based on sound public policy to, prevent the harassment of the litigants, waste of time of the courts and to keep the confidence of litigants in the machinery of justice unimpaired. In the very nature of things, however, when such order or finding is recorded at the stage of remand, the order happens to be interlocutory and cannot terminate the case and the litigation finally and the possibility of the litigation coming up before the remanding Court at another stage cannot be ruled out. Ordinarily, such orders would be conclusive and binding on the parties like any other interlocutory order.

4. Can this rule, however, have no possible exceptions at all? Instances are not uncommon where re-consideration of such orders is necessitated either by the discovery of fresh evidence after the remand or unforeseen development subsequent to the order or change of law thereafter having retrospective effect. These are only illustrative instances, which may require reconsideration of the remand order by the remanding Court to mould the subsequent proceedings in the light thereof to ensure complete justice and prevent multiplicity of the litigation. Such question can arise only when the litigation is not finally terminated and seisin of the cause is restored to the remanding Court in continuation of the usual stages after remand. In fact, some of these grounds enable the reopening of the litigation even after the final order or a decree, terminating litigation, is passed under the statutory provisions for review. If the orders can be reopened after final decree is passed, there is hardly any good reason or rational ground for denying the litigants the same opportunity even before that stage is reached to spare litigants of time, costs and harassment.

5. In the case of (Balawant v. Secretary of State)6, X Bom.L.R. 531, Division Bench, consisting of Chief Justice Sir Lawrence Jankins and Mr. Justice Bachelor, was confronted with a contingency where remand order passed earlier by another Division Bench was found to have been based "upon an assumption or hypothesis" which was ascertained to be erroneous. The remand order was found liable to be disregarded and the case liable to be reopened to the extent of that portion, which was found to have been affected by the said error. Ratio of this case was subsequently followed by the Full Bench of the Allahabad High Court in the case of (Chauli v. Meghoo)7, I.L.R. 1945 All. 798. In this context a passage from the judgment of (Newington v. Levy)8, 1870(6) C.P. 180, quoted with approval by Desai, J., in (Shrinivas v. Purshottam)9, A.I.R. 1953 Bom. 393, can be usefully quoted :-

"..... the doctrine of res judicata applies to all matters which existed at the time of giving of the judgment, and which the party had an opportunity of bringing before the Court. But, if there be matter subsequent which could not have been brought before the Court at the time, the party is not estopped from raising it."

6. This indeed is as it should be. The principle of res-judicata is merely a rule of procedure and in its application to the interlocutory remand orders, is based more on propriety and public policy than on any statutory prohibition. No impropriety can be said to be involved when remand order is required to be reconsidered under the above stated illustrative exceptional circumstances. It is not a mere case of another co-ordinate Bench choosing to decide differently and the same Bench correcting its own mere erroneous decision on facts or law. Compulsions of propriety in such cases rather tilt in favour of reconsideration.

7. In the present case, Full Bench of this Court in Radhabais case, found that the law declared in Salubais case was based on some misconception and that the legislative mandate deliberately expressed in Amendment Act No. 44 of 1963 was overlooked. The Tribunal, in our opinion, was bound by this statement of law declared by the High Court and also bound to proceed on the basis that its earlier remand order based on Salubais case was equally misconceived. The Tribunal was equally bound to give effect to the law in Radhabais case when consequential to the pendency of the revision, entire dispute had become subjudice and case was at large including its remand order. It is one thing to seek to correct ones mistake of its own and quite another thing to so correct in compliance with the binding authority of the Superior Court. section 38(7) of the Tenancy Act is a legislative piece of agrarian reforms and policy formulated therein has to be implemented unless procedural hurdles stand in the way. If alternation of statute law retrospectively can compel a Court to ignore its previous order in pending proceedings, alteration introduced by the Judge made law also would furnish an equally good ground as an exception to general rule of res judicata. Res implicit in the law declared by the Full Bench cannot be said to have been judicata when case was remanded relying on Salubais dicta, points revealed in Radhabais case not having fallen for consideration at all.

8. Mr. J.N. Chandurkar, learned Advocate for the petitioners tenure-holders, drew our attention to the judgment of the Supreme Court in the case of (Satyadhyan v. Smt. Deorajin)10, A.I.R. 1960 S.C. 941, and contended that this our view militates against ratio of this case. Reliance was placed on para 7 thereof. This of quoted passage has now become classic on the question of the statutory and constructive principles of res-judicata applicable to decree and final orders in any litigation governed by Code of Civil Procedure or otherwise and admits of little controversy. But this is never taken to be an unqualified statement of law admitting of no exception or limitations. Subsequent judgment of the Supreme Court in the case of (Mathura Prasad v. Dossibai)11, 1971 Mah.L.J. 37, is illustrative of the few of such exceptions. It is held therein inter alia that earlier decision as to, the application of the Rent Act to the open plot leased for construction and the jurisdiction of the Court to fix the standard rent cannot operate as res judicata under section 11, Civil Procedure Code in subsequent proceedings by the same tenant. The question in the present cases and the one arising in Shenphads case and other case cited no doubt is slightly different. However, relevancy of the ratio of Mathura Prasads case lies not so much in its direct application to the point, as in that it is indicative of possible exceptions to the general rule of law stated in para (7) above.

9. Strong reliance was also placed by Mr. Chandurkar on the following passage from para 8 of Satyadhyans case :

"The principles of res-judicata applies also as between two stages in the same litigation to this extent that a Court, whether the trial Court or a higher Court having at an earlier stage decided a matter in one way will not allow the parties to reagitate the matter again at a subsequent stage of the same proceedings."

This passage, no doubt, is directly relevant and is relied on in Shenphads case also. But more relevant and illuminating is the question posed in the immediately following passage hinting at some exception to the above general rule, though the exception is of a quite different nature.

"Does this however mean that because at an earlier stage of the litigation a Court has decided in interlocutory matter in one way and no appeal has been taken therefrom or no appeal did lie, a higher Court cannot at a later stage of the same litigation consider the matter again?"

After discussing the relevant provisions of the Code of Civil Procedure and referring to the leading Privy Council cases on the point, Supreme Court recorded its conclusion in para 16 of the judgment as follows :-

"It is clear, therefore, that an interlocutory order which had not been appealed from either because no appeal lay or even though an appeal lay an appeal was not taken could be challenged in an appeal from the final decree or order."

10. This, contends Mr. Chandurkar, supports his contention that remand order operates as res judicata in the remanding Court and, any error therein can be corrected only in appeal. Some observations in this case and also in Ganpathis case, A.I.R. 1969 S.C. 764 no doubt do seemingly lend support to this contention. To our mind, however, this contention is ill-founded. That the legal position generally is so admits of no doubt and the first part of the above passage only restates the same. The question posed in the latter part and answer recorded thereto is the only true ratio of this case. This case explodes the long entertained myth that unappealed interlocutory remand orders are final and errors therein are not open to correction at any subsequent stage even in appeal against the final order. According to this case, such finality can be claimed, only for orders so made expressly final, under statutory provision like section 105(2) Civil Procedure Code or to the orders resulting in termination of the proceedings finally. This case does not deal with any exceptional situation before the remanding Court itself, as arises in the present case, and does not even seek to deal therewith. Any question whether the High Court of itself could have reopened its remand order passed in its revisional jurisdiction on any exceptional ground adverted to by us, was not posed and the Supreme Court was not called upon to decide. In fact question as to the effect of the alteration of law by the larger Bench or any Superior Court could not have arisen in that case as the law under the remand order, as to the application of the repealed section 28 of the Calcutta Thika Tenancy Act was overruled by the Supreme Court on the same day on which Satyadhyans case was decided, as indicated in the judgment itself.

11. Not such can be made out of the reference to the words "appeal", "Higher Court" or "final order" in the judgment, as the Supreme Court was in fact correcting the error in the earlier remand order of the High Court in appeal, as higher Court, against the final order passed at the subsequent stage. These words are descriptive of the factual position rather than being in any manner determinative of any point as such. As is succinctly put by the Lord Chancellor in (Quinn v. Leathem)12, 1901 A.C. 495, a case is an authority for the actual point decided and not for what may logically follow or for any observations made therein. The emphasis of the Supreme Court is not so much on "appeal" or on "higher" Court as on the revokability of such interlocutory orders in subsequent stages of the same proceedings in the absence of any statutory prohibition. Satyadhyans case thus is not an authority for the proposition either that remand order cannot be corrected by the remanding Court under any circumstances or that it can be interfered only by the higher Court and that too in "appeal" proceedings.

12. Reliance also was placed by Mr. Chandurkar on the case of (Bhudhilal v. Jagannathdas)13, A.I.R. 1963 Madhya Pradesh 344, (Bandhu v. Rahman)14, A.I.R. 1966 Patna 209, (Konappa Mudaliar v. Kusalary)15, A.I.R. 1979 Mad. 328 and (State of Madhya Pradesh v. Mulamchand)16, A.I.R. 1973 M.P. 293, Mnlamchands case has no relevance as final decision in earlier writ proceedings obviously would operate as res-judicata as to the same issue in any subsequent suit. All other cases, proceed on the assumption that Supreme Court has laid down in Satyadhyans case that interlocutory orders operate as res-judicata in remanding courts also. We have already indicated how this assumption is unfounded. Secondly, High Courts in India differ as to the powers of the remanding courts to re-consider their earlier remand orders when the matter comes before it after remand. Patna case is distinguishable on this point. We are bound by the view of our own High Court in Balvants case (supra), though question in the present case does not so much turn on that difference. The point of distinction relied on by Mr. Chandurkar, between the cases of remand retaining the file on its record as in Balwants case and cases where file is not so retained is not of any substance and at any rate not relevant in the present cases as Tenancy Act does not have any provision alike Order 41, Rule 25, Civil Procedure Code. Madras and Madhya Pradesh High Courts also have relied on several such cases differing from the above Bombay view. In Madras case observations also are obiter as on merits it was found that adherence with the subsequently altered law would not make any difference, while M.P. High Court in Budhilals case does not indicate any reasons of it for such an approach, apart from relying on Satyadhyans case. With respect, we beg to differ with them.

13. Shenphads case is distinguishable in that, Radhabais case does not appear to have been decided when the Tribunal had disposed of the revision after remand. Only question was whether, earlier remand order of the Tribunal could operate res-judicata in the High Court in proceedings under Article 227 against its subsequent order. We will presently show how it would, not. Reliance is also placed therein on the Supreme Court judgment in Shankar Pralhads case reported in 1971 Madhya Pradesh Law Journal 461 which was also relied on before us. To our mind, ratio of this case has no relevance. Board of Revenues order in appeal, that Claims Officer had no jurisdiction to settle secured debt, had become final with the conclusion of the proceedings therein. Mortgagee moved the claims Officer in fresh proceedings contending that his earlier application stood automatically revived due to Board of Revenues such view being overruled by the High Court in some other case. Basis of the ratio of the Supreme Court judgment is that order of Revenue Board had become final and was not interlocutory and proceedings before the claims officer for revival were fresh and unconnected in continuity with the earlier closed proceedings. In Shenphads case, as in the present cases, proceedings before the Revenue Tribunal were in continuation of the earlier ones at different stage. Thus we have no hesitation in holding that earlier remand order of Tribunal could not operate as res-judicata when the case reached the Tribunal after remand and the Tribunal was bound to follow the ratio of Radhabais case.

14. We also find much substance in the alternative contention of Mr. Kalele, the learned Advocate for the respondent, that such remand order, even if assumed to operate as res judicata in the remanding Court, i.e. the Tribunal, would cease to be so before the High Court in proceedings under Article 227 of the Constitution. This should be so on the express authority of Satydhyans case (supra) even without the existence of any such exceptional circumstance. We have also indicated how reference to appellate jurisdiction in Satyadhyans case is merely descriptive of the factual position rather than being decisive of any such point. It is difficult to see any basis for the contention that, Superior Court can correct interlocutory earlier remand order only in appeal proceedings and not in writ proceedings under Article 227 of the Constitution when otherwise such error falls within the scope of its superintending jurisdiction. Distinction drawn between the appellate and superintending jurisdiction respectively under Article 136 and 227 of the Constitution is without any substance for the purposes of the point under consideration. In fact appeal under Article 136 of the Constitution, in exercise of which Supreme Court interfered in Satyadhyans case, is as much a constitutional and extraordinary remedy as the remedy under Article 227 of the Constitution, claim to either of which cannot be made by any citizen as of right as can be made under statutory remedies of appeal and revision. Some point is made out in Shenphads case of the fact that cause or litigation ceases to be pending when any matter comes before the High Court under Article 227 of the Constitution. Decision of the point really turns on the liability of the impugned orders to interfere than on its pendency. Satyadhyans case is authority for the proposition that at any rate higher Court like the High Court, can reach any interlocutory orders including remand order even when its powers are invoked against final orders. It is then open for the High Court to interfere with remand order and remove the hurdle if it stands in the way of the Tribunal in following the later law declared by the High Court or in its direction to refuse to interfere with its final correct order even if it is assumed to have wrongly ignored its earlier remand order.

15. It was also argued that remand order in cases under consideration are not interlocutory in the sense in which the same were treated in Satyadhyans or Ganpathis case (supra). It is said that rights of the parties are finally decided under impugned orders which was not the case in the two Supreme Court cases. In the first instance such contention is factually incorrect. In Satyadhyans case the High Court had found under remand order that section 28 of the Calcutta Thika Tenancy Act did apply and the defendant was a Thika tenant. It is difficult to see how no rights can be said to have been decided thereunder. Secondly Satyadhyans case itself does not recognise any such distinction. Only orders excluded from the liability to interfere are those that are made final by virtue of some provision of law analogous to section 105(2) of the Civil Procedure Code or which has the force of the decree as indicated in para 21 of the judgment of Satyadhyans case.

16. Reliance on the Supreme Court judgment in Arjun Sings case reported in A.I.R. 1964 S.C. 993 appears to us, with respect, to be entirely besides the point. The defendants application to set aside exparte order under Order 9, Rule 7 was rejected holding that no good cause was shown. His subsequent application for setting aside exparte decree under Order 9, Rule 13 was also rejected by the trial Court and also High Court on the ground that first order operated as res judicata. Supreme Court held that this view was incorrect. In the detailed discussion in para 13 of the judgment, reference is made to various categories of interlocutory orders and in particular to orders directed to maintain the status quo during the pendency of the trial and others directed towards speedy but smooth passage of the trial such as under Order 9, Rule 7. It was held that orders of both the categories did not attract the rule of res-judicata and were different from others to which rule of res judicata applied. What these other categories of orders are did not fall for consideration, and are not indicated in the judgment. Remand orders are not even remotely adverted to in the discussion. We are unable to see its relevance to the point in dispute.

17. Reliance in this context on the judgment in Shoba Singhs case in A.I.R. 1968 Supreme Court 1328, also appears to us to be irrelevant. Litigation as to the validity of adoption, after several vicissitudes reached the High Court and the case was remanded to the Board of Revenue in exercise of powers under Article 226 of the Constitution after recording certain findings. The aggrieved party did not prefer any remedy against the remand order but after the order of the Board of Revenue on remand, by-passed the High Court and invoked the jurisdiction of the Supreme Court under Article 136 of the Constitution. Remand order of the High Court was considered as operating res-judicata by the Supreme Court on the ground that High Court decided the issues finally and remand was superfluous. It is pertinent to note that Supreme Court could not have reached the High Court order in appeal against the order of the Board of Revenue as the order operating as hurdle was not either of the Board of Revenue or any subordinate authority thereto. We are unable to see why the High Court in these cases under consideration is incompetent to reach earlier remand order in proceedings under Article 227 of the Constitution against the final order.

18. What has been said about the remand order of the Tribunal is also equally good as to the remand of the High Court in such cases passed under Article 227 of the Constitution. We do not see any reason why High Court should not be able to reconsider its own remand order in a pending matter when the same case comes before it is continuation of said proceedings and its reconsideration becomes necessary to give effect to the law laid down by a larger Bench or the Supreme Court. It has been held by the Supreme Court in the case of (The United Provinces Electric Supply Co. Ltd. v. T.N. Chatterjee)17, 1972 S.C. 1201, that remand order passed by the High Court under Article 227 of the Constitution is an interlocutory order within the ratio of Satyadhyans case.

19. Our attention was drawn by Mr. Kalele to the judgment of Chandurkar, J., in Special Civil Application No. 698 of 1970 decided on 30-3-1972 and Dharmadhikari, J., in (Jairam Kisan v. Chandrakaladevi)18, A.I.R. 1974 Bom. 49. The remand orders in both these cases have been construed as being a decision on pure question of law unrelated to facts within the ratio of Mathura Prasads case.

20. Support was also sought to be drawn to this approach from few observations of Masodkar, J., in Pandurangs case (supra). We are hesitant to hold so at any rate in these cases. Such remand order, as held in Shenphads case uphold the claim of the tenure holders to claim possession. It is difficult to hold that order is not in relation to facts in issue. Mr. Kalele drew our attention to few other observations to Pandurangs case about corrective powers of the Court and also contended that section 38(7) raised an issue of jurisdiction. With respect we are reluctant to base our view thereon. We would guard against over-emphasising corrective powers of the Court in disregard of procedural limitation adverted to in paragraph 21 of Satyadhyans case. While fettish should not be allowed to make of the rules of procedure, adherence thereto, in our opinion, is as much essential to the case of justice as the adherence to substantive law. Such wide connotation of the word "jurisdiction" is also open to doubt.

21. With respect we beg to differ from the view of Chandurkar, J., and agree with the conclusion of Masodkar, J., though for reasons of own and answer the formulated question in the negative.

22. The learned Advocate appearing for the parties made a statement at the Bar that no other points survive in the cases after our above view on the main point. Rules are liable to be discharged. Rules discharged. No order as to costs.

Reference answered; rule discharged.

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