Sm. Ayetonnessa Bibi v. Amjad Ali

The Judgment of the Court was as follows:—

Suhrawardy, J.:— These appeals arise out of suits for rent for the years 1326 to 1329 B.S The Defendants held a jama under the miras ijara of the Plaintiffs. The Government thereafter claimed a portion of the land included in the jama as accretion and started Dearah proceedings under Act XXXI of 1858 in respect of it. In those proceedings the Dearah officer purported to settle separate rent in respect of that portion of the land which he found to have been alluvial accretion. In 1917 the Plaintiffs brought suits for rent as settled by the Dearah officer. One Asmat Ali, one of the Defendants in those suits and who is also a Defendant in the present suits and who seems to be the most prominent figure in this fight, appeared and contested the suits on the ground that the Dearah officer had no authority under the law to split the jama and assess rents thereupon. In spite of the contest the suits were decreed by the Munsif. Shortly after the decrees were passed, a petition was filed on behalf of the Plaintiffs and Asmat Ali in which he admitted the jama as decreed and agreed to pay rent to the Plaintiffs at the rate decreed. In 1919 the Plaintiffs again brought suits for rent and Asmat Ali contested them on the grounds taken by him in the previous suits. Those suits were also decreed according to the claim of the Plaintiffs. The present suits were brought in 1923 claiming rent at the rate claimed in the previous suits. The same defence was raised not on behalf of Asmat this time, but on behalf of the Appellant a pardanashin lady. The trial Court upheld the defence and decreed the suits in a modified form. The Appellate Court on appeal by the Plaintiffs has decreed the suits according to the rent claimed by the Plaintiffs. These appeals are by one of the Defendants and several points have been raised before us by the learned vakil appearing in support of them.

It is contended in the first place that the findings arrived at in the lower Appellate Court with reference to the decrees of 1917 and 1919 are inconsistent and that the Court having held that the decree in the previous suits did not operate as res judicata in the present suits he should have further held that rents assessed by the Dearah officer are not recoverable in the present suits’. The learned Subordinate Judge has held that the decisions in the suits of 1917 and 1919 are not res judicata because they were erroneous decisions on a question of law. He considered the attitude of the Appellants in the previous suits and relying upon the petition filed by Asmat above referred to and the circumstances in the cases including the previous decisions against the Defendants he decreed the Plaintiffs' suits in full. I must admit that the reasoning of the learned Subordinate Judge is not very consistent and clear. But the learned Advocate for the Rsepondents has attempted to defend the decree of the lower Appellate Court on a ground on which the Subordinate Judge took a different view. His contention is that the decrees in the previous suits ought to operate as res judicata in the present suits. In the circumstances of the present case it seems to me that this contention is well-founded. In the suits of 1917 inspite of the contest by one of the Defendants who had appeared, the Court held that the Plaintiffs were entitled to recover rent as settled by the Dearah officer. It is said it is a wrong decision on a pure question of law and therefore cannot operate as res judicata. Now, the question whether a decision on a question of law ought to operate as res judicata or not is a question on which it is difficult to find any uniformity in the decisions in the various reports. The principle which ought to govern decisions of this question has been lucidly laid down in Aghore Nath Mukherji v. Sreemati Kadambini Devi (1), which has been followed in a number of cases which it is not necessary to examine as they are based on the principle laid down in that case. A weighty pronouncement on this subject has been made by the Bombay High Court in the Full Bench case of Sitaram Sakharam v. Lakshaman Vinaiak (2), where Shah, J., observed: “It seems to me that the plea of res judicata is not dependent upon the merits of the reasons given for a particular conclusion. The conclusion whether right or wrong is binding upon the party ….. Its binding character does not depend upon the correctness of the reasons for the conclusions …. The section (sec. 11, C.P.C) does not make any distinction between an issue of law and other issues; it refers generally to questions directly and substantially in issue and heard and finally decided; and I do not think that the distinction can be accepted without restricting the scope of the section in a manner not justified by the words of the section. It would involve the reading of words in the section which are not there.” The result of all the decisions upon this point is that a decision, however erroneous it may be on a question of law, may not operate as res judicata only in cases where the causes of action are different; but in all other cases it must operate as res judicata between the parties. The view that an erroneous decision on a question of law should not constitute res judicata is based on the consideration that otherwise an error of law would be perpetuated by Courts of justice for all times to come. But it is settled that an erroneous decision based upon a mixed question of law and fact will operate as res judicata though the decision on the question of law involved is erroneous. Ramlal Malikand v. Deodhari Rai (3) and Hublal v. Gudzarilal (4). In the latter case a view has been broadly stated that an erroneous decision on the question of law will be as much res judicata between the parties as upon any other question. This unqualified expression of opinion may not be consistent with that which has prevailed for a long time in other Courts, but it is not wholly unjustifiable. Reliance has been placed on behalf of the Appellant, in support of his submission that the decision in the suits of 1917 and 1919 were erroneous in law and therefore cannot operate as res judicata in the present suits, upon the decision in Alimunnissa Chaudhurani v. Shama Charan Rai (5). In that case the previous decree was given on a certain view taken on the question of law as then understood. Subsequent to that decision the Judicial Committee laid down the law what it should be. After the decision of the Judicial Committee a subsequent suit was brought and it was contended that the decision in the previous suit was res judicata. The learned Judges held that a change in the law as affected by the decision of the Judicial Committee will have the same effect if it was effected by a statute and therefore the decision of the question of law in the previous suit was not res judicata in a subsequent suit. In the concluding portion of the judgment Maclean, C.J, remarked: “I do not desire to be understood as saying that a point of law can never constitute res judicata.” This decision was upheld on similar facts in Nabin Chandra Saha v. Dudu Mea (6). These cases, therefore, do not support the contention that an erroneous decision on a question of law does not constitute res judicata between the parties to the suit.

Now, let us examine the particular facts on which the plea of res judicata is based. In the suits in 1919 the Court held that the issue involved in the suit of 1917 was not restricted to that suit but was of general application and therefore, the decision on the question of the amount of rent payable by the Defendant would operate as res judicata. But it went on to observe that apart from the question of res judicata, there were other circumstances on which the Defendants must be made liable to pay rent according to the Plaintiffs' claim and one such circumstance referred to was the agreement entered into by the Defendant Asmat in the previous suit by which he admitted the jama as claimed by the Plaintiff. The learned vakil for the Appellant argues that his client is not bound by the act of Asmat or by any admission made by him. The learned Subordinate Judge in the Court below has held upon some authorities that an admission by a Defendant is receivable in evidence against other Defendants. But apart from that consideration the decision of the Munsif in 1919 upon this question was at most erroneous on a question of fact and there can be no doubt that a decision on a question of fact, however erroneous it may be, constitutes res judicata between parties to the previous suits. According to the judgment of the Munsif in the suits of 1919 the Defendants (meaning all the Defendants to the suits) waived the ground taken by them in those suits and they could not come forward again to challenge the decision in the previous suits. Whatever may be the decision with regard to a decree in the suit of 1917 there does not seem to be any doubt that the decree in 1919 must be binding on the Defendants.

There is another aspect of this question from which it may be viewed. The erroneous decision on a question of law in the suits of 1917 was upheld by the Court in the suits in 1919 by following it or treating it as res judicata. This latter decision should, be conclusive between the parties otherwise there can be no finality in any judgment unless it is right in law. In support of this view reference may be made to the decision in Mahendra Nath Biswas v. Shyamsunnissa Khatun (7). There, in the previous suit it was wrongly held that a decision in the suit before that was not res judicata. Their Lordships held that the latter decision even if it was erroneous became conclusive between the parties and that it was not open to any one of them to plead that the former decision still operated as res judicata.

There is another consideration which has induced us to hold that the decision in the previous suit ought to operate as res judicata. In the suits of 1919 one of the issues that were placed before the Court for decision was “whether the Plaintiffs were entitled to claim rent for the Dearah land as alleged; if so, at what rate?” This issue was not restricted to the period in suit in those cases; but was an issue directed to the general right of the Plaintiff to recover rent at a certain rate in respect of that land. The Appellant was the Defendant in those suits and she did not choose to appear in them. The decisions in those suits are as much binding upon her as on the Defendants who appeared and contested them. Gnanada Govind Chaudhuri v. Nalinibala Devi (8) and Sarojini Debya v. Lakhipriya Guha (9).

Though the learned Subordinate Judge in these cases has held that the previous decision ought not to be treated as res judicata he has referred to other circumstances in support of his decision that the Plaintiffs are entitled to recover rent at the rate claimed by them from the Defendant. He holds that these cases were really conducted by Asmat Ali who is behind this pardamshin lady and is carrying on this litigation in her name. He also relies upon the petition filed by Asmat in 1917 as constituting an admission by the Defendants represented by Asmat of the rate of rent and he also observes that under the decrees in the previous suits the decretal amounts were realised. Relying upon all these circumstances he has held that the Plaintiffs are entitled to decrees against the Defendants. We cannot say that this finding is based upon an erroneous view of the law.

As a result of the above considerations these appeals fail and are dismissed with costs to the Respondents represented by Mr. Gunada Charan Sen and Babu Jyotish Chandra Guha.

Graham, J.:— I agree.

S.C.M