Balkishan v. Kishan Lal

Mahmood, J.:— The facts of this case, so far as they are necessary to indicate the points of law which arise therein, were set forth by me in my referring order of the 16th May last and I need not repeat them now.

In the case of Sita Ram v. Amir Begam I dwelt at some length upon the question whether the plea of res judicata was an estoppel properly so called, and as such a rule of evidence, or simply a rule of procedure. I adopted the latter view, and the distinction has been duly recognized by the Indian Legislature, for we find res judicata enunciated, not in the Evidence Act but in the Code of Civil Procedure. S. 13 of that Code aims at enunciating the whole rule, and the aim has been substantially achieved, though my judgment in the case cited and the judgment of West, J., in Bholabhai v. Adesang(4) and the judgment of Melvill, J., in Nilvaru v. Nilvaru(5) [154] indicate illustrations of the difficulties which the wording of the section still leave open to doubt.

The present case furnishes another of these illustrations, and in dealing with it the most convenient course is to formulate the exact questions which have been raised in the course of the argument at the Bar. These questions seem to be the following:—

1. Was the trial of this “suit” either by the Court of first instance or by the lower appellate Court, barred by s. 12 of the Code of Civil Procedure, in consequence of the circumstance that the previous litigation between the parties was then pending in this Court as second appeal No. 973 of 1886, decided on the 4th July, 1887?

2. Does this Court's judgment of the 4th July, 1887, operate as res judicata, barring either the trial of this “suit” or of the “issue” as to whether the plaintiff is entitled to the malikana allowance which he failed to recover for the previous years to the litigation which ended in this Court's judgment of the 4th July, 1887?

So far as the first of these questions is concerned, it is scarcely necessary to say that the rule contained in s. 12 of the Code of Civil Procedure forms no part of the rule of res judicata, though the reason upon which it is based is in some respects similar in principle to the doctrine of res judicata. The distinction between the two rules, however, is vast. The rule in s. 12 relates to matters sub judice, whilst the rule in s. 13 relates to matters which have passed into rem judicatam. The one bars only a “suit” the other bars both the trial of a “suit,’ and of an “issue” subject to their respective conditions. Those conditions are not all the same in s. 12 as they are in s. 13, and the wording of the two sections as to the distinction is so clear that it is not easy to confound the two rules. Now, in s. 12 before the plea can operate as a bar, the second suit must not only raise the same issue as that in the former suit still pending, but it must be for “the same relief.”

The former litigation sought recovery of the malikana allowance for the years 1290, 1291 and 1292 fasli. In the present case the relief prayed for is the recovery of malikana for the year 1293 fasli. [155] The “issue” as to the right of malikana is no doubt the same as that in the former litigation; but the relief is not the same, for the cause of action is different and the subject-matter is the malikana for the year 1293 fasli which accrued after the institution of the former suit. The object of the rule contained in s. 12 of the Code is to prevent Courts of concurrent jurisdiction from simultaneously entertaining and adjudicating upon two parallel litigations in respect of the same cause of action, the same subject-matter and the same relief. The policy of the law is to confine the plaintiff to one litigation, thus obviating the possibility of contradictory verdicts by two or more Courts in respect of “the same relief.” For instance, if, in the present case, the earlier litigation had related to the malikana for 1293 fasli, the present “suit” would have been barred by s. 12 of the Code on account of the pendency of the earlier litigation. I use the word pendency as distinguished from that state of things when matters in controversy have passed the stage of lis pendens and have become res judicata by final adjudication.

Under this view of the law it is clear that the present “suit,” which was instituted on the 8th June, 1886, for recovery of the malikana for 1293 fasli, was not barred under s. 12 of the Code, in consequence of the previous suit which related to the malikana for the earlier three years, the relief prayed for not being the same. This view seems to me to be somewhat similar to the conclusions, if not also the principles of the ruling of the Calcutta High Court in Bissessur Singh v. Gunput Singh. And I may add that it would be a most unsatisfactory rule of law to hold that the pendency of a litigation connected with the rent, malikana or any other demand for one year should bar a suit for a subsequent year; for if such were the rule, the prolongation of the earlier litigation might result in barring the later suit by lapse of the limitation period.

The distinction which I have explained between the rule contained in s. 12 and the rule of res judicata as enunciated in s. 13 of the Code leads me to the second question as formulated by me, namely, whether the trial of the issue as to the plaintiff's right of malikana [156] is barred as res judicata in consequence of this Court's judgment of 4th July, 1887, which terminated the earlier litigation (S.A No. 973 of 1886).

It was not disputed at the Bar that judgment has become “final” Within the meaning of s. 13 of the Code. The effect of that judgment was to reverse the lower appellate Court's decree of the 10th March, 186, and to dismiss the plaintiff's suit for the malikana of the previous years, to which that litigation related, upon the ground that the plaintiff had failed to prove his title to recover any malikana allowance.

Now, there can be no doubt that for purposes of res judicata it is not essential that the subject-matter of the litigation should be identical with the subject-matter of the previous suit of which the adjudication is made the foundation of the plea, which plea, as I have already said, is extensive enough to bar a suit as well as the re-trial of an issue. The distinction between the two aspects of the plea must not be lost sight of, for it is of special significance in cases of recurring liabilities such as the present. The general rule of law may be briefly stated to be that where a recurring liability is the subject of a claim, a previous judgment dismissing the suit upon findings which fall short of going to the very root of the title upon which the claim rests, cannot operate as res judicata, but if such previous judgment does negative the title itself, the plaintiff cannot re-agitate the same question of title by suing to obtain relief for a subsequent item of the obligation. The rule is recognized both in England and in America, and is well illustrated by the American writers. Mr. Bigelow, in his well-known work on the law of estoppels (p. 45) referring to cases in which there has been no supervenient change in the relative position of the parties, goes on to say:—“Judgment based solely upon the validity of the demand and not upon facts in avoidance, such as payment or compromise, would doubtless operate as a bar. In the case of an action on a debt due by instalments, as for example on a promissory note, judgment against the validity of the main obligation itself would preclude the obligee from suing upon any of the instalments; but an adverse judgment [157] based upon grounds relating merely to a particular instalment sued upon could not in principle bar an action on another of them.”

The same is the rule approved in Indian cases by the highest tribunals when such questions usually arise as to the amount of rent payable by the tenant, rent being of course a recurring liability. Perhaps the most important case enunciating the principle that identity of the subject matter of a suit is not an essential condition precedent to the applicability of the rule of res judicata, is the case of The Rajah of Pittapur v. Sri Rajah Rau Buchi Sittaya Garu, where their Lordships of the Privy Council, held, that, although the subsequent suit related to different property, a previous adjudication as to adoption, such adoption being a necessary element of the plaintiff's title, operated as res judicata barring the re-agitation and re-trial of the same issue in the subsequent litigation.

The principle seems to me to be fully applicable to the point argued in the present case, and I hold that if in the previous litigation any final adjudication as to the plaintiff's absence of title to receive malikana has been arrived at, the mere circumstance that adjudication related to a claim of malikana for the earlier years will not prevent the application of the rule of res judicata.

This then is the first step leading to the real difficulty in the case. What has been argued for the plaintiff-respondent in this case is that on the 8th June, 1836, when the present suit was instituted, there did not exist any such final adjudication as would bar the trial of the suit or the issue, for the lower appellate Court's decree of the 10th March, 1886, in the former litigation was then still liable to second appeal, which appeal was indeed preferred on the 21st June, 1886, that is, about a fortnight after the institution of the suits. It has been contended on the basis of this circumstance that the last sentence of Explanation IV of s. 13 of the Civil Procedure Code requires us to hold that the rule of res judicata is wholly inapplicable to this litigation, because the previous adjudication at the date of the action was not final for the purpose of the plea. At the Same time it has been contended on behalf of the plaintiff-respondent, as [158] an alternative argument, that if at the date of the institution of this suit the rule of res judicata was applicable thereto, the lower-appellate Court's judgment in the previous litigation, namely the judgment of the 10th March, 1886, which decreed the plaintiff's suit, stood unreversed and was therefore final for the purpose of res judicata; and that therefore both: the Courts below acted rightly in dealing with that adjudication as final in favour of the plaintiff's right to malikana and in decreeing this suit, irrespective of this Court's judgment of the 4th July, 1887, which at the time of the institution of the present suit, or at the time when the Courts below were dealing with this case, had not come into existence.

Upon these alternative arguments it has been contended that one of two courses is open to us, either to uphold the lower Court's decrees decreeing this suit or to set aside those decrees and remand the case for trial de novo on the merits under s. 562 of the Code of Civil Procedure, since both the Courts below having dealt with the judgment of the 10th, March, 1886, as conclusive, have declined to try this suit upon the merits.

This argument raises two points for determination as matters of legal principle.

The first is, whether a judgment liable to appeal and which has not yet been appealed from, or an appeal from which is actually pending, can operate as res judicata during the interval preceding the appeal and the period during which the appeal is pending in a higher tribunal. This question distinctly arises in this case, because on the 8th June, 1886, when this suit was instituted, Babu Promoda Charan's decree of the 10th March, 1886, was liable to appeal, and was actually appealed on the 21st June, 1886.

I am of opinion that under such circumstances the decision of the 10th March, 1886, on which both the Courts below have relied for applying the rule of res judicata as barring the trial of the issue as to the plaintiff's right of malikana, cannot be regarded as “final” within the meaning of s. 13 of the Code of Civil Procedure. [159] The latter part of the Explanation IV of that section has been framed in somewhat unspecific language, and runs as follows:—

“A decision liable to appeal may be final within the meaning of this section until the appeal is made.”

The language of the section is silent as to what happens when an appeal has been preferred; and no doubt much depends upon the interpretation of two vague words “may” and “until” as they occur in the sentence which I have just quoted. I may perhaps say that more has been aimed at by that sentence than the few words of which that sentence consists could convey. What has been left unsettled by that sentence is the difficulty pointed out by a juristic Judge of such eminence as Mr. Justice Holloway of Madras in Sri Raja Kakarlapudi Suriyanarayanarazu Garu v. Chellamkuri Chelldmma when that learned Judge said:—

“In the lower Court it seems to have been taken for granted that the former judgment could not be conclusive because an appeal was pending. This is not in accordance with English law, as the judgment on the rejoinder in Doe v. Wright shows. It would, however, be perfectly sound doctrine in the view of other jurists (Unger Oct. Priv. Recht, II, 603, Sav. Syst., 297, Seq. Waihier, II, 549). As an Englishman I should be sorry to invite a comparison between the reasons given by these great jurists for their and those embodied in the English cases for the contrary doctrine.”

Not happening to be an Englishman myself, I may, though a member of the English Bar, respectfully regret that the learned Judge in delivering his judgment refrained from stating the comparison which he indicated. Such a comparison might have been useful in obviating the vagueness of the latter part of Explanation IV of s. 13 of the Civil Procedure Code, which vagueness has given rise to one of the difficulties in this case. And it is because of that difficulty that I feel myself free to put the best interpretation I can upon that sentence, so as to bring it in accord with what I regard as proper juristic reasons.

[160] I hold, so far as my knowledge of English law is concerned, that the point now under consideration is not settled by any long course of decision in England or India. Nor, as I have already indicated, has the Legislature in framing Explanation IV of s. 13 of the Code of Civil Procedure removed the doubt. As Mr. Justice Holloway has pointed out, the view of continental jurists is that judgments still liable to appeal and those that have actually been appealed from, the appeal being still pending, cannot operate as furnishing basis for the rule of res judicata. Pothier has devoted a whole chapter to the discussion of the subject (Law of Obligations, translated by Mr. D. Evans, vol. I, p. 534), and he points out that “a judgment to have the authority, or even the name of res judicata, must be a definitive judgment of condemnation or dismissal. A provisional condemnation then cannot have either the name or the authority of res judicata, for, although it gives the party obtaining it a right to compel the opposite party to pay or deliver provisionally the money or things demanded, it does not put an end to the cause, or form a presumption juris et de jure that what is ordered to be paid or delivered is due, since the party condemned, after satisfying the sentence, may be admitted in the principal cause to prove that what he was ordered to pay is not due,” and consequently to obtain a revocation of the judgment. He then points out that judgments still liable to appeal stand, for the purpose of res judicata, on the same footing as provisional judgments, and that the effects of such judgments “are only momentary and cease as soon as an appeal is made. This is the case even where the sentence ought to be executed provisionally, notwithstanding the appeal, for such execution only gives the sentence the effect of provisional judgments, which, as we have already mentioned, have not the authority of res judicata.”

I hold that the views thus expressed by Pothier and, as Mr. Justice Holloway has indicated, adopted by other continental jurists as to the doctrine of res judicata, are consistent with the interpretation which I place upon Explanation IV of s. 13 of the Code of Civil Procedure in relation to the authority of judgments still liable [161] to appeal. Such judgments are not definitive adjudications. They are only provisional, and not being final cannot operate as res judicata. Such indeed seems to be the view adopted by the learned Judges of the Bombay High Court when they said, in Nilvaru v. Nilvaru, “We consider that when the judgment of a Court of first instance upon a particular issue is appealed against, that judgment ceases to be res judicata and becomes res sub judice.”

In this case therefore, both the Courts below were wrong in law in holding that the previous judgment of the 10th March, 1886, which at the date of the institution of this suit was still liable to appeal, and which at the date of the decision of this suit by the first Court, as also at the date of the decision by the lower appellate Court, was the subject of a second appeal pending in this Court (S.A No. 973 of 1886) could operate as res judicata in favour of the plaintiff in regard to his title as to the malikana.

If the difficulty of the case rested here, the proper decision of this appeal would, of course, be to decree this appeal and, setting aside the decrees of both the Courts below, to remand the case, to the Court of first instance for trial upon the merits. But the matter requires consideration of the effect of my judgment in the former litigation, dated the 4th July, 1887. That judgment, as I have already said, did not exist when this suit was filed (8th June, 1886); it did not exist when first the Court decreed the plaintiff's claim (21st August, 1886); it did not exist when the appeal was preferred to the lower appellate Court (13th September, 1886); it did not exist when the appeal, was dismissed by the lower appellate Court (27th November, 1886), on the ground of Babu Promoda Charan's decree of 10th March, 1886, which was reversed by my judgment. Nor did my judgment exist when this second appeal was preferred (17th May, 1887), the result being that both the appeal (S.A No. 973 of 1886) in the former litigation and this appeal were pending at the same time in this Court till my judgment in the former case was passed on the 4th July, 1887.

[162] The question then is, what are we to do now in this case? Are we to accept my final judgment of the 4th July, 1887, (which terminated the former litigation) as res judicata, for purposes of dismissing this suit?

The question relates to the scope of the maxim pendente lite nihil innovetur. That the maxim governs alienations pendente lite cannot be doubted. Does it also relate to adjudications which have taken place during the pendency of one litigation in another litigation which, though commenced before, had not terminated when the present litigation was begun?

So far as I am aware, this exact question has not been settled by any definitely authoritative decision in England or in India. I am therefore not hampered by any case law on the subject, and feel-myself free to adopt such views as I consider most consonant with legal principles.

It seems to me that the main object of the doctrine of res judicata is to prevent multiplicity of suits and interminable disputes between litigants, ne autem lites immortales essent, dum litigantes mortales sunt. This saying of Voet is in accord with the maxims nemo debet his vexaripro una et eadem causa, and the broader maxim interest reipublicce ut sit finis litium. This being so, the doctrine, so far as it relates to prohibiting the re-trial of an issue, must refer not to the date of the commencement of the litigation, but to the time when the Judge is called upon to decide the issue. For even in cases where the Judge has commenced the trial of an issue which is also an issue in a pending litigation, a final judgment pronounced meanwhile in such previous litigation by a competent Court (the identity of parties and other conditions being satisfied) should operate as res judicata preventing the Judge dealing with the later litigation from adjudicating differently. If this is not done, it seems to me that the evil against which res judicata aims would not be removed and the doctrine itself would be defeated. So far as the justification of this view from the provisions of the Civil Procedure Code is concerned, I may say that the rule contained in s. 13 is not [163] limited to the Courts of first instance, that it applies equally to the procedure of the first and second appellate Courts by reason of ss. 582 and 587 respectively, and, indeed even to miscellaneous proceedings by reason of the general provisions of s. 647 of the Code.

Applying these views to the present case, the argument for the plaintiff-respondent, whilst conceding that my judgment of the 4th July, 1887, has become final, requires us either to hold, in spite of that judgment, that the plaintiff is entitled to the malikana right which that judgment negatived, or to remand the case for trial of an issue which in a litigation between the same parties has already been settled against the plaintiff by a final adjudication.

I do not think that either of the alternatives suggested on behalf of the plaintiff-respondent can be adopted. We cannot to-day, when we are called upon to decide the issue as to the plaintiff's right of malikana, ignore my final judgment of the 4th July, 1887, which negatived that right in a previous litigation between the parties. Under the exigencies of the case, what the two lower Courts might have done is of no consequence, so far as the disposal of this appeal is concerned. They have acted irregularly in accepting Babu Promoda Charan's decree of 10th March, 1886, as a final adjudication, which has already been shown to be wanting in the requisites of a final adjudication within the meaning of Explanation IV of s. 13 of the Code. But so far as we are concerned in this case, we cannot ignore my judgment of the 4th July, 1887, nor can we remand the case for re-trial of the very issue which that judgment finally decided against the plaintiff's right of malikana.

I do not think that the law contemplates any such results. And after full consideration of the matter, I am glad to agree in the view which I understood the learned Chief Justice and my brother Straight to be inclined to adopt at the hearing, that for the purposes of disposing of this appeal we must regard my judgment of the 4th July, 1887, as conclusive against the plaintiff's right of malikana claimed in this suit, and that we should decree this appeal, [164] and setting aside the decrees of both the Courts below, dismiss the suit with costs in all the Courts.

I would order accordingly.

Sir John Edge, C.J:— I concur.

Straight, J.:— So do I.

Appeal allowed.