Whether plea of Res judicata can be waived?

 That a plea of res judicata is not a plea touching the jurisdiction of a Court in the total or absolute sense and that it can be waived by a party to a proceeding has been held in P. C. Ray and Co. (India) Pvt. Ltd. v. Union of India. The observations made by their Lordships in paras 14 and 15 of this judgment are pertinent :

"14. the plea of res judicata, in our opinion, is not a plea touching the jurisdiction of a Court in the total or absolute sense. The Court has to go into the said plea as any other plea of law, as for example, limitation and then decide whether the issue or the claim is barred by res judicata or principles analogous thereto.

15. It has been held that the plea of res judicata may be waived by a party to a proceeding. In the premises the plea of res judicata can never be a judisdictional question. For jurisdiction can be conferred neither by waiver nor even by consent of the parties. It has been held by a Division Bench of this Court in Rajani Kumar Mitra v. Ajmaddin Bhuiya as follows : to wit : --

"The bar of res judicata is one which does not affect the jurisdiction of the court but is a plea in bar which a parry is at liberty to waive. If a party does not put foward his plea of res judicata in a suit he must be taken to have waived it.....The party omitting to plead res judicata intentionally invites the court to decide the case on the merits....." "

15. Order VI, Rule 1 of the Civil P.C. defines "pleading" as meaning plaint or written statement. The plea of res judicata, on the strength of the decision (supra), raised by the non-applicant plaintiff in reply to the application of the applicant-defendant (Exhibit 36) dt. 3-12-1983, challenging the jurisdiction of the Small Cause Court, cannot be said to have raised in the plaint without the plaint having been amended. As the plea of res judicata can also be waived by a party, the learned Small Causes Court should not have considered the question of res judicata while deciding the application (Exhibit 36) and precluded the applicant-defendant from challenging its juridiction on the ground that a substantial issue as regards title and interest in the immoveable property was being raised in the suit.

Bombay High Court

Wilfred Lovette vs Ganesh on 9 November, 1987

Equivalent citations: AIR 1988 Bom 142, 1988 (1) BomCR 637

Bench: B Deo

1. This revision application under Section 25 of the Provincial Small Cause Courts Act, 1887, challenging the judgment and decree of ejectment and arrears of rent mesne profits passed by the learned Additional Judge, Small Causes Court, Nagpur oin 25-3-1985 in Civil suit No. 592 of 1981, against the applicant-defendant Wilfred Lovette, raises an important question as to whether Small Causes Court loses jurisdiction in an ejectment suit, as soon as the defence is raised in the written statement under Section 53A of the T. P. Act, 1882, contending inter alia that the defendant is in possession of the suit premises in part performance of a contract for sale of the suit property by virtue of an agreement in writing executed by the owner, and that the plaintiff being a transferor of the suit property by a sale deed from the owner is debarred enforcing against the transferee-defendant under Section 53A of the T. P. Act any right in respect of the property of which the defendant-transferee had taken or continued in possession.

2. Incidentally, it has also to be considered whether a Division Bench ruling of this Court in Prabhakar Atmaram Kale v. Bharat Santaji More holding inter alia that the effect of Explanation VIII to Section 11 of the Civil P. C. is that the finding of the Rent Controller under Clause 13(3) of the C.P. and Berar Letting of Houses and Rent Control Order, 1949, holding existence of relationship of landlord and tenant between the parties, is res judicata in a civil suit filed by the landlord and that the defendant cannot seek to have the same question adjudicated in the Civil Court, needs re-consideration and a reference to a larger Bench.

3. The facts giving rise to this litigation may be stated thus. The applicant-defendant was a tenant of the non-applicant plaintiff's vendor. He had occupied two blocks on the first floor of Municipal House No. 44 situated in Ward No. 60, New Colony, Naya Basti, Nagpur. The non-applicant plaintiff purchased the entire House No. 44 from the original landlord of the applicant-defendant by virtue of sale-deed dt. 7-2-1979 (Exhibit 52 copy). According to the non-applicant plaintiff, the applicant-defendant was his tenant occupying two blocks on the first floor of the house on a monthly rent of Rs. 55/-, the tenancy commencing from the first day of each English calendar month. The plaintiff obtained permission of the Rent Controller to determine the tenancy of the defendant in Revenue Case No. 494/A-71(2)/1978-79 vide his order dt. 16-2-1981 and determined the tenancy of the defendant in respect of the suit premises with effect from 31st Mar. 1981 by serving him with a quit notice dt. 19-2-1981 received by the defendant on 14-3-1981. The defendant did not comply with the notice and did not vacate the suit premises.

4. The plaintiff, therefore, filed Civil Suit No. 592 of 1981 in the Court of the Small Causes Judge, Nagpur, for ejectment of the defendant, for possession of the suit premises, for recovery of arrears of rent and for mesne profits and notice charges.

5. The said suit came to be decreed ex parte on 21-9-1981. The ex parte decree was set aside and thesuit was restored to file. The defendant filed written statement (Exhibit 15) on 22-10-1982 which came to be amended on 27-9-1983. The applicant-defendant denied the relationship of landlord and tenant as between the plaintiff and himself and defended his possession under Section 53A of the T. P. Act, by virtue of an alleged agreement of sale executed by the vendor of the non-applicant plaintiff on 18-2-1975. According to the defendant, he had agreed to purchase the entire house, of which the suit premises are a part, from Surinder Singh, the vendor of the non-applicant plaintiff, in consideration of Rs. 17,000/- by an agreement of sale in writing on 18-2-1975 and had paid the earnest money of Rs. 6,000/- to Surinder Singh and was in possession of the suit premises in pursuance of the said contract. The contract dt. 18-2-1975 was prior in time to the sale-deed dt. 7-2-1979 by which the non-applicant plaintiff alleged to have purchased the entire house.

6. The applicant-defendant also filed an application (Exhibit 36) dt. 3-12-1983 and applied as under :

"That this suit involves the point of title. Therefore, the dispute is about the title of the suit property between the parties. Hence the suit is not liable to be tried by this Court.

It is therefore prayed that this Court be pleased to decide the point of jurisdiction."

To this application, a reply was endorsed by the counsel of the non-applicant plaintiff as follows :

"This issue does not arise. This point be kindly decided today only. Once an existence of relationship is decided finally by the Rent Controller, the same issue cannot be raised by the defendant as per ruling of our High Court reported on ."

In view of this application, the learned Small Causes Judge framed an issue as regards his jurisdiction to try the suit answered it in the affirmative by his order passed on the same day i.e. on 3-12-1983. The learned Small Causes Judge was of the opinion that because a rival title is set up by the defendant, the issue does not become a complicated issue which cannot be tried by the Small Causes Court. He placed reliance on the case Rambilas Mohanlal Kabra v. Krishnabai Motilal Agrawal, which is an authority on the proposition that in an eviction suit questions as to existence of tenancy or sub-tenancy are not question of title. Reference to this case may be made later in this judgment. The learned Small Causes Judge also relied on (supra) and held that the existence of relationship as landlord and tenant between the parties was res judicata and could no longer be agitated before the Small Causes Court which is also a Civil Court. Consequently, the learned Small Causes Judge held that he had jurisdiction to decide the matter and proceeded to decide the suit and eventually passed the impugned decree on 25-3-1985.

7. The applicant-defendant had challenged the order dt. 3-12-1983 passed by the learned Additional Judge, Small Causes Court, Nagpur, in a revision application No. 219 of 1984. However, in view of the impugned decree passed against him in the meantime in Civil Suit No. 592of 1981 by the learned Additional Judge, Small Causes Court, Nagpur, he withdrew the Civil Revision Application No. 219 of 1984 and preferred Misc. Civil Appeal No. 189 of 1985 against the impugned judgment and decree before the District Court, Nagpur. The applicant-defendant also withdrew his Misc. Civil Appeal No. 189 of 1985 as not maintainable in the Court of the District Judge, Nagpur and preferred present Civil Revision Application with an application for condonation of delay. The delay was condoned. The revision was admitted and has now been heard at length on merits.

8. I have heard at length Shri Pendharkar, the learned counsel for the applicant and also Shri P.C. Palshikar, the learned counsel for the non-applicant.

9. Shri Pendharkar, the learned counsel for the applicant, mainly raised two questions, one relating to the ruling of the Division Bench (supra) and the other relating to the jurisdiction of the Small Causes Court which, according to his contention, was ousted as soon as the applicant-defendant had raised a defence under Section 53A of the T. P. Act in his written statement giving rise to a substantial issue to be decided as regards the title and interest to the immoveable property in suit which the Small Causes Court had no jurisdiction to decide in view of Section 15 and Clause (4) of Second Schedule of the Provincial Small Cause Courts Act, 1887.

10. So sar as the first question as regards the decision of the Rent Controller being res judicata in a civil suit is concerned, the learned counsel for the applicant, Shri Pendharkar, contended that in view of an issue decided by the Rent Controller to be res judicata in a Civil Court under Explanation VIII to Section 11 of the Civil P. C. it must first be found out whether the Rent Controller can be called as a "Court" of limited jurisdiction. According to Shri Pendharkar, the Rent Controller no doubt had limited jurisdiction, but it was not a "Court". A plethora of cases were cited at length by Shri Pendharkar in support of his contention that the Rent Controller cannot be considered as a "Court" within the meaning of Explanation VIII to Section 11 of the Civil P. C. They are :

(1) Haji Zakeria Suleman v. Collector, Yeotmal; (2) Firm of S. Mohd Ali & Sons v. V.V. Madhavarao; (3) (1965) 1 Mad LJ 287, V. Seethalakshmi Animal v. P. R. Rajammal; (4) Mathura Prasad Rajgharia v. Kanailal Mullick; (5) 1969 Mah LJ 421 : Diwalibai v. Jaikumar; (6) Town Municipal Council, Athani v. Presiding Officer, Labour Court, Hubli; (7) Nityanand M. Joshi v. Life Insurance Corporation of India; (8) Kerala State Electricity Board, Trivandrum v. T. P. Kunbaliumma; (9) Ulahannan Chacko v. Pareed Marakkar; (10) 1980 Lab IC 6 (Bom), Vithaldas Vallabhadas Vaishnav v. Kohinoor Mills Co. Ltd.; (11) Raghu Nath Jalota v. Romesh Duggal; and (12) Kalidas v. Wamanrao.

11. It is unnecessary to go into the question whether the Division Bench ruling of this Court reported in 1983 Mah LJ 426 :

(supra) lays down a good law or not, for the simple reason that the plea of res judicata was never raised by the non-applicant plaintiff in the plaint and can, therefore, be deemed to have been waived by the non-applicant plaintiff. Even after the written statement was filed and also amended, the non-applicant-plaintiff did not take any steps to amend the plaint consequentially to raise a contention that the question of relationship of landlord and tenant between the parties was res judicata in view of the decision (supra). It is true that it was raised in reply to the applicant-defendant's application (Exhibit 36) dt. 3-12-1983 which was decided on the same day, However, it was not thereafter incorporated in the plaint when the plea was available. Besides, as would be seen later, the question of jurisdiction of the Small Causes Court to entertain the suit itself, by virtue of the defence raised under Section 53A of the T. P. Act, had to be determined first before the question of the Rent Controller's finding being res judicata in a civil suit arose. Besides, a plea of "res judicata" should be specifically pleaded and if not raised it will be deemed to have been waived. It is not enough to say that the suit is barred by res judicata in view of Explanation VIII to Section 11 of the Civil P. C. It should have been pleaded by the nonapplicant plaintiff, in view of the decision of the Rent Controller (who had, though a limited, jurisdiction) that the applicant-defendant was the tenant of the non-applicant plaintiff, that the said finding was res judicata by virtue of Explanation VIII to Section 11 of the Civil P.C. A pleading to that effect was absolutely necessary. Otherwise, it can be said that the non-applicant plaintiff did not treat the question of relationship of landlord and tenant between the parties as a closed issue as he had waived the plea of res judicata.

12. In , Raja Jagadish Chandra Deo Dhabal Deb v. Gour Hari Mahato, their Lordships of the Privy Council found that the High Court was right in declining to allow the appellant to go into the question of res judicata on the ground that it had not been raised by the proper pleadings or in the issues, particularly in the issues.

13. A Division Bench (Full Bench) of the Allahabad High Court in the case Ramesh Chand v. Board of Revenue, has observed in para 6 of the judgment as follows :

"6. Before the plea of res judicata can be considered, it must be pleaded at the proper stage. In order to establish such a plea, the copy of the judgment and the decree ought to be filed. We find that this plea was not taken in the proceedings. The appellants who rely upon this plea have not filed copy of the judgments rendered in the declaratory suit under Section 59, U.P. Act. It is hence not feasible to entertain such a plea."

14. That a plea of res judicata is not a plea touching the jurisdiction of a Court in the total or absolute sense and that it can be waived by a party to a proceeding has been held in P. C. Ray and Co. (India) Pvt. Ltd. v. Union of India. The observations made by their Lordships in paras 14 and 15 of this judgment are pertinent :

"14. the plea of res judicata, in our opinion, is not a plea touching the jurisdiction of a Court in the total or absolute sense. The Court has to go into the said plea as any other plea of law, as for example, limitation and then decide whether the issue or the claim is barred by res judicata or principles analogous thereto.

15. It has been held that the plea of res judicata may be waived by a party to a proceeding. In the premises the plea of res judicata can never be a judisdictional question. For jurisdiction can be conferred neither by waiver nor even by consent of the parties. It has been held by a Division Bench of this Court in Rajani Kumar Mitra v. Ajmaddin Bhuiya as follows : to wit : --

"The bar of res judicata is one which does not affect the jurisdiction of the court but is a plea in bar which a parry is at liberty to waive. If a party does not put foward his plea of res judicata in a suit he must be taken to have waived it.....The party omitting to plead res judicata intentionally invites the court to decide the case on the merits....." "

15. Order VI, Rule 1 of the Civil P.C. defines "pleading" as meaning plaint or written statement. The plea of res judicata, on the strength of the decision (supra), raised by the non-applicant plaintiff in reply to the application of the applicant-defendant (Exhibit 36) dt. 3-12-1983, challenging the jurisdiction of the Small Cause Court, cannot be said to have raised in the plaint without the plaint having been amended. As the plea of res judicata can also be waived by a party, the learned Small Causes Court should not have considered the question of res judicata while deciding the application (Exhibit 36) and precluded the applicant-defendant from challenging its juridiction on the ground that a substantial issue as regards title and interest in the immoveable property was being raised in the suit.

16. It is not, therefore, necessary in this revision application for me to decide as to whether the law enunciated by the Division Bench of this Court in (supra) was good law or bad law for the simple reason that the question of res judicata did not arise in the small cause suit in question because it had not been raised in the plaint by the non-applicant plaintiff. The question, as and when it arises in this litigation, can be decided by the Court having jurisdiction.

17. The next question canvassed by Shri Pendharkar for the applicant defendant merits serious consideration. The suit before the learned Small Causes Judge was a suit for ejectment on the ground that the defendant's tenancy was determined by a quit notice. The defence was that the defendant was not a tenant but an owner as he had entered into an agreement of sale between the vendor of the non-applicant plaintiff and himself, by virtue of an agreement in writing dt. 18-2-1975 and he had also continued in possession as such and not as a tenant.

18. The plea raised by the applicant-defendant in para 13 of his written statement (Exhibit 15) is as follows:

"That there was an agreement for sale of the entire building of which the suit house is a portion, by Surendra Singh s/o late Ujaghar Singh, the owner of the property, to the defendant dt. 18-2-75, for Rs. 17,000/-, out of which Rs. 6,000/- was paid on 18-2-75 and Rs. 11,000/- was to be paid at the time of registration of the sale deed. In part performance of the contract dt. 18-2-75, the defendant was placed in possession of the property as owner thereof. While the defendant was ever ready to perform his part of the contract and complete the sale, Surendra Singh failed to do so. Before selling the suit house building to the plaintiff, the owner did not intimate the defendant. The plaintiff also did not proclaim to the defendant of his intended purchase of the house by notice or publication in the newspapers. Hence the defendant has a title of ownership to the suit property and thus this Court has no jurisdiction to try this suit."

This defence was certainly one under Section 53A of the T.P. Act. The learned trial Court has failed to notice the provisions of Section 53A of the T.P. Act which are as follows :

"53A. Part performance -- Where any person contracts to transfer for consideration any immoveable property by writing signed by him or on his behalf from which the terms necessary to constitute the transfer can be ascertained with reasonable certainty, and the transferee has, in part performance of the contract, taken possession of the property or any part thereof, or the transferee, being already in possession, continues in possession in part performance of the contract and has done some act in furtherance of the contract, and the transferee has performed or is willing to perform his part of the contract, then, notwithstanding that the contract, though required to be registered, has not been registered, or, where there is an instrument of transfer, that the transfer has not been completed in the manner prescribed therefor by the law for the time being in force, the transferor or any person claiming under him shall be debarred from enforcing against the transferee and persons claiming under him any right in respect of the property of which the transferee has taken or continued in possession, other than a right expressly provided by the terms of the contract:

Provided that nothing in this section shall affect the rights of a transferee for consideration who has no notice of the contract or of the part performance thereof."

When a transferee takes possession of the property in part performance of the contract or continues to remain in possession as such, and does some act in furtherance of the contract and is willing to perform his part of the contract, then, although the transfer has not been completed in the manner prescribed, the transferor or any person claiming under him shall be debarred from enforcing against the transferee and persons claiming under him any right in respect of the property of which the transferee has taken or continued in possession, other than a right expressly provided by the terms of the contract. The appellant has raised a plea and has pleaded all the ingredients of defence of part performance under Section 53A of the T.P. Act. The contract is in writing. According to the applicant, he continues in possession, that he has paid municipal taxes, repaired the house in furtherance of the contract, that he is ready to perform his part of the contract etc. All this needed investigation as it related to a right in respect of immoveable property superseding the right of tenancy with the original vendor. Such an investigation could not have been embarked upon by the Small Cause Court.

19. In the case Chinna Theyar v. Gnaneprakasi Animal, it has been observed, relying on the Division Bench ruling of that Court in Munuswami Gounder v. Eruse Gounder, as follows :

"On the other hand, speaking for the Bench, Sri Veeraswami, C.J. has held that Section 53A of the T.P. Act does confer some right on the transferee, if the conditions of that section are fully satisfied, that this is a right to have the transferor or any person claiming under him debarred from enforcing against a transferee and persons claiming under him any right in respect of the property of which the transferee has taken or continued in possession, that this right can be enforced by the transferee always as a shield and not as an independent claim either in the capacity of plaintiff or defendant, that is to say, he cannot ask for title basing his claim on the fact that he has fulfilled the conditions of Section 53A, that he can as a shield, ask for protection of the right envisaged by Section 53A, by debarring by getting an injunction against the transferor and those claiming under him from interfering with his possession."

It was further observed :

"If the transferee who has fulfilled the conditions of Section 53A of the T.P. Act, can rely on the agreement of sale in his favour as shield in a suit for eviction and can even ask for an injunction to protect his possession as against the transferor, there is no reason why he should not rely on the agreement of sale in similar circumstances as a shield against the landlord in proceedings for eviction instituted under the Tamil Nadu Buildings (Lease and Rent Control) Act. There appears to me to be no difference in principle between a defence to an action in proceedings under the Act and a defence to an original suit for eviction."

The instant suit was a suit for eviction before the learned Small Causes Judge. A defence has been raised under Section 53A of the T.P. Act as a shield for debarring the non-applicant plaintiff to claim possession. The plea has given rise to a substantial issue which had to be decided in a regular Court and not in a Small Cause Court, in view of Section 15 and Clause (4) of the Second Sch. of the Provincial Small Cause Courts Act.

20. In the case reported in 1976 Mah LJ Note No. 32, Page 19, Abdul Hac v. Smt. Kalsumbi, in a suit for ejectment and arrears of rent, the defendant claimed to be the owner by virtue of a gift and it was held that the Small Causes Court had no jurisdiction to try the suit. In that case, it was held that it was not a case of mere denial of tenancy but defendant had pleaded a positive case claiming title; that the main question involved related to a question of title and that therefore the Small Cause Court had no jurisdiction to try the suit. In the instant case also, the main question relates to the title which has been raised by the appellant and that, therefore, the Small Cause Court has no jurisdiction to decide the suit.

21. In Premchand Mahasukhbhai v. Chamanlal Ranchhoddas reported in AIR 1945 Bom 479, it has been held thus :

"It is thus clear that where there is any substantial issue arising for decision other than the determination of lease by efflux of time or by notice under Clause (b) of Section 111, T.P. Act, the Court of Small Causes would have no jurisdiction to hear a suit for possession of immoveable property or for the recovery of any interest in such a property. It has been held by this Court in ; Bai Hari v. Nathubhai Parbhubhai and ; Bai Jivkore v. Himatlal Girdharlal, that whether the question at issue is substantial or not must be determined having regard to the averments made in the plaint and the contentions taken in the written statement. In (supra), Macklin, J. observed that--

"there can be no question at issue unless there is a difference between the parties, and in order to determine what the issue is, we have to consider the allegations of both sides."

The question, therefore, whether the Court of Small Causes had jurisdiction or not must be determined having regard to the contentions taken by the defendants in the three suits."

22. The argument, therefore, that in order to find out whether a suit is cognizable by the Court of Small Causes all that is required is to look into the plaint allegations, cannot be accepted, particularly in view of Clause 4(c) of the Second Sch. of the Provincial Small Cause Courts Act. In other words, if any other substantial issue relating to an interest in the immoveable property arises in a suit, even by virtue of defence raised, the jurisdiction of the Small Cause Court is ousted.

23. In such a case, the plaint has to be returned for presentation to the proper Court with the written statement and the parties have to be directed to appear before the regular Court having jurisdiction to get the matter decided.

24. In the impugned order, the learned Small Causes Judge has thought, relying on (supra), that questions as to existence of tenancy or sub-tenancy are not questions of title and that, therefore, the Small Cause Court has jurisdiction. In that case, the defendant No. 1's monthly tenancy was duly terminated and a suit for eviction was filed against defendants 2 and 3 who were in actual possession of the suit premises. The tenancy between the plaintiff and the defendant was an admitted fact on the part of defendant 1, who contended that defendants 2 and 3 who were in actual possession, were sub-lessees. The sub-lessees defendants 2 and 3 raised several contentions including the challenge to the jurisdiction of the Small Cause Court which was negatived, holding inter alia that the questions as to existence of tenancy or sub-tenancy were not questions of title ousting the jurisdiction of the Small Cause Court. In the instant case, the question is different. Here the specific plea has been raised under Section 53A of the T.P. Act which would debar the plaintiff from ejecting the defendant. No doubt, a specific issue has been raised by the written statement relating to an interest in the immoveable property which, if proved, would non-suit the plaintiff. In such a situation, it must be held that as soon as, in an ejectment suit which otherwise be cognizable by a Small Cause Court, a defence is raised in the written statement under Section 53A of the T.P. Act, the suit itself goes out of jurisdiction of the Small Cause Court to decide the substantial issues involved in the suit and the Small Cause Court, in such a situation, has to return the plaint with the written statement for presentation to proper regular Court having jurisdiction to decide the suit.

25. In view of this position, the decree for ejectment passed by the learned Additional Judge, Small Cause Court, Nagpur was without jurisdiction and the plaint with the written statement should have been returned by the Small Cause Court to a regular Court having jurisdiction to decide the issues involved in the litigation. The revision application has, therefore, to be allowed. However, in the circumstances of the case, no order for costs is called for. The following order is, therefore, passed :

26. The revision application is allowed. The judgment and decree passed by the learned Additional Judge, Small Cause Court, Nagpur on 25-3-1985 in Civil Suit No. 592 of 1981 are hereby set aside and the suit is remanded to the learned Additional Judge, Small Cause Court, Nagpur with a direction that he shall return the plaint and the written statement for presentation to the regular Court having jurisdiction to try the suit. The parties shall appear before the learned trial Court on 30th Nov., 1987. No order as to costs.