Whether second suit will be barred by res judicata if first suit was dismissed as it was premature?

 It is not that every matter decided in a former suit, can be pleaded as res-judicata in a subsequent suit. To consider a matter "res-judicata", one of the conditions is, the matter directly and substantially in issue in the subsequent suit must have been heard and finally decided by the Court in the first suit. To support the plea of res-judicata, it is not enough that the same matter shall be in issue. It is also important that the matter was heard and finally decided. The expression "heard and finally decided" refers to a matter on which the Court, having exercised its judicial mind, has recorded a finding and arrived at a decision on a contested matter.

14. Thus, taking into consideration the facts of the case and the ratio laid down in the case of Shedon Singh (supra), I hold and conclude that since the rejection of the first suit on the ground that the same was premature and not on merits, the findings rendered in the first suit are not binding on the parties, as well as, on the learned trial Judge in the second suit on the ground of res-judicata. The Question is answered accordingly.

IN THE HIGH COURT OF BOMBAY

Second Appeal No. 795 of 2005

Decided On: 16.04.2019

 Shrikant Waman Pawaskar Vs. Deepali Dinanath Pawaskar

Hon'ble Judges/Coram:

Sandeep K. Shinde, J.

Citation: 2019(6) MHLJ 447

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Whether second suit will be barred by O 7 R 11 of CPC if previous pauper application was withdrawn without seeking leave of court?

"13. We are also of the view that the High Court was in error in holding that by an application to sue in forma paupers, the applicant prays for relief personal to himself. An application to sue in forma pauperis, is but a method prescribed by the Code for institution of a suit by a pauper without payment of fee prescribed by the Court Fees Act. If the claim made by the applicant that he is a pauper is not established the application may fail. But there is nothing personal in such an application. The suit commences from the moment an application for permission to sue in forma pauperis as required by Order 33 of the Code of Civil Procedure is presented and Order 1 Rule 10 of the Code of Civil Procedure would be as much applicable in such a suit as in a suit in which court fee had been duly paid......"

(underline supplied)

11. On a reading of Order 23 Rule 1(4) CPC, it will be clear that where a plaintiff (which expression contextually includes an applicant in an indigent original petition as well), abandons any suit or part of claim under sub-rule (1) or withdraws from a suit or part of a claim without the permission referred to in sub-rule (3), he shall be liable for such costs as the court may award and shall be precluded from instituting any fresh suit in respect of such subject matter or such part of the claim. It has been declared in a catena of decisions that this bar is absolute and it is founded on public policy that nobody shall be vexed twice in respect of the same subject matter, which takes in cause of action as well. Since I have already found that the original proceedings instituted by an indigent person is a harbinger of a suit, the bar under Order 23 Rule 1(4) CPC directly applies to such proceedings as well. From that angle too, it is clear that the second suit is barred by the provisions of law provided in Order 7 Rule 11(d) CPC.

IN THE HIGH COURT OF KERALA

R.F.A. No. 271 of 2018

Decided On: 21.01.2019

 Revi Vs.  Shiny and Ors.

Hon'ble Judges/Coram:

A. Hariprasad, J.

Citation: AIR 2019(NOC) 404 Ker

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Whether second suit filed under Transfer of property Act is to be stayed if first suit under rent Act is pending?

 I am fortified in my view by a decision of this Court in R.E. Fanibunda v. Nicholas of India Ltd. reported in 2003 (3) All 967 wherein this Court has explained what is the ratio of the decision of the Supreme Court in the case of Ambalal Sarabhai Enterprises Ltd. supra. In that case a landlord had filed a suit for eviction of a tenant on 9th June, 1977 on the ground of reasonable and bonafide requirement under the provisions of the Bombay Rent Act. The trial Court decreed the suit by a judgment dated 12th July, 1990 and the appellate Court set aside the decree. The appellate judgment was challenged by the landlord by filing a Writ Petition. During the pendency of the writ petition, the landlord filed another suit for eviction under the general law - Transfer of Property Act- as by then the provisions of Bombay Rent Act, 1947 had been repealed and the provisions of the Maharashtra Rent Act were not applicable to the tenant being a public limited company with a paid up capital of more than rupees one crore. At the hearing of the writ petition challenging the judgment of the appellate Court rendered under the provisions of the Bombay Rent Act, an objection was raised to the maintainability of the petition on the ground that the landlord had filed another suit under the general law and therefore the Writ Petition could not be continued. Relying upon the decision of the Supreme Court in Ambalal Sarabhai Enterprises v. Amrutlal (supra) it was contended that the landlord cannot pursue two parallel proceedings for the same reliefs. Negativing the objection, the court held that though the relief of possession claimed in both the suits was the same the causes of action for the two suits was entirely different. The cause of action for possession in the first suit was existence of a ground for eviction under the Bombay Rent Act while the cause of action for the second suit under the general law was only termination of the tenancy either by efflux of time or by notice. Existence of a ground under the Bombay Rent Act was not necessary for the second suit under the general law. The learned Judge therefore held that the two proceedings were not parallel as they were based on different cause of action and therefore there was no question of choosing between the two parallel proceedings. In Ambalal Sarabhai's case the Supreme Court has observed that a litigant cannot be permitted to take recourse to two parallel proceedings. In other words, two proceedings which are not parallel are permitted. This Court held that the two proceedings one for eviction under the provisions of the Bombay Rent Act and the other under the general law - Transfer of Property Act filed after repeal of the Bombay Rent Act were not parallel and were allowed to be continued and proceeded with simultaneously.

IN THE HIGH COURT OF BOMBAY

Civil Revision Application No. 58 of 2004

Decided On: 06.07.2004

 Godrej and Boyce Mfg. Co. Ltd.  Vs. Sridhar Jagannath Nerurkar

Hon'ble Judges/Coram:

D.G. Karnik, J.

 Citations: 2005 (1) BomCR 839, 2005 (1) MhLj 1097,2005(1) ALLMR 128

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Whether second suit is tenable if first suit is dismissed on ground that it was premature?

Mr. Sawant, the learned Counsel appearing for the respondent would contend that, when the first suit was dismissed having found it was pre-mature, subsequent suit cannot be said to be barred by res-judicata. Mr. Sawant, has relied upon the judgment of the Apex Court in the case of Sheodan Singh v. Daryao Kunwar, reported in MANU/SC/0264/1966 : AIR 1966 Supreme Court 1332 (V 53 G 257), wherein it is held that -

"In order that a matter may be said to have been heard and finally decided, the decision in the former suit must have been on the merits. Where, for example, the former suit was dismissed by the trial court for want of jurisdiction, or for default of plaintiff's appearance, or on the ground of non-joinder of parties or misjoinder of parties or multifariousness, or on the ground that the suit was badly framed, or on the ground of a technical mistake, or for failure on the part of the plaintiff to produce probate or letters of administration or succession certificate when the same is required by law to entitle the plaintiff to a decree, or for failure to furnish security for costs, or on the ground of improper valuation or for failure to pay additional court fee on a plaint which was undervalued or for want of cause of action or on the ground that it is premature and the dismissal is confirmed in appeal (if any), the decision not being on the merits would not be res judicata in a subsequent suit."

In the case at hand, the first suit was dismissed predominantly on the ground that it was premature and therefore the latter suit was not barred by res-judicata.

IN THE HIGH COURT OF BOMBAY

Second Appeal No. 795 of 2005

Decided On: 16.04.2019

Shrikant Waman Pawaskar  Vs. Deepali Dinanath Pawaskar

Hon'ble Judges/Coram:

Sandeep K. Shinde, J.
Citation: 2019 SCC ONLINE Bom 835

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Whether second suit for eviction of tenant will be barred by res judicata?

It is not in dispute that the Defendant is a monthly tenant of the Plaintiff. It is also not in dispute that the Plaintiff and his brothers had filed an earlier Suit for eviction of the Defendant on similar grounds viz. on the ground of non-user and bonafide requirement as were canvassed in the second Suit. Considering this, I think it would be in the fitness of things to deal with the issue of res judicata first. On the issue of res judicata, I find considerable force in the argument canvassed on behalf of the Respondent that the subsequent Suit filed by the Respondent (original Plaintiff) was not barred by the principles of res judicata. This issue has been dealt with by the Trial Court from paragraphs 20 to 22 of its judgment. Whilst dealing with this issue, the Trial Court held that on a perusal of the judgment in R.A.E. Suit No. 642 of 1987, the Plaintiff and others had filed the Suit for eviction of the Defendant in respect of the suit premises on the ground that the suit premises were kept locked since 1985. In the present Suit, the Plaintiff is seeking a decree of eviction on the ground that the Defendant was not using the suit premises for more than six months immediately preceding the date of the Suit. The earlier Suit was dismissed by a judgment and order dated 16th February 1998 and an appeal therefrom also was dismissed on 20th September 2001. In the present Suit, the Plaintiff alleges the ground of non-user (section 16(1)(n) of the Maharashtra Rent Control Act 1999) for a continuous period of six months prior to the date of filing of the Suit. This is the issue that was decided by the Court in the second Suit. Just because the Plaintiff was unable to prove in 1998 the ground of non-user cannot preclude him from establishing in a subsequent Suit that the suit premises were not in use and occupation for a period of six months prior to the date of filing of the Suit. This cause of action is a fresh cause of action on which a Plaintiff can certainly bring a fresh Suit and agitate his claim. I therefore find that in the facts of the present case, the Courts below were fully justified in holding that at least as far as the ground of non-user is concerned, the subsequent suit was not barred by the principles of res judicata.

13. Even on the ground of bonafide requirement, I find that the Trial Court as well as the Appellate Court have given due consideration to this issue and thereafter come to the conclusion that even on this ground, the Suit was not barred by the principles of res judicata. It is not in dispute that as far as the first Suit was concerned, the same was filed by the Plaintiff and his brothers and the Plaintiff was unable to make out a case for bonafide requirement. In the facts of the present case, circumstances have clearly changed. The Plaintiff has now retired from service and so as his wife who had accommodation in Alibag at the time when the first Suit was filed. In the second Suit, it is specifically averred that the Plaintiff and his wife have retired and are living in rental accommodation in Alibag and they have no other accommodation in Alibag nor the means to purchase another accommodation in Mumbai. It is in these circumstances, the Plaintiff pleaded that he bonafide required the suit premises for his personal use and occupation. It is therefore clear that the bonafide requirement that is now pleaded in the second Suit is totally different from the one that was pleaded in the earlier Suit. As mentioned earlier, in the earlier Suit, the bonafide requirement pleaded was not on behalf of the Plaintiff but also on behalf of his brothers. Since his brothers have now got suitable alternate premises, the Plaintiff would be the only person to have the bonafide requirement of the suit premises. It is in these circumstances, he has approached this Court on this ground. Looking to all these facts, I think that the Courts below were fully justified in coming to the conclusion that the subsequent Suit filed by the Plaintiff inter alia on the ground of non-user as well as bonafide requirement was not barred by the principles of res judicata. In any event, after going through the impugned orders, I do not find that by any stretch of the imagination, the conclusions and findings arrived at therein can be termed as perverse or suffering from any error of law apparent on the face of the record requiring my interference in my limited jurisdiction under section 115 of CPC. The argument therefore that the second Suit was barred by the principles of res judicata is hereby rejected.

IN THE HIGH COURT OF BOMBAY

Civil Revision Application No. 746 of 2015

Decided On: 15.06.2017

Shridhar Dattatraya Karadkar Vs. Narayan Laxman Soparkar

Hon'ble Judges/Coram:

B.P. Colabawalla, J.

Citation: 2017(4) MHLJ 713

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Whether second suit will be hit by res judicata if cause of action in both suits are different?

The suit filed by the plaintiff in 1962, based on the
settlement deed executed by her husband in her favour and
the sufferance of the dismissal of the suit, will not, in any way,
be a bar for making a claim for her share, if any, of the family
property, if otherwise permissible under law. As succinctly
addressed by the first appellate court, the 1962 suit for the
entire property was based on a settlement deed and it was a
suit for possession. Whereas, the 1988 suit for partition was for
plaintiff’s one-half share in the property based on her birth
right. Cause of action is entirely different. Thus, the High Court in our opinion is not right on the
point of res judicata.
REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NOS. 1858-1859 OF 2016
(Arising from S.L.P. (C) Nos. 10449-10450/2009)
NAGABHUSHANAMMAL (D) BY LRS. 
V
C. CHANDIKESWARALINGAM 
Citation:(2016) 4 SCC 434

KURIAN, J.:

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When second suit is barred by principle of Res judicata?

Learned Court of First Instance had rightly observed that the plaintiffs could not have preferred their claim to the disputed land had they not been sons of Harbans Singh. The reasoning given by the Court of First Appeal while reversing the findings recorded under Issue No.5 are without justified ground and the same are perverse and are liable to be reversed. Merely giving the reasoning that the plaintiffs were not parties to the suit of  Singh does not make out a case that the present litigation is not covered as per principles of res judicata. Section 11 of the Code of Civil Procedure makes it ample clear that the former suit should be between the same parties or between the parties under whom they or any of them claim, litigating under the same title. The present case is certainly covered under the later part because the plaintiffs are claiming their title and litigating under the title of Harbans Singh only. Learned Court of First Appeal has completely ignored these facts while recording the findings and as such the said findings are hereby reversed.1

Punjab-Haryana High Court

(O&M;) Harbhajan Singh vs Parduman Singh Etc on 10 February, 2015

Citation;AIR 2015 (NOC) 841 (P&H)

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