Phool Chand Sharma And Others vs Chandra Shanker Pathakand Others

Rewritten Version Notice: This is a rewritten version of the original judgment.

Court: Supreme Court of India

Case Number: Civil Appeal No. 310 of 1960

Decision Date: 7 December 1962

Coram: N. Rajagopala Ayyangar, Syed Jaffer Imam, J.R. Mudholkar

In the matter titled Phool Chand Sharma and Others versus Chandra Shanker Pathak and Others, a judgment was delivered on 7 December 1962 by the Supreme Court of India. The opinion was authored by Justice N. Rajagopala Ayyangar, who sat with Justices Syed Jaffer Imam and J.R. Mudholkar. The citation for this decision appears as 1964 AIR 782, 1963 SCR Supl. (2) 828, and it concerns the application of the principle of res judicata to appeals.

The factual background involved a dispute over several plots of land situated in the village of Kanchiraoli in Aligarh district. The father of the first respondent, who was a Zamindar, instituted a suit before the Sub‑Divisional Officer of Tehsil Iglas seeking the eviction of Ram Prasad, the father of the appellants, from those plots. The suit was decided in favour of the Zamindar, and the decree was executed, allowing him to take possession of the land. Ram Prasad appealed the decree to the Additional Commissioner, but that appeal was dismissed in November 1944. He subsequently filed a second appeal before the Board of Revenue. While that appeal was pending, the parties reached a compromise; on 28 March 1948 an application was made to record the compromise, under which Ram Prasad was recognised as a tenant of the disputed land and the earlier order of eviction was set aside.

Following the compromise, Ram Prasad applied to the Additional Commissioner for restitution of possession under section 144 of the Code of Civil Procedure. The application was opposed by Dataram and others, who had been admitted as tenants of the plots during the pendency of the appeals. The trial court granted restitution, but the Additional Commissioner reversed that order, holding that the newly admitted tenants could not be removed. The Board of Revenue affirmed the Commissioner’s decision on revision. The appellants then filed a petition under article 226 of the Constitution in the High Court, challenging the Board’s order; the High Court dismissed the petition on its merits. No further appeal was attempted against the High Court’s decision, either by seeking a certificate of fitness for appeal or by invoking special leave under article 136. Instead, the appellants approached this Court by way of a special leave petition against the order of the Board of Revenue.

A preliminary objection was raised on behalf of the respondents, asserting that the appeal was barred by res judicata because the High Court’s decision had been rendered on the merits and therefore should bind the parties unless it was altered or reversed in a proper appeal or other appropriate proceeding. After considering the submissions and the applicable authorities, the Court held that the appeal was indeed barred by the doctrine of res judicata, as the earlier judgment of the High Court constituted a substantive determination of the issues and therefore continued to govern the parties.

The judgment referred to several authorities, including Daryao v. State of U.P., 1962 1 S.C.R. 574; Indian Aluminium Co. Ltd. v. The Commissioner of Income‑Tax, West Bengal, (1961) 43 T.R. 532; and Chandi Prasad Chokhani v. State of Bihar, [1962] 2 S.C.R. 276, to elucidate the principles governing res judicata. The appeal, numbered Civil Appeal No. 310 of 1960, was presented under special leave from the judgment and decree dated 24 July 1954 issued by the Board of Revenue (Uttar Pradesh), Allahabad, in Revision No. 20A of 1952/53. Counsel for the appellants were S.P. Sinha and J.P. Goyal, while counsel for the respondents was represented by an advocate for respondent No. 2.

In this case, the appeal was brought before the Supreme Court by special leave against an order of the Board of Revenue of Uttar Pradesh that had refused to grant restitution of possession under section 144 of the Civil Procedure Code. The background facts began with the father of the first respondent, who was the zamindar of the land in question, filing a suit in the court of the Sub‑Divisional Officer at Iglas Tehsil in Aligarh district. The suit sought eviction of Ram Prasad, who was the father of the appellants, from several plots situated in the village of Kanchiraoli. The trial court decreed in favour of the zamindar and, in execution of that decree, the zamindar took possession of the disputed land. Ram Prasad appealed the decree to the Additional Commissioner, but that appeal was dismissed in November 1944. He then filed a further appeal with the Board of Revenue. Before the Board could hear the matter, the parties reached a settlement, and on 28 March 1948 an application was made to record the compromise. The essential term of the compromise, which is material to the present appeal, was that Ram Prasad would be recognised as the tenant of the disputed land, thereby nullifying the earlier eviction order. The Board recorded the compromise and issued a decree reflecting its terms. The zamindar later attempted to have the compromise set aside on grounds that are not necessary to detail here; those attempts were unsuccessful, leaving the compromise decree in full force. Despite the decree, the zamindar immediately obtained possession of the property under the execution of the earlier Sub‑Divisional Officer’s decree, admitted Data Ram and certain other persons as tenants, and placed them in possession. This sequence of events gave rise to the subsequent disputes that are now before the Court.

Relying on the compromise decree, Ram Prasad filed an application for restitution of possession under section 144 of the Civil Procedure Code. That application was opposed principally by Data Ram and the other tenants who had been inducted, while the eviction proceedings were still pending before the Additional Commissioner on appeal. The trial court allowed Ram Prasad’s application, holding that Data Ram and the other tenants were bound by the rule of lis pendens and therefore could not retain possession that they had obtained during the pending ejectment proceedings. Dissatisfied with that decision, Data Ram and the other tenants appealed to the Additional Commissioner, who, for reasons not necessary to reproduce, ruled that the newly inducted tenants could not be dispossessed and that Ram Prasad was entitled only to symbolic possession against the zamindar. That order was subsequently taken in revision before the Board of Revenue, which dismissed the revision. The present appeal challenges the correctness of the Board’s order. During the hearing, counsel for the respondent raised two preliminary objections to the consideration of the appeal. The first objection asserted that the appeal was barred by the principle of res judicata. The second objection, not described in this excerpt, was also raised but its content is not relevant to the material presented here.

In order to appreciate the preliminary objection raised by the respondent, the Court found it necessary to set out additional factual background. The Board of Revenue had affirmed the order of the Additional Commissioner, which had rejected the appellants’ request for restitution of possession. Following that affirmation, the appellants filed an application seeking a review of the Board’s decision; that application was subsequently dismissed. Undeterred, they approached the High Court by filing an application under Article 226 of the Constitution. The precise wording of the High Court’s judgment is not reproduced in the record, but the appellant’s counsel acknowledged that the High Court dismissed the petition after a detailed examination of the merits. In its reasoning, the High Court held that Data Ram and the other persons who had been placed in possession by the Zamindar acquired a statutory right to possession under the Uttar Pradesh Zamindari and Land Reforms Act of 1950, and consequently could not be removed on the basis of the rule of lis pendens. After the High Court’s disposal of the petition, the appellant made no further attempt to challenge that judgment—neither by applying to the High Court for a certificate of fitness nor by seeking special leave to appeal before this Court. As a result, there now exists a High Court decision that is final and binding on the parties. On this basis, the respondent’s counsel argued that, absent a challenge to the correctness of the High Court’s decision, the appellant could not sidestep that judgment by attacking the earlier order of the Board of Revenue. The Court considered this preliminary objection to be well‑founded. In support of his submission, the respondent’s counsel referred to the Supreme Court’s ruling in Daryao v. State of Uttar Pradesh, reported in 1962 SCR 574. That case examined whether, after a High Court dismissed a writ petition under Article 226 on the merits because no fundamental right was established, a subsequent petition under Article 32 of the Constitution concerning the same facts and seeking the same relief could be entertained. The Supreme Court held that a decision rendered after a merits hearing and dismissed by the High Court binds the parties unless it is altered or reversed by an appeal or other appropriate proceeding. Consequently, if the doctrine of res judicata bars a further petition under Article 32—a constitutionally guaranteed right—it would, a fortiori, preclude an appeal under Article 136 where the grant of relief remains discretionary. The appellant’s counsel then cited Chandi Prasad Chokhani v. State of Bihar, suggesting a more flexible approach in which the Supreme Court might waive the rule depending on the facts of each case. However, the Court noted that the observations in that earlier decision were obiter and could not outweigh the explicit holding in Daryao, and therefore upheld the preliminary objection and dismissed the appeal.

In this case the Court examined whether, according to the facts of each case and the discretion of the Court, it could waive the rule of res judicata. The Court concluded that it possessed the competence to waive the rule in a proper case, even though such a waiver would effectively bypass the decision of the High Court. The Court observed that Justice S K Das, speaking for the Court, made a few observations that could be understood in the manner suggested by counsel for the appellant. Nevertheless, because the learned judges ultimately upheld the preliminary objection and dismissed the appeal, those observations were only obiter and could not outweigh the express decision in Daryao’s case.

The Court also referred to the judgment in Indian Aluminium Co. Ltd. v. Commissioner of Income‑tax, West Bengal, where the judgment was likewise delivered by Justice S K Das. In that decision the reasoning of the learned judge, who upheld a similar preliminary objection, corresponded more closely with the decision in Daryao’s case, although the latter judgment, delivered on the same day as the Indian Aluminium case, was not expressly cited. The learned judge observed, and the Court reproduced the observation, quoting the authorities: (1) [1962] 2 S.C.R. 276; (1961) 43 I.T.R. 332; (3) [1962] I S.C.R. 574. The quoted passage set out the preliminary objection concerning whether special leave to appeal from the Tribunal’s decision dated 29 May 1956 was properly granted under Article 136 of the Constitution, and whether the appellant could invoke the Court’s discretion under that article when it had not contested the subsequent orders of the Board and the High Court under section 66 of the Income Tax Act.

The Court held that the special leave to appeal from the Tribunal’s decision was not properly granted, and consequently the appellant was not entitled to ask the Court to exercise its power under Article 136, having failed to move against the later orders of the Board and the High Court. Accordingly, the first preliminary objection was upheld. A second preliminary objection concerned the fact that the application for special leave was filed out of time and that the Court had condoned the delay without notice to the respondent. Counsel for the appellant argued that there were no grounds for condoning the delay and that, for that reason, the leave should be revoked. However, because the first objection had been decided in the appellant’s favour, the Court considered it unnecessary to address the second objection. As a result, the appeal fails and is dismissed with costs.