Second Appeal No. 512 of 1994

12th January, 1995

Petitioner Counsel: Mr. P.S. MUDHOLKAR and Mr. R.P. MUDHOLKAR with Mr. M.D. ANGAL
Respondent Counsel: Mr. K.K. TATED

Cases Cited:
A.I.R. (37) 1950 P.C. 80 [Para 4]
A.I.R. 1971 S.C. 442 [Para 4]

JUDGMENT

ORDER :- 1. This Second Appeal is directed against the judgment and order dated June 17, 1993 passed by the District Judge, Thane, confirming a judgment and decree of the Joint Civil Judge, Senior division, Thane, dismissing the plaintiff's Suit solely on the ground that it was barred by the provisions of res judicata under Section 11 of the C.P.C.

2. The facts leading up to the Suit, out of which this Appeal arises have been related in the judgment delivered by the Joint Civil Judge, Senior Division, Thane. No useful purpose will be served by repeating them. Suffice it to say that before filing the present Suit, the plaintiff had filed Suit No.23 of 1977 in the Court of Civil Judge, Senior Division, Thane, raising similar issues and claiming almost identical reliefs. The learned Judge, who tried the said Suit, held that the Suit was not maintainable for want of notice under Section 80 of the C.P.C. The learned Judge, however, though holding that the Suit did not lie, purported to decide other issues in the case. Amongst other things, he held that the construction made by the plaintiff is in contravention of construction rules and bye-laws under the various enactments, and that the plaintiff's construction has resulted in encroachment upon the public road and other properties. The plea of res judicata is based on the said judgment of the Civil Judge, Senior Division, Thane.

3. Having heard Mr. Angal, learned counsel for the appellant and Mr. Tated, learned A.G.P. for the respondent, I am of the opinion that both the Courts below have committed an error of law in dismissing the Suit of the plaintiff on the ground that it was not maintainable under the provisions of Section 11 of the C.P.C., being barred by the principles of res judicata. Order VII, Rule 11 of the C.P.C. empowers the Court to reject the plaint where the Suit appears from the statement in the plaint to be barred by any law. The provision of Section 80 debars the plaintiff to institute a Suit against the Government or a public officer in respect of any act purporting to have been done by such public officer in his official capacity until he complies with such obligation, which fact is required to be stated in the plaint itself in terms of section 80. According to this provision, therefore, the plaint of plaintiff in his earlier Suit should have been rejected, without the consideration of any other question. The rejection of the plaint under Rule 11 of Order VII of the Code entitles the plaintiff to institute a fresh Suit in respect of the same cause of action under Rule 13 of the said Order. The short question is where the Court having failed to pass an order of rejection under the provisions of Order VII, Rule 11 of the Code, proceeds to determine the issues on merits and ultimately dismisses the Suit on the ground of non-compliance of the provisions of Section 80 of the Code, whether a second Suit will be barred by the principles of res judicata.

4. In somewhat similar situation, the Privy Council held in Shankarlal v. Hiralal [AIR (37) 1950 PC 80 ] that when the Court holds that the Suit is not maintainable by reason of failure to comply with Section 80, findings given on merits are obiter and do not support the plea of res judicata either in favour or against the party. The Supreme Court has also considered this question, though in somewhat different context in Gangappa v. Rachawwa (AIR 1971 SC 442). In paragraph 10 of the said judgment, the Supreme Court observed as follows :-

" No doubt it would be open to a Court not to decide all the issues which may arise on the pleadings before it if it finds that plaint on the face of it is barred by any law. If for instance the plaintiff's cause of action is against a Government and the plaint does not show that notice under Section 80 of the Code of Civil Procedure claiming relief was served in terms of the said Section it would be the duty of the Court to reject the plaint recording an order to that effect with reasons for the order. In such a case the Court should not embark upon a trial of all the issues involved and such rejection would not preclude the plaintiff from presenting a fresh plaint in respect of the same cause of action. But, where the plaint on the face of it does not show that any relief envisaged by Section 80 of the Code is being claimed, it would be the duty of the Court to go into all the issues which may arise on the pleadings including the question as to whether notice under Section 80 was necessary. If the Court decides the various issues raised on the pleadings, it is difficult to see why the adjudication of the rights of the parties apart from the question as to the applicability of Section 80 of the Code and absence of notice thereunder should not operate as res judicata in a subsequent suit where the identical questions arise for determination between the same parties."

5. In my considered view, the previous Suit of the plaintiff was not maintainable in view of the mandatory provisions of Section 80 of the Code. Simply because a Court proceeds to determine some of the issues and tries a Suit, in breach of this mandatory requirement, that should not operate against the plaintiff to his prejudice as res judicata taking away his right to institute a fresh suit, In my opinion, the Court, which tries the earlier Suit, had no jurisdiction to proceed with the trial of the Suit on merits and was bound to reject the plaint. If once this view is taken, then there was no issue at all directly or indirectly in that suit for determination between the parties. The principles of res judicata, therefore, can have no application in such a situation. It is, therefore, not possible to sustain the finding recorded by the district Judge that the Suit is barred by principles of res judicata. The District Judge has decided the Appeal only on the issue of res judicata and none else and, therefore, the Appeal is required to be remitted to the District Court for fresh hearing and disposal in accordance with law. Accordingly, the Appeal is allowed and the decree of the District Court is set aside. The District Court is directed to hear and decide the Appeal on merits in accordance with law. No order as to costs.

6. The District Court shall decide the Appeal as expeditiously as possible and in any case within four months from this date.

Appeal allowed.