# Saeeduddin v. D.D.C and Ors

- **Citation:** (2014) 1 ILRA 168
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2014-01-13
- **Case number:** Consolidation No. 1901 of 1983
- **Bench:** Sibghat Ullah Khan
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/saeeduddin-v-d-d-c-and-ors-42748
- **Pages:** 4

## Headnote

C.P.C.
Section-11-Resjudicata-filing
of
plaint of earlier suit not-required-even exparte decree-under order 9 rule 9 CPCbinding-between
the
parties
unlesschallenged otherwise-consolidation officer
as well D.D.C-rightly held the bar of section
11 C.P.C.-petition dismissed.

Held: Para-7
The burden to establish that summon
was not served upon him was on
defendant of that suit which could not be
shifted on the plaintiff while determining
as to whether an ex parte decree would
operate as res judicata against him or
not. In this division bench authority, it
has also been held that it is not
1 All] Saeeduddin Vs. D.D.C. and Ors.
169
necessary to file copy of plaint of earlier
suit for establishing plea of res judicata.
In this regard, Supreme Court authority
reported in Isher Singh Vs. Sarwan
Singh, AIR 1965 SC 948 was also
considered by the Division Bench.

Case Law discussed:
1996 RD 73; AIR 1964 SC 1810; 1984 RD 35;
AIR 1973 All. 120; AIR 2000 NOC 21; 1983 RD
30; AIR 1987 All. 100; 1984 ACJ 324; AIR
1965 SC 948; I.L.R. (1902) 24 All. 429(437);
AIR 1953 SC 33.

## Text

168 INDIAN LAW REPORTS ALLAHABAD SERIES

9. The impugned order passed by the
State Government seems to suffer from
non application of mind to the statutory
rights available to the petitioner in terms
of the provisions contained in Financial
Hand-Book (Supra).

10. It is well settled proposition of
law that the proviso contained in statutes
are the exceptions to main provisions and
in appropriate cases, the benefits available
to the government employees in terms of
the said proviso should be provided after
considering the material on record. In the
present case, since the Medical Board has
recommended for grant of medical leave,
it is not open for the State Government to
take a different view without assigning
any reason.

11. Accordingly, the impugned
order seems to have been passed
arbitrarily without keeping in view the
true spirit of the provisions contained in
the Financial Hand-Book. Hence, not
sustainable in law.

12. Since, the petitioner has been
paid the outstanding dues with regard to
medical reimbursement, no further order
is required to be passed by this court.
However, the impugned order being not
sustainable, as held hereinabove, the writ
petition
deserves
to
be
allowed.
Accordingly, the writ petition is allowed.

13. A writ in the nature of certiorari
is issued quashing the order dated 19th
April, 1999 as contained in Annexure No.
6
to
sthe
writ
petition,
with
all
consequential benefits.

14. A writ in the nature of
mandamus is also issued directing the
State Government to pass a fresh order
with regard to medical leave of the
petitioner
keeping
in
view
the
observations made in the present order
expeditiously say preferably within a
period of two months from the date of
receipt of a certified copy of the present
order.

15. No order as to costs.
--------
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: LUCKNOW 13.01.2014

BEFORE
THE HON'BLE SIBGHAT ULLAH KHAN, J.

Consolidation No. 1901 of 1983

Saeeduddin... .Petitioner
Versus
D.D.C and Ors.... Respondents

Counsel for the Petitioner:
Sri K.P. Singh, Sri A.S. Chaudhary, Sri P.V.
Chaudhary

Counsel for the Respondents:
C.S.C., Sri Om Nam Shukla, Sri P.S.
Chaudhary, Sri Rajendra Prasad Yadav,
Sri Sampurnanand, Sri V.R. Singh

C.P.C.
Section-11-Resjudicata-filing
of
plaint of earlier suit not-required-even exparte decree-under order 9 rule 9 CPCbinding-between
the
parties
unlesschallenged otherwise-consolidation officer
as well D.D.C-rightly held the bar of section
11 C.P.C.-petition dismissed.

Held: Para-7
The burden to establish that summon
was not served upon him was on
defendant of that suit which could not be
shifted on the plaintiff while determining
as to whether an ex parte decree would
operate as res judicata against him or
not. In this division bench authority, it
has also been held that it is not
1 All] Saeeduddin Vs. D.D.C. and Ors.
169
necessary to file copy of plaint of earlier
suit for establishing plea of res judicata.
In this regard, Supreme Court authority
reported in Isher Singh Vs. Sarwan
Singh, AIR 1965 SC 948 was also
considered by the Division Bench.

Case Law discussed:
1996 RD 73; AIR 1964 SC 1810; 1984 RD 35;
AIR 1973 All. 120; AIR 2000 NOC 21; 1983 RD
30; AIR 1987 All. 100; 1984 ACJ 324; AIR
1965 SC 948; I.L.R. (1902) 24 All. 429(437);
AIR 1953 SC 33.

(Delivered by Hon'ble Sibghat Ullah Khan, J.)

1. Heard Sri A.S. Chaudhary,
learned counsel for petitioner and Pundit
Pankaj Shukla holding brief of Sri
Sampunanand Shukla, learned counsel for
contesting respondents.

2. This writ petition arises out of
consolidation proceedings pertaining to
title in respect of plot No.1275, which is a
grove.
In
the
basic
year
when
consolidation started in the area in
question, it was recorded in the names of
Munshi Raza and others, respondents
No.2 to 5. Original petitioner Saeeduddin
since deceased and survived by legal
representatives filed objections under
section 9-A(2) of U.P. Consolidation of
Holdings Act claiming co-tenancy on the
ground that the parties were descendants
of a common ancestor and the property
was joint. Consolidation Officer as well
as Deputy Director of Consolidation
rejected the claim of original petitioner
mainly on the principle of res judicata,
however S.O.C. had decided the matter in
favour of the petitioner. The objections
before C.O. (Judicial) Pratapgarh were
registered as Case No.1765 and 1766 and
were rejected on 04.03.1981. The number
of the appeal filed against the said order
was 477 and it was allowed by S.O.C.
Pratapgarh on 30.09.1981. Revision filed
against the same was numbered as
Revision No.289/594, Munshi Raza Vs.
Saeeduddin and others and was allowed
on 27.11.1982.

3. The judgment which was held to
operate as res judicata by the C.O. and
D.D.C. was given in a suit under Section
229-B of U.P.Z.A. & L.R. Act Munshi
Raza and others Vs. Smt. Mulima and
others on 03.08.1968 by Judicial Officer/
Assistant
Collector,
First
Class,
Pratapgarh. The suit was decreed. In the
said suit, Saeeduddin, original petitioner
of this writ petition was defendant No.4.
Copy of the said judgment is Annexure-2
to the writ petition. It is mentioned in the
said judgment that suit was contested only
by its defendant No.1, Mulima.

4. The argument of learned counsel
for petitioner is that as petitioner who was
defendant No.4 in the suit had not been
served hence the judgment of the suit
does not operate as res judicata against
him. If all the parties are not served suit is
not decided. If even after service whether
actual or presumed some one does not
appear, the judgment operates as res
judicata against that person. Learned
counsel for petitioner has cited an
authority of the Supreme Court reported
in Devi Ram Vs. Ishwar Chand, 1996 RD
73 contending that in order to attract
doctrine of res judicata, issues and cause
of action must be same. In the instant case
the issues and cause of action in both the
cases were same. Copy of the earlier
judgment was filed by the contesting
respondent
before
the
Consolidation
Officer. As the pleadings were clearly
mentioned in the judgment of the Judicial
Officer hence it was not necessary to file
the pleadings. The Constitution Bench
170 INDIAN LAW REPORTS ALLAHABAD SERIES
authority of the Supreme Court reported
in Gurbux Singh Vs. Bhooralal, AIR 1964
SC 1810 deals with Order 2 Rule 2,
C.P.C. and not Section 11, C.P.C.
Relevant portion of para-7 of the said
authority is quoted below:

"Just as in the case of a plea of res
judicata, which cannot be established in
the absence on the record of the judgment
and decree, which is pleased as estoppel,
we consider that a plea under Order 2
Rule 2, C.P.C. cannot be made but except
of proof of the plaint in the previous suit
the filing of which is said to create the
bar."

5. From the above portion, it is clear
that the Supreme Court held that for
raising the plea under Order 2 Rule 2
C.O.C., filing of plaint was essential and
for raising the plea of res judicata filing of
the judgment and decree was essential.

6. Learned counsel for petitioner has
cited an authority reported in Bullarey Vs.
D.D.C. 1984 RD 35. In the said case, it
was held that if earlier suit was dismissed
in default, it would not operate as res
judicata
in
the
proceedings
before
consolidation authorities. However, in the
instant case, bar of Section 11 was
pleaded as suit had earlier been decreed
and not the bar of Order 9 Rule 9, C.P.C.
In the authority of Ramesh Chand Vs.
Board of Revenue, AIR 1973 All. 120
(Full Bench) cited by learned counsel for
petitioner himself, it has been held that for
raising the plea of res judicata, copy of
the judgment and decree must be filed.
There is no such requirement that copy of
the pleadings (in the instant case, plaint of
the earlier suit) should also be filed. In
view of this, I am unable to agree with the
view taken by the Madras High Court in
A.M.K. Mariam Bibi Vs. M.A. Abdul
Rahim, AIR 2000 NOC 21 cited by
learned counsel for petitioner holding that
for raising plea of Section 11, C.P.C.
pleading in previous suit between same
parties should be filed.

7. Learned counsel for petitioner has
also cited the authority of Brij Lal Vs.
D.D.C. 1983 RD 30 holding that for an ex
parte decree to operate as res judciata
between the parties it has to be
established that the defendants had or
must be deemed to have notice of the suit
and the burden to prove this fact would be
on the person, who pleads the bar of res
judicata. A contrary view has been taken
by Division Bench of this Court in the
judgment reported in Bramha Nand Vs.
D.D.C., Ghazipur, AIR 1987 All. 100
overruling the above authority of Brij Lal
and another reported in Nathai Vs. J.D.C.,
1984 ACJ 324. In the Division Bench
authority, it has been held that if party
places reliance upon an ex parte decree
for raising plea of res judicata he is under
no obligation to prove service of
summons on defendant. The burden to
establish that summon was not served
upon him was on defendant of that suit
which could not be shifted on the plaintiff
while determining as to whether an ex
parte decree would operate as res judicata
against him or not. In this division bench
authority, it has also been held that it is
not necessary to file copy of plaint of
earlier suit for establishing plea of res
judicata. In this regard, Supreme Court
authority reported in Isher Singh Vs.
Sarwan Singh, AIR 1965 SC 948 was also
considered by the Division Bench.

8. More than 100 years before Privy
Council in I.L.R. (1902) 24 All. 429 (437)
held that an ex parte decree would operate
1 All] Parvez Vs. State of U.P. & Anr.
171
as res judicata on all points which might
and ought to have been raised by the
defendant. Section 11, C.P.C. 1908 also
uses the same words ''might' and ''ought'
in its explanation-iv. Same view has been
taken by the Supreme Court in Raj
Lakshmi Dasi and Ors. v. Banamali Sen
and Ors, AIR 1953 SC 33.

9. Accordingly, the courts below
rightly held that earlier ex parte judgment
declaring Munshi Raza and others to be
bhoomidhars in possession of the disputed
land operated as res judicata. Petitioner did
not file any application for setting aside the
said judgment and decree of 1968.

10. Accordingly, I do not find any
error in the impugned order. Writ Petition
is therefore dismissed.
--------

REVISIONAL JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 31.01.2014

BEFORE
THE HON'BLE HET SINGH YADAV, J.

Criminal Revision 3679 of 2013

Parvez... Revisionist
Versus
State of U.P. and Anr.... Opp. Parties

Counsel for the Petitioner:
Sri Sushil Kumar Pandey

Counsel for the Respondents:
A.G.A.

Juvenile
Justice(Care
&
Protection
of
children)
Act
2000-Section-53-Revisionagainst order by appellant court-rejecting
prayer for bail-offence under section 376
IPC-at the time of occurrence revisionist
was minor-trail commenced like regular
criminal-plea of juvenile taken on highly
belated stage-revisionist already in jail for
more than 5 years-very ambit of act itself
rehabilitory in nature-u/s 15 of act board
being satisfied an enquiry-the accused was
minor-ought to have send special home for
period of 3 years only-held-judge passed
lop-sided order confining order of refusal of
bail-both order set-a-side-considering more
than 5 years detention-be released from
custody by forthwith.

Held: Para-17-
one
more
point
that
surfaces
for
consideration is that the very scheme of
the Act 2000 is rehabilitatory in nature and
not adversarial. Children Act has been
enacted to protect young children from the
consequences of their criminal acts on the
footing that their mind at that age could
not be said to be mature for imputing
mens rea as in the case of an adult. It is for
this reason that a juvenile would undergo
inquiry by the Board which is not in the
form of regular trial irrespective of the
gravity of the offence. As per Section 15 of
the Act 2000 where a Board after having
satisfied on inquiry that a juvenile has
committed
an
offence,
then
notwithstanding anything to the contrary
of any other law for the time being in
force, may, if it so thinks fit, make an order
at the most directing the juvenile to be
sent to a Special Home for a period of
three years only. In the case in hand, the
revisionist has been in detention since
06.1.2009. As mentioned earlier, he has
already undergone a period of more than
the maximum period for which a juvenile
may be confined to a special home. Thus,
at the time of rejection of the bail by the
Sessions Judge in appeal, his detention
was illegal.

Case Law discussed:
2011(13) SCC 211; 2011(13) SCC 744.

(Delivered by Hon'ble Het Singh Yadav, J.)

1. This criminal revision under
section 53 of the Juvenile Justice (Care
and Protection of Children) Act, 2000 (in
short 'the Act 2000') has been preferred