# Satyadhyan Ghosal v. Sm. Deorajin Debi

- **Citation:** [1964] 5 S.C.R. 946
- **Court:** Supreme Court of India
- **Decided:** 1963-05-06
- **Case number:** Civil Appeal . No. 768 of 1963
- **Bench:** B.P. Sinha, A.K. Sarkar, N. Rajagopala Ayyangar
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/satyadhyan-ghosal-v-sm-deorajin-debi-3057
- **Pages:** 29

## Headnote

Code of Civil Procedure (Act V of 1908). ss. 11 and 151 and
0. IX, rr, 3, 7 and 13-Principle ofresjudicata when applicable-
"Good cause" and "sufficient cause" if different.
There were three suits in two of which the appellant was
defendant and in the other the plaintiff. One of the three was
the main suit (in which appellant was a. defendant and the others
were connected suits. They were ordered to be consolidated
for the purpose of hearing and a day was fixed for pronouncing
judgment. The appellant did not appear and ex parte orders
were passed against him. He filed application (purporting to be
under Or. IX, r. 7 Code of Civil Procedure) for setting aside the
ex parte orders which were rejected. Thereupon he filed revision
application before the High Court which applications were rejected.
·Within a short time he applied to the trial court for taking evidence
and proceeding with the case. This application was rejected.
Thereafter he filed again another application (under Or. IX, r. 13
Code of Civil Procedure) for setting aside the ex parte order alleging
.. the same facts and reasons as before. The respondents raised
the bar of res judicata which was accepted by the Court. On the
rejection of his application he appealed to the High Court. The
I
I .
__
L
-
5 S.C.R.
SUPREME COURT REPORTS
947
High Court also dismissed the appeal on the ground of resjudicata.
The present appeal is by special leave granted by this Court. The
same plea was raised before this Court and the contentions of the
parties were centered on the interpretation and application of
Order IX, rr. 7, 9 and 13 of the Code of Civil Procedure, 1908.
Held: (i) There is no material difference between the facts
to be established for satisfying the two tests of "good cause" under
Or. IX, r. 3 for non appearance and "sufficient cause" under Or.
IX, r. 13.
(ii) The scope of the principle of res judicata is not confined to
what is contained in s. 11 but is · of more general application.
Res judicata could be as much applicable to different stages of the
same suit as to findings on issues in different suits.
Satyadhyan Ghosal v. Sm. Deorajin Debi,
[1960] 3 S.C.R.
590, referred to.
(iii) Where the principle of res judicata is invoked in the case
of the different stages of proceedings in the same suit the nature
of the proceedings, the scope of the enquiry which the adjectival
law provides for the decision being reached as well as the specific
provision made on matters touching .such decisions are scime of
the factors to be considered before the principle is held to be
applicable.
(iv) Or. IX, r. 7 does not put an end to the litigation nor
does it involve the determination of any issues in controversy
in the suit. A decision 'or direction in an interlocutory proceeding
of the type provided for by Or. IX, r. 7 is not of the kind which
can operate as res judicata so as to bar the hearing on the merits
of an application under Or. IX, r. 13.
·
Sankaralinga v. Ratnasabhapati,
21 Mad. 324 and Bhaoo
Patel v. Naroo, 10 C.L.R. 45, referred to.
(v) For the operation of res judicata the Court dealing with
the first matter must have had jurisdiction and competency to
entertain and decide the issue. If the entirety of the "heariJ1g"
of a suit has been completed and the court being competent to
pronounce judgment then and there, adjourns the suit merely
for the purpose of pronouncing judgment (as it was done in the
present case) there is no adjournment for hearing and Or. IX, r. 7
could have no application and the matter would stand at the stage
of Or. IX, r. 6 to be followed up bypassing of an ex parte decree making r. 13 of the only provision in Or. IX applicable. Therefore
the Civil Judge bad no jurisdiction in the present case to entertain
the first application of the appellant for setting aside the ex parte
order and hence the second application under Or. IX, r. l3 was
not only competent but had to be heard on merits without reference
to the findings contained in the previous order

## Text

_Characters 0–39,962 of 61,854. This is a partial read: ask again with offset=39962 for what follows._

946
SUPREME COURT REPORTS
[1964]
:1963
It is · clear therefore that the discretion to be
-
exercised by the military officer specified in s. 125
Ram Sarup
of the Act as to the trial of accused by Court Martial
v.
or by an ordinary court, cannot be said to be unguided
The Union of by any policy laid down by the Act or uncontrolled
India and another by any other authority. Section 125 of the Act
. ,, --.
therefore cannot, even on merits, be said to infringe
'Raghub<;r Dayal the provisions of Art. 14 of the Constitution.
J:
The writ petition therefore fails and is dismissed.
Petition dismr1scd.
1963
December 13
ARJUN SINGH
1'.
MOHINDRA KUMAR & ORS.
(B.P. SINHA, C.J., A.K. SARKAR AND N. RAJAGOPALA
AYYANGAR, JJ.)
Code of Civil Procedure (Act V of 1908). ss. 11 and 151 and
0. IX, rr, 3, 7 and 13-Principle ofresjudicata when applicable-
"Good cause" and "sufficient cause" if different.
There were three suits in two of which the appellant was
defendant and in the other the plaintiff. One of the three was
the main suit (in which appellant was a. defendant and the others
were connected suits. They were ordered to be consolidated
for the purpose of hearing and a day was fixed for pronouncing
judgment. The appellant did not appear and ex parte orders
were passed against him. He filed application (purporting to be
under Or. IX, r. 7 Code of Civil Procedure) for setting aside the
ex parte orders which were rejected. Thereupon he filed revision
application before the High Court which applications were rejected.
·Within a short time he applied to the trial court for taking evidence
and proceeding with the case. This application was rejected.
Thereafter he filed again another application (under Or. IX, r. 13
Code of Civil Procedure) for setting aside the ex parte order alleging
.. the same facts and reasons as before. The respondents raised
the bar of res judicata which was accepted by the Court. On the
rejection of his application he appealed to the High Court. The
I
I .
__
L
-
5 S.C.R.
SUPREME COURT REPORTS
947
High Court also dismissed the appeal on the ground of resjudicata.
The present appeal is by special leave granted by this Court. The
same plea was raised before this Court and the contentions of the
parties were centered on the interpretation and application of
Order IX, rr. 7, 9 and 13 of the Code of Civil Procedure, 1908.
Held: (i) There is no material difference between the facts
to be established for satisfying the two tests of "good cause" under
Or. IX, r. 3 for non appearance and "sufficient cause" under Or.
IX, r. 13.
(ii) The scope of the principle of res judicata is not confined to
what is contained in s. 11 but is · of more general application.
Res judicata could be as much applicable to different stages of the
same suit as to findings on issues in different suits.
Satyadhyan Ghosal v. Sm. Deorajin Debi,
[1960] 3 S.C.R.
590, referred to.
(iii) Where the principle of res judicata is invoked in the case
of the different stages of proceedings in the same suit the nature
of the proceedings, the scope of the enquiry which the adjectival
law provides for the decision being reached as well as the specific
provision made on matters touching .such decisions are scime of
the factors to be considered before the principle is held to be
applicable.
(iv) Or. IX, r. 7 does not put an end to the litigation nor
does it involve the determination of any issues in controversy
in the suit. A decision 'or direction in an interlocutory proceeding
of the type provided for by Or. IX, r. 7 is not of the kind which
can operate as res judicata so as to bar the hearing on the merits
of an application under Or. IX, r. 13.
·
Sankaralinga v. Ratnasabhapati,
21 Mad. 324 and Bhaoo
Patel v. Naroo, 10 C.L.R. 45, referred to.
(v) For the operation of res judicata the Court dealing with
the first matter must have had jurisdiction and competency to
entertain and decide the issue. If the entirety of the "heariJ1g"
of a suit has been completed and the court being competent to
pronounce judgment then and there, adjourns the suit merely
for the purpose of pronouncing judgment (as it was done in the
present case) there is no adjournment for hearing and Or. IX, r. 7
could have no application and the matter would stand at the stage
of Or. IX, r. 6 to be followed up bypassing of an ex parte decree making r. 13 of the only provision in Or. IX applicable. Therefore
the Civil Judge bad no jurisdiction in the present case to entertain
the first application of the appellant for setting aside the ex parte
order and hence the second application under Or. IX, r. l3 was
not only competent but had to be heard on merits without reference
to the findings contained in the previous order.
(vi) The inherent power of the Court cannot override the
express or implied provisions of law. Order IX r. 7 and Or. IX
1963
Arjun Singh
v.
Mohindra
Kumar
.&Ors.
1963
Arjun Singh
v;
Mahindra
Kumar
.& Ors.
AyyangarJ.
948
SUPREME COURT REPORTS
[1964]
13 between them exhaust and provide for every contingency which
is likely to happen in the trial vis-a-vis the non appearance of the
defendant at the hearing of a suit.
This being the position there
is no scope or justification for the invocation of the inherent powers
of the Court under s. 151.
(vii) The Civil Judge was not competent to entertain the first
application of the appellant (purporting to be under Or. IX, r. 7)
for setting aside the ex parte order and that consequently the reason
given in the order passed would not beresjudicata to bar the hearing of the second petition (under Or. IX, r. 13) of the appellant
to set aside the ex parte order.
·
CIVIL APPELLATE JURISDICTION : Civil Appeal
. No. 768 of 1963.
Appeal by special leave from the judgment and
order dated May 6, 1963, of.the Allahabad High Court
in F.A.F.0. No. 116 of 1959.
M.C. Setalvad, Y. Talwar and J.P. Goyal, for
.the.·· appellant.
.G.S. Pathak, R.S. Agarwala,
B. Dutta,
J.B.
Dadachanji,
0.C. Mathur and Ravinder Narain,
for the respondents.
December 13, 1963. The Judgment of the Court·
was delivered by
AYYANGAR J.-This is an appeal by special
leave filed by a defendant whose application under
0. IX, r. 13, Civil Procedure Code to set aside an
ex parte decree passed against him has been dismissed
as barred by resjudicata.
· To appreciate the points arising in the appeal
it would be necessary to narrate the proceedings
in three litigations between the parties. The ex parte
decree that was passed against the defendant-who
will hereafter be referred · to as the appellant-and
which he sought to be set aside in the proceedings
which are the subject of the present appeal, was in
Suit 134 of 1956 on the file of the Court of Second
Civil Judge, Kanpur. But long before this suit
was filed, the two other proceedings were already
pending. The first of them was a Small Cause suit
by one Phula Kuer who sought to recover from the
appellant Rs. 750 on the basis that she and the appel-
-
5 S.C.R.
SUPREME COURT REPORTS
949
!ant were partners and by an arrangement between
them he agreed to pay her Rs. 150 per month for
her share of the profits which he had failed to pay.
This was suit 1023 of 1951 on the file of the Smid!
Cause Court, Kanpur. The appellant entered on
his defence and denied the partnership and his liability to pay the sum claimed. While this suit was
pending, the appellant in his turn filed suit No. 20
of 1953 against Phula K uer for fixing the fair rent
of the premises in which he was carrying on the business, which Phula Kuer alleged was a partnership
business, it being common ground that Phula Kuer
was the owner thereof. While these two suits were
pending Phula Kuer died on July 13, 1953 and thereafter one Rup Chand Jain filed suit 134of1956 already
referred to. Rup Chand Jain died pending the appeal
in the High Court and is now represented by his
heirs who have been brought on record. It would
however be convenient to refer to the respondents
as the plaintiff.
Suit 134 of 1956 which was filed on May 19,
1956 repeated the allegation that Phula Kuer had
entered into the partnership with the appellant under
which she was entitled to get for her share Rs. 150
per month. This share of profits, it was alleged,
had been paid to her up to October 14, 1950 and th<Jt
thereafter the appellant failed to pay the same. The
plaintiff claimed to be the next reversioner of Phula
Kuer and on that basis cbimed that a sum of
Rs. 4,200 was due to him. Besides this, he alleged that
the appellant had been using the building belonging to Phu\a Kuer in regard to which he was liable
to pay rent which was claimed at Rs. 150 per mensem.
The plaintiff also claimed that he was entitled to evict
the appellant from the premises. In the result,
the reliefs claimed in the suit were a money-decree
for Rs. 9,390 on account of the items we 'have set
out, and (2) eviction from the premises where
the business was being carried on .. Having regard
to the contentions of the parties in the three suits;
all of them were transferred by the District :Judge,
1963
Arjun Singh
V.
Mahindra
Kumar
&Ors.
·--
AyyangarJ.
1963
Ar jun Singh
v.
Mohindra
Kumar
.& Ors.
A}yangar J.
950
SUPREME COURT REPORTS
[1964]
to the court of the Second Civil Judge, Kanpur on
August 4, 1956, and on August 23, 1956 the Civil
Judge passed an order directing that the suits 20 of
1953 and 134of1956 be consolidated for joint hearing,
the evidence led in Suit 134 of 1956 being treated
as evidence in the other suit as well. On October
10, 1956 the appellant filed his written statement
to Suit 134 of 1956 in which he put forward the case
which he had already been asserting viz., (1) absence
of any partnership relationship between himself and
Phula Kuer, and (2) that he was in possession as a
tenant and could not be evicted because the requisite
statutory conditions to enable the plaintiff to claim
eviction, were not satisfied. Needless to add that
there were several other d,efences which he urged
to which it is unnecessary to refer. Thereafter there
were questions raised as regards the adequacy of
the court-fee paid by the plaintiff in Suit 134 of 1956,
applications by the plaintiff to amend the plaint etc.
These took place during the year 1957. The issues
were settled on February 28, 1958. We can pass
over what transpired in the early part of 1958. Both
the parties were attempting to effect a compromise
and for that purpose the hearing was adjourned but
the compromise was
not finalised, and finally; on
May 24, 1958 a joint application was made by the
plaintiff and the appellant that two months' time
may be granted to them to arrive at a settlement
and that the trial which was fixed for May 28, 1958
inay be adjourned for that purpose. The court,
however, refused this application for the reason that
the suit for the fixation of rent was of the year 1953.
On the 28th there was again another application for
adjournment and the court adjourned the trial by
one day and fixed it for May 29, 1958, the order stating
"If no compromise is filed the case would be taken
up for final hearing". On 29th the plaintiff was
present lmt the· appellant was absent and the latters'
counsel who was present reported that they had no
instructions to conduct the case. Thereupon the
court passed an order in Suit 134 of 1956 in these
terms:
5 S.C.R.
SUPREME COURT REPORTS
951
"The plaintiff is present.
Defendant is absent.
Counsel for the defendants have no instructions.
Case proceeds ex parte. Plaintiff examined Mohindra Kumar and closed."
The order concluded with the words "Judgment
reserved". In the suit for the fixation of rent which
. was taken up for trial on the same date the order
of the court ran:
"Plaintiff is absent. Defendant with his Counsel
is present. Counsel for the plaintiff has no
instructions. Suit is dismissed as per orders
passed separately."
It is only necessary to add that the third. suit-1023
of 1951-was on the same day also decreed ex parte.
On May 31, 1958 the appellant filed three applications in the three suits for setting aside the ex parte
orders passed against him. The application in Suit
134 of 1956 was treated as the primary one and in
support of it an affidavit was filed in which the appellant
stated that after the talks for compromise had reached
a decisive stage and when the appellant was making
arrangements to implement that decision he got an
attack of heat-stroke and was, therefore, unable
to be present in Court when the case was called on
the 29th-i.e. the day fixed for hearing.
He, therefore, prayed that the order or direction to proceed
ex parte passed against him in the two suits in which
he was defendant may be set aside and he be given
an opportunity to contest the suits. Needless to
add that in suit 20 of 1953 which had been dismissed
for default, the prayer was to set aside that dismissal.
Notices were issued on these applications and the
plaintiff filed a counter-affidavit in which he disputed
the truth of the statement regarding the appellant's
illness and prayed that the applications may be dismissed. He also suggested that. if they were to be
ordered it should be on certain terms. We sliould
mention even at this stage that though the application filed on the 31st did not specify the particular
provision of law under which the jurisdiction of the
Arjun St~gh
Y•
Mahindra
Kumat
.&Prs .
ilyyangar J.
1963
Arjun Singh
v.
Mohindra
Kumar
&Ors.
Ayyangtir J.
952
SUPREME COURT REPORTS
(1964)
~
Court was invoked, the parties and the court proceeded
on the basis that in relation to snits 1023 of 1951
and 134 of 1956 they were applications under 0. IX,
r. 7 of the Civil Procedure Code.
So far as the other
proceeding was concerned-0.S. 20 of 1953-it was
undoubtedly an application for setting aside the
dismissal of the plaintiff's suit for 'default and was
filed under 0. IX, r. 9. These three applications·
were disposed of by a common judgment of the Civil
Judge on August 23, 1958 and the leHned Civil Judge
held that the story of the illness of the appellant
which had been put forward as affording sufficient
reason for not being present in court on May 29, 1958
was false. For this reason he refused to set aside the
order dismissing the suit for default of suit 20 of 1953
in which judgment had already been delivered. In
the other two suits 1023 of 1951 and 134 of 1956 he
ordered the direction for the reservation of judgments to stand and fixed August 25, 1958 for the
delivery of the judgments.
The appellant thereupon moved the High Court
of Allahabad in revision against the order passed
against the refusal of his application in suit 134 of
1956 alone and apparently obtained a stay of delivery
of the judgment. This application was disposed
·-
of by the High Court on September 4, 1958 when
.i.
the following order was passed:
"It is conceded that no ex parte decree has yet
been passed. The only order passed is that the
case shall. proceed ex parte against the appellant.
In view of the fact that no decree has yet been
passed, the setting aside of the ex parte order
was not absolutely necessary."
After referring to the decision of this Court in Sangram Singh v. Election Tribuna/0> the learned Judge
added:
"It follows that, even though the ex parte order
had been passed, the applicant could appear
and take part in the case from the stage
at
(1) [1955] 2 S.C.R. p. J;
-
5 S.C.R.
SUPREME COURT REPORTS
953
which the ex parte order had been passed. The
1963
only thing he could not claim was to be relegated back to the old position as if he bad not
Arju1J Singh
absented himself on the date fixed. In these
v.
circumstances I think no interference is called Mohindra Kumar
,
,
.
for with the order of the learned Civil Judge
& Ors.
refusing to set aside the ex parte order. It will
be open to the applicant to present himself on
Ayyangar 1·
the date to which the case now stands adjourned
and request the learned Civil Judge to allow
him to participate in the proceedings from that
state.
There is therefore no force in this application. It is rejected."
We are making this extract from the order for emphasising the fact that it appears to have been the
common case before the High Court that the application of the appellant in Suit 134 of 1956 was under
0. IX, r. 7 of the Civil Procedure Code and it was
on that basis that the High Court approached the
question and decided the revision petition.
Within 4 days of this order of the High Court
and obviously acting in pursuance of the direction
of the learned Judge the appellant made an applica-
~
tion to the Civil Judge drawing his attention to the
observations we have quoted and prayed:
"That your Honour be pleased to hear the application and take the evidence of the applicant."
Applications of the same type were filed in the other
suit-1023 of 1951-also. He dismissed the applications for the reason that since the appellant's prayer
for being relegated to the original position had been
rejected by him and also by the High Court in revision, it must be taken to have been finally settled
that the appellant could not lead evidence because
the final hearing of the two suits was over. The
only proceeding in which the appellant could participate was in hearing the judgment and therefore,
he added, "the applicant is now entitled only to hear
the judgment". On the same day-September 25,
1963
Arjun Singh
v.
Mahindra Kumar
& Ors.
AyyangarJ.
954
SUPREME COURT REPORTS
[1964]
1958-the judgment which had already been prepared
was delivered. The judgment read:
"Both the suits are decreed with costs ex parte
with interest at 6 % etc."
To set aside this ex parte decree thus passed
against him on September 25, 1958 the. defendant
filed an application under 0. IX, r. 13.
Obviously,
the factual ground upon which the relief was sought,
viz., that there was reasonable or sufficient cause
for the appellant's absence from Court on May 29,
1958 was the same as had been set out by him in the
application which he had filed on May 31, 1958.
This was opposed by the plaintiff who, besides repeating the challenge regarding the truth of the illness,
raised three legal objections of a preliminary nature.
Some of these- have been upheld by the Civil Judge
and the High Court but each one of them was sought
to be supported before us by Mr. Pathak for the
respondents. They were: (1) that the finding recorded
in the earlier application filed on May 31, 1958
in suit 134 of 1956 that there was not sufficient cause
for non-appearance on May 29, 1958 operated as
res judicata in the petition filed under 0. IX, r. 13
and was a bar to the re-inquiry of the same question
on the merits; (2) the finding in the application to
set aside the dismissal for default of suit 20 of 1953
which had become final operated was a bar to the
trial of the same question in the application under
0. IX, r. 13 in suit 134 of 1956; and (3) that the decree
in suit 134 of 1956 was not in reality an ex parte
decree but was a decree on the merits within 0. XVII,
r. 3, Civil Procedure Code and hence the remedy
of the appellant was only by way of an appeal against
the decree and he could not come in by way of an
application under 0. IX, r. 13. The learned Civil
Judge upheld the first preliminary ground of objection
and dismissed the application.
The appellant thereupon filed an appeal to the High Court and the learned
Judges likewise held that any inquiry into the question
whether the appellant had sufficient cause for nonappearance on May 29, 1958 was barred by res judicata
, .
-
-
'·
-
•.
5 S.C.R.
SUPREME COURT REPORTS
955
by reason of the decision of the same matter in the
1963
earlier proceeding under 0. IX, r. 7. It is from this
judgment of the High Court that the present appeal
Arjun Singh
has been brought by special leave under Art. 136 of
v.
the Constitution.
Mahindra Kumar
Before proceeding to deal with the arguments
& Ors.
addressed to us by Mr. Setalvad-learned counsel
for the appellant, it would be convenient to mention
Ayyangar J.
a point, not seriously pressed before us, but which
at earlier stages was thought to have considerable
significance for the decision of this question viz.,
the difference between the words "good cause" for
non-appearance in 0. IX, r. 7 and "sufficient cause"
for the same purpose in 0. IX, r. 13 as pointing to
different criteria of "goodness" or "sufficiency" for
succeeding in the two proceedings, and as therefore
furnishing a ground for the inapplicability of the
rule of res judicata. As this ground was not seriously
mentioned before us, we need not examine it in any
detail, but we might observe that we do not see any
material difference between the facts to be established
for satisfying the two tests of "good cause" and
"sufficient cause". We are unable to conceive of
a "good cause" which is not "sufficient" as affording
an explanation for non-appearance, nor conversely
of a "sufficient cause" which is not a good one and
we would add that either of these is not different
from "good and sufficient cause" which is used in
this context in other statutes. If, on the other hand,
there is any difference between the two it can only
be that the requirement of a "good cause" is complied with on a lesser degree of proof than that
of "sufficient cause" and if so, this cannot help the
appellant, since assuming the applicability of the
principle of res judicata to the decisions in the two
proceedings, if the court finds in the first proceeding,
the lighter burden not discharged, it must afortiori
bar the consideration of the same matter in the later,
where the standard of proof of that matter is, if anything, higher.
As it is the first of the preliminary objections
which we have set out earlier that has formed the
956
SUPREME COURT REPORTS
[1964]
1963 ·
basis of the decision against the appellant, both by
the learned Civil Judge as well as by the High Court,
Arjun Singh
we shall first take that up for consideration. The
v.
courts below have approached this question in this
MohindraKumarform. Order IX, r. 7 reads :
& Ors.
"7. Where the Court has adjourned the hearAyyangar J.
ing of the suit ex parte, and the defendant, at
or before such hearing, appears and assigns
good cause for his previous non-appearance,
he may, upon such terms as the Court directs
as to costs, or otherwise, be heard in answer
to the suit as if he had appeared on the day
fixed for his appearance."
If an application is made ·under this provision and
the Court considers that there is not any good cause
for the previous non-appearance and proceeds further
with the suit and ultimately it results in an ex parte
decree, can the Court in dealing with the application
to set aside the ex parte decree under 0. IX, r. 13
reconsider the question as to whether the defendant
had a sufficient cause for non-appearance on the
day in regard to which the application under 0. IX,
r. 7 had been filed?
That the question of fact which arose in the two
proceedings was identical would not be in doubt.
Of course, they were not in successive suits so as to
make the provisions of s. 11 of the Civil Procedure
Code applicable in terms.
That the scope of the
principle of res judicata is not confined to what is
contained in s. 11 but is of more general application
is also not in dispute. Again, res judicata could be
as much applicable to different stages of the same
suit as to findings on issues in different suits. In
this connection we were referred to what this Court
said in Satyadhyan Ghosal v. Sm. Deorajin Debi<1l
where Das Gupta, J. speaking for the Court expressed
himself thus:
"The principle of res judicata is based on the
need of giving a finality to judicial decisions.
(1) [1960] 3 S.C.R. 590.
-
5 S.C.R.
SUPREME COURT REPORTS
957
What it says is that once a res is judicata, it
1963
shall not be adjudged again. Primarily it applies
as between past litigation and future litigation.
Arjun Singh
When a matter-whether on a question of fact
v.
or on a question of law-has been decided be- Mahindra Kumar
tween two parties in one suit or proceeding and
& Ors.
the decision is final, either because no appeal
was taken to a higher court or because the appeal
Ayyangar J.
was dismissed, or no appeal lies, neither party
will be allowed in a future suit or proceeding
between the same parties to canvass the matter
again ..••....•........... The principle of res
judicata applies also as between two stages in
the same litigation to this extent that a court,
whether the trial court or a higher court having
at an earlier stage decided a matter in one way
will not allow the parties to re-agitate the matter
again at a subsequent stage of the same proceed"
ings."
Mr. Pathak laid great stress on this passage
as supporting him in the two submissions that he
made: (1) that an issue of fact or law decided even
in an interlocutory proceeding could operate as res
judicata in a later proceeding, and
(2) that in
order to attract the principle of res judicata the order
or decision first rendered and which is pleaded as
res judicata need not be capable of being appealed
against.
We agree that generally speaking these propositions are not open to objection. If the court which
rendered the firs decision was competent to entertain
the suit or other proceeding, and had therefore competency to decide the issue or matter, the circumstance
that it is a tribunal of exclusive jurisdiction or one
from whose decision no appeal lay would not by
themselves negative the finding on the issue by it
being res judicata in later proceedings. Similarly,
as stated already, though s. 11 of the Civil Procedure
Code clearly contemplates the existence of two suits
and the findings in the first being res judicata in the
later suit, it is well-established that the principle
958
SUPREME COURT REPORTS
[1964]
1963
underlying it is equally applicable to the case of de-
.
.
cisions rendered at successive stages of the same suit
Ar1un Singh or proceeding.
But where the principle of res
v.
judicata is invoked in the case of the different stages
Mahindra Kumar of proceedings in the same suit, the nature of the
& Ors.
proceedings, the scope of the enquiry which the
adjectival law provides for the decision being reached,
Ayyangar J.
as well as the specific provisions made on matters
touching such decision are some of the material and
relevant factors to be considered before the principle
is held applicable. One aspect of this question is
that which is dealt with in a provision. like s. 105
of the Civil Procedure Code which enacts:
"105.(1) Save as otherwise expressly provided,
no appeal shall lie from any order made by a
Court in the exercise of its original or appellate
jurisdiction; but, where a decree is appealed
from, any error, defect or irregularity in any
order, affecting the decision of the case, may
be set forth as a ground of objection in the memorandum of appeal.
(2) Notwithstanding
anything
contained
in sub-section (1), where any party aggrieved
by an order of remand made after the commencement of this Code from which an appeal lies
does not appeal therefrom, he shall thereafter
be precluded from disputing its correctness."
It was this which was explained by Das Gupta, J.
in Satyadhayan Ghosal' s caseOJ , already referred to:
"Does this, however, mean that because at an
earlier stage of the litigation a court has decided
an interlocutory matter in one way and no appeal
has been taken therefrom or no appeal did lie,
a higher court cannot at a later stage of the
same litigation consider the matter again? ....... .
It is clear therefore that an interlocutory order
which had not been appealed from either because
no appeal lay or even though an appeal lay an
appeal was not taken could be challenged in
an appeal from the final decree or order."
(1) [1960] 3 S.C.R. 590.
•
-
5 S.C.R.
SUPREME COURT REPORTS
959
If the correctness of the order of the Civil Judge
1963
in disposing of the application filed by the appellant
.
on May 31, 1958 were questioned in an appeal against
Arjun Singh
the decree in the suit, these principles and the obv.
servations would have immediate relevance. But it is Mohindra Kumar
not as if the distinction here drawn between the type
& Ors.
of interlocutory orders which attain finality and
those that do not, is of no materiality in considerAyyangar J.
ing whether a particular interlocutory order is of
a kind which would preclude the agitation of the
same question before the same court in further stages
of the same proceeding. Dealing with the decisions
of the Privy Council in Ram Kirpal Shukul v. Rup
Kuari<IJ,
Bani Ram Nanhu
Ma/(2),
and
Hook
v. Administrator-General of Benga/(3)
which are
the leading cases in which the principle of res judicata
was held applicable to different stages of the same
proceedings, Das Gupta J. observed< 4) :
"It will be noticed that in all these three cases,
viz., Ram Kirpal Shukul's case, Bani Ram's
case and Hook's case, the previous decision
which was found to be res judicata was part
of a decree. Therefore though in form the
later proceeding in which the question was sought
to be raised again was a continuation of the
previous proceeding, it was in substance, an
independent subsequent proceeding. The decision of a dispute as regards execution it is
hardly necessary to mention was a decree under
the Code of Civil Procedure and so in Ram
Kirpal's case and Bani Ram's case, such a decision being a decree really terminated the previous proceedings. The fact therefore that the
Privy Council in Ram Kirpal Shukul's case
described Mr. Probyn's order as an 'interlocutory judgment' does not justify the learned
counsel's contention that all:- kinds of interlocutory judgments not appealed from become res
judicata, Interlocutory judgments which have
the force of a decree must be distinguished from
(I) 11 I.A. 37.
(2)
11 I.A. 181.
(3) 48 I.A. 187.
(4) [1960] 3 S.C.R. 590 at pp. 602-03.
960
1963
Arjun Singh
v.
SUPREME COURT REPORTS
[1964 J
other interlocutory judgments which are a step
towards the decision of the dispute between
parties by way of a decree or a final order."
MohindraKumaru is needless to point out that interlocutory orders
& Ors.
are of various kinds; some like orders of stay, injunction or receiver are designed to preserve the
Ayyangar 1· status quo pending the litigation and to ensure that
the parties might not be prejudiced by the normal
delay which the proceedings before the court usually
take. They do not, in that sense, decide ii\ any
manner the merits of the controversy in issue in the
suit and do not, of course, put an end to it even in
part. Such orders are certainly capable of being
altered or varied by subsequent apphcations for the
same relief, though normally only on proof of new
facts or new situations which subsequently emerge.
As they do not impinge upon the legal rights of parties
to the litigation the principle of res judicata does
not apply to the findings on which these orders are
based, though if applications were made for relief
on the same basis after the same has once been disposed of the court would be justified in rejecting
the same as an abuse of the process of court. There
are other orders which are also interlocutory, but
would fall into a different category. The difference
from the ones just now referred to lies in the fact
that they are not directed to maintaining the status
quo or to preserve the property pending the final
adjudication, but are designed to ensure the just, smooth,
orderly and expeditious disposal of the suit. They
are interlocutory in the sense that they do not decide
any matter in issue arising in the suit, nor put an
end to the litigation. The case of an application
under 0. IX. r. 7 would be an illustration of this
type. If an application made under the provisions
of that rule is dismissed and an appeal were filed against
the decree in the suit in which such application were
made, there can be no doubt that the propriety of
the order rejecting the reopening of the proceeding
and the refusal to relegate the party to an earlier
stage might be canvassed in the appeal and dealt
-.
-
5S.C.R.
SUPREME COURT REPORTS
961
with by the appellate court. In that sense, the refusal
1963
of the court to permit the defendant to "set the clock
back" does not attain finality. But what we are
Arjun Singh
concerned with is slightly different and that is whether
v.
the same Court is finally bound by that order at Mohindra Kumar
later stages, so as to preclude its being reconsidered.
& Ors.
Even if the rule of res judicata does not apply it would
not follow that on every subsequent day on which
Ayyangar J.
the suit stl!nds adjourned for further hearing the
petition could be repeated and fresh orders sought
on the basis of identical facts. The principle that
repeated applications based on the same facts and
seeking the same reliefs might be- disallowed by the
court does not however necessarily rest on the principle
of res judicata. Thus if an application for the adjournment of a suit is rejected, a subsequent application
for the same purpose even if based on the same facts,
is not barred on the application of any rule of res
judicata, but would be rejected for the same grounds
on which the original application was refused . The
principle underlying the distinction between the rule
of res judicata and a rejection on the ground that no
new facts have been adduced to justify a different
order is vital. If the principle of res judicata is applicable to the decision on a particular issue of fact, even
if fresh facts were placed before the Court, the bar
would continue to operate and preclude a fresh investigation of the issue, whereas in the other case, on proof
of fresh facts, the court would be competent, nay,
would be bound to take those into account and make
ari order conformably to the facts freshly brought
before the court.
This leads us to the consideration of the nature
of the court's direction under 0. IX, r. 7-the nature of
that interlocutory proceeding-with a view to ascertain
,whether the decision of the Court under that provision
decides anything finally so as to constitute the bar
of res judicata when dealing with an application
under 0. IX, r. 13, Civil Procedure Code. To sum
up the relevant facts, it is common ground that the
suit-134 of 1956 had passed the stages up to r. 5
l/SCI/64-61
962
SUPREME COURT REPORTS
[1964]
1963
of 0. IX . Order IX, r. 6 applies to a case where
.
a plaintiff appears and the deiendant does not appear
Arjun Singh when the suit is called on for hearing. Order XI,
v.
rule 6 provides, to quote the material part :
Mahindra Kumar
"Where the plaintiff appears and the defendant
& Ors.
does ·not appear when the suit is called on for
Ayyangar J.
hearing then-
( a) if it is proved that the summons was duly
served, the court may proceed ex parte; ...... "
This is the provision under which the Civil Judge
purported to act on the 29th of May.
And then
comes 0. IX, r. 7 which reads :
"Where the Court has adjourned the hearing
of the suit ex parte and the defendant, at or before
such hearing, appears and assigns good cause
for his previous non-appearance, he may, upon
such terms as the Court directs as to costs or
otherwise, be heard in answer to the suit as if
he had appeared on the day fixed for his
appearance.
On that very date the court took evidence of the plaintiff and reserved judgment. In other words, the hearing
had been completed and the only part of the case
.that remained thereafter was the pronouncing of the
judgment. 0. XX, r. I provides for this contingency
and it reads:-
"The Court, after the case has been heard, shall
pronounce judgment
in open Court, either
at once or, as soon thereafter as may be practicable,
on some future day; and when the judgment is
to be pronounced on some future day, the Court
shall fix a day for that purpose, of which due
notice shall be given to the parties or their pleaders.
Two days after the hearing was completed and judgment was reserved the defendant appeared and made
the application purporting to be under 0. IX, r. 7.
And it is the dismissal of this application that has been
held to constitute a bar to the hearing of the appli··
cation under 0. IX, r. 13 on the ments.
The scope of a proceeding under 0. IX, r. 7 and
its place in the scheme of the provisions of the Code
I ..
•
'
-
-
5 S.C.R.
SUPREME COURT REPORTS
963
relating to the trial of suits was the subject of consi1963
deration in Sangram Singh v. Election TribunalcJJ.
Dealing with the meaning of the words "The Court
Arjun Singh
may proceed ex parte" in 0. IX, r. 6(l)(a) Bose J.
. v.
speaking for the Court said:
Mohmdra Kumar
"When the defendant has been served and has
&Ors.
been afforded an opportunity of appearing, then,
Ayyangar J.
if he does not appear, the Court may proceed
in his absence. But, be it noted, the Court
is not directed to make an ex parte order. Of
course the fact that it is proceeding ex parte will
be recorded in the minutes of its proceedings
but that is merely a statement of the fact and is
not an order made against the defendant in the
sense of an ex parte decree or other ex parte order
which the court is authorised to make. All
that rule 6(l)(a) does is to remove a bar and
no more. It merely authonses the Court to do
that which it could not have done without this
authority, namely to proceed in the absence of
one of the parties."
Dealing next with the scheme of the Code, the learned
Judge pointed out that the manner in which the Court
could thereafter proceed i.e., after r. 6(l)(a) was
passed would depend upon the purpose for which
the suit stood adjourned, and proceeded :
"If it is for final hearing, an ex parte decree can
be passed, and if it is passed, then 0. IX, r. 13
comes into play and before the decree is set
aside the Court is required to make an order
to set it aside.
Contrast this with r. 7 which does
not require the setting aside of what is commonly,
though erroneously, known as 'the ex parte order'.
No order is contemplated by thq Code and therefore no order to set aside the order is contemplated either." (italics ours)
And referring to the effect of the rejection
of application made under 0. XI, r. 7, he added:
(I) [1955] 2 S.C.R. p. I.
964
SUPREME COURT REPORTS
[1964]
1963
Arjun Singh
v.
Mahindra Kumar
cl Ors.
"If a party does appear on the day to which the
hearing of the suit is adjourned, he cannot be
stopped from participating in the proceedings
simply because he did not appear on the first
or some other hearing. But though he has the
right to appear at an adjourned hearing, he has
Ayyangar J.
no right to set back the hands of the clock. Order
IX. r. 7 makes that clear. Therefore, unless he
can show good cause, he must accept all that has
gone before and be content to proceed from the
stage at which he comes in."
That being the effect of the proceedings, the
question next anses what is the nature of the order
if it can be called an order or the nature of the adjudication which the court makes under 0. IX, r. 7.
In its essence it is directed to ensure the orderly conduct
of the proceedings by penalising improper dilatoriness
calculated merely to prolong the litigation. It does
not put an end to the litigation nor does it involve
the determination of any issue in controv<:rsy in
the suit. Besides, it is obvious that the pro1;eeding
is of a very summary nature and this is evident from
the fact that as contrasted with 0,. IX, r. 9 or 0. IX,
r. 13; no appeal is provided against action of the
court under 0. IX, r. 7. "refusing to set back the
· clock".
It is, therefore, manifest that the Code
proceeds upon the view of not imparting any finality
to the determination of any issues of fact on which
the court's action under that provision is based. In
this connection reference may be made to a decision
of a Division Bench of the Madras High Court in
Sankaralinga v. Ratnasabhapati (I). The question arose
on an appeal to the High Court by the defendants
against whom an ex parte decree had been passed
on March 30, 1895.