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Gajanand And Anr vs Nirbhay Chand on 20 February, 2020

1

NAFR
HIGH COURT OF CHHATTISGARH, BILASPUR
Second Appeal No.332 of 2012
1. Gajanand, son of Nirbhay Chand, aged about 8 years,
through his natural guardian mother Padmani (Appel­
lant No.2),
2. Padmini, D/o. Sanwari Jhariya, aged about 31 years,
Both R/o Village Boro, Tahsil and District
Dharamjaigarh, District Raigarh (CG)
­­­­ Appellants/Plaintiffs
Versus
Nirbhay Chand son of Rameshwar Jhariya, aged about 35
years, R/o. Boro, Tahsil and District Dharamjaigarh,
District Raigarh (CG)
­­­­ Respondent/Defendant

For Appellants/Plaintiffs: Ms Sofia Khan, Advocate
For Respondent/Defendant : Mr.Vivek Tripathi, Advocate

Hon’ble Shri Justice Sanjay K. Agrawal

Judgment On Board

20/02/2020

1. The substantial questions of law involved,

formulated and to be answered in this second appeal

preferred by the appellants/plaintiffs are as

under:­

“1. Whether lower appellate Court was
justified by reversing the judgment and
decree by applying principle of res
judicata ?

2. Whether lower appellate Court was
justified by reversing the judgment and
decree on the ground of limitation ?”

[For the sake of convenience, the parties
2

would be referred hereinafter as per their
status shown and nomenclature in the suit
before the trial Court].

2. Two plaintiffs filed a suit for declaration of title

stating inter­alia that plaintiff No.1 is

illegitimate child of plaintiff No.2 and the

defendant as the defendant has committed sexual

intercourse with plaintiff No.2 by threatening her

since October, 1998 and on the pretext of marriage

and out of that cohabitation, plaintiff No.1 was

born on 3.7.99 and as such, he is illegitimate child

of the defendant and prayed that declaration be

granted in favour of plaintiff No.1.

3. The defendant has filed his written statement and

denied the averments made in the plaint stating

inter­alia that plaintiff No.2 is wife of Birbal,

but refuted the fact that plaintiff No.1 is his

illegitimate child and also brought on record that

plaintiff No.1 had filed an application under

Section 125 of the CrPC, which was rejected on

13.12.2004 and it was affirmed by the revisional

Court on 11.11.2005 (Ex.D­1), in which it has been

held that plaintiff No.1 is not son of the

defendant, as such, the suit deserves to be

dismissed.

4. The trial Court upon evaluation and after
3

appreciation of oral and documentary evidence

available on record, by its judgment and decree

dated 24.10.2009, held that plaintiff No.1 is son

of the defendant out of cohabitation of plaintiff

No.2 and the defendant and granted decree declaring

that plaintiff No.1 is child of the defendant. On

appeal being preferred by the defendant, the first

appellate Court allowed the appeal accepting the

plea of res­judicata as well as the plea of

limitation and thereby dismissed the suit.

Questioning the judgment and decree of the first

appellate Court, this second appeal under Section

100 of the CPC has been filed by the

appellants/plaintiffs, in which substantial

questions of law have been formulated by this Court,

which have been set­out in the opening paragraph of

this judgment.

5. Ms Sofia Khan, learned counsel for the

appellants/plaintiffs, would submit that finding

recorded in proceeding under Section 125 of the CrPC

would not operate as res­judicata in a subsequent

suit filed by plaintiff No.1. She would further

submit that the suit is not barred by limitation as

it was covered by Article 113 of the Limitation Act,

1963 (hereinafter called as ‘Act of 1963’) and his
4

application was firstly rejected on 13.12.2004 and

it was re­affirmed by the revisional Court on

11.11.2005 and then the suit was filed on 25.8.2006,

as such, the suit filed is within the period of

limitation.

6. Mr.Vivek Tripathi, learned counsel for the

respondent/defendant, would submit that the first

appellate Court is absolutely justified in holding

that the suit is barred by limitation and also

barred by principle of res­judicata and as such, the

second appeal deserves to be dismissed.

7. I have heard learned counsel for the parties and

considered their rival submissions made hereinabove

and also went through the records with utmost

circumspection.

Answer to substantial question of law No.1:­

8. The question for consideration would be, whether the

the suit is barred by principle of res­judicata as

enumerated under Section 11 of the CPC ?

9. In order to answer the plea raised at the Bar, it

would be appropriate to consider first Section 11 of

the CPC which states as under:­

“11. Res judicata– No Court shall try any
suit or issue in which the matter directly
and substantially in issue has been
directly and substantially in issue in a
former suit between the same parties, or
between parties under whom they or any of
5

them claim, litigating under the same
title, in a Court competent to try such
subsequent suit or the suit in which such
issue has been subsequently raised, and has
been heard and finally decided by such
Court.

Explanation I.–The expression “former
suit” shall denote a suit which has been
decided prior to the suit in question
whether or not it was instituted prior
thereto.”

10. The object and purport of the principle of res

judicata as contained in Section 11 of the CPC is to

uphold the rule of conclusiveness of judgment, as to

the points decided earlier of fact, or of law, or of

fact and law, in every subsequent suit between the

same parties. Once the matter which was the subject­

matter of lis stood determined by a competent court,

no party thereafter can be permitted to reopen it in

a subsequent litigation. Such a rule was brought

into the statute book with a view to bring the

litigation to an end so that the other side may not

be put to harassment. The doctrine of res judicata

is conceived not only in larger public interest

which requires that all litigation must, sooner than

later, come to an end but is also founded on equity,

justice and good conscience. (See Swamy Atmananda

and others v. Sri Ramakrishna Tapovanam and others1).

11. In the matter of Satyadhyan Ghosal v. Deorajin

1 (2005) 10 SCC 51
6

Devi2 the Supreme Court has held that Section 11 CPC

enacts the rule of conclusiveness of judgment as to

the points decided, in every subsequent suit between

the same parties.

12. Sir William B. Hale made remarkable observations

on the applicability of principle of res judicata in

the following words in the matter of Duchess of

Kingstone’s case [2 Smith Leading Cases, 13th Ed.

Pages 644­645:

“From the variety of cases relative to
judgments being given in evidence in civil
suits, these two deductions seem to follow
as generally true; first that the judgment
of a Court of concurrent jurisdiction
directly upon the point is as a plea, a
bar, or as evidence conclusive, between the
same parties, upon the same matter,
directly in question in another Court;
secondly, that the judgment of a Court of
exclusive jurisdiction, directly on the
point, is in like manner, conclusive upon
the same matter, between the same parties,
coming, incidentally in question in another
Court, for a different purpose. But neither
the judgment of a Court of concurrent or
exclusive jurisdiction, is evidence of any
matter which came collaterally in question,
though within their jurisdiction nor of any
matter incidentally cognizable, nor of any
matter to be inferred by argument from the
judgment.”

13. The aforesaid dictum has been approved by the

Supreme Court in the matter of Daryao Singh v. State

of U.P.3.

14. The Supreme Court in the matter of Syed Mohd.

2 AIR 1960 SC 941
3 AIR 1961 SC 1457
7

Salie Labbai v. Mohd. Hanifa4 laid down the

conditions for giving effect to the plea of res­

judicata and it was held that the following

conditions must be proved:­

(i) That the litigating parties must be the
same,

(ii) that the subject­matter of the suit
also must be identical,

(iii) that the matter must be finally
decided between the parties and

(iv) that the suit must be decided by a
Court of competent jurisdiction.

15. The Supreme Court has the opportunity to explain

the principle of res judicata in the matter of Lal

Chand v. Radha Krishna5 wherein it has been held that

the principle of res judicata is conceived in the

larger public interest which requires that all

litigation must, sooner than later, come to an end.

The principle is also found on equity, justice and

good conscience which require that a party which has

once succeeded on an issue should not be permitted

to be harassed by a multiplicity of proceedings

involving determination of the same issue.

16. The above­stated proposition has been followed

by the Supreme Court in the matter of Sarguja

Transport Service v. S.T.A. Tribunal Gwalior6.

17. Thus, in order to constitute a plea of res­

judicata, the following conditions must be existed:
4 AIR 1976 SC 1569
5 AIR 1977 SC 789
6 AIR 1987 SC 88
8

(i) There must be two suits one former suit
and the other subsequent suit;

(ii) The Court which decided the former
suit must be competent to try the
subsequent suit;

(iii) The matter directly and substantially
in issue must be the same either actually
or constructively in both the suits;

(iv) The matter directly and substantially
in issue in the subsequent suit must have
been heard and finally decided by the Court
in the former suit;

(v) The parties to the suits or the parties
under whom they or any of them claim must
be the same in both the suits;

(vi) The parties in both the suits must
have litigated under the same title.

18. In the matter of Jaswant Singh and Anr. v.

Custodian of Evacuee Property, New Delhi 7 it has been

held by the Supreme Court that in order that a

defence of res judicata may succeed, it is necessary

to show that not only the cause of action was the

same but also that the plaintiff had an opportunity

of getting the relief which he is now seeking in the

former proceedings. The test is whether the claim in

the subsequent suit or proceedings is in fact

founded upon the same cause of action which was the

foundation of the former suit or proceedings.

19. In the matter of Madhvi Amma Bhawani Amma v.

Kunjikutty Pillai Meenakshi Pillai8 it has been held

by the Supreme Court that there should be an issue

raised and decided, not merely any finding on any

7 AIR 1985 SC 1096
8 AIR 2000 SC 2301
9

incidental question for reaching such a decision. So

if no such issue is raised and if on any other

issue, if incidentally any finding is recorded, it

would not come within the periphery of the principle

of res judicata.

20. The Supreme Court in the matter of Vishnu Dutt

Sharma v. Daya Sapra (Smt)9 has held that standard of

proof in a criminal case is beyond reasonable doubt,

whereas standard of proof in a civil suit is based

on “preponderance of probability” and further held

that the judgment of a criminal court in a civil

proceeding will only have limited application viz.

inter alia, for the purpose as to who was the

accused and what was the result of the criminal

proceedings. Any finding in a criminal proceeding by

no stretch of imagination would be binding in a

civil proceeding.

21. Reverting to the facts of the present case in

the light of principle of res­judicata as enumerated

in Section 11 of the CPC and applying the principle

of law laid down by the Supreme Court in the above­

stated judgments (supra) to the facts of the present

case, it would appear that earlier proceeding

initiated by plaintiff No.1 was only with regard to

proceeding under Section 125 of the CrPC, which was

9 (2009) 13 SCC 729
10

decided on 13.12.2004, in which it has been held

that plaintiff No.1 is not son/illegitimate son of

the defendant and that finding has been affirmed by

the revisional Court in Criminal Revision No.22/2005

on 11.11.2005 (Ex.D­1). It is quite apparent that in

first proceeding under Section 125 of the CrPC,

maintenance was claimed, whereas second proceeding

is with regard to declaration of status though

parties are identical but subject­matter is not

identical and nature of first proceeding is

different than the second proceeding and as such,

the first appellate Court is absolutely unjustified

in applying the principle of res­judicata in two

proceedings, which were entirely different and

therefore, finding recorded by the first appellate

Court that the suit is barred by principle of res­

judicata deserves to be and is hereby set aside.

Answer to substantial question of law No.2:­

22. It is apparent on the face of record that

application under Section 125 of the CrPC filed by

plaintiff No.1 was rejected by the Judicial

Magistrate First Class, Dharamjaigarh in Misc.

Criminal Case No.119/03 on 13.12.2004 and it was

affirmed by the revisional Court in Criminal

Revision No.22/2005 on 11.11.2005 vide Ex.D­1, the
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petition under Section 482 of the CrPC was dismissed

as withdrawn on 21st July, 2006 and the suit was

filed on 25.8.2006.

23. The question for consideration would be, whether

the first appellate Court is justified in holding

that the suit is barred by limitation.

24. Section 58 of the Act of 1963 provides as

under:­

Sr.No. Description of suit Period of Time from which
limitation period begins to run
58. To obtain any other Three years When the right to
declaration suit first accrues.

Likewise, Section 113 of the Act of 1963 provides as

under:­

Sr.No. Description of suit Period of Time from which
limitation period begins to run

113. Any suit for which no Three years When the right to
period of limitation is suit first accrues.
provided elsewhere in
this Schedule.

25. The Supreme Court in the matter of Union of

India and others v. West Coast Paper Mills Ltd. and

another10 brought different distinction between

Section 58 and 113 of the Act of 1963 and held as

under:­

“20. It was not a case where the
respondents prayed for a declaration of
their rights. The declaration sought for by
them as regard unreasonableness in the levy
of freight was granted by the Tribunal.

10 (2004) 2 SCC 747
12

21.A distinction furthermore, which is
required to be noticed is that whereas in
terms of Article 58 the period of three
years is to be counted from the date when
“the right to sue first accrues”; in terms
of Article 113 thereof, the period of
limitation would be counted from the date
“when the right to sue accrues”. The
distinction between Article 58 and Article
113 is, thus, apparent inasmuch as the
right to sue may accrue to a suitor in a
given case at different points of time and,
thus, whereas in terms of Article 58 the
period of limitation would be reckoned from
the date on which the case of action arose
first, in the latter the period of
limitation would be differently computed
depending upon the last day when the cause
of action therefor arose.”

26. The Allahabad High Court in the matter of Bhoop

Singh v. Tarif Singh11 dealing with Section 42 of the

old Specific Relief Act, 1877 has held that suit for

bare declaration that the plaintiff is illegitimate

son of particular person is competent under Section

42 of the Act. It was further held that suit for

declaration as to the plaintiff’s status as

illegitimate son is covered by Article 120 of the

Limitation Act, 1908 (present Article 113 of the

Limitation Act, 1963) and held that denial of the

plaintiff’s status was a fresh encroachment on the

latter’s right giving rise to a fresh cause of

action in his favour. It was observed as under:­

“23. As regards the question of limitation,
on which the Courts below differed, the

11 AIR 1952 Allahabad 392
13

lower appellate Court took an obviously
wrong view. The latter Court applied Art.
120, Limitation Act, which is an article
applying to eases not provided for by any
other article of the Act. It pointed out
that the defendant having for a number of
years been denying the percentage of the
plaintiff, limitation had long since
commenced to run against the latter, and
that the present suit was, therefore, time­
barred. The trial Court, on the other hand,
had held that each denial of the
plaintiff’s status was a fresh encroachment
on the latter’s right giving rise to a
fresh cause of action in his favour. I
entirely agree with this view….”

27. In the instant case, application filed by

plaintiff NO.1 under Section 125 of the CrPC for

grant of maintenance was rejected by the trial Court

on 13.12.2004 holding that plaintiff No.1 is not son

of the defendant and thereafter it was affirmed by

the revisional Court on 11.11.2005 and petition

under Section 482 of the CrPC was dismissed as

withdrawn on 21.7.2006, but the revisional Court on

11.11.2005 has clearly held that plaintiff No.1 is

not son of the defendant and thereafter cause of

action arose and the suit was filed on 25.8.2006

i.e. within the period of three years from that day

i.e. 11.11.2005 and as such, the suit is within the

period of limitation as prescribed under Section 113

of the Act of 1963 and therefore, the first

appellate Court is absolutely unjustified in holding

that the suit was barred by limitation.
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28. For the foregoing reasons, the judgment and

decree of the first appellate Court is hereby set

aside and that of the trial Court is restored. The

substantial questions of law are answered in favour

of the plaintiffs and against the defendant.

29. The second appeal is allowed to the extent

indicated hereinabove leaving the parties to bear

their own cost(s).

30. Decree be drawn­up accordingly.

Sd/-

(Sanjay K.Agrawal)
Judge
B/­

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