In a writ petition challenging the trial court's rejection of a plea that a suit is barred by res judicata due to a prior consent decree, the High Court found no illegality in holding that a consent decree does not strictly attract Section 11 CPC.
The petition was dismissed as it lacked merit.
This page shows the compact analysis of this judgement. The full analysis — procedural history, issue-by-issue holdings with ratio and obiter, advocates, and paragraph-level evidence for every claim — is being added to the record in batches and will appear here when this judgement has been through it.
A.F.R.
Court No. - 40
Case :- MATTERS UNDER ARTICLE 227 No. - 6929 of 2019
Petitioner :- Manoj And 2 Others Respondent :- Smt. Devendri Devi Counsel for Petitioner :- Surendra Prasad Mishra,Sudhakar Shukla
Hon'ble Manoj Kumar Gupta,J.
The instant petition is directed against the order dated 24.8.2017 whereby the trial court decided issue Nos.3 and 6 in Original Suit No.657 of 2012. Issue No.3 was whether the suit is barred by principles of res judicata. Issue No.6 was whether the suit is liable to be dismissed on the ground of mis-joinder of parties. Both the issues have been decided against the defendant-petitioners. The petitioners being aggrieved by the decision of the trial court on issue No.3 filed Revision No.71 of 2017. It has been dismissed by impugned order dated 22.7.2019. Hence the instant petition.
The defendant-petitioners contested the suit interalia on the ground that the suit instituted by the plaintiff-respondent is barred by principles of res judicata in as much as the previous suit bearing No.273 of 1990 instituted by petitioner No.1 against the plaintiff and two others was decided in terms of a compromise dated 6.9.1990. The contention of the petitioners was that the subject matter of the instant suit is the same and since the earlier suit already stands decided in terms of compromise, therefore, the subsequent suit is barred by Section 11 CPC.
The trial court rejected the contention raised in this regard by holding that the petitioners have failed to file the certified copy of the judgement of the previous suit; the parties in the two suits are different and that there is nothing on record to indicate that the instant suit is barred by principles of res judicata. The revisional court, placing reliance on judgements of the Supreme Court in Subba Rao vs Valluri Jagannadha, AIR 1967 SC 591, Sundara Bai vs. Devaji, AIR 1954 SC 82 and Baldevdas vs Filmisthan Distrubuters, AIR 1970 SC 406 held that the principles of res judicata do not apply to a consent decree. A consent decree is not a decision by the court
2.
and therefore, Section 11 is not attracted.
Learned counsel for the petitioners submitted that the view taken by the courts below is manifestly illegal. It is urged that the consent decree would also bar a fresh suit. In support of his submission, he has placed reliance on the judgements of the Supreme Court in Sunderabai vs. Devaji Shankar Deshpande, AIR 1954 SC 82, Sailendra Narayan Bhanja Deo vs. State of Orissa, AIR 1956 SC 346 and Shankar Sitaram Sontakke and another vs. Balkrishna Sitaram Sontakke and others, AIR 1954 SC 352.
In Sunderabai (supra), the Supreme Court has held that a consent decree acts as estoppel by conduct as distinguished from an estoppel by record which constitutes the bar of res-judicata . While making said observation, the Supreme Court specifically considered the provisions of Section 11 CPC and held that although the said section would not apply in terms, the principles of estoppel contained in Section 115 of the Evidence Act would preclude the parties from re-agitating the matter. The relevant observations made by the Supreme Court in the said judgement on the above aspect are extracted below :-
“12. The bar of 'res judicata' however, may not in terms be applicable in the present case, as the decree passed in Suit No. 291 of 1937 was a decree in terms of the compromise. The terms of section 11 of the Civil Procedure Code would not be strictly applicable to the same but the underlying principle of estoppel would still apply. Vide: the commentary of Sir Dinshaw Mulla on section 11 of the Civil Procedure Code at page 84 of the 11th Edition under the caption 'Consent decree and estoppel':
"The present section does not apply in terms to consent decrees; for it cannot be said in the cases of such decrees that the matters in issue between the parties 'have been heard & finally decided' within the meaning of this section. A consent decree, however, has to all intents and purposes the same effect as 'res judicata' as a decree passed 'in invitum'. It raises an estoppel as much as a decree passed 'in invitum."
13. The contention which was very strenuously urged before us by the learned Attorney-General on behalf of the Defendant 1 therefore was that the Plaintiff was estopped from contending that Gangabai had a right to adopt him as a son to her deceased husband Shankar, on the 12th December, 1943.
3.
14. Estoppel is a rule of evidence and the general rule is enacted in section 115 of the Evidence Act, which lays down that when one person has by his declaration, act or omission caused or permitted another person to believe a thing to be true and to act upon such belief neither he nor his representative shall be allowed in any suit or proceeding between himself and such person or his representative to deny the truth of that thing. This the rule of estoppel by conduct as distinguished from an estoppel by record which constitutes the bar of 'res judicata'.
(emphasis supplied)
Again in Constitution Bench judgment in Sailendra Narayan (supra), the said principle has been reiterated while making the following observations :-
“The plea of estoppel is sought to be founded on the compromise decree, Ex. 'O' passed by the Patna High Court on 2-5-1945, in F. A. No. 15 of 1941. The compromise decree is utilised in the first place as creating an estoppel by judgment. In- 'In the South American and Mexican Company, Ex parte Bank of England', (1895) 1 Ch 37 (C), it has been held that a judgment by consent or default is as effective an estoppel between the parties as a judgment whereby the court exercises its mind on a contested case. Upholding the judgment of Vaughan Williams, J., Lord Herschell said at page 50:-
"The truth is, a judgment by consent is intended to put a stop to litigation between the parties just as much as is a judgment which results from the decision of the Court after the matter has been fought out to the end.
And I think it would be very mischievous if one were not to give a fair and reasonable interpretation to such judgments, and were to allow questions that were really involved in the action to be fought over again in a subsequent action".
In Shankar Sitaram (supra) , the Supreme Court observed that the effect of a consent decree is that the plaintiff is precluded from re-agitating the same issue in view of the principles of res judiata. It is a judgement by a Three Judge Bench, equal to that in Sunderbai . Incidentally His Lordship Mehr Chand Mahajan, J. presided over both the Benches. The subsequent Constitution Bench judgment in Sailendra Narayan is in line with the view taken in Sunderbai , which as noted above, specifically dealt with Section 11 C.P.C.
In Pulavarthi Venkata, Subba Rao and others Vs. Valluri Jagannadha Rao and others, AIR 1967 SC 591 , the Supreme Court specifically repelled the contention that a compromise decree would operate as res-judicata, though accepted that it may create estoppel by conduct-
“The compromise decree was not a decision by the Court. It was the acceptance by the Court of something to which the parties had agreed. It has been said that a compromise decree merely sets the seal of the court on the agreement of the parties. The court did not decide anything. Nor can it be said that a decision of the court was implicit in it. Only a decision by the court could be res judicata, whether statutory under S.11 of the Code of Civil Procedure, or constructive as a matter of public policy on which the entire doctrine rests. The respondents claim to raise the issue over again because of the new rights conferred by the Amending Act, which rights include, according to them, the re-opening of all decrees which had not become final or which had not been fully executed. The respondents are entitled to take advantage of the amendment of the law unless the law it itself barred them, or the earlier decision stood in their way. The earlier decision cannot strictly be regarded as a matter which was "heard and finally decided". The decree might have created an estoppel by conduct between the parties;.....”
(emphasis supplied)
A Full Bench of this Court in Parma Nand Vs. Champa Lal others, AIR 1956 Alld 225 explained the difference between various types of estoppel, as follows:-
“Under the English law, estoppel is of three kinds; estoppel by judgment, estoppel by deed and estoppel by pais.”
In Baldevdas Shivlal vs. Filmistan Distributors (India) P. Ltd., 1969(2) SCC 201, the Supreme Court again specifically held that “ a consent decree, according to the decisions of this Court, does not operate as res judicata, because a consent decree is merely the record of a contract between the parties to a suit, to which is superadded the seal of the court. A matter in contest in a suit may operate as res judicata only if there is an adjudication by the court : the terms of Section 11 of the Code leave no scope for a contrary view.”
In Parayya Allayya Hittalamani vs. Sri Paraya Gurulingayya Poojari, (2007) 14 SCC 318, the issue for consideration was whether the plaintiff's suit was barred by r es judicata as the dispute between the parties stood covered by a consent decree. In the said context, the Supreme Court, reiterating the principles laid down in Baldevdas Shivlal (supra) held that a consent decree is contract between the parties with the seal of the court super added to it. Again, relying on S hailendra Narayan Bhanja Deo , it was held that it operates as estoppel.
It is noteworthy that issue No.7, which has been framed by the trial court is specifically on the point as to whether the suit is barred by estoppel and acquiescence. While deciding the said issue, the trial court shall have to consider the effect of consent decree and whether it would act as estoppel or not. However, this Court, finds no illegality in the view taken by the trial court in holding that the consent decree will not operate as res resjudicata under Section 11 CPC.
Consequently, the petition lacks merit and is dismissed.
Order Date :- 21.10.2019 skv
(Manoj Kumar Gupta, J.)
2 issues framed by the court
Whether a consent decree operates as a bar under Section 11 of the Code of Civil Procedure (res judicata).
Whether principles of estoppel by conduct apply to consent decrees precluding re-agitation of matters.
Colour shows how this judgement treated each authority
Subba Rao vs Valluri Jagannadha, AIR 1967 SC 591Relied on¶9
Sundara Bai vs. Devaji, AIR 1954 SC 82Explained¶9
Baldevdas vs Filmisthan Distrubuters, AIR 1970 SC 406Relied on¶9
Sunderabai vs. Devaji Shankar Deshpande, AIR 1954 SC 82Followed¶11
Sailendra Narayan Bhanja Deo vs. State of Orissa, AIR 1956 SC 346Distinguished¶11
Shankar Sitaram Sontakke and another vs. Balkrishna Sitaram Sontakke and others, AIR 1954 SC 352Explained¶11
Pulavarthi Venkata, Subba Rao and others Vs. Valluri Jagannadha Rao and others, AIR 1967 SC 591Relied on¶26
Parma Nand Vs. Champa Lal others, AIR 1956 Alld 225Explained¶29
Baldevdas Shivlal vs. Filmistan Distributors (India) P. Ltd., 1969(2) SCC 201Explained¶31
Parayya Allayya Hittalamani vs. Sri Paraya Gurulingayya Poojari, (2007) 14 SCC 318Relied on¶33
2 provisions across 2 enactments
Manoj And 2 Others
Smt. Devendri Devi
Manoj Kumar Gupta
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
