Avtar Singh & Ors. v. Jagjit Singh & Anr.

UNTWALIA J.-This appeal arises out of an unfortunate litigation whore the plaintiff appellant in this appeal has got to fail in this Court too on some technical grounds. One Sardar Balwant Singh died on 10th March, 1955 leaving only three sons according to the case of appellants, namely, the two appel­ lanu and respondent No. 2. Respondent No. 1 claimed to be a fourth son of Balwant Singh entitled to l/4th share in the property left by him. The appellants filed Suh No. 41 of 1958, in the Court of Sub Judge, Bassi. The Civil Court on the objection of Respondent No. 1 framed a preliminary issue whether the said Court was compe­ tent to try the suit or was it a matter which could be decided only by the Settlement Commissioner. By Order dated 7.7.1958 the learned Subordinate Judge decided that the Civil Court had no juris­ diction to try this suit and directed the return of the plaint for presen­ tation to the proper Revenue Court. When the appellants filed their claim in the Revenue Court their petition was returned holding that the Revenue Court had no jurisdiction to try it. Thereupon the appellants instituted suit No. 13 of 1960 in the Court of Sub Judge, First Class, Bassi on 2-4-1960. This suit has failed throughout on the ground of res judicata. The High Court has affirmed the dismissal <Jn the view that the decision dated 7-7-1958 given by the Civil Court in Suit No. 41 of 1958 on the point of Civil Court's jurisdiction fo try the suit will operate as res judicata. In our opinion the High Court i~ right. The learned counsel for the appellants submitted that the appel­ lants were driven from pillar to post for the redress of their grievances. When they instituted the suit in Civil Court, that Court held that it had no jurisdiction to try it. When the suit was filed in the Revenue Court, the said Court took a contrary view. Where could the appel­ lants then go? We do sympathise with the appellants' dile=a but they were wrongly advised to do as they did. Either they ought to haYe followed the matter in the First Civil Suit and insisted up to the end that the suit was triable by a Civil Court, or, they would have taken the matter further before the higmr authorities and Court from the order of the Revenue Court and persisted that the matter whether the Civil Court had jurisdiction to decide the dispute between the parties or not was res judicata; the Revenue Court had no jurisdiction to go behind the decision of the Civil Court. The appellants did II 124 SUPREME COURT REPORTS l1980] l S.C.R- neither. It is unfortunate that due to the wrong paths which they followed under wrong advice they have ultimately to fail oil the techni­ cal ground of res judicata but there is no way out. It was pointed out by Lord Russell of Killowen, Upendra Nath Bose v. Lall and Others,(') that there could be res judicata in regard to the question of lack of jurisdiction of the Civil Court to try a matter but- "A Court which declines jurisdiction cannot bind the '-- ~ parties by rts reasons for declining jurisdiction : such reasons are not decisions, and are certainly not decisions by a Court of competent jurisdiction."' ( vide page 225). The above passage does not help the appellants, rather, goes against them. Mr. Garg had also plao"d reliance upon a Single Judge deci­ sion of the Allahabad High Court in Jwala Debi v. Amir Singh, ('} wherein the Learned Judge observed at page 132 :- "Looked at closely, a question of jurisdiction, alongwith it may be raised by the defendant, is a question that virtual­ ly arises between the plaintiff and the Court itself. The plain­ tiff invokes the jurisdiction of the Court. The defendant may or may not appear. If the Court fi'nds that it has no jurisdiction to entertain the plaint, it will order the return of it for presentation to the proper Court. The defendant, if he appears, and if he so chooses, may point out to the Court that it has no jurisdiction. A decision on the ques­ tion of jurisdiction does not affect iil any way the status of the parties or the right of one party to obtain redress against the other. The fact that a decision as to jurisdic­ tion i; not binding on the parties in a subsequent litiga­ tion will be apparent from this." Wei do not approve at all the views as expressed by the learned Single Judge of the All'ahabad High Court. If defendant does not appear and the Court on its own returns the plaint on the ground of lack of jurisdiction the order in a subsequent suit may not operate as res judicata but if the defendant appears and an issue is raised and decided then tho decision oil the question of jurisdiction will operate as res judicata in a subsequent suit although the reasons for its deci- sions may not be so. For the reasons stated above we dismiss this appeal but direct the parties to bear their own costs throughout. P.B .R. Appeal dismissed: (1) A.I.R. 1940 P.C. 222. (2) A.l.R. 1929 All 132. ' '