HussaIn Khan Vs. Yadavalli Choultry (Trust), Kothapeta and Others - Court Judgment

Excerpt:
civil - jurisdiction - sections 11 and 47 of code of civil procedure, 1908 - suit filed by appellant for declaration of eviction decree as void - claim rejected by lower court as time barred - principle of res judicata not applicable where court lacks jurisdiction - held, court has jurisdiction and earlier proceedings initiated under section 47 operate as res judicata. - motor vehicles act (59 of 1988)section 149 (2): [v. gopala gowda & jawad rahim, jj] insurers entitlement to defend the action joint appeal by insured and insurer - held, the language employed in enacting sub-section (2) of section 149 appears to be plain and simple and there is no ambiguity in it. it shows that when an insurer is impleaded and has been given notice of the case, it is entitled to defend the action only on grounds enumerated in sub-section (2) of section 149 of the act, and no other grounds are available to it. the insurer is not allowed to contest the claim of the injured or heirs of the deceased on other grounds, which are available to the insured. if insurer is permitted to contest the claim on other grounds it would mean adding more grounds of contest to the insurer and will be negation of the intention of the legislature and annihilate mandate of the provisions of sections 170 and 149 of the act. the insured can pursue appeal only after giving up the insurer as the appellant and not otherwise. in the instant case, the insurer has not withdrawn from party array but has remained prosecuting the appeal with the insured on the grounds which are available only to the insured. therefore, the joint appeal as filed by the insured and the insurer is not maintainable. section 166: [v. gopala gowda & jawad rahim, jj] claim for compensation accident due to mechanical defect in the vehicle held, it is not in dispute that the claimant suffered injuries in an accident, which occurred during the course of his employment, albeit due to his negligence but law does not render him remediless. statutory right is conferred on him, accruing by virtue of his employment under insured to claim compensation under workmens compensation act. the insurer is statutorily duty bound to discharge the liability of the owner of the vehicle, to pay such compensation to the employee, as mandated under the provisions of section 149 of the act. the right of an injured employee or his dependents as the case may be to be compensated, when injury is suffered or death occurs during his employment, is recognised not only under workmens compensation act, but also under benevolent provisions under section 166 and 167 of the m.v. act. the right of driver to seek compensation is not restricted only to the workmens compensation act, it has been enlarged to enable such person to seek just compensation (sections 166 and 168), conferring upon him the right of election engrafted under section 167 of the act to choose either of the two forum. the only defence which the insurer could take is limit of its liability as enumerated under section 147 of the act, leading to contest, inter alia, only between insured and insurer and does not impact claimants right to recover the compensation determined by the tribunal which crystallizes into enforceable right against both. in the instant case, the claimant/driver has exercised right of election under section 167 of the act to seek compensation under section 166 of the act resulting in award passed by the tribunal. therefore, the insured and the insurer have no escape but to discharge the said award as directed. undisputedly, in this case as deduced for proved facts, the vehicle in question was not properly maintained by the owner and despite faulty brake system, the claimant had undertaken the hazardous journey to his peril at the behest of and at the instruction of the owner. the owner is therefore, tortfeasor. section 168: [v. gopala gowda & jawad rahim, jj] insurers limit of liability - held, it is well settled that the liability of the insurance company for payment of compensation can be statutory or contractual. is for the insurance company to show that the insurance policy was a statutory policy and not a contractual policy to restrict its liability. that issue was neither raised before the tribunal nor is raised in this appeal requiring decision. thus, if at all the insurer has any valid ground to restrict its liability, it can proceed against the insured but firstly it has to discharge the award as required under section 149 (1) of the act. where the owner/insured has failed to maintain the vehicle as per prescribed safety standards and has caused the claimant to drive the vehicle with mechanical defects, the owner would be the tortfeasor and the claimant can maintain a petition seeking compensation under the provisions of the act, instead of seeking compensation under the workmens compensation act. on facts, held, the material evidence on record, particularly, with regard to the income of the claimant, his age, medical evidence and the evidence relating to pecuniary loss has not been considered by the tribunal in the correct perspective, which has resulted in passing of the impugned award, disproportionate to the pecuniary loss and the loss of future income of the victim. the settled principles governing determination of compensation has been given a go-bye. compensation of rs.4,15,150/- awarded by the tribunal was enhanced to rs.8,20,000/-. - appellant is a tenant of suit premises, who was in occupation since 1969. it is seen that the appellant failed to pay rents and, therefore, the respondent-choultry filed o. that ten days' time expired on 6-5-1992. having failed to obtain favourable orders, the appellant herein has made one more attempt by presenting the suit before the vacation civil judge, guntur, which wasrejected on the ground of maintainability. it is interesting to note that the appellant herein has even filed w.1. this appeal is directed against the decree and order dated 6-5-1992 inan unnumbered original suit of 1992 (c.r.r. no. 30/92) on the file of the court of the vacation civil judge (i additional district judge), guntur.2. the appellant herein presented the plaint in the above suit before the lower court seeking a declaration that the decree passed in o. s. no. 1498/73 on the file of the i additional district munsif, guntur in favour of the 1st respondent herein and against the appellant, is inexecutable and void. the lower court rejected the plaint on the ground that the suit is barred by limitation and, therefore, not maintainable.3. the case of the appellant herein, who presented the plaint before the lower court, is that institution of suit is governed by article 58 of the limitation act and, therefore, the suit is maintainable. the specific plea taken by the appellant herein before the lower court to meet the objections raised by the office, is that the suit was in time and maintainable. however, the lower court considered the entire gamut of the arguments and held that the suit falls within the purview of article 59 of the limitation act and, therefore, time has run against the appellant plaintiff, and rejected the plaint. as against such rejection, the present appeal is filed.4. sri t. veerabhadrayya, learned counsel for the appellant, contends that the suit filed before the lower court is very much maintainable and the lower court has erred in rejecting the plaint on the ground of maintainability. sri sreeramulu, learned counsel for the respondents, on the contrary, has contended that in given circumstances, the suit is not maintainable inasmuch as the proceedings initiated are vexatious and, therefore, the plaint has rightiy been rejected at the threshold itself on the ground of maintainability.5. in order to appreciate the rival contentions, it is necessary to trace back few facts pertaining to the litigation. first respondent is a choultry (trust) at kothapeta, guntur. appellant is a tenant of suit premises, who was in occupation since 1969. it is seen that the appellant failed to pay rents and, therefore, the respondent-choultry filed o. s. no. 1498/73 on the file of the t additional district munsif court, guntur for eviction of the appellant. ultimately, the suit was decreed on 22-12-1977 in favour of the 1st respondent, who was the plaintiff in the said suit. the operative portion of the decree in the said suit reads as under:'that the defendant (appellant herein) do deliver possession of the suit schedule properties to the plaintiff; and that the defendant do pay a sum of rs. 1,600/- towards rent and that the defendant is allowed to continue in the suit premises till he shifts his machinery and business to autonagar.....'first respondent herein having waited quite some time for the appellant to vacate the suit premises in terms of the decree, realised that the appellant is not vacating the premises and, therefore, was compelled to file e. p. no. 390/89 before the 1 additional district munsif court, guntur seeking eviction and delivery of the suit schedule property. at that stage, the appellant filed e. a. no. 227/89 under section 47 of the civil procedure code contending that the e. p. is not tenable, as the decree is inexecutable. the said e. a. was dismissed for default on 21-2-1992 by the additional district munsif, guntur. the appellant again filed e. a. no. 167/92 for restoration of e. a. no. 227/89. it was also dismissed on 21-3-1992. then again e. a. no. 206/92 under section 47 c.p.c. was filed. the said e. a. was also dismissed on 27-3-1992 holding that the earlier 01 ders operate as res judicata. against the said order, c. r. p. no. 950/92 was filed before this court, which was dismissed -on .13-4-1992 holding that orders in e. a. no. 206/92 operate as re's judicata. but, however, the learned judge granted ten days' time for vacating the premises and removal of the machinery. again the plaintiff moved the high court in cmp-no. 6277/92. on 21-4-1992 this court granted ten more days' time for shifting the machinery. that ten days' time expired on 6-5-1992. having failed to obtain favourable orders, the appellant herein has made one more attempt by presenting the suit before the vacation civil judge, guntur, which wasrejected on the ground of maintainability.6. admittedly, a decree was passed in favour of the 1st respondent herein. though the period for vacating the premises was not specified in the decree, but as per article 136 of the limitation act, for execution of any decree (other than a decree granting a mandatory injunction) or order of any civil court, the period is twelve years. the decree in o. s. no. 1498/73 was passed on 22-12-1977. the twelve years period for enforcing the decree would come to an end by 21-12-1989. the appellant having taken advantage - of the period not being specified in the decree, is holding the premises even up to this stage on one pretext or the other. having realised that the appellant herein has not been vacating the suit premises in terms of the judgment and decree dated 22-12-1977, the 1st respondent was forced to move the competent court by way of execution proceedings. in the execution proceedings, the stand taken by the appellant is by way of filing various e.as., under section 47 cpc inter alia contending that the decree is inexecutable and, therefore, sought dropping of the execution proceedings. the i additional district munsif dismissed e. a. no. 206/92 by order dated 27-3-1992 holding that orders in earlier e.as., operate as res judicata. the appellant herein filed crp no. 952/92 against the order in e. a. no. 206/92dated 27-3-1992. this court dismissed the said revision petition on 13-4-1992 holding that orders in e. a. no. 206/92 operate as res judicata. it is interesting to note that the appellant herein has even filed w. p. no. 9013/87 in this court prior to the execution proceedings initiated by the 1st respondent herein. the prayer in the said writ petition was that the decree is inexecutable and, therefore, sought for a direction to the respondent not to evict the appellant, which was dismissed on 12-9-1988.7. under this background, the suit in question was filed before the vacation civil judge, guntur in the month of may, 1992. in paragraph 10 of the plaint, the relief sought is as under:'(a) for a declaration that the decree in o.s. no. 1498/73 of the i additional districtmunsif, guntur obtained by the 1 st defendant against the plaintiff is inexecutable and void; (b) for a consequential permanent injunc- tion restraining the defendant from interfering with the plaintiffs peaceful possession till he removes the machinery to autonagar except by due process of law.' 8. the suit was dismissed on the ground of maintainability only, as there was no opportunity for the respondent-choultry to place the entire material before the court. the question now being agitated by sri veerabhadrayya is that rejection of the plaint on the issue of maintainability per se is illegal inasmuch as article 58 of the limitation act provides three years period of limitation and, therefore, the suit was filed in time.9. part-iii of the schedule appended to the limitation act deals with 'suits relating to declarations'. article 56 provides that a suit for declaration of the forgery of an instrument issued or registered shall be filed within a period of three years. the period of limitation would start when the issue or registration becomes known to the plaintiff. likewise, article 58 provides that a suit to obtain any other declaration shall be filed within a period of three years. the period of limitation would start when the right to sue first accrues. sri veerabhadrayya contends that e. p. no. 390/89 was filed pursuant to the decree in 0. s. no. 1498/73. after filing the e.p. only, the appellant herein realised the implication and then filed the suit. according to sri veerabhadrayya, the suit is within three years period and, therefore, it falls within the purview of article 58. however, the lower court rejected to receive the plaint holding that the suit falls within article 59 and, therefore, time has lapsed. article 59 falls in part-tv of the schedule appended to the limitation act. part-iv specifically deals with 'suits relating to decrees and instruments'. according to article 59, suit for cancellation or setting aside an instrument or decree or for the rescission of a contract has to be filed within three years and the period of limitation would start when the facts entitling the plaintiff to have the instrument or decree cancelled or set aside or the contract rescinded first become known to him. in view of the specific provision contemplated in article 59 dealing with decrees and instruments, the lower court felt that inasmuch as the decree in o. s. 'no. 1498/73 was passed on 22-12-1977 the present suit ought to have been filed within three years therefrom i.e., before 21-12-1980. accordingly, the trial court rejected the plaint.10. sri sreeramulu, learned counsel for the respondents, has gone to the extent of submitting that the limitation for filing the suit is neither governed by article 58 nor article 59 of the limitation act, but it squarely falls within the purview of section 47 cpc. he has further contended that in the execution petition filed by the 1st respondent, number of e.as., were filed under section 47 cpc raising the same grounds; that the matter was carried up to high court by way of revision petition; that the proceedings in eas and crp operate as res judicata and that, therefore, the suit is not maintainable. i see substance in the argument of the learned counsel for the respondents. section 47 cpc deals with the question that has to be determined by the courts in execution proceedings.for the purpose of appreciating the contentions of the learned counsel for the respondents, the provisions of section 47 cpc are extracted below:'questions to be determined by courts executing decree: 47. (1) all questions arising between the parties to the suit in which the decree was passed, or their representatives, and relating to the execution, discharge or satisfaction of the decree, shall be determined by the court executing the decree and not by a separate suit. (2) deleted in 1976. (3) where a question arises as to whether any person is or is not the representative of a party, such question shall, for the purpose of this section, be determined by the court.' 11. a reading of this section would go to show that various eas filed under section 47 cpc before the executing court, crp andwrit petition filed before this court by the appellant, to my mind, operate as res judicata. in a case where the court, which has passed a decree, had inherently lacked jurisdiction, then the principle of res judicata, in my view, may not apply. in the instant case, it is not the case of the appellant that the court, which passed the decree in o.s. no. 1498/73, had lacked inherent jurisdiction. therefore, i am inclined to hold that the contentions raised by the learned counsel for the respondents clinch the issue insofar as dealing with the present case. few decisions cited by the learned counsel for the respondents viz., dir., rly. movement e. rlys. v. akashwani glass works, firozabad, : air1985all314 ; v. n. sreedharan v. bhaskaran, : air1986ker49 and piarelal v. bhagwati prasad, : air1969mp35 strengthen my view to hold that earlier proceedings initiated by the appellant under section 47 cpc before the executing court, would no doubt operate as res judicata against the appellant herein and, therefore, he is barred from initiating fresh proceedings any more on the very same issue and against the very same party, which has become final. this court, while dismissing c. r. p. no. 950/92 filed by the appellant against the order in e. a. no. 206/92, has also held that earlier proceedings initiated under section 47 cpc operate as res judicata.12. in view of the above discussion, the appeal deserves no consideration and is, therefore, liable to be dismissed.13. before parting with the case, i may observe that the appellant has, time and again, chosen to circumvent the process of eviction order standing against him, passed by a competent civil court, by hook or crook. this conduct of the appellant, 1 may say that the suit filed is vexatious and gross abuse of process of the court. the appellant has not approached the court with clean hands. to my mind, the entire background of the litigation shows that the appellant is trying to hold on the suit premises by hook or crook, thereby causing irreparable loss to the respondents. under these circumstances, i consider that the appeal does not stand on merits and deserves to be dismissed with costs.14. in the result, the appeal is dismissed with costs.15. appeal dismissed.