Surat Singh Rathee Vs. Umed Singh and ors. - Court Judgment

Excerpt:
civil - res judicata - order ii rule 2 and section 11 of code of civil procedure, 1908 (cpc) - father of appellant was owner in possession of agriculture land - said land was mortgaged by him with grandfather of respondents - during consolidation proceedings land had been allotted to mortgagee - father of appellant had redeemed land from grandfather of respondents on payment of mortgage money - father of appellant mortgaged with possession of suit land with a vide registered conditional mortgage deed - father of appellant could not get said land redeemed within stipulated period - right of redemption was foreclosed - appellant claimed that mortgage was usufructuary mortgage and no period was prescribed for its redemption - appellant pleaded that respondent nos. 1 & 2 had got transferred some land out of suit land in favour of respondent nos. 3 to 7 through a decree passed in another civil suit - suit filed by appellant - dismissed - appeal - dismissed - hence, present appeal - held, appellant did not raise a plea which was available to him in previous suit - subsequent suit would obviously be hit by principle of constructive res judicata - it was rightly held by appellate court that suit was barred by principle of res judicata as also under provisions of order ii rule 2 and section 11 of cpc - appeal dismissed - administrative law - government contract: [vijender jain, c.j., rajive bhalla & sury kant, jj] government contract rejection of highest bid challenge as to held, state has no dominus status to dictate unilateral terms and conditions when it enters into contract. its actions must be reasonable, fair and just in consonance with rule of law. as a necessary corollary thereto, state cannot refuse to confirm highest bid without assigning any valid reason and/or by giving erratic, irrational or irrelevant reasons. the state is free to enter into a contract just like any other individual and the contract shall not change its legal character merely because other party to contract is state. though no citizen possesses a legal right to compel state to enter into a contract, yet latter can neither pick and choose any person arbitrarily for entering into such agreement nor can it discriminate between persons similarly circumstanced. similarly, where breach of contract at hands of state violates fundamental rights of a citizen or its refusal to enter into a contract is contrary to statutory provisions or public duty, judicial review of such state action is inevitable. likewise, if state enters into a contract in consonance with article 299 rights of the parties shall be determined by terms of such contract irrespective of fact that one of the parties to it is a state or a statutory authority. for these precise reasons the equitable doctrine of promissory estoppel has been made applicable against the government, as against any other private individual, even in cases where no valid contract in terms of article 299 was entered into between the parties. hence, if government makes a representation or a promise and an individual alters his position by acting upon such promise, the government may be required to make good that promise and shall not be allowed to fall back upon the formal defect in the contract, though subject to well known limitations like larger public interest. the state, thus, has no dominus status to dictate unilateral terms and conditions when it enters into contract and its actions must be reasonable, fair and just and in consonance with rule of law. as a necessary corollary thereto state cannot refuse to confirm highest bid without assigning any valid reason and/or by giving erratic, irrational or irrelevant reasons. -- consumer protection act, 1986 [c.a. no. 68/1986]. articles 14 & 300a: government contract noon-acceptance of highest bid held, it does not result in taking away right to property of highest bidder highest bid, per se, unless it is accepted by competent authority, and consequential sale certificate is issued, does not grant the highest bidder right to property of type which is protected under article 300a right to property is limited to confer highest bidder the right to challenge action of appropriate authority in refusing to accept highest or other bids. [air 1984 p&h 282 (fb) explained] articles 14 & 226: government contract rejection of highest bid held, highest bidder has locus standi to maintain writ petition and assail action of state government or its authorities by contending that his bid has been turned down for arbitrary, illegal or perverse reasons however in such matters, heavy onus would like on petitioner bidder to establish his allegations as state action shall always be presumed to be in accordance with law - as well as the principles of res judicata because the appellant had also filed civil suit no. on 15.3.1982, but the same was dismissed vide judgment dated 22.1.1987 which was maintained in appeal as well. it was alleged that the appellant had filed the instant suit by concealment of material facts and it was liable to be dismissed on this ground as well. apart from the findings which were recorded by the trial court, the first appellate court also held that the suit was barred by the principle of res judicata, as also under the provisions of order ii rule 2 as well as section 11 of the cpc, i.mahesh grover, j.1. this regular second appeal is directed against the judgments and decrees dated 10.1.2007 and 18.4.2007 passed respectively by the additional civil judge (senior division), ganaur (hereinafter described as 'the trial court') and the additional district judge, sonepat (referred to hereinafter as 'the first appellate court') whereby the suit and the appeal of the plaintiff-appellant were dismissed.2. the appellant had filed a suit for redemption against the defendants-respondents. it was pleaded that the father of the appellant was owner in possession of agricultural land, which was described in the plaint; that the said land was mortgaged by him in lieu of mortgage money of rs. 600/- on 28.6.1944 with pema son of kunja, grand-father of respondent nos. 1 & 2; that mutation no. 1350 was sanctioned in that regard on 10.9.1944; that during the consolidation proceedings, land measuring 21 kanals 12 mar-las had been allotted to the mortgagee in lieu of the land mortgaged which was cultivated by him till 1962; that the father of the appellant had redeemed the land in dispute from the said pema on payment of mortgage money of rs. 600/-; that thereafter, the father of the appellant mortgaged with possession the suit land along with his other land situated in the village, total measuring 68 kanals 12 marlas, for an amount of rs. 14000/- with one maman son of ranpat vide registered conditional mortgage deed dated 6.4.1964/25.9.1964 and that father of the appellant could not get the said land redeemed within the stipulated period and the right of redemption was foreclosed.3. it was the further case of the appellant that he and his brother-jai parkash had filed a suit for possession by way of preemption and the said suit was decreed vide judgment dated 9.8.1967 and they had become the owners of land measuring 68 kanals 12 marlas including the land in dispute measuring 21 kanals 12 marlas and the legal representatives of pema (since deceased) became the mortgagees under them and that the legal representatives of pema transferred the mortgagee rights qua the suit land in favour of respondent nos. 1 & 2 through family settlement vide order dated 11.9.1991 which was illegal and not binding on their rights.4. the appellant had also pleaded that respondent nos. 1 & 2 had got transferred land measuring 4 kanals 2 marlas out of the suit land in favour of respondent nos. 3 to 7 through a decree dated 23.3.1994 passed in civil suit no. 37 of 1994 which was also illegal and not binding on his rights. he had averred that mortgage created on 28.6.1944 was a usufructuary mortgage and no period was prescribed for its redemption.5. upon notice, the respondents appeared and filed their written statement controverting the allegations of the appellant. it was pleaded that the suit was barred by the provisions of order ii rule 2 of the c.p.c. as well as the principles of res judicata because the appellant had also filed civil suit no. 552 of 1984 for possession in respect of the same land against ran singh, father of respondent nos. 1 & 2and ors. on 15.3.1982, but the same was dismissed vide judgment dated 22.1.1987 which was maintained in appeal as well. it was alleged that the appellant had filed the instant suit by concealment of material facts and it was liable to be dismissed on this ground as well.6. the parties went to trial on the following issues:1. whether the plaintiff is entitled to a decree for redemption of the suit property with its possession as prayed for? opp2. whether the suit of the plaintiff is barred by the principles of res judicata and by provisions of order ii rule 2 cpc as alleged? opd3. whether the suit of the plaintiff is not maintainable in the present form because the defendants are owners in possession of the suit land as alleged? opd4. whether the suit has been filed by the concealment of material facts and accordingly, it is liable to be dismissed with special costs under section 35a cpc? opd5. whether the suit is liable to be dismissed under order vii rule l(j) cpc? opd6. relief.7. after appraisal of the entire evidence on record, the trial court dismissed the suit.8. in appeal, the findings of the trial court were affirmed by the first appellate court. apart from the findings which were recorded by the trial court, the first appellate court also held that the suit was barred by the principle of res judicata, as also under the provisions of order ii rule 2 as well as section 11 of the cpc, i.e., constructive res judicata.9. hence, this regular second appeal.10. learned counsel for the appellant has assailed the findings of the courts below by contending that the earlier suit was merely for possession, whereas the instant suit was for redemption of the suit land which is totally a distinct relief and, therefore, it could not be held that the provisions of order ii rule 2 or section 11 of the cpc were attracted or that the principle of res judicata was applicable. he referred to the prayer made in the earlier suit, which reads as under:that the plaintiffs pray that a decree for possession of the land comprised in khewat no. 326, khata no. 378, rect. and killa no. 19/7 (7-12), 19/8/2(5-11), 19/12/2 (3-17), 19/13/2 (2-11), 19/14/1 (1-18) and 19/15/1 (0-3), measuring 21 kanals 12 marlas situated in village rajlu tehsil & district sonepat be passed in favour of the plaintiffs against the defendants with costs.he further referred to the prayer made in the instant suit, which is reproduced be-low:it is, therefore, prayed that a decree for redemption of the agriculture land comprised in khewat no. 341/326, khata no. 393, rect. & killa nos. 19/7(7-12), 19/8/2(5-11), 19/12/2(3-17), 19/13/2(2-11), 19/14/1(1-18), 19/15/1(0-3), total measuring 21 kanals 12 marlas situated in the revenue estate of vill. rajlu tehsil ganaur, distt. sonepat may kindly be passed on payment of rs. 600/- as mortgage amount or any other amount as the hon'ble court deems fit and proper and the defendants may also be directed to hand over the vacant possession over the suit land to the plaintiff in the interest of justice with costs.any other relief as this hon'ble court deems fit and proper be also awarded in favour of the plaintiff and against the defendants.on the basis of the above extracted prayers, learned counsel for the appellant submitted that since the two prayers were distinct from each other, the findings of the courts below that the present suit was barred by the principle of res judicata was liable to be set aside.11. i have thoughtfully considered the contentions/submission of the learned counsel for the appellant and have gone through the impugned judgments.12. the copy of the plaint filed in the previous suit has been perused by this court which reveals that in the pleadings, the appellant and his brother had set up the following case in paragraphs 1 & 2:1. that the agricultural land measuring 68 kanals 12 marlas comprising in khewat no. 146, 183, 43, 242, 314, 315, 316, 335, 336, 337, khata 173, 214, 48, 284, 367, 368, 369, 389, 390, 391, rect. and killa nos. 20/11/3(1-16), 20/11/2(0-8), 20/11/1(2-8), 20/11/4(2-0), 20/21/2(3-15), 20/21/1(3-16), 19/16/2(4-0), 19/15/2(4-13), 19/7(7-12), 19/8/2(5-11), 19/12/2(3-17), 19/13/2(2-11), 19/14/1(1-18), 19/15/1(0-3), 19/24/2(6/16), 19/16/1(24), 19/16/3(1-16), 19/25(8-0), 22/4/3(5/8) situated in village rajlu, teh & distt. sonepat was mortgaged with conditional sale by defendant no. 2 to maman son of rampat, resident of rajlu, tehsil and district sonepat for a consideration of rs. 14,000/- (rupees fourteen thousand) vide registered mortgage deed dated 6.4.64 registered on 25.9. (sic.25.9.1964) which was not redeemed and right to redeem of defendant no. 2 were foreclosed.2. that the land detailed in para 1 of the plaint was pre-empted by the plaintiffs vide case no. 499 of 1966 jai parkash etc. v. maman etc. date of decision 9.8.67 and the actual possession was also taken in execution vide rapat roznamcha wakiati no. 159 dated 30.10.67 through girdawar halka by smt. brahmi mother of the plaintiffs on behalf of the plaintiffs who were minors at the relevant date and the plaintiffs continued to be in possession of the land detailed in para 1 of the plaint through smt. brahmi.13. if the above reproduced pleas of the appellant and his brother are read, it is abundantly clear that although they had stated about the mortgage of the suit land by their father, but they specifically pleaded about the foreclosure of his right to redeem the mortgage and it is on this count, as also on the count that they had become owners by way of pre-emptive right that they claimed ownership and possession of the suit property. in the instant case, again a prayer has been made claiming ownership of the suit property by pleading that the appellant was competent to redeem the mortgage by paying the mortgage amount. such a plea was available to the appellant when he along with brother filed the previous suit, but no such prayer was raised by him.14. order ii rule 2 of the c.p.c. reads as under:2. suit to include the whole claim.- (1) every suit shall include the whole of the claim which the plaintiff is entitled to make in respect of the cause of action; but a plaintiff may relinquish any portion of his claim in order to bring the suit within the jurisdiction of any court.(2) relinquishment of part of claim.- where a plaintiff omits to sue in respect of, or intentionally relinquishes, any portion of his claim, he shall not afterwards sue in respect of the portion so omitted or relinquished.(3) omission to sue for one of several reliefs.- a person entitled to more than one relief in respect of the same cause of action may sue for all or any of such reliefs, but if he omits, except with the leave of the court, to sue for all such reliefs, he shall not afterwards sue for any relief so omitted.explanation.- for the purposes of this rule, an obligation and a collateral security for its performance and successive claims arising under the same obligation shall be deemed respectively to constitute but one cause of action.15. in view of the above extracted provisions of law, once the appellant did not raise a plea which was available him, the subsequent suit would obviously be hit by the principle of constructive res judicata.16. therefore, the dismissal of the suit of the appellant by both the courts below can hardly be faulted with.17. the following question of law arises for determination in this appeal:whether if a person does not raise a plea which is available to him in one proceedings, is he competent to raise the same in the subsequent suit or in such an eventuality, are the subsequent proceedings hit by the provisions of order ii rule 2 c.p.c?18. the aforesaid question of law is answered against the appellant on the basis of the discussion made hereinabove and the appeal is dismissed being without any merit.