Case Note & Summary
The case involves a dispute over possession of a suit property. The plaintiff, Deepali Dinanath Pawaskar, claimed title through a Will dated 5th May 1978 executed by her father-in-law, Waman Pawaskar, who died on 15th January 1983. The defendants, Shrikant Waman Pawaskar and others (brothers-in-law of the plaintiff), had earlier filed Regular Civil Suit No. 86 of 1985 for partition, which was dismissed after the plaintiff proved the Will. The defendants appealed in Civil Appeal No. 50 of 1993. Pending that appeal, the plaintiff filed Regular Civil Suit No. 98 of 1993 (first suit) for possession, which was dismissed as premature on 31st August 1995. Subsequently, the plaintiff filed Regular Civil Suit No. 105 of 2000 (second suit) for possession, which was decreed by the trial court and confirmed by the first appellate court. The defendants appealed to the High Court, raising the substantial question of law whether the finding on the Will in the first suit operates as res judicata in the second suit. The High Court held that the dismissal of the first suit as premature and not on merits does not attract the principle of res judicata under Section 11 CPC. The finding on the Will in the first suit was not binding because the suit was dismissed on a preliminary ground. The court upheld the concurrent findings of the courts below and dismissed the second appeal.
Headnote
A) Civil Procedure - Res Judicata - Premature Suit - Section 11, Code of Civil Procedure, 1908 - Dismissal of first suit as premature and not on merits does not operate as res judicata in a subsequent suit - The finding on the Will in the first suit is not binding when the suit was dismissed as not maintainable - Held that the principle of res judicata applies only to decrees passed on merits, not to dismissals on technical grounds (Paras 2, 7-10).
Issue of Consideration
Whether the finding rendered in the first suit, which was dismissed as premature and not on merits, would be binding on the parties and the trial court in the second suit on the ground of res judicata.
Final Decision
The High Court dismissed the second appeal, upholding the concurrent findings of the courts below. The decree of possession in favor of the respondent-plaintiff was confirmed.
Law Points
- Res judicata
- Premature suit
- Binding nature of findings
- Section 11 CPC
- Dismissal not on merits
Case Details
2019 LawText (BOM) (04) 124
Second Appeal No. 795 of 2005
Mr. Rakesh Bhatkar for Appellants; Mr. V.S. Sawant i/by Mr. P.M. Jadhav for Respondent
Shrikant Waman Pawaskar, Mrs. Savita Shrikant Pawaskar, Sachin Shrikant Pawaskar
Mrs. Deepali Dinanath Pawaskar
Subscribe to unlock Case Details (Citation, Judge, Date & more)
Subscribe Now
Nature of Litigation
Second appeal against decree of possession in a civil suit.
Remedy Sought
Appellants (defendants) sought to set aside the decree of possession passed in favor of respondent (plaintiff).
Filing Reason
Appellants challenged the concurrent findings of the trial court and first appellate court decreeing possession, arguing that the finding on the Will in the earlier suit (dismissed as premature) operates as res judicata.
Previous Decisions
Regular Civil Suit No. 86 of 1985 for partition was dismissed. Regular Civil Suit No. 98 of 1993 (first suit) was dismissed as premature on 31.08.1995. Regular Civil Suit No. 105 of 2000 (second suit) was decreed on 31.03.2001, confirmed in Regular Civil Appeal No. 57 of 2001 on 18.02.2005.
Issues
Whether the dismissal of the first suit as premature and not on merits renders the finding on the Will binding in the second suit on the ground of res judicata.
Submissions/Arguments
Appellants argued that the finding on the Will in the first suit (Regular Civil Suit No. 98 of 1993) operates as res judicata and binds the parties and the trial court in the second suit.
Respondent argued that the first suit was dismissed as premature and not on merits, hence the finding is not binding and res judicata does not apply.
Ratio Decidendi
A suit dismissed as premature and not on merits does not operate as res judicata under Section 11 CPC. Findings in such a suit are not binding in a subsequent suit because the earlier decision was not on the merits of the case.
Judgment Excerpts
Rejection of first suit on the ground that the same was premature and not on merits, whether the finding rendered in the first suit would be binding the parties, as well as, the learned trial Judge in the second suit on the ground of res-judicata ?
The first suit was dismissed by the learned Judge by judgment and order dated 31st August, 1995.
Procedural History
Regular Civil Suit No. 86 of 1985 for partition was dismissed. Plaintiff filed Regular Civil Suit No. 98 of 1993 (first suit) for possession, dismissed as premature on 31.08.1995. Plaintiff then filed Regular Civil Suit No. 105 of 2000 (second suit) for possession, decreed on 31.03.2001. Defendants appealed in Regular Civil Appeal No. 57 of 2001, which was dismissed on 18.02.2005. Defendants then filed Second Appeal No. 795 of 2005 in the High Court, which was dismissed on 16.04.2019.
Acts & Sections
- Code of Civil Procedure, 1908: Section 11
