S.N.Srivastava - (1.) -It appears from the perusal of the case that a minor civil dispute conflagrated into a long drawn battle between the petitioner and the respondent Nos. 4 and 5. The dispute allegedly arose with the interference of the respondent Nos. 4 and 5 in the quotidian activities of the petitioner of his vocation of keeping Ghat at Sangam in Allahabad which according to the petitioner dates back to 1954 and even earlier. To begin with, the petitioner instituted Suit No. 8 of 1967 in the Court of Munsif West, Allahabad for the relief of declaration that he was entitled to carry on his activities of facilitating bathing at the sacred confluence of Triveni and receiving offerings and daan (gift) from the pilgrims as this vocation was the only source to eke out a living for himself and for his family. The respondents who were arrayed as defendants in the suit, entered appearance and filed written statement in which they denied the rights of plaintiff of running ghat at the Sangam-confluence of Ganga and Jamuna. They also denied that petitioner was one of the ghatias or does he have any right to keep or run the ghat at the place. It was also alleged that the plaintiff was a resident of District Pratapgarh and had been in the employ of pandas and ghatias and as such, he was not entitled to hoist any flag or receive any alms or offerings from the pilgrims visiting the Sangam. The suit filed by the petitioner as plaintiff culminated in being decreed vide judgment and decree dated 3.5.1969. The operative portion of the judgment is excerpted below : "Plaintiff's suit for declaration that he is entitled to keep his ghat in Sangam area and injunction against defendants not to disturb the plaintiff in his profession to receive alms and Dans prayed in reliefs is decreed with costs." Consequent First Appeals i.e., Nos. 146 and 148 of 1969 and Second Appeal No. 1413 of 1973 preferred against the decree ended up in dismissal vide judgments dated 27.3.1973 and 13.2.1981, respectively. The aforesaid pronouncements in the judicial hierarchy did not give quietus to the dispute. Ram Chandra Misra arrayed as respondent No. 4 in the instant petition, who is now represented by his heirs namely respondent Nos. 4/1 to 4/9, began a second inning by Instituting Suit No. 837 of 1978 in which the relief claimed was for declaration that the plaintiff of the suit alone had a right to keep/run the ghat comprising 12 wooden takhats and Calf (bachhia) for Gaudan in the frontline in the bathing area through the year especially during Magh Mela and was further entitled to observe and conduct Ganga Puja for Magh Mela, Tahsil Allahabad. The petitioner sought his impleadment by moving an application and he was thus impleaded as defendant No. 5 in the said suit. In the written statement filed by the petitioner as respondent No. 5 in the said suit, claim of the plaintiff respondent No. 4 was refuted at the same time, raising the plea of suit being barred by res judicata. The suit came to be heard by 8th Additional Munsif, Allahabad, who by means of the order dated 26.5.1996 dismissed the suit as being barred by res judicata. The dismissal of the suit led the plaintiff respondent No. 4 to prefer a revision, which climaxed with a verdict that the suit was not barred by res judicata. The petitioner who was defendant in the suit, invoked the procedure of this Court by filing a writ petition, i.e., Writ Petition No. 14534 of 1983. This Court while deciding the writ petition, quashed the order dated 10.5.1983 and relegated the matter to the revisional court for decision afresh in accordance with law and in the light of observations made in the body of judgment. The precise and relevant observation made by the Court in the aforestated writ petition is quoted below : "In the perspective to the above discussion, it is evident from the judgment of the revisional Court that it has not considered the question of res judicata in the light of Explanation IV of Section 11, C.P.C. Before holding that the suit was not barred by res judicata, it was incumbent upon the revisional court to have considered as to whether Explanation IV was or was not attracted in the facts and circumstances of the present case. However, at this stage, I would like to refrain myself from expressing any opinion on the question as to whether Explanation IV of Section 11, C.P.C. was or was not attracted as I think it proper to quash the impugned order and remand the matter directing the revisional court to decide afresh the question of res judicata in the light of Explanation IV of Section 11, C.P.C." The revisional court by its judgment and order dated 22.12.1993, allowed the revision and set aside the order of Munsif and held the suit not hit by the principles of res judicata. It is this order of the revisional court dated 22.12.1993 passed by IX Additional District Judge, Allahabad, which is the subject matter of impungment in the instant petition.
(2.) I have heard Sri B. Dayal, learned counsel for the petitioner and Sri A. S. Diwakar assisted by Sri D. K. Srivastava appearing on behalf of the plaintiff respondents at prolix length. The learned counsel for the petitioner canvassed that in view of the finding recorded by the revisional court that the matter was raised in the earlier suit but it elicited no decision on the question whether Section 11 (IV) of the C.P.C. was attracted and hence, the petition may be aptly allowed on this ground alone. To enforce his submission that once the question is raised, whether it is decided or not, will attract the provisions of Section 11 Explanation IV of the C.P.C. reliance has been placed on the decisions in State of U. P. v. Nawab Hussain, AIR 1977 SC 1680 ; P. K. Vijayan v. Kamalashi Amma and others, AIR 1994 SC 2145 and M/s. Prasad Industries, Shahjahanpur and others v. District Magistrate/Collector Shahjahanpur and others, 2001 (1) AWC 133 : 2001 ALJ 1. In opposition, the learned counsel for the opposite party No. 4 contended that the earlier suit was instituted with a cause of action distinct from the cause of action in the suit instituted by the opposite party No. 4 and thus the controversy was altogether different. It was further contended that the question whether the respondent was one amongst many ghatias equipped with a right to keep 12 takhats and bachhia for gaudan in preference to others at the place near the ghat was beyond the pale of dispute and that even if there was pleading in the written statement to the effect, it was not necessary for the Court to delve and decide the question relating to cause of action. He further contended that it was not essential for the Court to a?judicate upon the question as to who will keep/run the ghat first amongst chatta at the confluence of Ganga, Jamuna and therefore, the Court did not rightly address itself to the controversy involved in the earlier suit. Finally, the learned counsel submitted that the suit was not barred by res judicata as contemplated in Section 11 Explanation IV of the C.P.C. To hammer home the points aforestated, the learned counsel placed credence on the decisions in Forward Construction Co. and others v. Prabhat Mandal (Regd.) Andheri and others, AIR 1986 SC 391 ; Sajjadanashin Sayed Md. B.E. Edr. (D) by L.Rs. v. Musa Dadabhai Ummer and others, AIR 2000 SC 1238 and Ferro Alloys Corporation Ltd. and another v. Union of India and others, 1999 (2) AWC 2.76 (SC) (NOC) : AIR 1999 SC 1236. In the conspectus of the above submissions made across the bar, the following questions surface in the forefront for determination by the Court. (1) Whether the controversy/ issue involved in suit No. 837 of 1978 filed by the respondent No. 4 was one and the same as involved in suit No. 8 of 1967 instituted by the petitioner? (2) Whether the decision on the question raised in para 19 of the written statement filed in the earlier suit was relevant and necessary to be adjudicated upon having bearing on the controversy relating to the cause of action of the suit instituted by the opposite party No. 4?
(3.) BEFORE coming to grips with the controversy involved in this petition, provisions of Section 11, Explanation IV of the C.P.C. sufficient to appreciate the controversy should be considered. Section 11 of the C.P.C. and Explanation IV thereto is quoted below : "Any matter which might and ought to have been ground of defence or attack in such former suit shall be deemed to have been a matter directly and substantially in issue in such suit." The relief claimed in Suit No. 8 of 1967 instituted by the petitioner was to the following effect : ...[VERNACULAR TEXT OMMITED]... "A. That a decree be passed in favour of the plaintiff against defendants declaring that plaintiff alone has a right to keep his ghat consisting of 12 takhat and bachchia for gaudan first in the frontline in bathing area throughout the year specially during Magh Mela and further plaintiff is entitled to conduct Ganga Puja for Magh Mela Tahsil, Allahabad and accept presents for his aforesaid services. B. That defendants be permanently restrained by means of mandatory and prohibitory injunction not to disturb or interfere in plaintiff's right of keeping Takhat as aforesaid and performing Ganga Puja. C. That any other relief which the Court may deem just and proper in the circumstances of the case may be awarded against such defendants who contest the suit." The lis in suit No. 8 of 1967 was relating to determination of right of plaintiff as ghatia which the defendant in that suit refuted while claiming his right as ghatia and also the right of receiving Gift, Daan, gaudan, etc. while the cause of action in suit No. 837 of 1978 was altogether different, i.e., what the plaintiff of this suit claimed was the right to keep 12 takhats and right of Ganga arti first in the forefront, etc. The English translation of what the defendant in suit No. 8 of 1967 averred in para 15 of the written statement is that plaintiff of the suit was not one of the ghatias and he had no right to keep/run the Ghat near or on the bank of confluence or near Ganga or Jamuna or to keep the Ghat submerged in the water. It was further averred that it was only the defendant No. 4 and other (authorised) ghatias who had an ancestral or customary right to keep the ghat near the bank of Ganga, Jamuna or the confluence of both the rivers and that excepting the (authorised) Ghatias, no one else can keep/run the Ghat at the places. In para 19 of the written statement, it was averred that it was defendant No. 4 who alone had a customary right to keep/run the Ghat on the bank of Ganga, Jamuna and/or confluence of both the rivers in the forefront and in the water (with Ghats submerged). It was further averred that he had a customary right to hoist blue flag too and that it was with the avowed object of facilitating bathing for the distinguished people and that those who are not anchored to any one panda or ghat, their bathing is facilitated by defendant No. 4 and further that the defendant No. 4 alone had a right to perform the rituals of smearing chandan streaks and to receive presents from such persons. It is further averred that those V.I.Ps. who are accompanied by their respective purohits are brought to the ghat of the defendant No. 4 for the purpose of performance of the rituals of smearing chandan streaks and it is defendant No. 4 who is presented offerings for the rituals. In the first suit the relief sought was for declaration of the plaintiff's right to keep his ghat inside the water at sangam while in the subsequent suit the relief was for keeping ghat comprising 12 takhats, bachhiya for gaudan first in the front-line in bathing area throughout the year specially in Magh Mela and to conduct Ganga Puja for Magh Mela Tahsil Allahabad. It would thus appear that cause of action in both the suits were distinct from each other. The question that now emerges for consideration is whether the subsequent suit was barred by the principles of res judicata, the sheet anchor of the arguments of the learned counsel for the petitioner. The first decision relied upon by the learned counsel for the respondent is Sajjadanashin Sayed Md. B.E.Edr. (D) by L.Rs. v. Musa Dadabhai Ummer and others (supra). In this case, the Apex Court dwelt upon the law relating to the applicability of res judicata. The relevant observations made by the Apex Court are embodied in paras 18 and 24 of the decision which are excerpted below : "Para 18. The question arises as to what is the test for deciding into which category a case falls? One test is that if the issue was necessary to be decided for adjudicating on the principal issue and was decided, it would have to be treated as 'directly and substantially' in issue and if it is clear that the judgment was in fact based upon that decision, then it would be res judicata in a latter case, (Mulla, p. 104). One has to examine the plaint, the written statement, the issues and the judgment to find out if the matter was directly and substantially in issue (Isher Singh v. Sarwan Singh, AIR 1965 SC 948 and Mohd. S. Labbai v. Mohd. Hanifa, AIR 1965 SC 1559 (sic). We are of the view that the above summary in Mulla is a correct statement of the law." "Para 24. These three cases are, therefore, instances where inspite of a specific issue and an adverse finding in an earlier suit, the finding was treated as not res judicata as it was purely incidental or auxiliary or collateral to the main issue in each of these cases and not necessary for the earlier case nor its foundation." ;