ARJUN SINGH versus MOHINDRA KUMAR & ORS.

Citation: [1964] 5 S.C.R. 946 · Decided: 13-12-1963 · Supreme Court of India · Bench: BHUVNESHWAR PRASAD SINHA · Disposal: Appeal(s) allowed

Cited by 5 judgment(s) · cites 1 · see the full citation network in Lexace

Judgment (excerpt)

946 
SUPREME COURT REPORTS 
[1964] 
:1963 
It is · clear therefore that the discretion to be 
-
exercised by the military officer specified in s. 125 
Ram Sarup 
of the Act as to the trial of accused by Court Martial 
v. 
or by an ordinary court, cannot be said to be unguided 
The Union of by any policy laid down by the Act or uncontrolled 
India and another by any other authority. Section 125 of the Act 
. ,, --. 
therefore cannot, even on merits, be said to infringe 
'Raghub<;r Dayal the provisions of Art. 14 of the Constitution. 
J: 
The writ petition therefore fails and is dis-
missed. 
Petition dismr1scd. 
1963 
December 13 
ARJUN SINGH 
1'. 
MOHINDRA KUMAR & ORS. 
(B.P. SINHA, C.J., A.K. SARKAR AND N. RAJAGOPALA 
AYYANGAR, JJ.) 
Code of Civil Procedure (Act V of 1908). ss. 11 and 151 and 
0. IX, rr, 3, 7 and 13-Principle ofresjudicata when applicable-
"Good cause" and "sufficient cause" if different. 
There were three suits in two of which the appellant was 
defendant and in the other the plaintiff. One of the three was 
the main suit (in which appellant was a. defendant and the others 
were connected suits. They were ordered to be consolidated 
for the purpose of hearing and a day was fixed for pronouncing 
judgment. The appellant did not appear and ex parte orders 
were passed against him. He filed application (purporting to be 
under Or. IX, r. 7 Code of Civil Procedure) for setting aside the 
ex parte orders which were rejected. Thereupon he filed revision 
application before the High Court which applications were rejected. 
·Within a short time he applied to the trial court for taking evidence 
and proceeding with the case. This application was rejected. 
Thereafter he filed again another application (under Or. IX, r. 13 
Code of Civil Procedure) for setting aside the ex parte order alleging 
.. the same facts and reasons as before. The respondents raised 
the bar of res judicata which was accepted by the Court. On the 
rejection of his application he appealed to the High Court. The 
I 
I . 
__ 
L 
-
5 S.C.R. 
SUPREME COURT REPORTS 
947 
High Court also dismissed the appeal on the ground of resjudicata. 
The present appeal is by special leave granted by this Court. The 
same plea was raised before this Court and the contentions of the 
parties were centered on the interpretation and application of 
Order IX, rr. 7, 9 and 13 of the Code of Civil Procedure, 1908. 
Held: (i) There is no material difference between the facts 
to be established for satisfying the two tests of "good cause" under 
Or. IX, r. 3 for non appearance and "sufficient cause" under Or. 
IX, r. 13. 
(ii) The scope of the principle of res judicata is not confined to 
what is contained in s. 11 but is · of more general application. 
Res judicata could be as much applicable to different stages of the 
same suit as to findings on issues in different suits. 
Satyadhyan Ghosal v. Sm. Deorajin Debi, 
[1960] 3 S.C.R. 
590, referred to. 
(iii) Where the principle of res judicata is invoked in the case 
of the different stages of proceedings in the same suit the nature 
of the proceedings, the scope of the enquiry which the adjectival 
law provides for the decision being reached as well as the specific 
provision made on matters touching .such decisions are scime of 
the factors to be considered before the principle is held to be 
applicable. 
(iv) Or. IX, r. 7 does not put an end to the litigation nor 
does it involve the determination of any issues in controversy 
in the suit. A decision 'or direction in an interlocutory proceeding 
of the type provided for by Or. IX, r. 7 is not of the kind which 
can operate as res judicata so as to bar the hearing on the merits 
of an application under Or. IX, r. 13. 
· 
Sankaralinga v. Ratnasabhapati, 
21 Mad. 324 and Bhaoo 
Patel v. Naroo, 10 C.L.R. 45, referred to. 
(v) For the operation of res judicata the Court dealing with 
the first matter must have had jurisdiction and competency to 
entertain and decide the issue. If the entirety of the "heariJ1g" 
of a suit has been completed and the court being competent to 
pronounce judgment then and there, adjourns the suit merely 
for the purpose of pronouncing judgment (as it was done in the 
present case) there is no adjournment for hearing and Or. IX, r. 7 
could have no application and the matter would stand at the stage 
of Or. IX, r. 6 to be followed up bypassing of an ex parte decree mak-
ing r. 13 of the only provision in Or. IX applicable. Therefore 
th

Excerpt shown. Read the full judgment & AI analysis in Lexace.