ASGAR & ORS. versus MOHAN VARMA & ORS.

Citation: [2019] 2 S.C.R. 664 · Decided: 05-02-2019 · Supreme Court of India · Bench: D.Y. CHANDRACHUD · Disposal: Dismissed

Cited by 2 judgment(s) · cites 4 · see the full citation network in Lexace

Judgment (excerpt)

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664                    SUPREME COURT REPORTS            [2019] 2 S.C.R.
ASGAR & ORS.
v.
MOHAN VARMA & ORS.
(Civil Appeal No. 1500 of 2019)
FEBRUARY 05, 2019
[DR. DHANANJAYA Y CHANDRACHUD AND
HEMANT GUPTA, JJ.]
Code of Civil Procedure, 1908 – Explanation IV to s.11 and
Or.XXI rr.97 to 101 – Constructive Res judicata – Respondents
instituted Execution Petition for delivery of possession of Schedule
‘B’ property – Application by appellants seeking declaration that
they were entitled to possession of the property as lessees and were
not liable to be dispossessed – Application allowed by the District
Court – However, High Court dismissed the claim of appellants –
SLP was also dismissed – Appellants instituted fresh proceedings
and sought inter alia, a direction for payment to them of the value of
improvements over the property, before an order for delivery of
possession was made – Application dismissed by the District Court
– Writ petition – High Court held that claims advanced by appellants
were barred by the principle of constructive res judicata – Appellant
contended that neither the District Court nor the High Court have
enquired into the merits of the claim advanced by the appellants u/
s.4(1) of the Act, 1958 – Held: In the present case, the appellants
were strangers to the decree – They were required to get that claim
adjudicated in the course of their Execution Application which was
referable to the provisions of Or. XXI, r. 97 –  Having failed to
assert the claim at that stage, the deeming fiction contained in
Explanation IV to s.11 is clearly attracted –  An issue which the
appellants might and ought to have asserted in the earlier round of
proceedings is deemed to have been directly and substantially in
issue – The High Court was justified in coming to the conclusion
that the failure of the appellants to raise a claim would result in the
application of the principle of constructive res judicata both having
regard to the provisions of ss. 4 and 5 of the Act of 1958 and to the
provisions of Or. XXI, rr. 97 to 101 of the CPC – Kerala
Compensation for Tenants Improvements Act, 1958 – ss.4 and 5.
[2019] 2 S.C.R. 664
664
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Appellants filed application in Execution proceedings for
declaration that they were entitled to possession of the property
as lessees. The District Court allowed the application. Aggrieved,
the respondents moved to the High Court. The High Court
allowed the appeal and dismissed the claim petitions filed by the
appellants. SLP was also dismissed. Thereafter, appellant
instituted fresh proceedings and sought directions for payment
to them of the value of improvements over the property, before
an order of delivery of possession was made. The said application
was dismissed by the District Court. High Court held that claims
advanced by appellants were barred by principle of res judicata.
Hence, Special Leave Petition.
Dismissing the appeal, the Court
HELD :  1. In view of the settled position in law, it is evident
that the appellants were entitled, though they were strangers to
the decree, to get their claim to remain in possession of the
property independent of the decree, adjudicated in the course of
the execution proceedings. The appellants in fact set up such a
claim. They sought a declaration of their entitlement to remain in
possession in the character of lessees. Under Order XXI Rule
97, they were entitled to set up an independent claim even prior
to their dispossession. Under Order XXI Rule 101, all
questions have to be adjudicated upon by the court dealing with
the application and not by a separate suit. Upon the determination
of the questions referred to in Rule 101, Order XXI
Rule 98 empowers the court to issue necessary orders.
The consequence of the adjudication is a decree under Rule 103.
[Para 39][690-D-F]
2.  The claim which the appellants have now sought to assert
for compensation under Section 4(1) of the Kerala Compensation
for Tenants Improvements Act, 1958 is intrinsically related to
the claim which they asserted in the earlier round of proceedings
to remain in possession. Indeed, the appellants seek to resist
the execution of the decree on the ground that they are entitled
to continue in possession until their claim for compensation is
determined upon adjudication and paid. Such a claim falls within
the purview of Explanation IV to Section 11 of the CPC. Such a
claim could certainly have been made in the earlier round of
ASGAR & ORS. v. MOHAN VARM

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