LexAVTAR SINGH & ORS. versus JAGJIT SINGH & ANR.
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A B c D E F 122 AVTAR SINGH & ORS. v. , JAGJIT SINGH & ANR. July 27, 1979 [N. L. UNTWALIA AND A. P. SEN, JJ.] 1 Code of Civil Procedure-Res judicata-ln appellants' suit issues were franted by civil court-Civil Court held it had no jurisdiction-Petition filed in revenue ~~ - court-Held it had no jurisdiction-Appellants again filed suit in civil car.irf-- lssue raised and decided in the first suit if operates as res judicata. The appellants filed a suit in the court of a subordinate judge.. At the instance of respondent no. 1 (who was the defendant in the suit) an issue as to the jurisdiction of the court to try the suit was framed. Holding that it had no jurisdiction to try the suit the civil court returned the plaint to th• appellants for being presented to the proper revenue court. The revenue court, on presentation of a petition by appellants, held that it had no jurisdiction to try it. Thereupon the appellants again filed a suit in the court of subordinat• judge. The suit failed on the ground of res judicata. On appeal the High Court upheld the view of the civil court. On the question whether the decision of the subordinate judge on tile pr.- liminary issue opera.ta} a., res judicata. Dismissing the appeal, 1-IELD : If in a caso, the defendant does not appear and the Court, oa. ii& own, returns the plaint on the ground of lack of jurisdiction, the order in a. iubsequent suit may not operate ae res judicata; but if the defendant appear1 and an i.;;sue is raised and decided then the decision on the question of jurisdictioa will operate as res judicata in a subsequent suit although the reasons for its decision may not be so. [1240] In the instant case, in the first suit the appellants ought to have ir~isted tha.t the su\l was triable by civil court, or, they should have tnkcn the matter before a hiib.er Court in the revenue proceeding. The appellants did neither. The revenue wurt hac.1 no jurisdiction to go behind the decision of the civil court. (1230] Upendra Nath Bose v. Lall & Ors., AIR 1940 P.C. 222; held inapplic•ble. Jwala Debi v. Amir Singh, AIR 1929 All. 132; not approved. CIVIL APPELLATE JURISDICTION: Civil Appeal No. 2021 of 1969. • H Appeal by Special Leave from the Judgment and Order dated 15th January, 1969 of th~ Punjab and Haryana High Court in S.A. No. 905 of 1963. ' J , • • - AVTAR SINGH v. JAGJIT SINGH (Untwalia, !.) 123 R. K. Garg for the Appellants. Hardev Singh for Respondent No. 1. N. S. Bi11dra and T. S. Arora for Respondent No. 2. The Judgment of the Court was delivered by UNTWALIA J.-This appeal arises out of an unfortunate litigation whore the plaintiff appellant in this appeal has got to fail in this Court too on some technical grounds. One Sardar Balwant Singh died on 10th March, 1955 leaving only three sons according to the case of appellants, namely, the two appel- lanu and respondent No. 2. Respondent No. 1 claimed to be a fourth son of Balwant Singh entitled to l/4th share in the property left by him. The appellants filed Suh No. 41 of 1958, in the Court of Sub Judge, Bassi. The Civil Court on the objection of Respondent No. 1 framed a preliminary issue whether the said Court was compe- tent to try the suit or was it a matter which could be decided only by the Settlement Commissioner. By Order dated 7.7.1958 the learned Subordinate Judge decided that the Civil Court had no juris- diction to try this suit and directed the return of the plaint for presen- tation to the proper Revenue Court. When the appellants filed their claim in the Revenue Court their petition was returned holding that the Revenue Court had no jurisdiction to try it. Thereupon the appellants instituted suit No. 13 of 1960 in the Court of Sub Judge, First Class, Bassi on 2-4-1960. This suit has failed throughout on the ground of res judicata. The High Court has affirmed the dismissal <Jn the view that the decision dated 7-7-1958 given by the Civil Court in Suit No. 41 of 1958 on the point of Civil Court's jurisdiction fo try the suit will operate as res judicata. In our opinion the High Court i~ right. The learned counsel for the appellants submitted that the appel- lants were driven from pillar to post for the redress of their grievances. When they instituted the suit in Civil Court, that Court held that it had no jurisdiction to try it. When the suit was filed in the Revenue Court, the said Court took a contrary view. Where coul
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