TaxTMI 
TaxTMI 
2005 (4) TMI 608
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....'Tapovanam') is a registered Society. It was founded by Swamy Chidbavananda. It has been functioning since 1942. The said Swamy Chidbavananda used to propagate the ideals of Swamy Ramakrishna Param Hans and Swamy Vivekananda. It started functioning at Ooty and later shifted to Thiruparaithurari. A number of branches were established at various places, namely, Thiruvedagam, Courtallam, Chitraichavadi, Thirunelveli, Kodaikanal, Ramanathampuram, Rameshwaram, Salem and Karur. Educational institutions and ashrams as well as dispensaries were established at all these places. Swamy Chidbavananda during his life time acquired various properties by collecting funds from the public, which partook the character of Trust property. 3. The First Appellant herein was an employee in a mill at Coimbatore. He joined 'Tapovanam' as an ordinary member. He became Sanyasi in 1970 whereupon he was assigned a job at Thiruvedagam and later transferred to Karur in the year 1976. 'Tapovanam' established a number of educational institutions at Karur from donations collected from the public as also with the funds available through the trusts called Vairaperumal Trust and Tathinagireswarar Trust, the object ....
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....of Tapovanam and Tapovanam was the owner and Educational Agency of the Schools in question. 7. The Appellants preferred an appeal there against in the Court of the District Judge, Trichirapally, which was marked as A.S. No.288 of 1992. The said appeal was also dismissed by a judgment and order dated 17.2.1993, inter alia, on the following findings : (i) Defendants 3 and 4, were misguided by 2nd Plaintiff in forming the 1st Plaintiff Trust. (ii) The Trust deed, Ext. A-1 was not proved, not genuine and did not come into existence. 8. The Appellant Nos. 1 and 2 preferred a Second Appeal there against in the High Court of Madras which was also dismissed by a judgment and order dated 28.4.1997, holding : (i) Appellant No.1 herein was only an agent of Tapovanam. (ii) Appellant No.2 herein did not come into existence. 9. A Review Petition filed there against was also dismissed by an order dated 13.9.1999. 10. During the pendency of the said proceeding before the High Court, Tapovanam filed a suit in the Court of Sub Judge, Karur, marked as O.S. No. 273 of 1992 on or about 6.7.1992, which was subsequently transferred to the Court of Subordina....
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....kumaran, the learned Senior Counsel appearing on behalf of the Appellants, would principally raise two contentions in support of this appeal. Firstly, relying on V. Rajeshwari (Smt.) vs. T.C. Saravanabava [(2004) 1 SCC 551], the learned counsel contended that no issue as regard applicability of the principle of res judicata having been framed by the Trial Court, the impugned judgment is vitiated in law. Secondly the jurisdiction of the Civil Court being barred in view of Sections 53 and 53A of the Act, the judgment and decree passed in the earlier suit being a nullity, the principle of res judicata will have no application. Reliance, in this behalf, has been placed on Mohanlal Goenka vs. Benoy Krishna Mukherjee and Others [(1953) SCR 377]. 15. Mr. L. Nagheshwar Rao, the learned Senior Counsel appearing on behalf of the Respondents, on the other hand, would support the judgment under appeal contending that although no issue as regard res judicata was framed, the parties proceeded at the trial knowing fully well that such an issue is involved and in fact all the relevant documents pertaining to the earlier suit were brought on record and in that view of the matter, the Appellants ....
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....dants threatened to interfere with the administration of educational institutions. 19. Tapovanam in its written statement not only denied and disputed the said claim of the Appellants but set up a title over the properties involved therein in itself. It was averred that Tapovanam was the educational agency in respect of these institutions. 20. The parties, therefore, in the aforementioned suit litigated, inter alia, on the question of existence of the trust said to have been founded by the First Appellant as also right of the parties to act as educational agency of the schools. The High Court in its judgment dated 28.4.1997 passed in Second Appeal No.604 of 1993 noticed all the contentions of the parties and recorded that a concession had been made by the Appellants herein that Tapovanam was the educational agency in respect of the educational institutions and all the documents stood in its name. The plea of the Appellants herein that the documents were created in the name of Tapovanam by the Appellant No.1 out of respect and his closeness with its founder Swamy Chidbhavananda, was negatived. 21. In the Second Appeal, the High Court furthermore noticed that a concurrent fi....
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....e First Appellant herein was only its agent, correspondent and person in charge. The purported assignment made by the First Appellant herein in favour of the other Appellants in relation to certain lands were questioned, inter alia, on the premise that in the earlier suit such assignments had been found to be invalid and the First Appellant herein had been acting on behalf of Tapovanam in the fiduciary capacity and had no independent right in himself. In the said suit, the following reliefs were claimed : (a) Holding that the plaintiff is the absolute owner of the suit properties and educational agency with respect to the suit institutions described in Schedule A and the properties in Schedule B and for a consequential relief of possession and directing the first defendant to hand over charge relating to the suit institutions and properties described in Schedule A and B. (b) Directing the first defendant to render a true and proper accounts with regard to the income from the suit properties for the last three years and till he actually hands over charge. (c) Granting a permanent injunction restraining the first defendant from interfering with the right of....
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.... principle of res judicata as contended in Section 11 of the Code of Civil Procedure is to uphold the rule of conclusiveness of judgment, as to the points decided earlier of fact, or of law, or of fact and law, in every subsequent suit between the same parties. Once the matter which was the subject-matter of lis stood determined by a competent court, no party thereafter can be permitted to reopen it in a subsequent litigation. Such a rule was brought into the statute book with a view to bring the litigation to an end so that the other side may not be put to harassment. 32. The principle of res judicata envisages that a judgment of court of concurrent jurisdiction directly upon the point would create a bar as regard a plea between the same parties upon some other matter directly in question in another court and that the judgment of the court of exclusive jurisdiction direct in point. 33. The doctrine of res judicata is conceived not only in larger public interest which requires that all litigation must, sooner than later, come to an end but is also founded on equity, justice and good conscience. 34. In Sulochana Amma vs. Narayanan Nair [(1994) 2 SCC 14], it was held : ....
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.... and until an adjudication is made in Second Appeal No. 604 of 1993. Tapovanam, therefore, in its written statement did not deny or dispute that the issues which were germane for determination of the suit filed by Tapovanam arose for consideration in the earlier suit. It reiterated its claim that the properties in suit were being held by him as the managing trustee of the Appellants which plea, as noticed hereinbefore, had subsequently been rejected by the court of competent jurisdiction. The Trial Court while determining the issues took into consideration the fact that the documents mostly relied upon by the parties in the previous proceedings had been reproduced and marked as exhibits in the said suit also. It was held : "The deeper probe and study of the bolts and nuts of these material and vital documents, unequivocally points to one and the only conclusion that from out of the nucleus of the plaintiff-Tapovanam, rather from out of the seeds sown by the plaintiff-Tapovanam, all these suit properties have emanated and emerged out, of course with the each and every nerve of pain and strain of the 1st defendant, as its member servant." 38. The Court found the evidence ....
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....r the properties as described in Schedule A of the plaint as also other issues raised by the Tapovnam in his suit would depend upon the findings of the High Court in the Second Appeal which was then pending. 42. One of the facts which was necessary to be pleaded and proved relates to the relationship between the parties i.e. First Appellant was agent of the First Respondent or he was acting of his own. Such a question was raised and answered in the suit filed by the First Appellant herein. His plea that he collected donations and also invested his money in acquiring the properties albeit in the name of the First Respondent was negatived. 43. Thus, the finding arrived at in the earlier suit, inter alia, was that the First Respondent herein was not the benamidar of the First Appellant but in effect and substance was its agent. 44. This Court recently in Bhanu Kumar Jain vs. Archana Kumar and Another, [AIR 2005 SC 626], while drawing a distinction between the principles of 'res judicata' and 'issue estoppel' noticed the principle of cause of action estoppel in the following terms : "There is a distinction between 'issue estoppel' and 'res judicata' [See Thoday vs. Th....
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....ooperative Sugar Mills Ltd. vs. Ajit Singh, 2005 (2) SCALE 151 : 2005 (3) SCC 232]. 48. In Ishwardas Vs. the State of Madhya Pradesh and others [AIR 1979 SC 551], this Court held: "In order to sustain the plea of res judicata it is not necessary that all the parties to the two litigations must be common. All that is necessary is that the issue should be between the same parties or between parties under whom they or any of them claim" 49. We may now consider some of the decisions cited by Mr. Sukumaran. 50. M/s. R.N. Ganekar & Co. Vs. M/s. Hindustan Wires Ltd. [AIR 1974 SC 303] relates to a reference under Arbitration Act. The said decision is an authority for the proposition as regard the interpretation of Section 33 of the Arbitration Act, 1940. In that case, the Court was concerned with the validity of arbitration clause contained in a contract if the contract itself is found to be illegal. 51. In The Vulcan Insurance Co. Vs. Maharaj Singh and another [AIR 1976 SC 287], this Court was again concerned with the question as to whether in view of the repudiation of liability by the Appellant therein under Clause 13 of the insurance policy, a dispute could be refe....
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....ivate school is not a matter which in terms of the provisions of the said Act would be determined by an authority under the provisions of the said Act. Section 53A of the Act carves out an exception to Section 53 thereof. In terms of the said provision any dispute as to the educational institution is to be determined by a Civil Court having jurisdiction for its decision. The submission of Mr. Sukumaran, however, is that the jurisdiction of the Civil Court is required to be invoked in such matters specified therein by way of reference by the persons interested or by the competent authority. Mr. Sukumaran would contend that such a reference would be akin to a dispute pending under the Industrial Disputes Act. We cannot accept the said contention. A party to a dispute may not join the other in referring the same to the Civil Court. The party may agree or may not agree therefor. A person having a grievance as against other must have a remedy. The maxim 'ubi jus ibi remedium' is not an empty formality. The jurisdiction of the Civil Court exemplifies the said doctrine. The jurisdiction of the Civil Court cannot be held to have been ousted unless it is so, expressly or by necessary implic....
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.... to decide questions of civil nature being the general rule and exclusion being an exception, the burden of proof to show that jurisdiction is excluded in any particular case is on the party raising such a contention. The rule that the exclusion of jurisdiction of civil courts is not to be readily inferred is based on the theory that civil courts are courts of general jurisdiction and the people have a right, unless expressly or impliedly debarred, to insist for free access to the courts of general jurisdiction of the State. Indeed, the principle is not limited to civil courts alone, but applies to all courts of general jurisdiction including criminal courts" 58. In Dhulabhai and Others vs. The State of Madhya Pradesh and Another [(1968) 3 SCR662], Hidayatullah, CJ summarized the following principles relating to the exclusion of jurisdiction of civil courts : (a) Where the statute gives a finality to the orders of the special tribunals, the civil court's jurisdiction must be held to be excluded if there is adequate remedy to do what the civil courts would normally do in a suit. Such provision, however, does not exclude those cases where the provisions of the particular ....