Res Judicata | Civil Court Cannot Grant Liberty To File Fresh Suit On Same Cause Of Action While Drawing Decree On Merits: Kerala High Court

The Kerala High Court recently declared that it would be impermissible for a civil court to grant liberty to file a fresh suit on the same cause of action while drawing a decree on its merits, or to remove any statutory bar in instituting a fresh suit on the same cause of action.

Justice P. Somarajan, explained that liberty to file a fresh suit could be granted only under Order XXIII Rule 1 and 2 C.P.C., when an application is submitted under that provision seeking permission to withdraw the suit.

The Court added that the said power could not be extended to while drawing a decree in a suit irrespective of whether it is a decree of dismissal of the suit or not, and added that if any any such clause was incorporated in the decree, the same would be non-est. 

"No such power is vested with the civil court to reserve any liberty to file a fresh suit on the same cause of action by the same plaintiff or the person litigating under him and it would otherwise be violative of, firstly, Section 11 C.P.C., secondly, Order XXIII Rule 1 and 2 C.P.C. and thirdly, the very concept of “decree”, which should be conclusive in the determination of right of the parties with regard to all or any of the matters in controversy in the suit," the Court observed. 

The Court passed the above Order in a case wherein the trial court while drawing a decree on merits in a suit granted permission to file another suit. The Court noted that the said decree was passed by the civil court in a subsequent civil suit, granting liberty to file a third suit. The first suit between the same parties on the same subject matter on the very same cause of action had been allowed to be withdrawn on payment of cost of Rs.1000/- with liberty to file a fresh suit on the same cause of action. It is thereafter, that the second suit was filed on the same cause of action, which was disposed of by the Munsiff Court, Haripad on merits, reserving liberty to file a fresh suit, subject to the law of limitation. 

The Court observed that the same amounts to 're-writing' of the relevant provisions of the CPC by the judicial officer. 

"It is quite unfortunate that the officer had taken away the provisions contained in the Code of Civil Procedure regarding finality of the suit and doctrine of res judicata. The reservation made in the said decree removing the bar in instituting a fresh suit on the same cause of action amounts to re-writing the relevant provisions in the Code of Civil Procedure and hence non est in the eye of law and cannot be sustained," the Court observed, while adding that the civil court is not vested with any such power to reserve liberty to file a fresh suit on the same cause of action by the same plaintiff or the person litigating under him. 

The Court observed that primarily, the term 'decree' pertains to formal expression of an adjudication which conclusively determines the rights of parties regarding all or any of the matters in controversy in the suit. The Court added that the same would have to be read along with Section 11 C.P.C. and the doctrine of res judicata embedded therein, as well the principle of constructive res judicata embodied within Section 11 C.P.C.

The Court was thus of the considered view that the basic principle that the Court has no jurisdiction to grant liberty to file a fresh suit, save under Order XXIII Rule 1 and 2 C.P.C., when an application is submitted under that provision seeking permission to withdraw the suit, had been overlooked by the Civil court while issuing the order. 

The Court held that the third suit that was instituted would be hit by Section 11 C.P.C. and the doctrine of constructive res judicata.

The Court further emphasized that it was impermissible to leave any dispute unanswered while drawing a judgment and a decree, except on account of lack of inherent jurisdiction, It added that merely because the decree covers formal expression of an adjudication pertaining to “any of the matters in controversy” as per the definition under Section 2(2) C.P.C. does not indicate that the court can adjudicate some of the issues involved in the suit and leave open other issues within its competence for adjudication in a separate suit. 

"The decree must satisfy the mandate of formal adjudication which conclusively determines the dispute involved in the suit and shall not be a half-baked one so as to bring out another litigation on the same cause of action," the Court said. 

The Court also criticized another officer of the Munsiff Court, Haripad, before whom an application challenging the maintainability of the third suit had been filed, and who had proceeded to dismiss the same without relying on the settled legal position by the High Court in another case, on the ground that the factual situation therein differed from the case at hand. 

"The observation of the court that the said decision has to be distinguished from the factual situation of the present case without attending to and without whispering any factual situation in that behalf seems so perverse and cannot be sustained and it is against the principle of binding precedent. The courts are bound to follow the legal position settled by the High Court or the Apex Court as the case may be and it is impermissible for them to re-write the legal position, that too, without adhering to any valid reason. Hence, the impugned order passed by the trial court in the abovesaid application will stand set aside. The liberty granted in the decree in O.S.No.205/2011 for filing a fresh suit is without any jurisdiction and hence, non est in the eye of law," the Court held. 

The Court thereby allowed the present revision petition. However, on taking into account the petitioner's request to remand the matter so as to explore the possibility of a settlement, the Court remanded the matter back to the trial court.

"The parties shall appear before the trial court on 25/09/2023 and if it is not settled within two weeks from that date, the application in I.A.No.2/2021 will stand allowed and the said suit will stand dismissed as not maintainable," the Court added in this regard. 

Counsel for the Petitioner: Advocate K.P. Sreekumar

Counsel for the Respondents: Advocates M.V. Thamban, R. Reji, Thara Thamban, B. Bipin, Arun Bose, and Suneesh Kumar R. 

Citation: 2023 LiveLaw (Ker) 481

Case Title: Karlose v. Stella Lasar & Ors. 

Case Number: CRP NO. 237 OF 2022

Click Here To Read/Download The Order