CPC CONTINUOUS EVALUATION CASE ANALYSIS

GUJARAT NATIONAL LAW UNIVERSITY

SEMESTER – III

ACADEMIC YEAR: 2019-2020 SESSION: JULY- DECEMBER

PROJECT

FOR

CODE OF CIVIL PROCEDURE

Under the supervision of Mr. VIKAS GANDHI

NAME: AKRAMA JAVED

ROLL NO.: 19A017

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 CPC CONTINUOUS EVALUATION CASE ANALYSIS

Court: Supreme Court of India

Case Name: Gangabai W/O Rambilas Gilda vs Chhabubai W/O Pukharajji Gandhi on 6
November, 19811

Equivalent citations: 1982 AIR 20, 1982 SCR (1)1176

Bench: Pathak, R.S.

PETITIONER:

GANGABAI W/O RAMBILAS GILDA

Vs.

RESPONDENT:

CHHABUBAI W/O PUKHARAJJI GANDHI

PROCEDURAL ASPECTS

Law does not operate in vacuum. It is not a set of mechanical rules, but requires subtle
application and interpretations based on provided situation.

The present case deals with Section 11 of The Code of Civil Procedure, 19082 which embodies
the Doctrine of Res Judicata or the rule of conclusiveness of the judgment, as to the points
decided either of facts, or of law, or of facts and law, in every subsequent suit between the same
parties. It enacts that once a matter is finally decided by a competent court, no party can be
permitted to reopen it in a subsequent litigation. The words “directly and substantially in issue”
have been used in Section 11 in contradistinction to the words “collaterally or incidentally in
issue”. Decisions on matters collateral or incidental to the main issues in a case will not operate
as Res Judicata.

1
Gangabai W/O Rambilas Gilda vs Chhabubai W/O Pukharajji Gandhi, 1982 AIR 20, 1982 SCR (1)1176.
2
No Court shall try any suit or issue in which the matter directly and substantially in issue has been directly and
substantially in issue in a former suit between the same parties, or between parties under whom they or any of
them claim, litigating under the same title, in a Court competent to try such subsequent suit or the suit in which
such issue has been subsequently raised, and has been heard and finally decided by such Court.

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 CPC CONTINUOUS EVALUATION CASE ANALYSIS

A collateral or incidental issue means an issue which is ancillary to the direct and substantive
issue. It refers to a matter in respect of which no relief is claimed and yet it is put in issue to
enable a court to adjudicate upon the matter which is directly and substantially in issue. The
expression “collaterally or incidentally in issue” implies that there is another matter which is
“directly and substantially in issue”.

Also this case interprets Section 91 and deals with sub-section (1) of Section 92 of Indian
Evidence Act, 1872 which puts a bar on the admissibility of oral evidence. Sections 91 and 92
are supplementary to each other. According to Section 91 when the terms of a contract, grant
or any other disposition of property have been reduced to writing, the writing itself should be
produced and no other evidence will be admissible. Section 92, on the other hand, lays down
that when the terms of contract, grant or any other disposition of a property have been proved
by the primary or secondary evidence of the document as laid down in Section 91, the parties
to the contract or their legal representatives cannot be allowed to lead oral evidence for the
purpose of contradicting, varying, adding to or subtracting from the terms of the contract. In
other words no oral evidence is admissible in lieu of documentary evidence.

If the Section 92 does not apply there is no reason to exclude evidence about an oral agreement
solely on the grounds that, if believed, the said evidence may vary the terms of the transaction.
So, the other parties are left free to give such evidence. Section 92 is not a bar to the admission
of oral evidence to prove the nature of transaction. Oral evidence is admissible to show the
document executed was never intended to operate as an agreement but that term of his
agreement altogether not recorded in the document, was entered into between the parties.

This section is only applicable to cases as between parties to an instrument or their

representatives in interest. The intention of the parties is to be gathered from the words used in
agreement. If the words are clear, there is very little that the court can do about it. But this
section is inapplicable where the dispute is between a stranger to an instrument and a party to
it or his representative in interest.

BACKGROUND

The present case is a special leave petition arising out of a declaratory suit in respect of title to
a house property filed in the Supreme Court by the respondent against the findings of Small
Causes Court and judgment of the High Court of Bombay.

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 CPC CONTINUOUS EVALUATION CASE ANALYSIS

In Gangabai v. Chhabubai, a regular civil suit was filed by the respondent against the appellant
for a declaration that she was the owner of the property and the so-called sale deed said to have
been executed by her in favour of the appellant was not real and genuine, and also for the
possession of the property on the ground of title. The appellant contended the he had become
the owner of the property and the decree for arrears of rent had been previously passed by the
Court of Small Causes in his favour, negativing the contention of the respondent that she was
the owner. She had been held to be the tenant. The subsequent suit, it was contended, was,
therefore, barred by the doctrine of res judicata.

MERITS OF THE CASE/ FACTS OF THE CASE

1) The respondent filed a suit in the Court of the Second Joint Civil Judge, Amrawati
alleging that the house situated near Saraf Bazar in Amrawati had been purchased by
her in 1950 for Rs. 4,000 and thereafter improvements had been affected by her to the
property. Being in need of money, she entered into an agreement with the appellant for
a loan of Rs. 2,000 and it was decided that simultaneously she should execute a nominal
document of sale and a rent note.

2) These documents were executed on January 7, 1953. She alleged that the documents
were never intended to be acted upon, and that the rent paid by her represented in fact
interest at 18% on the loan. She continued to have the possession of the house property
throughout and, it is said, carried on repairs from time to time. It was stated that the
appellant was attempting to enforce the document as a sale deed by filing suits in the
Court of Small Causes for recovery of rent.

3) As two suits had resulted in decrees, she considered it necessary to file the present suit
for a declaration that she was, and continued to be, owner of the house property. In
defense, the appellant maintained that the sale deed represented a genuine, transaction,
and ownership of the house property had passed to the appellant.

4) It was pleaded that the decrees passed by the Court of Small Causes operated as res
judicata barring the respondent from pleading that the sale deed was merely a nominal
transaction.

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 CPC CONTINUOUS EVALUATION CASE ANALYSIS

5) Reliance was also placed on s. 92 of the Indian Evidence Act. The trial court held that
the sale deed was never intended to be acted upon and decreed the suit. The appellant
appealed to the District Court, Amravati, but the learned District Judge did not accept
the case that a sale had taken place. He held, however, that the transaction between the
parties constituted a mortgage. He modified the trial court decree to conform to that
finding.

6) The High Court of Bombay, in second appeal, did not agree with the finding of the
lower appellate court that the transaction was a mortgage and affirmed the findings of
the trial court that the sale deed and rent note were sham documents, that the decrees of
the Court of Small Causes did not operate as Res Judicata and that Section 92 of the
Indian Evidence Act, 1872 did not prevent the respondent from establishing the true
nature of the transaction.

7) Accordingly, the High Court set aside the decree of the lower appellate court and
resorted that of the trial court.

JUDGEMENT/ ORDER

Two issues were raised before the Hon’ble Supreme Court of India.

 The appellant urges that the Small Causes Court decrees, in view of the general
principles of Res Judicata, precluded the trial of the question whether the sale
transaction was a genuine transaction.

 The concern of the operation of section 92 of The Indian Evidence Act, 1872. .

After taking into consideration the aforesaid contentions and issues, the Apex Court ruled as
follows:

“The question was whether this finding operates as Res Judicata in the instant suit. The High
Court repelled the plea of Res Judicata on the ground that Section 11 of the Code of Civil
Procedure, 1908 governed the case, and that as a Court of Small Causes is not competent to
try a suit for a declaration of title to immovable property, the court which passed the decrees
relied on by the appellant was not competent to try the present suit and therefore an imperative
condition of Section 11 was not satisfied. It was contended before us on behalf of the appellant
that the High Court erred in applying the statutory provisions of Section 11 of the Code, and

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 CPC CONTINUOUS EVALUATION CASE ANALYSIS

should have invoked instead the general principles of Res Judicata. On that, it is submitted, all
that was necessary to find was whether the Court of Small Causes was competent to try the two
earlier suits and decide the issues arising therein. We have been referred to Gulabchand
Chhotalal Parikh v, State of Bombay where this Court has taken the view that the provisions
of s. 11 of the Code are not exhaustive with respect to an earlier decision operating as res
judicata between the same parties on the same matter in controversy in a subsequent regular
suit, and that on the general principles of res judicata, any previous decision on a matter in
controversy, decided after full contest or after affording fair opportunity to the parties to prove
their case by a Court competent to decide it, will operate as res judicata in a subsequent regular
suit.

The next contention was on behalf of the appellant is that sub-section (1) of s. 92 of the
Evidence Act bars the respondent from contending that there was no sale and, it is submitted,
the respondent should not have been permitted to lead parole evidence in support of the
contention.

Section 91 of the Evidence Act provides that when the terms of contract, or of a grant, or of
any other disposition of property, have been reduced to the form of a document, and in all
cases in which any matter is required by law to be reduced to the form of a document, no
evidence shall be given in proof of the terms of such contract, grant or other disposition of
property, or of such matter, except the document itself. Sub-s. (1) of s. 92 declares that when
the terms of any contract, grant or other disposition of property, or any matter required by law
to be reduced to the form of a document, have been proved according to the last section, no
evidence of any oral agreement or statement shall be admitted, as between the parties to any
such instrument or their representatives in interest, for the purpose of contradicting, varying,
adding to, or subtracting from, its terms And the first proviso to s. 92 says that any fact may be
proved which would invalidate any document, or which would entitle any person to any decree
or order relating thereto; such as fraud, intimidation, illegality, want of due execution, want
of capacity in any contradicting party, want or failure of consideration, or mistake in fact or
law. It is clear to us that the bar imposed by sub-s. (1) of s. 92 applies only when a party seeks
to rely upon the document embodying the terms of the transaction.”

The rationale behind the aforementioned judgment was that the law declares that the nature
and intent of the transaction must be gathered from the terms of the document itself and no
evidence of any oral agreement or statement can be admitted as between the parties to such

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 CPC CONTINUOUS EVALUATION CASE ANALYSIS

document for the purpose of contradicting or modifying its terms. The sub- section is not
attracted when the case of a party is that the transaction recorded in the document was never
intended to be acted upon at all between the parties and that the document is a sham. For that
purpose oral evidence is admissible to show that the document executed was never intended to
operate as an agreement but that some other agreement altogether not recorded in the document,
was entered into between the parties It is not disputed that if the parole evidence is admissible,
the finding of the court below in favour of the respondent must be accepted. The second
contention on behalf of the appellant must also fail.

ANALYSIS OF ARGUMENTS ADVANCED BY THE PARTIES

The Doctrine of Res Judicata dictates that any litigation must be final in nature and any such
contestant should not be tried in another suit wherein the cause of action is similar to that of a
formerly filed and decided suit. The basic reasoning behind this is that if we continue to permit
parties to file suits with the same cause of action repetitively then such multiplicity of suits will
eventually mean that our existing courts shall always be unable to resolve the current disputes.
The intention of this doctrine is not to protect merely the public interest but also to safeguard
any private individual’s rights to not be punished for the same matter when it has already been
adjudicated upon with a sense of finality in the decision passed. It is thus not permissible to
obtain a second judgment for the same civil relief on the same cause of action, for otherwise
the spirit of contentiousness may give rise to conflicting judgments of equal authority, lead to
multiplicity of actions and bring the administration of justice into disrepute.

We shall now attempt to understand what the Doctrine of Res Judicata stands for as per the
statutory provisions of the Code of Civil Procedure, 1908. Section 11 3 of the said statute talks
about the Doctrine of Res Judicata. The Code of Civil Procedure, 1908 not only incorporates
the Doctrine of Res Judicata but also reflects the finality and conclusiveness of a judgement
previously passed. This was the first statutory principle and provision used by the court in this
case.

3
The Code of Civil Procedure, 1908.

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 CPC CONTINUOUS EVALUATION CASE ANALYSIS

The second statutory principle and provision relied on by the court was Section 91 of The
Indian Evidence Act, 18724. The former half of this section talks about cases wherein the
agreement in question has been voluntarily reduced to writing and the latter half of the same
section talks of cases wherein it is a mandate of law for certain types of agreements to be in
written form. But most importantly, what this provision attempts to convey, is that oral
evidence shall not be considered to be superior to a written contract as a form of evidence. The
said provision is applicable only when no oral evidence has been produced pertaining to the
subject matter of the agreement, reflected in the form of a written contract. This is why Section
915 has been applied in the given case of Gangabai v. Chhabubai.

In addition to Section 916, Section 92 of The Evidence Act, 18727 has also been relied upon by
the Apex Court to adjudicate in this case. This section is a supplement to the latter half of the
aforesaid section so much so that it tries to convey that oral evidence shall not be admissible in
any case where it is a mandate of law for the agreement in question to be written down in the
form of a contract. Since the two sections are supplement to each other, harmonious
construction has been made by the court in most cases.

When the suits were filed by the Appellant in Small Causes Court, the court ended up passing
decrees for the property to be sold to Appellant and accrued rent to be given to her. The Small
Causes Court was basically trying to determine the title of the immovable property which was
in question. The Respondent also filed a suit but a different suit through which the Respondent
was seeking a declaration that the Respondent was the owner of the immovable property.
Albeit, here, the Appellant that the Doctrine of Res Judicata applies. However the Small Causes
Court still did not rule in favour of the Respondent and this reflects that the Small Causes Court
viewed the mater in controversy to be a title suit only.

Upon appeal to the Trial Court, the Trial Court ruled in favour of the Respondent and passed a
decree in favour of the Respondent thereby declaring him to be the owner. The Trial Court also

4
When the terms of a contract, or of a grant, or of any other disposition of property, have been reduced to the
form of a document, and in all cases in which any matter is required by law to be reduced to the form of a
document, no evidence shall be given in proof of the terms of such contract, grant or other disposition of
property, or of such matter, except the document itself, or secondary evidence of its contents in cases in which
secondary evidence is admissible under the provisions hereinbefore contained.
5
The Indian Evidence Act, 1872
6
Ibid.
7
When the terms of any such contract, grant or other disposition of property, or any matter required by law to be
reduced to the form of a document, have been proved according to the last section, no evidence of any oral
agreement or statement shall be admitted, as between the parties to any such instrument or their representatives
in interest, for the purpose of contradicting, varying, adding to, or subtracting from, its terms

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 CPC CONTINUOUS EVALUATION CASE ANALYSIS

used Section 92 of The Indian Evidence Act, 1872 in order to emphasise that the Respondent
had no intentions of transferring the property to the Appellant through sale. When the matter
was taken in the form of appeal to the District Court by the Appellant then the District Court
also ruled in favour of the Respondent albeit the District Court attempted to determine the
nature of the transfer taking place between the Appellant and Respondent and as regards this,
the District Court stated that the transfer between the Appellant and Respondent was that of a
mortgage and not a sale.

The matter was eventually taken to the High Court of Bombay, wherein the Court affirmed
with the findings of the Trial Court and disposed the District Court’s contention that the alleged
transfer between the two parties was a mortgage. The High Court also viewed the matter to be
such wherein the title of the immovable property was in question. It was only now that the High
Court went for a literal interpretation of Section 11 of The Code of Civil Procedure, 1908 by
stating that the Small Causes Court did not have competent jurisdiction to try the suit in the
first place as it does not have the capacity to decide a title suit of immovable property. Lastly,
the High Court stated that the current matter does attract Section 92 of The Indian Evidence
Act, 1872 as here oral evidence shall be admissible.

The Supreme Court also upheld the ruling of the Bombay High Court, and stated that the most
pertinent question which needs to be determined is whether the Small Causes Court has
competent jurisdiction or not as it shall help them later in determining whether Doctrine of Res
Judicata shall apply or not. Secondly, the Apex Court also considered the matter in controversy
by observing that the Small Causes Court has preferential jurisdiction only and not exclusive
jurisdiction. The matter in the Respondent’s suit was not directly or substantially in issue with
the former suit and so the Doctrine of Res Judicata shall apply. On the contrary, the matter in
the current case was incidentally and collaterally in issue with the former suit and so the
Doctrine of Res Judicata cannot apply. The Apex Court also ruled in favour of the Respondent
and the Appeal was dismissed with costs.

CITED CASE LAWS

1) Muhammad Abdul Ghafur Khan vs Gokul Prasad And Ors.8

2) Madan Kishor And Anr. vs Mahabir Prasad And Ors. 9

8
Muhammad Abdul Ghafur Khan vs Gokul Prasad And Ors., 25 Ind Cas 81.
9
Madan Kishor And Anr. vs Mahabir Prasad And Ors., AIR 1929 All 816.

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 CPC CONTINUOUS EVALUATION CASE ANALYSIS

3) Ram Dayal Sonar vs Sukh Mangal Kalwar 10

4) Puttangowda Mallangowda Patil vs Nilkanth Kalo Deshpande 11
5) Asgarali Roshanalli And Anr. vs Kayumalli Ibrahimji 12
6) Lala Jageshwar Prasad vs Shyam Behari Lal13
7) Manzurul Haq And Anr. vs Hakim Mohsin Ali14
15
8) Pateshwari Parshad Singh vs A.S. Gilani
9) Punchanun Mullick vs Shib Chunder Mullick And Ors. 16
10) Mohd. Yusuf And Anr. vs Abdul Wahid 17
11) S.A.A. Annamalai Chettiar vs Molaiyan And Ors. 18
12) Tyagaraja Mudaliyar vs Vedathanni19

OPINION AND CONCLUSION

The present case is a classic instance of whether Doctrine of Res Judicata shall be applicable
in cases wherein the decisions collateral and incidental to the main issuse operate as Res
Judicata or not. The main determinant in the present case was determining the question of
whether a Small Cause Court has competent jurisdiction to try title suits of immovable property
or not and also whether Section 91 and Section 92 of The Indian Evidence Act, 1872 play a
role in deciding the same or not. The present case reflects not only the significance of the
extremely imperative essentials of the Doctrine of Res Judicata to be met but also indicates the
technicalities that need to be stressed on while determining the pertinent issue of whether
Section 11 of The Code of Civil Procedure, 1908 applies in any given facts of a case or not.
After an exhaustive process of appeals and litigation, the Supreme Court of India finally
decided the case by stressing on the essentials of Section 11 of The Code of Civil Procedure,
1908 and the Doctrine of Res Judicata. The Apex Court also used certain provisions of The
Indian Evidence Act, 1872 in order to find out whether the Respondent had any such intention
of following up on the transaction made with the Appellant or not.

10
Ram Dayal Sonar vs Sukh Mangal Kalwar, AIR 1937 All 676.
11
Puttangowda Mallangowda Patil vs Nilkanth Kalo Deshpande, (1913) 15 BOMLR 773.
12
Asgarali Roshanalli And Anr. vs Kayumalli Ibrahimji, AIR 1956 Bom 236.
13
Lala Jageshwar Prasad vs Shyam Behari Lal, AIR 1967 All 125.
14
Manzurul Haq And Anr. vs Hakim Mohsin Ali, AIR 1970 All 604.
15
Pateshwari Parshad Singh vs A.S. Gilani, AIR 1959 P H 420.
16
Punchanun Mullick vs Shib Chunder Mullick And Ors., (1887) ILR 14 Cal 835.
17
Mohd. Yusuf And Anr. vs Abdul Wahid, AIR 1948 All 296.
18
S.A.A. Annamalai Chettiar vs Molaiyan And Ors., AIR 1970 Mad 396.
19
Tyagaraja Mudaliyar vs Vedathanni, (1936) 38 BOMLR 373.

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 CPC CONTINUOUS EVALUATION CASE ANALYSIS

Any case which is either associated with or revolves around the Doctrine of Res Judicata is
decided only if it satisfies the essentials of the same. Absence of any one essential renders the
eventual judgement without any credibility and we have seen an instance of the same in the
aforesaid paragraphs. Thus, the Apex Court also used the similar reasoning while deciding the
case and concluded that the Doctrine of Res Judicata is not applicable in the given
circumstances of the case.

In my opinion the apex court acted in the best possible way regarding this judgement. It went
with the caveat that doctrine of res judicata has to be stipulated on the basis of circumstantial
scenario.

The aftermath of this case once the judgement was passed was that the appeal was dismissed
with all costs. The Respondent was declared to be the real owner of the immovable property in
concern and the Apex Court held that the Doctrine of Res Judicata is not applicable in the given
case as the decision is collaterally and incidentally related to the main issue in the current case.
The Appellant does not have either the possession or ownership of the Respondent’s property.

pg. 11