Holding

A decision on jurisdiction, when raised by the defendant and decided, is res judicata in subsequent proceedings.

Summary

The appellants, three sons of the deceased Balwant Singh, sued respondent No.1, who claimed to be a fourth son, for a share of the estate. The civil court first hearing (Suit No. 41 of 1958) held it lacked jurisdiction and returned the plaint to the revenue court. The revenue court also declined jurisdiction, prompting the appellants to file a second civil suit (Suit No. 13 of 1960), which was dismissed on the ground of res judicata. The Supreme Court examined whether the earlier decision on jurisdiction, raised by the defendant, binds the parties in a later suit. It held that when the defendant appears and an issue of jurisdiction is raised and decided, that decision operates as res judicata, even if the reasons are not binding. Consequently, the appeal was dismissed.

Issues considered

Does a decision on a preliminary jurisdictional issue, raised by the defendant and decided by the court, operate as res judicata in a subsequent suit?
Can a revenue court entertain a suit after a civil court has ruled on its lack of jurisdiction?

Subjects

res judicatajurisdictionpreliminary issuecivil courtrevenue courtinheritance disputeprocedural law

Judgment

122

A AVTAR SINGH & ORS.
v. ,
JAGJIT SINGH & ANR.
July 27, 1979
1
B [N. L. UNTWALIA AND A. P. SEN, JJ.]
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
c 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
D 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,

E 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]
F 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.
AVTAR SINGH v. JAGJIT SINGH (Untwalia, !.) 123

R. K. Garg for the Appellants. A
' Hardev Singh for Respondent No. 1.
N. S. Bi11dra and T. S. Arora for Respondent No. 2.
J 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 B
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
c
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- D
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 E
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- F
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 could the appel-
, lants then go? We do sympathise with the appellants' dile=a but
• they were wrongly advised to do as they did. Either they ought to
G
haYe followed the matter in the First Civil Suit and insisted up to the

-
• end that the suit was triable by a Civil Court, or, they would have
taken the matter further before the higmr authorities and Court from
the order of the Revenue Court and persisted that the matter whether
the Civil Court had jurisdiction to decide the dispute between the II
parties or not was res judicata; the Revenue Court had no jurisdiction
to go behind the decision of the Civil Court. The appellants did
124 SUPREME COURT REPORTS l1980] l S.C.R-

A neither. It is unfortunate that due to the wrong paths which they
followed under wrong advice they have ultimately to fail oil the techni-
cal ground of res judicata but there is no way out.
It was pointed out by Lord Russell of Killowen, Upendra Nath
Bose v. Lall and Others,(') that there could be res judicata in regard
to the question of lack of jurisdiction of the Civil Court to try a matter
B but-
"A Court which declines jurisdiction cannot bind the '-- ~
parties by rts reasons for declining jurisdiction : such reasons
are not decisions, and are certainly not decisions by a Court
of competent jurisdiction."' ( vide page 225).
c The above passage does not help the appellants, rather, goes against
them. Mr. Garg had also plao"d reliance upon a Single Judge deci-
sion of the Allahabad High Court in Jwala Debi v. Amir Singh, ('}
wherein the Learned Judge observed at page 132 :-
"Looked at closely, a question of jurisdiction, alongwith
it may be raised by the defendant, is a question that virtual-
D ly arises between the plaintiff and the Court itself. The plain-
tiff invokes the jurisdiction of the Court. The defendant
may or may not appear. If the Court fi'nds that it has no
jurisdiction to entertain the plaint, it will order the return of
it for presentation to the proper Court. The defendant,
E if he appears, and if he so chooses, may point out to the
Court that it has no jurisdiction. A decision on the ques-
tion of jurisdiction does not affect iil any way the status of
the parties or the right of one party to obtain redress
against the other. The fact that a decision as to jurisdic-
tion i; not binding on the parties in a subsequent litiga-
F tion will be apparent from this."
Wei do not approve at all the views as expressed by the learned
Single Judge of the All'ahabad High Court. If defendant does not
appear and the Court on its own returns the plaint on the ground of
lack of jurisdiction the order in a subsequent suit may not operate as
res judicata but if the defendant appears and an issue is raised and
G decided then tho decision oil the question of jurisdiction will operate ''
as res judicata in a subsequent suit although the reasons for its deci-
sions may not be so.
For the reasons stated above we dismiss this appeal but direct
the parties to bear their own costs throughout.
B P.B .R. Appeal dismissed:
(1) A.I.R. 1940 P.C. 222.
(2) A.l.R. 1929 All 132.