NDLI: Asgar & Ors. Vs. Mohan Varma & Ors.

Content Provider	Supreme Court of India
e-ISSN	30484839
Language	English
Access Restriction	NDLI
Subject Keyword	Explanation IV to s.11 and Or.XXI rr.97 to 101 Constructive Res judicata CPC
Content Type	Text
Resource Type	Law Judgement
Jurisdiction	India
Act(s) Referred	Kerala Compensation for Tenants Improvements Act, 1958 (29 of 1958) Code of Civil Procedure, 1908 (5 of 1908)
Case(s) Referred	Referred Case 0 Referred Case 1 Referred Case 2 Referred Case 3 Referred Case 4
Case Type	Appeal
Court	Supreme Court of India
Disposal Nature	Appeal Dismissed
Headnote	Code of Civil Procedure, 1908 – Explanation IV to s.11 and Or.XXI rr.97 to 101 – Constructive Res judicata – Respondents instituted Execution Petition for delivery of possession of Schedule‘B’ property – Application by appellants seeking declaration that they were entitled to possession of the property as lessees and were not liable to be dispossessed – Application allowed by the District Court – However, High Court dismissed the claim of appellants –SLP was also dismissed – Appellants instituted fresh proceedings and sought inter alia, a direction for payment to them of the value of improvements over the property, before an order for delivery of possession was made – Application dismissed by the District Court– Writ petition – High Court held that claims advanced by appellants were barred by the principle of constructive res judicata – Appellant contended that neither the District Court nor the High Court have enquired into the merits of the claim advanced by the appellants u/s.4(1) of the Act, 1958 – Held: In the present case, the appellants were strangers to the decree – They were required to get that claim adjudicated in the course of their Execution Application which was referable to the provisions of Or. XXI, r. 97 – Having failed to assert the claim at that stage, the deeming fiction contained in Explanation IV to s.11 is clearly attracted – An issue which the appellants might and ought to have asserted in the earlier round of proceedings is deemed to have been directly and substantially in issue – The High Court was justified in coming to the conclusion that the failure of the appellants to raise a claim would result in the application of the principle of constructive res judicata both having regard to the provisions of ss. 4 and 5 of the Act of 1958 and to the provisions of Or. XXI, rr. 97 to 101 of the CPC – Kerala Compensation for Tenants Improvements Act, 1958 – ss.4 and 5.
Judge	Hon'ble Dr. Justice D.Y. Chandrachud
Neutral Citation	2019 INSC 144
Petitioner	Asgar & Ors.
Respondent	Mohan Varma & Ors.
SCR	[2019] 2 S.C.R. 664
Judgement Date	2019-02-05
Case Number	1500

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Asgar & Ors. Vs. Mohan Varma & Ors.

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Asgar & Ors. Vs. Mohan Varma & Ors.

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