Explanation I.—For the purpos Court shall be determined irrespe: appeal from the deci Of this section, the competence of a ive of any provisions as to a right of sion of such Court. P . Explanation I1—The matter above referred “to must” in the former suit have been alleged by one party and either denied or admitted expressly or impliedly, by the other, ‘ Explanation IV.—Any matter which might and ought to have been made ground of defence or attack in such former suit shall be deemed to have been a matter directly and sub stantially in issue in such suit. Explanation V.—Any relief claimed in the plaint, which is not expressly granted by the decree, shall, for the Purposes of this section, be deemed to have been refused. __ Explanation VI.—Where Persons litigate bona fide in respect of a public ight or of a private right claimed in common for themselves and others, all persons interested in such right shall, for the purposes of this section, be deemed to claim under the persons so litigating. ‘[Explanation VII—The provisions of this section shall apply to a proceeding for the execution of a decree and references in this section to any suit, issue or former suit shall be construed as references, respectively, to a Proceeding for the execution of the decree, question arising in such Proceeding and a former proceeding for the execution of that decree. Explanation VIII—An issue heard and finally decided by a Court of limited jurisdiction, competent to decide such issue, shall operate as res judicata in a subsequent suit, notwithstanding that such Court of limited jurisdiction was not competent to try such subsequent suit or the suit in which such issue has been subsequently raised.] COMMENTS, Section 11 embodies the doctrine of res judicata. C.P.C. (Amendment) Act, 104 of 1976 has extended the scope of res judicata. Its application has been extended to execution and orders and to the decision of Court of limited jurisdiction notwithstanding the fact that Court of limited jurisdiction is not competent to try subsequent suit. This is with a view to shorten the litigation. Dictionary meaning of res judicata is a case or suit already decided.? However, in simple language it means that a final judgment of a Competent Court of law may not be disputed on the issue it has finally settled by the Parties or their successors in any subsequent legal proceeding.> Res judicata literally means, "a matter adjudged, a thing judicially acted upon or decided, a thing or matter settled by judgments."4 1. Ins. by Act 104 of 1976, Section 6 (w.e.. 1-2-1977) 2. Chambers Twentieth Century Dictionary, (1969) p. 1321 3. _ Dias, Jurisprudence. _ 4. Dr. Subramaniam Swamy v. State of Tamil Nadu, AIR 2015 SC 460. ‘Scanned with CamSeannerThe principles of finality as well as fairness demand that there should be an end to litigation and it is in the interest of the public that the issues ae by the judgments of Courts, including the Supreme Court which have attaine : finality should not be permitted to be re-agitated all over again, interes republicae ut sit finis litivm.! Object ; The doctrine of res judicata is based on three Latin maxims" : (i) nemo debet bis vexari pro una et eadem causa, that is no one shall be vexed twice over for the same cause of action; (ii) interest republicae utsit finis litium, that is, it in the interest of state that there should be an end to litigation; and (iii) res judicata pro veritate occipiter, that is a judicial decision must be accepted as correct. The first maxim expresses the concept of private justice. It looks to the interest of the litigant. Who should be protected from a vexatious multiplicity of suits otherwise a party of means and capacity may overawe his adversary by constant dread to litigation. The principle of res-judicata is intended not only to prevent a new decision but also to prevent a new investigation so that the same person cannot be harassed again and again in various proceedings upon the same question. The second maxim is the result of public policy‘ that there should be an end to litigation otherwise if suits were allowed to be filed endlessly for the same cause of action it would be plainly impossible for the existing Courts to cope with ever growing litigation. The third maxim is also based on public policy, that judicial decisions must be accepted as correct. In other words, it enacts a rule of conclusiveness of judgments as to the points decided in every subsequent suit between the same parties.> The doctrine of res judicata is a universal doctrine laying down the finality of litigation between the parties when a particular decision has become final and binding between the parties.6 Unlimited or perpetual litigation disturbs the peace of the realm and leads to disorder and confusion in society. But for this rule there would be a judicial anarchy that is there would be no end to litigation and security for any person. The rights of the persons would be involved in endless confusion and great injustice done under cover of the law.’ Justice, equity and good conscience is one of the bases of this doctrine.§ Explaning the principle of res judicata, Chandrachud, J. (as he then was) observed in Lalchand’s case :? Joydeep Mukherjee v. State of West Bengal, AIR 2011 S.C. 69 para 13; AIR 2011 SC 1113. M, Nagabhushana v. State of Karnataka, AIR 2011 SC 1113. TLR (1970) 1 Ker 194 (DB). Indu Bhusan Jana v. Union of India, AIR 2009 Cal 24. Satyadhyan Ghosal v. Deorajin Devi, AIR 1960 SC 941 Supreme Court Employees Welfare Association v. Union of India, AIR 1990 SC 334; AIR 2011 SC 1113. Daryao v. State of U.P., AIR 1961 SC 1457; Satyadhyan’s case supra; Radhasoami v. C.L.T., AIR 1992 SC 377; Sulochana Amma v. Narayanan Nair, AIR 1994 SC 152. Lalehandv. Radha Kishan, AIR 1977 SC 789. id. ee ‘Scanned with CamSeanner_annun the principle of res judicata is conceived in the larger public interest that sil litigations must, sooner than later, come to an end. The principle is also founded on equity, justice and good conscience which require that a party which has once succeeded on an issue should not be permitted to be harassed by a multiplicity of proceedings involving determination of the same issue. sir Lawrence Jenkins observed in Sheoprasad Singh v. Ramanandan Prasad singh,’ that the rule. “while founded on ancient precedient is dictated by a wisdom which is for all time and the application of the rule by the Courts should be influenced by no technical considerations of form but by matter of substance within the limits allowed by the law.” In short, it can be said that this doctrine is based on public policy and even the parties cannot waive it by their consent.? The object of res judicata has very aptly been summarised by Kerala High Court in Bharathi Amma and others v. Kumaran Peethambaran and another.> The Court observed : The object of the rule of res iudicata is not to fasten upon the parties special rinciples of law as applicable to them inter se but to ascertain their ri hts and The facts upon which these rights directly and substantially depend; and to prevent the ascertainment from being nugatory by precluding the parties from Feopening or recontesting that which has been finally decided. Res judicata is a rule of procedure and it cannot change the law of the land as applicable to specific parties by the decisions of Courts. Corpus Juris* also states that : Res judicata is a rule of universal law prevading every well regulated system of jurisprudence and is put upon two grounds, embodied in various maxims of ‘common law; the one, public policy and necessity, which makes it to the interest of the State that there should be an end to litigation; the other, the hardship to the individual that he should not be vexed twice for the same cause. The doctrine of res judicata is perceived that the plea of res judicata is not a technical doctrine but a fundamental principle which sustains the Rule of law in ensuring the finality in litigation. The principle seeks to promote honesty and fair administration of justice and to prevent abuse in the matter of accessing Court for agitating on issues which have become final between the parties. Provisions of Section 11 of C.P.C. that is res judicata are based on classic passage of the judgment of Sir William de Grey, in leading case of Duchess of Kingstone,® and therefore it is worth while to reproduce the said passage. It is as under : From the variety of cases relative to judgments being given in evidence in civil suits, these two deductions seem to follow as generally true : first that a judgment of a Court of concurrent jurisdiction, directly upon the point is, as a plea, a bar or as evidence conclusive between the same parties, upon the same matter, directly in question in an other Court; secondly, that a judgment of a Court of exclusive jurisdiction, directly on the point, is, in like manner conclusive upon the same matter, between the same parties coming incidentally in question in another Court, AIR 1916 PC 78 (80), In re : Govinda Rao, AIR 1947 Mad 5. AIR 1990 Ker 88. See also ; Tarim Charan Bhattacharjee v. Kedar Nath Haldar, AIR 1926 AC 94; ‘Mathura Prasad v. Dossiben, AIR 1971 SC 2355. Vol. 34 p. 743. M. Nagbhushana v. State of Karnataka, AIR 2011 SC 1113. 2 Smith’s LC. 13th Edn. 644 (645), ane ‘Scanned with CamSeannerfor a different purpose. But neither the judgments of a Court of concurrent or exclusive jurisdiction is evidence of any matter which came collaterally in question though within their jurisdiction nor of any matter incidentally cognizable nor of any matter to be inferred by argument from the judgment, The principles enunciated in above passage has been approved by the Supreme Court of India in Daryao Singh v. State of U.P 1 The Supreme Court of India observed : Now the rule of res judicata as indicated in Section 11 of the Code of Civil Procedure has no doubt some technical aspects for instance the rule of constructive res judicata may be said to be technical; but the basis in which the said rule ests is founded on considerations of public policy. Itis in the interest of wublic at large that a finality should attach to the binding decision pronounced by Pours of competent jurisdiction and it is also in public interest that individuals should not be vexed twice over the same kind of ityation Principle of res judicata is of general application and not limited by specific words of Section 11. A issue finally decided between the parties cannot be negated relying upon the interpretation of law given subsequently inn some other case # Section whether exhaustive The provisions as contained in Section 11 are not exhaustive.® The Supreme Court of India in Lalchand’s case,° observed Section 11, it is long since settled, 1s not exhaustive and the principe which ‘motivates that section can be extended to cases which do not fall strictly within the letter of the law. And in fact apart from civil suits the doxte Jong in other kinds of proceedings and situations c has been extended and applied since Principles of res judicata binds the parties and not the states.” Distinction between Res Judicata and Estoppel Res judicata is sometimes treated as a part of the law of estoppel.* In otherwords, it corresponds to that branch of the doctrine of estoppel which is known in English Law as estoppel by record? The principle of estoppel is enunciated under Section 115 of the Indian Evidence Act. It reads When one person has, by his declaration, act or omission, intentionally caused or permitted another, person to believe a thing to be true and to act upon such a AIR 1961 SC 14: Thid. See also; Sarguya Transport Sercice v. STAT. (1987) 1 SCC 5 U.P. State Road Transport Corpm. v. State of UP. AIR 2005 SC 446. Dr. Subramaniam Stoamy v. State of Tamu! Nadu, ALR 2015 SC 460 Narayanan v, Annamala,, AIR 1959 SC 275, Daryao v State of LLP, AIR 1961 SC 1457, Arun Singh ¥¥. Mohindra Kumar, AIR 1964 SC 993, Lal Chand’s case, State of Punjab v BD. Kaushal, AIR 1971 © 1676; State of UP. Natvub Hussain, AIR 1977 SC 1980, Workmen CP Trust v. Board of Trustees AIR 1978 SC 1283; Gangaba v. Chaabulra,, AIR 192 SC 20, Guiam Abbas v. State of LP.. ALR 1981 SC 2198; Radaestaame v.C1LT., AIR 1992 SC 377 AIR 1977 SC 789, State of Tamui Nadu v_ State of Kerala, AIR 2014 SC 2407 8. Vijavlakshoes v Rem Chandra, AIR 1981 SC 1143. The rule of the constructive res judicata is nothing but rule of estoppel. See Ratul Began + Hemchander. AIR 1960 All 519, Mohan Ram v Sundararamer AIR 1980 Mad 377 (FB) 9. Sce; Vembatesseans Prabhu v. Krishna Prabhs, AIR 1977 SC 1268 The Supreme Court of India said that “the ponciple emboched in the statute is not s much the principle of estoppel by record Which the Brtish Courts apply ” ‘Scanned with CamSeannerpe peither he nor his representativi ied ne bis representative shall be allo ; ett hamself and such person or his representa to deny the teat of that ea y the truth of that us, the principle of estoppel as enunc . . estoy is enunciated above is by c grement ee eee Of res judicata is often tested ss 3 branch of seep ider sense of the term, yet it differs from the later in rticulars. The difference may ial Pat difference may be noted on the following counts : Res judicata is the result of a decision of a Court of law, whereas estoppel is the result of the ac ° 5 ae e act of the parties, that is by conduct or @ qi) Tre rule of res judicata is based on public policy, that is, it is in the interest of the state that there should be an end to litigation, as also the correctness of a judicial decision is to be accepted, and it belongs to the province of procedure. Estoppel on the other hand, is a part of the Law of Evidence and proceeds on the equitable principle of altered situation. It prevents a person who by his conduct induced another to alter his position to his disadvantage (iii) Res judicata prohibits an enquiry in limine (at the outset), whilst an estoppel is only a piece of evidence. Following words of Mahmud, J. in Sita Rant v. Amir Begum,! describing the difference between the two are pertinent Perhaps the shortest way to describe the difference between the plea of res jin and an estoppel, is to say that while dit ere cceprohibitotne cour dean judi crinio-arenquiry at-elhantoo maitersttersymuraicrted sifoo. thegtatten e phar " frome proves cara ntnen words, res judicata prohibits an inquiry in limine, whilst an. estoppel is only a piece of evidence. (iv) The plea of res judicata presupposes the truth of the decision in the former suit, whereas the rule of estoppel prevents a person from denying what he has once called the truth. The plea of res judicata ousts the jurisdiction of the Court to try the case while estoppel is only a rule of evidence and shuts the mouth of a party. Distinction between Res judicata and Res sub-judice ed under Section 11 is clearly der Section 10. (v The doctrine of res judicata as embodi distinguishable from the principle of res subjudice as enacted un Both differ on following counts : (i) Res judicata relates to a matter already decided that is, a matter on which a judgment has already been pronounced (res judicata) where as res sub-judice relates to a matter pending, judicial enquiry oF the course of trial (trial sub-judice). Gi) Both differ as regards object also. While the object of res sub-judice is to prevent Courts of concurrent jurisdiction from simultaneously 26. a aa Kumar, AIR 2 dG ANLS24(25202SeeleO :Bhorw Kumar jain y. Archana Kumar, AIR 2005 § ‘Scanned with Camscannerentertaining and adjudicating upon two parallel litigations in respect of the same cause of action, same subject matter and same relief, whereas the object of res judicata is that there should be an end to litigation, that no man should be vexed twice over the same cause and that a judicial decision must be accepted as correct. (iii) Res sub-judice bars the trial of a suit in which th substantially in issue is instituted suit by staying a e matter directly and pending judicial decision in a previously the trial of the latter suit, while res judicata bars altogether the trial of a suit or an issue in which the matter directly and substantially in issue has already been adjudicated upon ina previous suit. Distinction between Res judicata and withdrawal of a suit (that is between Section 11 and Order 23, Rule 1 & 4) The Supreme Court of India in Sarguja Transport Service v. STAT: pointed out the difference between the two. It said that under both a second suit is barred, but for different reasons. Under Section 11 the rule of res judicata applies to a case where the suit or an issue therein had already been heard and decided by a competent Court. Under the latter that is Order 23, Rule 1 and 4, when a suit is abandoned or withdrawn without the permission of the Court to file a fresh suit a second suit will not lie not because there is a prior adjudication but in order to prevent the abuse of the process of the Court. Distinction between Res judicata & Lis pendens The following differeqce maf be noted: : (i) Res judicata means a case or suit already decided, where as lis pendens? means a pending suit and is an action pending litigation. (ii) In case where there is a conflict between res judicata and lis pendens, res judicata will prevail Distinction between Res judicata and Judicial Precedent The main points of difference between the two doctrines are :# (i) Res judicata applies to the decision in the dispute while precedent to the rule of law involved. (ii) Res judicata normally bind only the parties and their successors, precedent relating as it does binds every one including those who come before Court even in other cases. (iii) Res judicata comes into operation when the time prescribed for appeals against the decision is over while precedent ee at ee _— i i judicata is based on public policy that it t “) fran af the Sareea there should be an end to litigation and to AIR 1987 SC 88. Ae 1882 2 Doctrine of lis pendens in India is embodied in Section 52 of the Tranter of Property Lis pendens provider that during the pendency of a litigation, neither pary 10 Ne such which any right to immovable property is involved, can alienate oF property so as to affect his opponent. 3. Digambar Rao v. Ranga Rao, AIR 1949 Bom 367. 7 4. Dias, Jurisprudence, Chap. 3 p. 29. ‘Scanned with CamSeannerprevent multiplicity of » uits, while doetri desirability and uniformity in law! ine of precedent ependn an Avoidance of Res judicata Bar of Section 11 i oer at Sexton 11s mandatory: A party who clam under ane ofthe parties (ol the Indian Evidence Ac iene Peover by taking advantage of Section dian ct, 1872, which p 4 of the ingan Evidence Act 1872, which provides the grounds for avoidance Any party to: Any party to suit or other proceeding may show that any judgment order or by the adverse party was poaey Section 40, 41 or 42 and which has been proved by the adverse party was delivered by a Court not competent to deliver it, was In other words, res judicata whe i 7 ves n applicable could be avoided only of grounds available under Section 44 of the ime " Thus, as provided under Section 44 a decree could be avoided on grounds of fraud or collusion. A judgment obtained by fraud or collusion does not operate ax res judicata? Gross negligence is different from fraud or collusion. Mere ligence may not but gross negligence may in some cases be evidence of fraud or collusion. Collusion of one of the several defendants with the plaintiff would not result in the avoidance of res judicata.5 Similarly a judgment of a Court not competent to decide a matter will hot operate as res judicata® Waiver of plea of Res judicata Plea of res judicata is not one which affects the jurisdiction of the Court. It is a plea in bar.” Res judicata belongs to the domain of procedure,* which a party may waive.’ In short, plea is one which could be waived. Conditions for application of Section 11 (Res judicata) (i) There must be two suits—one former suit and the other subsequent suit; (ii) The matter directly and substantially in issue in the subsequent suit or issue must be the same matter which was directly and substantially in issue either actually or constructively in the former suit; (iii) The parties to the suit or the parties under whom they or any of them claim must be the same in both the suits; The parties in both suits must have litigated under the same title. Bs The Court which decided the former suit must be competent to try int suit (subject to the provisions of Expl. VIII) or the suit in ue is subsequently raised; and (iv) (v) subseque! which such i Uttar Pradesh Gandhi Ismarak Nidhi Vyatusthapak and others v Barath: Amma v. Kumaran Peethambaran, AIR 1990 Ker 88. Parbats «Cara Singh, 1936 ALL] 1162; Mst, Lakshmidebi Gupta v. State of Assam, AIR 1982 NOC 233 (Gau) PR. Nallathambi v. Raghvan, AIR 1973 Mad 25. Baboo v. Mt. Kirpa, AIR 1950 All 488, Kamla Rai v DDC, 1979 ALJ 171 Mulla-op ait p. 164 Mathura Prasad 9. Dossibai, AIR 1971 SC 2355. Mulla supra. See also , Hart Bhikaji v. Maro Vishwanath, ILR (1885) 9 Bom 432; Surayya v. Bal Gangadhara, Ali 1948 PC 3, Sheodan Singh v. Daryao Kuntar, AIR 1960 SC 1332; State of Puna v BLD Kowshal, AIR 1971 SC 1676; LIC v. India Automobiles, AIR 1991 SC 884 tate of ULP., 1988 All LJ 149. eavaue ‘Scanned with CamSeanner(vi) The matter directly and substantially in issue in the subsequent suit must have been heard and finally decided by the Court in the former suit. (1) Former Suit The expression ‘former suit’ as used in Section 11 necessarily implies that there must be two suits or proceedings! for the application of the section. In view of Explanation I former suit means previously decided suit although in point of time it might have been instituted subsequently.? For example a suit was instituted on 12.1.1968 and the other on 9.9.1970. The suit instituted on 9.9.1970 was decided on 11.11.1976, On 11.11.1976 the suit instituted on 12.1.1968 was pending. For the purposes of Section 11. Suit decided on 11.11.1976 is former suit notwithstanding that it was instituted subsequently. Where there are two suits, a decision given simultaneously cannot be a decision in the former suit. The term suit, has not been defined in the Code. However, it does mean a proceeding commenced with the presentation of a plaint.4 Suit must be a valid one. Thus, a suit against a dead man is not a valid suit at all and cannot be regarded for the purposes of this section.> For the purposes of Section 11 here the word suit must be literally and gramatically construed so as to include whole of the suit and not a part thereof or a material issue arising therein.® Further, the word suit means proceedings in action in the Court of first instance as distinguished from proceedings in Appellate Courts. Though the general principles of res judicata apply to appellate proceedings also” Explaining former suit the Supreme Court of India observed in Venkateswara Prabhu v. Krishna Prabhu’ that ‘former suit’, according to Explanation I of Section 11, Civil Procedure Code makes it clear that if a decision is given before the institution of the proceedings which is sought to be barred by res judicata and that decision is allowed to become final or becomes final by operation of law a bar of res judicata would emerge. In this case the Supreme Court affirmed its earlier decision in Lonankutty v. Thomman9 Date of commencement of a litigation is not material for the purposes of res judicata, what is material is the date when a Judge is called upon to decide the issue or the date of decision.!0 (II) Matter directly and substantially in issue Matters in issue may be divided as follows : 1. Maganbhai v. Chetan Lal, AIR 1968 Raj 81. 2. Praba Singh , Surjit Singh v. Sanka Narsimha Rao, AIR 1957 Andh Pra 992. See also; Jodhan v. Board of Revenue, U.P., AIR 1967 All 442; Lonankutty v. Thomman, AIR 1976 SC 1645; Venkatesteara Prabhu v. Krishna Prabhu, AIR 1977 SC 1268. 3. Maganbhai v. ChetanLal, supra. 4. See Section 26. See also; Hansraj v. Dehradun Mussoorie Electric Tramtoays Co., AIR 1933 PC 33. 5. (1907) 9 Bom LT 274, 6. Gulab Bai v. Manphoo! Bai, AIR 1962 SC 214 7. Mt. Lachhmi v. Mt, Bhall, AIR 1927 Lah 289. See also; Manohar Vinayak v. Laxman Anandrao Deshmukh, AIR 1947 Nag 248. 8. AIR 1977 SC 1268 : (1977) 2 SCC 181 AIR 1976 SC 1645. y zid, AIR nt Singh v. Darya Kunwar, AR 1966 SC 1332; See also; Viswanathan v. Abdul Wazid, SC 1- ATR 1067 All 449 ~ ‘Scanned with CamSeanner(a) Matters directly and substantially in issue and (b) Matters collaterally or incidentally in issue. ‘Again, matters directly and substantially can be divided into two categories : 1. Matters actually in issue (Explanation III) 2. Matters constructively in issue (Explanation IV). Matters in Issue! Matters directly and Matters collaterally or substantially in issue incidentally in issue Actually in issue Constructively in issue (Explanation III) (Explanation IV) (a) Matter directly and substantially in issue ‘When can a matter be said to be directly and substantially in issue ? In order to answer this querry, the help of Explanation Ii can be sought. A matter will be directly and substantially in issue if it has been alleged by one party and either denial or admitted expressly or impliedly, by the other in the former suit.2 The matter may not operate res judicata in subsequent suit unless it was directly and substantially in former suit.> In the words of the Supreme Court of India + It is not enough to constitute a matter res, judicata that it was in issue in the former ‘t have been in issue directly and suit. It is further necessary that it must suictantially, And a matter cannot be said to have been directly and su stantially’ an issue in a suit unless it was alleged by one party and denied or Substantial her expressly or by necessary implication, By the other. The question whether a matter was directly and substantially in issue or collaterally or incidentally in issue in the former suit has to be decided on the basis of the plaint, the written statement in the former suit, the issue, framed therein and the decision in the suit. Again it depends upon whether a decision on such an issue will materially affect the decision of the suit. Such question must be decided on the facts of each case and no’cut and dried’ test can be laid down.5 The questions raised and decided at the express request of the parties must be taken to have been directly and substantially in issue. A matter must be held to be directly and substantially in issue if the Court considers the adjudication of the jssue to be material and essential for its decision.” 1. See Mulla Code of Civil Procedure, 14th Edn. p. 80 2. Lonakutty v. Thomman, "AIR 1976 SC 1645 ; Stale of Karnataka v. Al India ‘Mfg. Organisation, AIR 2006 SC 1846. Ibid. Tbid, at 1649-50; See also; Dew Ram v. fstroar Chand, AIR 1996 SC 378. Ishar Singh v. Sarioan Singh, AMR 1905 SC 948. Benaras lee Factory v. Amar Chad Vadnagar, AIR 1961 Cal 422- Laxaman v. Saraswathi, AIR 1869 Bom 125. soeee ‘Scanned with CamSeannerThe word ‘directly’ means, directly, atonce, immediately, without intervention and is used in contradiction to collaterally or incidentally”. When a matter can be said to be directly and substantially in issue, no hard and fast rule can be laid down. It will depend on the facts and circumstances of each case. The word ‘substantial’ means of importance and value. A matter is substantially in issue if it is of importance and value for the decision of the main proceeding.? It also means essentially, materially or in substantial manner. For the applicability of the rule of res judicata, what is material is that there should be an identity of issues and not the identity of subject matter3 Thus, the matter in issue is distinct from the subject matter and the object of the suit as also from the relief that may be asked for in the suit and the cause of action on which the suit is based. And, therefore, where the subject matter, the object, the relief claimed and the cause of action are different, but the issue are identical, the principle of res judicata can apply.4 Where in an earlier litigation state took the stand that a temple was Hindu Temple, whereas the Supreme Court opined that it was a Jain Temple. The State cannot in a subsequent litigation contend that the temple in question is a Hindu Temple. The principle of res judicata would come into play Where earlier suit for injunction was dismissed on technical ground, there as held by the Supreme Court of India in Inacio Martins v. Narain Hari Naik,® subsequent suit for declaration of title and recovery of possession was not barred by res judicata as causes of action in both the suits were distinct. According to Mulla,” every matter in respect of which relief is claimed in a suit is necessarily a matter ‘directly and substantially in issue’. Illustrations 1. Asues B for the rent due for the year 1990. The defence is that no rent is due. Here the claim for rent is the matter in respect of which relief is claimed. This, therefore, is a matter directly and substantially in i 8 issue: 2. A sues B for : (i) possession to certain land and (ii) mesne profits. B contends that he is rightfully in possession and therefore there is no question of mesne profits. Here there are two matters in respect of 1. Amalgamated Coal Fields Lid. v. Janapada Sabha, AIR 1964 SC 1013; Ishwar Singh v. Sarcan Singh Mange Rams IR 1974 P & H 2. Mangu Ramdas v. M. Venkataratnam, AIR 1973 AP 256; Basti Ram v. Ved Prakash, Al i pects 152; Hanumant Rao v. Amrutnamma, AIR 1966 AP 221. See also; Mulla, Code of Civil Procedtr®s 14th Edn. p. 81. 3. Nanda Lal Roy v. Pramatha Nath Roy, AIR 1933 Cal 222. 4. Abdul Gani & another v. Mahendra Kishore Roy & others, AIR 1930 Cal 47. 5. Deewan Singh v. Rajendra Pd. Ardevi, AIR 2007 SC 767. 1993 SC 1756. : 1989 $C fond of Civil Procedure 14th Edn. p. 82. See also; Pandurang v. Shantabai, AIR ‘Scanned with CamScannerea OF cone et tamely <0) the matter of posesion and (i ; . its. Bot , substantially in issue ‘oth these are matter’s directly and Where an issue directly and substantially involved, has already been iecided in an earlier Special Leave Petition, there as held by the Supreme Court of India in Junior Telecom Officers v. Union of India,! the matter cannot be veagitated under the garb of employees “forum”. Earlier Petition was filed by smployees union and the subsequent one by a “forum” Tepresenting employees. (b) Matter collaterally or incidentally in issue In order that a matter decided in a former sui ina subsequent suit it must have been directly and substantially in issue in the former suit. In other words, if a matter is collaterally or incidentally in issue it will not operate as res judicata2 it may operate as res judicata A suit may involve matters that are may also involve matters that are col collateral or incidental issue is one that is ancillary to a direct and substantive issue. The former is said to be subsidiary issue while the latter the principal issue.> In other words, decisions on matters not alleged or denied or admitted within the meaning of Explanation III are decisions on matters incidental or collateral to the main issue in the case ‘directly and substantially in issue.’ It laterally or incidentally in issue. A Illustration 1. A sues B for rent. B pleads abatement of rent on the ground that the area is less than that entered in the lease. The Court finds that the area is greater than that shown in the lease. The finding as to excess area is not res judicata for it is only ancillary to the direct and substantial issue—Whether the area is equal to or less than that shown in the lease.> 2. A and her mother brought a suit against her father’s brother for partition and delivery of one-fifth share of the family property to the mother and for a marriage expenses for herself. The question of A’s marriage expenses was not directly and substantially in issue in the former suit and was raised only incidentally in connection with the partition claim by her mother. The claim for partition was dismissed as the properties were found to be ancestral and since the claim for partition was disallowed, the incidental claim for marriage expenses of A was also dismissed. A then brought a suit against her father’s brother for providing the marriage expenses. In this case, it was held that in the former suit the Court did not go into the question of marriage expenses of A and, therefore, the former suit did not operate as res judicata on this point. 2 funk of al eae ‘Mehta Brothers, AIR 1991 Del 194, In any collateral proceedings no Court be, Bench can pre emp! another Court or Bench to give a decision on an issue which arises directly and substantially in the proceedings before latter. Mulla, op. cit, p. 82 Asrar Ahmad v. Durga Committee Ajmer, AIR 1947 PC 1. Ekram v, Holodhur, (1873) 3 Cal 271. See also; Mulla, op. cit, p. 83. ‘Algam Mai v, Verappa, AUR 1956 Madi 428. euse ‘Scanned with CamSeannerrs ub Thus, above examination of provisions leads to the conclusion that a Matter which is collaterally or incidentally in issue for the purpose of deciding the matter which is directly in issue in the case cannot be made the basis of a plea of res judicata.! However, this should be noted that if the parties and the Court have dealt with the matter as if it formed a direct and principal issue, it must be taken to have been directly and substantially in issue though in the first instance it was not raised properly or was raised only as an ancillary or incidental issue. Matter constructively in issue (Doctrine of Constructive Res judicata) Matter directly and substantially in issue is of two kinds. As already stated it may be actually in issue or constructively in issue. Actually in issue A matter is said to be actually in issue when it has been alleged by one party and denied or admitted, either expressly or impliedly by the other. See Explanation III to Section 11. In other words a matter is actually in issue where it was made the ground of attack by the plaintiff or ground of defence by the defendant. In other words, a matter is actually in issue when it is an issue directly and substantially and a competent Court decides it on merits.3 Constructively in issue : Constructive Res judicata A matter is said to be constructively in issue when it might and ought to have been a ground of attack or defence in the former suit. This is supported by Explanation IV to Section 11. Explanation IV says : Any matter which might and ought to have been made ground of defence or attack in such former suit shall be deemed to have been a matter directly and substantially in issue. Thus, it is clear from above provision that for the purposes of Section 11 there is no difference between matter actually in issue or constructively in issue, Both are treated as matter directly and substantially in issue. Above view is further supported by the Supreme Court of India. It held : When any matter which might and ought to have been a ground of defence or attack in a former proceeding but was not so made, thus such a matter in the eye of law, to avoid multiplicity of litigation and to bring about finality in it is deemed to have been constructively in issue and, therefore, is taken as decided 4 When this matter is actually in issue the same is heard and decided but when it is constructively in issue from its very nature it could not be heard and decided for this was a matter which might and ought to have been made a ground of attack or defence in the former suit. Nevertheless it will be deemed to have been heard and decided against the party omitting to allege it> Gangabai v. Chhabubsi, AIR 1942 SC 20 Smt. Marayani v. DurgaLal, AIR 1968 Raj 4. Lenakutty v. Thomtman, AIR 1976 SC 1645; Mathura Prasad v. Dossibai, AIR 1971 SC 2355. Workmen C.P. Trust v Board of Trustees, AIR 1978 SC 1283. See also; P K. Vijayan v. K. Amma, AIR 1994 SC 2145 ; Anaimuthu Thevar v. Alagammal, AIR 2005 SC 4008 ; Ravi Khullar v. Union of India, AIR 2007 SC 2334 ; Ram Chandra Dagdu Sonavane v. Vithu Hira Mahar, AIR 2010SC 818 Alka Gupta v..N. K. Gupta, ALR 2011 SC 9. Construction Cov Prabhat Mandal. AIR 1986 SC 391, ‘Scanned with CamSeannerExplaining the principle of constructive res judicata the Supreme Court of India, basing its decision on Devilal Modi v, Sales Tax Officer, Ratlam," held that on considerations of public policy to prevent multifariousnens of legal proceedings between the same parties, the rule of constructive rea judicata postulates that if a plea could have been taken by a party in a proceeding, between him and his opponent he could not be permitted to take that plea against the same party in a subsequent proceeding which is based on the same cause of action.? If a plea could not have been taken in former proceeding, the principle of constructive res judicata will not apply. The test is whether the parties had an opportunity of controverting it and, if they had, the matter will be treated as actually controverted and decided,‘ In order to bring a case within the rule of constructive res judicata it is not only necessary that the defendant could have raised the defence in reply to the former suit, but he was bound to do so.5 Further, it has to be shown that the ground of attack on defence taken therein was such as could conveniently have been raised in the former suit and that too without leading to any confusion at the trial and without the risk of destroying the evidence led in support of the main allegation. The words ‘might’ and ‘ought’ used in Expl. IV to Section 11 have wider amplitude. ‘Might’ conveys the idea of desirability of joining, all grounds of attack or defence, whereas ‘ought’ carries the idea of propriety of so joining, Therefore, both desirability and propriety demand that a party must raise all the conceivable pleas in the former suit or proceeding to save a party from being vexed again the same cause. Illustrations 1. A sues B to recover damages for breach of a contract and obtains a decree. B cannot subsequently sue for setting aside the contract on the ground that it did not fully represent the agreement between the parties. This was a matter which easily might and ought to have been made ground of defence in the former suit. 2. A sues B to recover certain property belonging to the estate of C, alleging that his father had been adopted by C’s brother. D, to whom the property devolved on C’s death. The suit was dismissed on the ground that the adoption is not proved. A then sued B to recover the same property claiming it as C’s bandhu. The suit is barred as res judicata. A ought to have claimed the property in the former suit in the alternative as C’s bandhu.® 3. A, an adopted son sues against B and claims a part of the property as to heir on the basis of a prior agreement. The suit is dismissed. Plaintiff again files a suit and claims the whole property as an adopted son. 1 > 1150. 2. State of UP. v. Nawab Hussain, AIR 1977 SC 1680. 3. Food Corpn. of India v. Ashis Kumar Ganguly, AIR 2009 SC 2852 4, Beharilal v. Ramswaroop, AIR 1949 All 265; MI. Sukra v. Ram Harakh, AIR 1951 All 195 (FB); Alluri China Bapanna vy. Sri Mutang Jageiah, A\R 1939 Mad 818, 5. Chattar Singh v, Roshan Singh, AIR 1946 Nag, 277. & Thiruvengatam, (1908) 31 Mad 385, See also; Mulla op cit p. 92. ‘Scanned with CamSeannereeee Held, that cause of action in both the suits in the same, He could have claimed the property in the alternative as an adopted son in the former suit which he did not do. Hence the principle of constructive rr, judicata applies here. - Where in a writ petition the High Court found that some of the ballot Papers were rejected because the Returning Officer was influenced by the opinion of Naib-Tehsildar. It ordered for recounting, and against this order special leave to appeal was sought for which was rejected after hearing both the parties, there the order of recounting by the High Court became final and according to the principle of constructive res judicata, the question of recounting by the returned candidate could not be reagitated in appeal (Under Section 116 of Representation of Peoples Act) to the Supreme Court of India, against the decision of the High Court2 . A, a sub-inspector of police, was dismissed from services by the D.LG. He filed a writ petition for quashing the disciplinary proceedings on the ground that he was not afforded a reasonable opportunity to meet the allegations against him and the action taken against him is mala fide. The petition was dismissed. He then filed a suit and raised an additional ground that since he was appointed by the I.G. Police the D.LG. was not competent to dismiss him. It was an important plea which was within the knowledge of A and could have been taken in the writ petition, but he did not take. Held, that principle of constructive res judicata applies. It was not permissible for him to challenge his dismissal in a subsequent suit on the ground that he had been dismissed by an authority subordinate to ‘that by which he was appointed.3 6. Where writ petition challenging refusal to grant licence for dealership of Liquified Petroleum Gas (LGP) was filed, no challenge was made in same as to validity of Rajasthan Petroleum Products Order, 1990 under which licence was claimed, there as held by Rajasthan High Court in M/s Snehdeep Gas Agency v. State of Rajasthan,’ a subsequent petition by same petitioner challenging vires of aforesaid order is barred on principles of constructive res judicata. 7. A sues B for possession of property on the basis of ownership. The suit is dismissed. A cannot thereafter claim possession of property as mortgagee and that ground ought to have been taken in the previous suit as a ground of attack 8. A files a suit for declaration that he is entitled to certain lands as the heir of C. The suit is dismissed. The subsequent suit, claiming the same property on the ground of adverse possession is barred by constructive res judicata. Rekha Singh v. Amritlal, AIR 1984 Pun 47 Bhagmal v. Prabhu Ram, AIR 1985 SC 150. The State of Uttar Pradesh v. Nanoab Hussain, AIR 1977 SC 1680. AIR 1994 NOC 136 (Raj) ‘Scanned with CamSeanner9. A sues B for possession of certain property alleging that it has come to his share on partition of joint family property. B’s contention that partition has not taken place is upheld and suit dismissed. A’s subsequent suit for partition of joint family property is not barred. (For Illustrations 7, 8 and 9. See; Takwani op. cit. 5th Edn. p. 63-64.) 10. A files a suit for declaration that he is entitled to certain lands as heir to X. The suit is dismissed. He cannot in a later suit, claim title to Properties by adverse possession. (Dhaniram v. Ruttam Das)! In connection with constructive res judicata this should however be temembered that failure to put forward an alternative ground of the right operates as res judicata, but failure to raise an alternative plea, which is inconsistent with the main plea would not operate as res judicata? The rule of constructive res judicata enacted in Explanation IV to Section 11 is a special and artificial form of res judicata.> It is in reality an aspect or amplification of general principle of res judicata.4 The General principle of res judicata has been explained by the Supreme Court of India5 in the following words : It is the cause of action which gives rise to an action and that is why it is necessary for the Courts to recognise that a cause of action which results in the judgment must loose its identity’ and vitality and merge in the judgment when Pronounced. It cannot therefore survive the jttdgment or give rise to another cause of action on the same facts. That is what is known as general principle of res judicata. The doctrine of constructive res judicata applies to execution proceedings, writ proceedings, proceedings under Section 144 of the Code® (restitution) as also to ex-parte decree.” As regards ex-parte decree it was held that a finding recorded while setting aside an ex-parte decree would be binding at a later stage in the same proceeding on the principles of res judicata in the absence of an appeal against that findings.® Constructive Res judicata and Execution Proceedings The doctrine of constructive res judicata applies to execution proceedings. The doctrine was extended to execution proceedings by virtue of a long catena of decisions including Supreme Court decisions as well. Lahore High Court in Karnail Singh v. Viru Mal? held that constructive res judicata applies to execution proceedings. It will apply to the extent when a judgment debtor fails to raise all his objections to the application for execution of the decree made by the decree holder which he might and ought to have raised and the 1. AIR 1961 Punj 563, 2. Dhaniram v. Pritam Singh, AIR 1955 NOC All 1604; See also; PMC Kunhiraman Nair v. C.R. ‘Naganatha Iyer, AIR 1993 SC 307, 3. Devilal Modi v. Sales Tax Officer, Ratlam, AIR 1965 SC 1150; See also; Amalgamated Coal Fields Ltd. v. Janapada Sabha, AIR 1964 SC 1013. State of Uttar Pradesh v. Nawab Hussain, supra 5. Ibid. 6. Dukhia Ganju v. Ramchandra, AIR 1968 Pat 270. ain, AIR 1975 Pat 239. igh, AIR 1987 SC 1145. ‘Scanned with CamSeannerapplication has been ordered to proceed, then all such objections will be deemed to have been impliedly decided against the judgment debtor and the judgment debtor thereafter cannot raise the same objections in a subsequent execution of the same decree.! The question of constructive res judicata in execution proceedings came before the Supreme Court of India in Mohanlal Goenka v. Benoy Krishna Mukherjee.? In his decision the Supreme Court of India held (following the earlier decisions of the Privy Council) that the principle of constructive res judicata will be applicable in execution proceedings. The Court ruled that this Principle will be applicable apart from lack of inherent jurisdiction of the Court, the rule will operate to preclude a party from relying on a defect of jurisdiction when he has failed to do so earlier.3 The Supreme Court followed its earlier decision in Mohanlal Goenka’s case, in Vimal Kumar v. Labour Court Kanpur, as well. General Principles of Res judicata & Execution Proceedings Section 11, as originally enacted that is, prior to the addition of Explanation VII by virtue of C.P.C. (Amendment) Act, 1976 was in terms not applicable to execution proceedings but the general principles of res judicata were held to be applicable to execution proceedings on principles analogous to the section.5 The earlier view of the Supreme Court of India in Phool Chand y Chandra Shankar,® was that res judicata did not apply to execution Proceedings. But this view seems to have been modified by Supreme Court in later decisions.” Now Explanation VII has been added to Section 11 Act, 1976 which specifically provides that to execution proceedings as well 8 by C-P.C. (Amendment) provisions of Section 11 shall apply Writ Petitions & Constructive Res judicata Whether the principle of constructive res Petitions? The Supreme Court of India ans: Coal Fields Ltd. v. Janpada Sabha,? thus : In our opinion const. .ictive res . judicata which is a special and artificial form of res judicata enacted by Sectiot N11 of the Civil Procedure Code should not generally be applied to writ petitions filed under Article 32 or 226 However in Gulabchand Chotalal Parikh v. State of Gujarat, the Supreme Court of India left the question open whether to apply the principle of constructive res judicata to writ petitions or not? It observed : 1. Dulabib v. Parmanand Das, AIR 1940 Pat 251. 2. AIR 1953 SC 65. 3. Ibid. 4. AIR 1988 SC 375 (384). 5... Ram Kripal v. Ram Kuari, 6 All 269 PC: 11 1A 35, 7. 8. judicata applies to writ wered the question in Amalgamated 6 7AIR 1965 Sc 782. ‘See, Kani Ram v. Smt. Kazani, AIR 1972 SC 1427; Premlata v. L.P. Gupta, AIR 1970 SC 1525. Ramakania Das v, Gita Devi Choudhury, AIR 1991 Ori 279. 9. SC 1013. SC 1153; 67 Bom LR 759 ‘Scanned with CamSeannerWe have not considered whether the princi: rincipl ; ; can be invoked by a party to the piseeateey sai les of constructive res judicata / But now the principle of law seems to have been well settled that the principle of constructive res judicata applies to writ petition also. The Supreme Court's observation in Devilal Modi's case! that “if the doctrine of constructive res judicata is not applied to writ proceedings, it would be open to the party to take one proceeding, after another and urge new grounds every time; and that plainly is inconsistent with considerations of public policy.’ : Above view has been reaffirm i Py ed by the Supreme Court in State of LLP. Andheri.§ In this case the petitioner was dismissed from services . He filed a writ petition for quashing the disciplinary proceedings on the ground that he was not afforded a reasonable opportunity to meet the allegations against him and the action taken against him was mala fide. The petition was dismissed thereafter he filed a suit in which he challenged the order of dismissal on the ground inter alia that he had been appointed by the Inspector General of the Police and that the Deputy Inspector General of the Police was not competent to dismiss him by virtue of Article 311 (1) of the Constitution. It was on this point the Supreme Court held that this new plea is not tenable on the principle of constructive res judicata.5 Writ Petitions and General Principles of Res judicata Petitions to the Supreme Court of India under Article 32 are subject to the rule of res judicata, Therefore, if a question has been decided by the Supreme Court under Article 32 between two parties the same question cannot be reopened between the same parties under Article 32.° The same will be the position where the matter has been heard and decided by the High Court under ‘Article 226 and a fresh petition is filed under Article 32. Where the High Court dismisses a writ petition under Article 226 of the Constitution after hearing the matter on the merits, a subsequent petition in the Supreme Court under Article 32 on the same facts and for the same reliefs filed by the same parties will be barred by the general principles of res judicata.” In Daryao Singh v. State of U.P.8 the opponents objected against the maintainability of six writ petitions under Article 32 on the ground that in each case the petitioners had moved the High Court for similar writs on the same facts and the High Court had rejected them. The Supreme Court held that the writs were barred by the principle of res judicata and could not be entertained. However, it must be admitted that Section 11 in terms does not apply to writ 1. AIR 1965 SC 1150. 2. Ibid 3. AIR 1977 SC 1680. 4 6SC3 os 3 th ‘evs, Die Recruit Class II Engg. Officers Assn. v. State of Maharashtra AIR 1990 C1607 6. Raja Jagannath Baksh Singh v. State of U.P... AIR 1962 SC 11563; M.S.M. Sharma v. Shree Krish Sinha, AIR 1 Sai leer VIN. Shukla, The Constitution of India, 7th EE. P 201 7. Direct ——" Officers Assn. v. State of Maharashtra, AIR 1990 SC 1607. 8. AIR 1961 $C 9 aud Motichand v. H.B. Munshi, (1969) 1 $C 110. Sow alan: Tri ‘Seamed with CamScannerpil Petitions but by means of a catena of decisions the i been extended to writ petitions.! citer _ The leading case on the subject that is Daryao Singh v. State of U.P.2 has laid down certain general principles relating to application of res judicata to writ proceedings. They are : (a) Ifa petition under Article 226 is considered on the merits as a contested matter and is dismissed, the decision would continue to bind the parties unless it is otherwise modified or reversed by appeal or other appropriate proceedings permissible under the Constitution. (b) It would not be open to a party to ignore the said judgment and move the Supreme Court under Article 32 by the original petition made on the same facts and for obtaining the same or similar order: or writs. If the petition under Article 226 in a High Court is dismissed not on merits but because of the laches of the party applying for the writ or because it is held that the party had an alternative remedy available to it, the dismissal of the writ petition would not constitute a bar toa subsequent petition under Article 32. (¢) (d) Such a dismissal may, however, constitute a bar to subsequent application under Article 32 where and if the facts thus found by the High Court be themselves relevant even under Article 32. (e) Ifa writ petition is dismissed (1: livrize? and an order is pronounced in that behalf whether or not the dismissal would constitute 2 bar would depend on the nature of the order. If the order is on merits, it would be a bar. (f) If the petition is dismissed in limine without a speaking order, such dismissal cannot be treated as creating a bar of res judicata If the petition is dismissed as withdrawn, it cannot be a bar to a subsequent petition under Article 32 because in such a case there has been no dec'sion on the merits by the Supreme Court+ Further, if the writ is dismissed in limine or dismissal on grounds of laches or availability of alternative remedy, it would not operate as res judicata This was held by the Supreme Court of India in 1. _ Besides cases noted above See also; Amalgamated Coal Fields v. Janapada Sabha, ah yos Es eee Devilal Modi v. Sales Tax Officer, Ratlam. AIR 1965 SC 1150, Gulab Chand State of Ciiine 1965 SC 1153; Rolling Mills v. Gavt. of Madras, AIR 1968 SC 1196, Union of India y. NOME Tt AIR 1968 SC 1370, State of Punjab v. B.D. Kaushal, AIR 1971 SC 1676, Harswoarup ¥- Toa AIR 1975 SC forkmen w. Board of Trustees, AIR 1978 SC 1283; Magboo! fase ed ‘AIK 1978 SC 1398, Sarguza Transport v. STAT, (1987) 1 SCC 5, Virudhmager Mut “Madras, AIR 1968 SC 1196, Pujari Bai v. Madan Gopal, AIR 1989 SC 1764 2. AIR 1961 SC 1459. 3. tin limine” means at the outset AIR Renee tin state a WB, (1979) 1 SCC 171 See also; Gulabehand v. Stat of Ciara 1965 SC 1153, (g) ‘Scanned with CamScannerwrit petitions and Constructive res judicata The principle of Constructive res judicata as explained in explanation IV to Section 11 of Code of Civil Procedure is also applicable to writ petitions.! Exception (Habeas Corpus) The general principle of res judicata does not apply to the writ of Habeas Corpus. In otherwords, Habeas Corpus is an exception to the rule of res judicata. Accordingly, where a writ of habeas corpus has been refused by the High Court, the petitioner may file an independent petition for the same writ under Article 32 of the Constitution Habeas Corpus and Constructive Res Judicata The rule of constructive res judicata also does not apply to writ of habeas corpus.? Dealing with the question of constructive res judicata in Gulam Sarwar v. Union of India,4 the Supreme Court observed: If the doctrine of constructive res judicata be applied, this Court though is enjoined by the Constitution to protect the tight of a person illegally detained, will become powerless to do so that will be whittling down the wide sweep of the constitutional protection.> In other words, the Supreme Court of India refused to apply constructive res judicata in the instant case. Almost similar view was expressed by the Supreme Court of India in a later case of Lallubhai v. Union of India.6 The Supreme Court observed : The position that emerges from a survey of above decisions is that the application of the doctrine of constructive res judicata is confined to civil actions and civil proceedings. This principle of public policy is entirely inapplicable to illegal detentions and does not bar a subsequent petition for a writ of habeas corpus under Article 32 of the Constitution on fresh grounds, which were not taken in earlier petition for the same relief. Constructive Res judicata and Arbitration Proceedings Res judicata & constructive res judicata applies to arbitration proceedings also.” Matter in issue : Meaning What is barred by Section 11 is not only the trial of a suit but also an issue as section says that “no Court shall try any suit or issue”. Either call it issue or “matter in issue’, both are the same. A natural question arises what is a matter in issue ? Kerala High Court in Bharathi Amma v. Kumaran Peethambaran,® answered the querry as follows : Matter in issue is the right claimed by one and denied by the other. Claim of right in its very inception depends upon proved facts and the application of relevant law. M. Nagbhushana v. State of Karnataka, AIR 2011 SC 1113, Gulam Sarwar v. Union of India, AIR 1967 SC 1335; See also; Daryao Singh’s case supra. Ibid. Ibid. See also; Daryao Singh's case supra; Nazul Ali v. State of W.B., AIR 1969 NSC 182; Niranjan Singh v. State of ULP., AIR 1972 SC 2215. AIR 1981 SC 728. K.V. George v. Secy. to Govt. Water & Power Deptt. Trivendrum, AIR 1990 SC 55: AIR 1990 Ker 88. Tid. geen ‘Scanned with CamSeannerMatter in i: en qa may be an issue of fact, an issue of law or one of mixed fact may be constituted a faci decided by a competent Court however, erroneous it and cannot be reo res judicata as it is finally decided between the parties rendered with # pened between them in another proceeding.’ A wrong decision Sie Jurisdiction, if not corrected by appeal, revision, review or other The chara te lable by law will have as much binding force as a right decision? whethe ia attribute of a judicial act or decision is that it binds, same fi T it be right or wrong? A mixed issue of law and fact also stands on the me footing (an issue of fact) and therefore decision on such an issue will also operate as res judicata. Finding on questions of fact or even mixed question of law and fact having attained finality in absence of appeal, operate as res- judicata’ But what about a question of law ? For the purposes of the discussion a question of law may be divided into two categories : (i) a question of law, (ii) a pure question of law. (i) Question of Law Where the decision is on a question of law, i.e. the interpretation of a statute it will be res judicata in a subsequent proceeding between the same parties. Where the cause of action is the same for the expression “the matter in issue” in Section 11, Code of Civil Procedure means the right litigated between the parties, i.e. the facts on which the right is claimed or denied and the law applicable to the determination ‘of that issue.> This view has been reiterated by the Supreme Court of India in Sushil Kumar Mehta v. Gobind Ram Bohra.® Further, a decision on an abstract question of law unrelated to a right cannot tif a question of law is related to the fact in issue an ha question may operate as res judicata between the operate as res judicata. Bu the cause of action is the same.” erraneous decision on suc! parties in a subsequent suit or proceeding i (ii) Pure question of law Rule of res judicata or estoppel is not applicable to decision on pure question of law. 8 Such as one on jurisdiction of Court. When the question is one of purely of law and it relates the jurisdiction of the Court sanctioning something which is illegal by resort to the rule of res judicata a party affected by the decision will not be precluded from challenging the validity of that order under the rule of res judicata for a rule of procedure cannot supersede the law of the land a This view has been re-affirmed by the Supreme Court in Supreme Court Employee's Case,!! where in it observed : 1. Mathura Prasad v. Dossibai, AIR 1971 SC 2355 : See also; Bharathi Amma v- ‘Kumaran Peethamibaran, AIR 1990 Ker 88. Bharathi Amma's case, Supra. Ibid. id. al Manager (PA) Allahabad Bank v. Shib Shankar Mukherjee, AV 2010 Cal 105 (FB). Cetiara Prasad Bejoo Jaiswal v. Dossiba N.B.Jejeebhoy, AIR JS71 5 2355. (1990) 1 SCC 199. See also; Isabella Johnson v. MA. Sus, (1991) 1 SCC 494. Supreme Court Employees Welfare Association v. Union of India, AIR 1990 SC “Amma's case, SUPTa. oon eR oradabad Development Authority, AIR 2011 SC SOL SCC 494: AIR 1991 SC 993. 8. B mnson v. M.A, Susai, (1991) 1 jh Psat ' ease, Supra cage es SUPT. ath Prasad Singh v. Rajendra Prasad, AIR 2000 SC 2965 ‘Scanned with CamSeanner 334, See also; Bharathi Noween“Nor also can a decision on the question of jurisdiction be res judicata ina subsequent suit or proceedings.” A question of jurisdiction is a pure question of law observed the Court of India in Isabella's Case.! The Court held : “In our opinion a Court which has no jurisdiction in law cannot be conferred with the jurisdiction by applying principles of res judicata It is well settled that there can be no estoppel on a pure question of law and in this case the question of jurisdiction is a pure question of law.” (Emphasis added), upreme Erroneous determination of pure question of law in a previous judgment will Not operate as res judicata in a subsequent proceeding for different property though between same parties. No equitable principle or estoppel can impede powers of the Court to determine an issue of law correctly in a subsequent suit.? Whether res judicata violative of Article 14 ? The doctrine of res judicata is not violative of Article 14 of the Constitution of India. The Supreme Court of India in Supreme Court Employees Case>held : The doctrine of res judicata is a universal doctrine laying down the finality of litigation between the parties. When a particular decision has become final and binding between the parties it cannot be set at naught on the ground that such a decision is violative of Article 14. In other words re-opening of such a decision on the ground that it is violative of Article 14 is not permissible.4 Industrial Law and Constructive Res Judicata The Supreme Court of India has expressed doubt with regard to the extention of “the sophisticated doctrine of constructive res judicata” t industrial law which is governed by special methodology of conciliation, adjudication and considerations of peaceful industrial relations when collective bargaining and pragmatic justice claims precedence over formalised tules of decision based on individual contests, specific causes of action and findings on particular issues.> Industrial proceedings and the General Principles of res judicata However, the Supreme Court of India in Workmen v. Straw Board Mfg. Co.® assumed that the general principles of res judicata would apply to industrial adjudications. Recent trend of the Supreme Court decisions appears to be in favour of applying the general principles of res judicata to industrial proceedings. In Punjab Coop. Bank v. R.S. Bhatia,” the Supreme Court held that a decision in a proceeding under Section 33-A, Industrial Disputes Act, 1 (9) TSC #4 AIR 1991 5C 93; See ao Rajendra Kumar v. Distt. Judge, Jaunpur, AIR 1996 All 2 Satyendra Kumar v. Raj Nath Dubey, AIR 2016 SC 2231 3. AIR 1990 SC 334 4 Ibid 5. Quoted in Mulla op cit. p. 151. See; Mumbai Kamgar Sabha v, Abdulbhat, AIR 197 SC 1455; $.5. Ry. Co. v. Workers Union, AIR 1969 SC 513; Agra Electric Supply Co. v. Alladin, AIR 1970 SC 512; Workmen v. Bolmer Lawrie & Co., AIR 1964 SC 728; Sahadra Saharanpur Light Rly. ¥. Workers Union, AIR 1969 SC 513. 6 AIR: 132; See als; Burn & Co. v. Employees, AIR 1957 SC 38; Bombay Gas Co. v. Shridhar, AIR 1196; Bombay Gas Co. y. Jagannath Pandurang, (1975) 4 SCC 090; Punjab Coop. Bank 1 1975 SC 1898; Workmen v. Hindustan Lever Ltd., AIR 1984 SC 516 ‘Scanned with CamSeanner1947, given by a competent Labour Court operates as a bar ‘on the Principles of res judicata to the trial of the same issue under Section 33-C (2) between the same parties. Justifying the applicability of the rule of res proceedings the Supreme Court of India observed th judicata is a wholesome one which is applicable governed by the provisions of the Code of Civil litigations.”! judicata to industrial at “the doctrine of res Not merely to matters Procedure but to all (II) Same parties The third condition for the aj pplicability of doctrine of res judicata is that the former suit have been a suit between the same parties? or between Parties 'm claim. This condition is based on well known gments bind only parties or privies.3 In other e subgequent suit are different from the former jatural question arises who are Parties and who is principle that decrees and jud; words, when the parties in th suit, there is no res judicata. N a privy? So for parties to the suit are concerned a person is a party to the suit if his name appears on the record of the suit at the time of the decision. Also a party may be a person who has intervened in the suit.4 A party who withdraws or whose name is struck off is not a party. A person whose name has been included as a party through fraud or without knowledge is also not a party. A minor on record not represented by a guardian for the suit (guardian ad litem) is not a Party to the suit. Similarly, a person who has unsuccessfully applied to be impleaded as a party is also not a party.> As regards privy it is a convenient term of English Law to denote a person who claims under a party. Persons other than parties have been classified as @) privies, (i) persons not claiming under parties but represented by them, and (iii) strangers.© The ground of privity is property and not personal relation. To make a person privy he must have acquired interest in the subject matter of action by inheritance, succession or purchase subsequent to the action or he must hold the property subordinately—such as a sub lessee” In order to apply the principle of res judicata it must appear from an inspection or record that the person whose interest it is sought to bind was in some way a party to the suit.8 So, parties in both the suit should be the ae Parties includes privis. For example if former suit was between A and On being plaintiff and B defendant. The suit was decided in favour et es Subsequently A dies and his estate has been taken over by C as successor. So i Bombay Gas Co. v. Jagannath Pandurang, (1975) 4 SCC 690. Narendra Akash Makraj v. Sahaji Baburao, AIR 2009 Bom 165. Vaishnav Dass v. Faquir Chand, AIR 1968 Del 6. Basivi Reddy v. Janardana Rao, AIR 1968 Andh Pra 306. 7 wil Procedure, J. Kotanma v. P. Simhachalam, AIR 1969 Andh Dra 76, See also; Mulla, Code of Civil Po 14 Edn. p. 109. 'See; Mulla, supra p. 109. See also; Ahmed bhoy v. Vulleebhoy, (1882) 6 Bom 703. pees Ram v. Dhan Kaur, AIR 1974 SC 665, ‘Scanned with CamSeannersubsequent suit in filed betyrewn ¢ and Hh, the parties for the purposes of Section 11, that 19 res judicate will be the same However, i parties are different there is no ree judicata fy oer words, if the parties in the subsequent suit are different from the former suit res judicata will not apply A decision not under parties or in rem is not rey Judicata in & subsequent suit though it ma Feceived in evidence ' e es ‘To sustain » plea of res judicata, be common, what is ne between parties all parties to the two litigations need not sary is thal the jsoue between the same parties or under whom they ur any of them claim! Mlustration A sues B for rent. The defence is that C and not A is the landlord. A fails to Prove his title to the property and the suit is dismissed, A then sues B and C for 4 declaration of his title to the property. The suit is not barred by res judicata, for the parties to the two suits are not the same, C not having been a party to the former suit Z Representative Suit (Explanation VI) Representative suit is one that is instituted by or against a person in his representative capacity, as distinguished from his personal capacity.> Explanation VI to Section 11 deals with representative suits. So far as res judicata is concerned the decision in a representative suit operates as res judicata and bind» all those whose interest has been represented by such a suit although not expressly named a» parties to the suit. That is what Explanation VI to Section 11 means and therefore, this explanation is an illustration of constructive res judicata. The Supreme Court of India has held in M.M.B. Catholics v. 1. Paulo Avira,’ that a decision in a case where public right is involved is binding on all persons interested in that right, for the purposes of Section 11 of the Code dealing with the principle of res judicata. They will be deemed to claim under the person who litigated in earlier suit in respect of that public right. Similar view was expressed by the Supreme Court in Ahmed Adam v. Makan? As already stated a decision in a representative suit binds all the persons interested in the right involved in that suit, though not impleaded by name. But an essential condition for the applicability of this rule is that the interest of the persons represented in that suit “has really been represented by others”; in other words their interest has been looked after in a bona fide manner.® Dealing with Explanation VI to Section 11, the Supreme Court of India in Surayya Begum’s case observed : has This of course is subject to the essential condition that the interest of a person really been represented by others; in other words, his interest has been looked 1 Isinwardas v. State of Madhya Pradesh, AIR 1979 SC 551 2 Mulla op cit, p 110, See also; Duxrhanath v. Ram Chand, (1899) 26 Cal 428. 3. Mulla, op. cit. p. 115, AIR 1999 $C: 5 Ale , 6 Surayya Usman, (1991) 3 SCC 114; See also; Singhai Lal Chand Jain v. R.S.S. Sangh, Pomat Aiton Ben1 ‘Scanned with CamSeannerae in bon ide manner. If there be any clash of interests between the person pris and his assumed representative or if the latter due to collusion or for any other reason, mala fide neglects to defend the case, he cannot be considered to bea representative, . Explanation VI to Section 11 refers to a case in which the person sought to be bound by the decision is deemed to be represented in the previous suit by Virtue of proceedings having been taken under Order 1, Rule 8 of the Code or otherwise. Where the previous suit was not representative the persons sought to be bound by the decision arrived at cannot be deemed to have been Tepresented in that litigation. Hence Explanation VI to Section 11 will have no application in that case.! It is necessary to be clear here that the procedure regarding a Tepresentative suit is provided under Order 1, Rule 8. Hence every Tepresentative suit has to be instituted in accordance with provisions contained therein. Provisions contained under Order 1, Rule 8 are an exception to the general rule that all persons interested in a suit might to be joined as parties to it. A representative suit can be filed when following conditions are satisfied : (i) Where parties are numerous; they have the same interest (or there is a community of interest); and (iii) necessary permission is obtained from the Court and notice is given. A suit, thus, filed is a representative suit and a decision in such a suit will operate as res judicata provided the conditions mentioned below are complied with.? (a) there must be a right claimed by one or more persons in common for themselves and others not expressly named in the suit; (b) the parties not expressly named in the suit must be interested in such right; (c) the litigation must have been conducted bona fide on behalf of all parties interested;3 and (d) the suit is one under Order I, Rule 8 and all the conditions of that rule are strictly complied with. Explanation VI however, is not limited to cases covered by Order I, Rule 8 only, that is representative suit. It can be applied in other litigations as well where parties are entitled to represent interested persons other than themselves.* This section (Explanation VI) applies the public interest litigation also.5 Res Judicata between co-defendants So far we have been discussing a case when res judicata applies between two opposing parties, that is res judicata between plaintiff and defendant. 1. Pt. Madhua Nand v. Pt, Suresh Nand, 1953 ALJ 246, 2. Forward Construction Co. case, supra. 3. Surayya Begum v. Mohd. Usman, (1991) 3 SCC 114 IR 1957 All 270; See also; V. Sankarayya v. N.S. Pattadadeoaru, AIR Sudehaiya v. Ram Das, Al ‘Scanned with CamSeannerNow we are going to consider a case where res judicata may apply between parties who are arrayed on one side of the suit, that is between co-defendants or co-plaintiffs for same parties does not necessarily mean parties arrayed on the same side. In other words, a matter may be res judicata between a plaintiff and a defendant, so also it may be a res judicata as between co-plaintiffs or as between co-defendants. First, res judicata between co-defendants. It will apply between ‘them’ within the limits set out by law. It should be applied with great care and caution. The reasons for care and caution is fraud or collusion.! If a party gets a decree from the Court by practising fraud or collusion he cannot be allowed to say that the matter is res judicata and cannot be re-opened. These limits are the conditions set out by the Privy Council in Munni Bibi v. Triloki Nath,? they have to be complied with before res judicata can apply as between co-defendants. They are :> (i) there must be a conflict of interest between defendants; (ii) it is necessary to adjudicate upon such conflicts in order to give the relief claimed by the plaintiff; (iii) the question between co-defendants is finally decided; and (iv) co-defendants were necessary or proper parties in former suit.4 The principle of res-judicata binds co-defendants if the relief given or refused by earlier decision involved a determination of an issue between co- defendants /co-respondents.5 Where all the conditions are satisfied the adjudication in former suit will operate as res judicata even if the previ against all the defendants. ms ‘ oT 2 hniastration (i) A, B, C were three rversioners. A and B filed a suit for possession and half of the property sold by a Hindu Widow D. In the suit C was made_a.co- defendant with the(purchaser E} The suit was decreed and it was held that sale was not for legal necessity. Subsequently C filed another suit against E to obtain possession of other half of properties on the ground that the finding in the previous suit regarding legal necessity was not binding on C since C did not contest the previous suit. It was held that although C was not a contesting defendant there was an issue between C and E, whether the sale was binding on the reversioners and C was equally interested in the issue with the plaintiffs in the former suit and it was necessary to decide that issue in order to grant relief to A & B and the decision in the former suit, therefore, operated as res judicata in the subsequent suit. 1. Mahboob Sahab v. Syed Ismail, AIR 1995 SC 1205. 2. AIR 1931 PC 114; See also; Kishan Prasad v. Durga v. Mirza Wiquar Ali, AIR 1943 PC 115; S.P. Mishra v. Babuaji, AIR 1970 SC 809; Syed Meharban, AIR 1974 SC 749; Munna Kuer v. Lala Prasad, AIR 1970 AP. 219. - 3. M/s Makhija C & E Pot, Ltd. v. Indore Devpt. Authority, AIR 2005 SC 2499; See also $ P. Mishra v. Babuaji, AIR 1970 SC 809. ‘Mahboob Sahab’s case, supra. Mis, Makhija C. CEPA Lid. v. indore Development Authority, AIR 2005 SC 2499. ae Prasad, AIR 1931 PC 231; S.M. Sadat Ali Khon i Iftithar Ahmad v. cd ‘Scanned with CamSeannerAll the three conditions laid down above were satisfied in this case, Firstly, there was a conflict of interest between C and E in the former suit, although they were co-defendants their interests were conflicting. C was one of the reversioners, whereas E was purchaser of the property. Hence their interest were conflicting. Secondly, it was necessary to decide the conflict between them. The issue between them was, whether the sale was binding on reversioners, and C being one of the reversioners was interested in the decision of this issue. In order to give relief to A & B, the plaintiffs in the former suit it was necessary to decide the issue of sale. Thirdly, the question of sale between C & E was finally decided as the Court held that sale was not for legal necessity. One thing is clear from above illustration and that is that C did not contest the former suit. The law on this point is settled that reo judicatz applies even on a non-contesting defendant. Dealing on the point Privy Council in Chandulal v. Khalilur Rahman,| observed It may be added that the doctrine may apply even though the party against whom it is Sought to be enforced did not in the Pee suit think fit to enter an appearance and contest the question but to this the qualification must be added that, if such a party is to be bound by a previous judgment, it must be proved clearly that he had or must be deemed to have had notice that the relevant question was in issue and would have to be decided. (ii) A suit is filed by ‘A’ against “B’ and ‘C’ and in this suit matter is directly and substantially in issue between ‘B’ & ‘C’ and adjudication upon the matter is necessary to determine the suit to grant relief to ‘A’. Here the adjudication by the Court would operate as res judicata in a subsequent suit between ‘B’ and ‘C’ in which either of them is plaintiff and the other defendant? However, this must be noted that if it is not necessary to decide the issue between co-defendants to grant relief to the plaintiff? or if the plaintiff is not concerned with the dispute between co-defendants inter se4 or if there is no conflict of interest between the defendants inter se such determination will not operate as res judicata between the co-defendants. Also, if the relief given to the plaintiff does not require or involve decision of any case between co- defendants, the co-defendants will not be bound as between each other.> Res judicata between co-plaintiffs Next as to the res judicata between co-plaintiffs, as a matter may be res judicata between co-defendants so also it may be res judicata as between CO” plaintiffs. Subject to the same conditions as are applicable in the case of CO” defendants. In other words, the same conditions as apply to the case of co- defendants also apply to the case of co-plaintiffs.° 1, AIR 1950 PC 17. 2. Maltboob Sahab’s case, supra State of Gujarat v. M.P. Shah Charitable Trust, (1994) 3 SCC 552;Shashi Bhusan v. Babujt, ATR 1970 Corpn. v. Union of India, ATR 1999 SC 1236; Mahboob Sahab’s case. b's case. V. Purshothamdas, AIR. 1925 Mad 645; Bachint Kaur v. Karam Chand, AIR 1948 Lah Fee tases ve Miceir. ATR 1991 Pat 537; Praduman’s Singh v. State of Punjab, ‘Seamed with CamScannerThe Supreme Court of India in [Ribker Ahmad v. Syed Meharbux Ali? rdserved that there seems no reason why a previous decision should not operate 18 res judicata between co-plaintitts of all conditions (meant in case of co- fetendants) are mutatis muturdis satistied. The conditions are (a) There is a conflict of interest between co-plaintifts (b)_ It is necessary to resolve this contlict in order to give relief to plaintiffs against defendant: and (c)_ The question between co-plaintifts is finally decided It is well settled that unless there is an active contest between the parties arrayed on the same side in the previous suit, a decision with regard to which rontest is necessary for the final determination of the matter in controversy im he suit, any decision given in the previous suit cannot operate as res judioats setween them or between parties claiming through or under them in any suit? >roforma defendant A proforma defendant is one who has been made defendant nominally and igainst whom no relief is claimed nor interest of such a defendant is in conflict vith other defendants. A proforma defendant in a suit would ordinarily be as nuch bound by the decision therein as any other defendant. But where in the ormer suit, no relief was claimed against him and the nature of two suits is vholly dissimilar and the cause of action arose only in consequence of the lecision in the first suit, the second suit is not barred. A party unnecessarily mpleaded in the previous suit is not bound by a decree therein. Ss ‘A party may be impleaded as a proforma defendant because his presence in he suit is necessary in order to adjudicate upon the matter in controversy ffectually and completely.® In such a case no relief is sought against him and herefore no matter is issue in the suit upon which a finding has been given will perate as res judicata in a subsequent suit against him. In other words, a écision in such a suit cannot be a res judicata against him or his represenation 1 interest in subsequent proceedings.” Illustration 1. Aclaiming to be entitled to possession of a tank as tenant of X. sues B for possession. X is joined as proforma defendant and no relief is claimed 'AIR 1958 Pun 63; Devika v. Raghoun, AIR 1961 Ker 224; [titer Ahmad v. Sve Motarhox Ab, AIR 1974 SC 749. AIR 1974 SC 749, Mt. Bachint Kaur v. Karamchand, A 1948 Lah 1s irendra Chandra v. Chanda Singh, Al 3317 es PCIE Sethurama ‘yer Ram Chand Iyer, 38 IC 184. See also; Manni Trintnat an 1 PC 1 Manna Sein v. Ma Pan, AIR 1932 PC 1613 Kshiroda v. Debendra Nath, 2 Narain Singh v. Raj Kumar Singh, 44 4 Poon © een Pree 10 @). Sub rute (2) of Rule 10 of Order Lis wide enough f0 56 ead add any person that is whether already 2 party, ot So ce eres ‘completely to adjudicate upon all the questions ae rae Completely to adjudicate ee every couse of efecto the Pars ‘See ix re. Iovahest AIR 1957 Mad 699. 2 ; . Gita Ram v. Pa thos Singh, AIR 1956 Pum 129 (FB): P.N: Rao AP 319 (FB). Radhkrishrs Macharyats, AIR 1978 ‘Scanned with CamSeanneragainst him. The suit is dismissed on a findin, is : g that B is the then sues B for possession and B contends that the issue of ones x res judicata. Here res judicata is not applicable as the issue mas former suit was between A & B and not between X vi a proforma defendant.) and B for X was only 2. A sues B for possession of a house and j joins C as a party all part of the house had been let to him. The suit is feet ieee executed and became time barred and subsequently B sues C for possession. The decree in the first case does not Operate as res judicata between B and C and indeed it in no way affects the | —— ee y affects the legal relation [V. Litigating under the same title The fourth condition for the application of the rule of res judicata is that parties to the subsequent suit must have litigated under the same title in the former suit. The expression “same title” means the same capacity. It has nothing to do with the particular cause of action on which he sues or is sued It is not the identity of the subject matter involved in two suits which is the primary test for application of res judicata but identity of title in two litigations. Therefore, even if the property involved in the previous suit was different that cannot be an impediment to involve the principle of res judicata, Where the capacities in which the two suits brought are altogether different the bar of res judicata cannot come into operation.° By virtue of the rule of res judicata a verdict against a man impleaded in one capacity will not affect his rights when proceeded against in another distinct capacity.° It has been held in a number of cases that “a verdict against a man suing in one capacity will not stop him when he sues in another distinct capacity, and, in fact, is a different person in law.”” Illustration Vv ‘A sues B to recover the property of a Math as an heir of deceased Mahanth. B is a stranger to the Math property. Suit is dismissed as A could not produce succession certificate to prove his Lae Subsequently A sues B to recover Math property as a manager of the Math. Former suit will not seperate as res judicata.® 2. A filed a suit against B as owner for declaration of a title as such a suit was dismissed. A subsequent suit was filed by ‘A’ against vk 1 Malla Op Cit. p. 113. See also; joychand v. Dolegobinds, AIR 1944 Cal 272; PN. Ro Radhakrishnamacharyalu, AIR 1978 AP 319 (FB). . See Mulla, Op cit, p. 113. Pao a ee ante Dros fohuri Lal, AIR 1951 Cal 574; Se also; Mahadewapa v. Dharmapns Bom 322. Pay 5 AIR 1954 SC 82; Jum v. Banmalisen, AIR 1953 SC 33; Sunderbhai v. Devs, 2 Kos Ra) La sree OBB, L. Kashi Nath Seth v. Central Excise, Allahabad, AIR 1979 A! J. Anantha v. Bapanna Rao. r shanti Prakash, AIR 1961 Pun 29. singh, A 188 See Dharmayper AIR 1942 Bom 322; Chattar Singh v. Diwan Rosin oT heas of Mag 277, Duchess of Kingston's case supra; ele. observation is from “Kingston 8. See Mulla, Op ait, p. 123, ser ‘Scanned with CamSeannermortgagee for the enforcement of A's rights against the same Property as mortgagee. Former suit will not operate as res judicata as title in both the suit is different. wo A sues B for Possession of a property claiming to be an owner. The suit is dismissed. A subsequent suit by A against B for possession of the same Property as mortgagor is not barred by res judicata, 4. A files a suit against B for Possession of a property as an owner basing. his claim on title. The suit is dismissed. A subsequent suit by A against B for possession of the same Property on the ground of adverse Possession is barred by res judicata, V. Competency of the Court trying former issue > The fifth condition for application of res judicata is that the Court which decided the former suit must have been a Court competent to try the subsequent suit or the suit in which such issue is subsequently raised. Thus, a decision in former suit by a Court not competent to try subsequent suit will not operate as res judicata! The word suit here denotes, the whole of suit and not a part of it? Having regard to the legislative background of Section 11 there can be no hesitation in holding that the word ‘suit’ in the context must be construed literally and it denotes the whole of the suit and not a part of it or a material issue arising in it The point to be seen here is that it is the Courtwhich decides the former suit, whose jurisdiction to try the subsequent suit has to be considered and not the Court in which the former suit may have been filed.4 The Court which decided the former suit must have been either a Court of : () exclusive jurisdiction or (ii) a Court of concurrent jurisdiction competent to try the subsequent suit® or (iii) a Court of limited jurisdiction competent to try the issue raised in the subsequent suit. The Court entertaining application under Section 83 of the Transfer of Property Act, to deposit an amount due under mortgage is not a Court of ‘limited jurisdiction.’ Competency and right of appeal For the purpose of Section 11 the competence of the Court which decided the former suit, right of appeal is not a material matter. In other words whether a right of appeal against the decision of the Court which decided the former suit exists or not, is not a determining factor for competency of the Court. This is so in view of the provisions of Explanation II to Section 11.7 1. See, Pandurang Mahadeo v. Annaji Baltwant, AIR 1971 SC 2228; Chief Justice A.P. v. Dixitentu, AIR 1979 SC 193; Amarsangyi Dungart fala v. Deepsangt Rayabhar Pala, AIR 1925 Born 241 (FB) Mst. Gulab Bai and others v. Manphool Bai, AIR 1962 SC 214 Ibid. Sheodan Singh v. Daryao Kumwar, AIR 1966 SC 1332. Mohil. Khalid v. Chief Commissioner, AIR 1968 Del 13, Bishwanath Prasad Singh v. Rajendra Prasad, AIR 2006 SC 2965, fac Explanation I provides inter alia for the purposes of this section. The competence of a Court shall be determined irrespective of any provisions as to a right of appeal from the decision of such Court. ‘Scanned with CamSeannerCompetency when to be decided In order to determine whether a Court which decided the former suit h jurisdiction to try the subsequent but regard must be had to the jurisdiction st w the Court at the date former suit was instituted and not to its jurisdiction at the date of the subsequent suit. At that time such a Court could have ber competent to try the subsequent suit had it been brought, the decision of such » Court would operate as res judicata although subsequently by rise in the value of the property that Court had ceased to be a proper Court so far as regards its Pecuniary jurisdiction to take cognizance of suit relating to that ve roperty is concemed.! 5 vp Explanation VIII and competency of the Court Explanation VIII inserted by C.P.C. (Amendment) Act, 1976, has brought about a change in the law on this point—that is with regard to competency of the Court which decided the former suit. Explanation makes it clear that the decisions of the Courts of limited jurisdiction shall in so far as such decisions are within the competence of the Courts of limited jurisdiction, operate as res judicata in a subsequent suit although the Court of limited jurisdiction may not be competent to try such subsequent suit in which such question is subsequently raised. Thus, the Revenue Court exercising authority under the Act can be held to be a Court of limited jurisdiction within the meaning of Explanation VIII. The Revenue Court is vested with the jurisdiction over questions relating to existence or otherwise of the relationship of landlord and tenant as to the status, as to the terms on which he held the tenancy or he holds the tenancy and as to similar questions and the Revenue Courts must be held to be competent to decide such issues. A decision by the Revenue Court on the issues which is within its competence will certainly operate as res judicata in view of Explanation VIII to Section 11 of the Code of Civil Procedure. The salutary and simple test for determining whether the previous decision of the Revenue Court could operate as res judicata was to find out whether the Revenue Court could have gone into the question being raised in subsequent suit.‘ If it could go then res judicata would apply, if not, it would not apply. This is the ratio in Richpal Singh v. Dalip.5 In this case, a decree for ejectment was passed by the Revenue Court under the local Tenancy Act. The dispossessed person filed a suit, in a Civil Court claiming to be a mortgagee in Possession and that he was not a tenant. On the question, whether the suit was barred by res judicata the Supreme Court of India laying down the above mentioned test held, since the Revenue Court could not go into the question whether the plaintiff in the civil suit was a tenant in possession or a mortgagee in possession there was no res judicata and so the civil suit was not barred. 1. Ram Swarath Singh v. Mithila Saran Singh, AIR 1983 Pat 116; See also; Jeevantha v. Hanumantha AIR 1954 SC 9. 2. Puthiyottl v. Kaniattichalil Mammadkutty, AIR 1990 Ker 120. 3, Saraswathi v. Muthu Kumaraswamy, AIR 1990 NOC 66 (Mad). 1987 SC 2205 SC, ‘Scanned with CamSeannerA further illustration in connection with Explanati jpeigon of the Madras High Court in Gnanavelan Susser held from In this case the holder of a prize winning ticket was pr . osecuted fi in wopect of forgery of ticket. The Criminal Court acquitted himn holds wre ticket was not proved to be forged. The ticket holder filed petition for obtaining the amount of the prize. The issue was whether the decision of the Criminal Court was conclusive in respect of genuineness of the ticket ? Held Criminal Court decision in respect of genuineness of the ticket was binding. In other words finding in respect of genuineness of the ticket is res judicata? In the connection it would be pertinent to " point out the decision of th supreme Court of India in Sulochana Amma v. Narayanan Nair? (as ear licability of the Doctrine of res judicata to the decree of a Court of limited jurisdiction). The Court observed : The expression “the Court of limited jurisdiction” in E : The copresion “the Court of Hnited jurado’ jn Explanation VI i wie and other cognate expressions analogous thereto Therefore, Section 111s to be read in combination and harmony with Explanation VIIL The result that would flow is that an order or an issue which has arisen directly and substantially between the parties or their privies and decided finally by a competent Court or tribunal, though of limited or special jurisdiction, which includes pecuniary jurisdiction, will operate as res judicata in a subsequent suit or proceedings notwithstanding the fact that such Court of limited or special jurisdiction was not competent to try the subsequent suit. The object underlying Explanation VIII, that by operation of the non- obstante clause finality is attached to a decree of civil Court of limited pecuniary jurisdiction is also to put an end to the vexatious litigation and to accord conclusiveness to the issue tried by a competent Court. The “Court competent to try subsequent suit” does not comprehend territorial jurisdiction. Court deciding earlier suit need not have territorial jurisdiction to try subsequent suit.> VI. Heard and finally decided The sixth and the final condition for application of the rule of res judicata is that the matter directly and substantially in issue in the subsequent suit reese have been heard and finally decided by the Court in the former suit. In order to support the plea of res judicata it is not enough that parties are the same and the same matter is in issue; it must also be shown that the matter was heard and finally decided “The expression “heard and finglly decided” implied that : (a) the Court has exercised its judicial mind and has after argument and consideration came to a decision on a contested matter;7 and AIR 1985 Mad 69. Ibid. AIR 1994 SC 152. Ibid. Church of South India Trust Assocn. v. Telgu Church Council, AIR 1996 SC 987, See, Parshottam Gir v. Narbada Gir, 26 1A 175 - ILR 21 All 505. See also, Kewal Singh v. Lajwanti, Bis 1960 SC 161; Ram Gobinda v. Bhakta Bala, AIR 1971 SC Got: Koshal Pal ¥ Naser Lal, AIR sc "Rat v. Punjab National Bank, AIR 1984 SC 1012, ‘Ramesh Chandra v. Shiv 265. paren 7, Parshottam supra. ‘Scanned with CamSeannerBa (b) its decision has become final.! Therefore, the requirement of the section is that decision on which the Court has exercised its judicial final if it is subject to the decision of High Court2 Sim suit is dismissed on the ground of limitation the cannot be said to have been finally decided.3 there should mind. A decisic ilarly, when th question of title be fina, DN is nog former raised therein A matter shall not be deemed to have been heard and finally decided, if the decision on the matter has been given by the Court behind the back ofa party and that too without notice to him. According to Mulla,5 regard must be given to the following points while dealing with a question under the present head : 1. When the decree is specific and is at a variance with a stater the judgment regard must be had to the decree, and not to the st ment in in the judgment; fatement Neither an obiterdicta nor a mere expression of opinion in a judgment has the effect of res judicata; 3. When a Court merely for the purposes of preventing a remand records its findings on an issue not necessary for the decision of the case, it does not operate as res judicata; 4. It is the decision that ope! rates as res judicata and not the reasoning in ‘support of it. Also, it was held by the Supreme Court of India in Ramesh Chandra v. Shivcharan,® that observation made by Court when there was no Pleading, no evidence will not operate as res judicata because the observation was not only off the mark but unnecessary. Decision on merits In order that a matter may be said to have been heard and finally decided, the decision in the former suit must have been on the merits.” As such if a decision is not on merits it will not Operate as res judicata. Thus, a compromise decree is not decided on merits, hence it will Not operate as res eee judicata: A matter may not be said to have be en ‘heard and finally decided’or on merits if the former suit was dismissed fot ‘or on the ground of non-joinder of Ibid. Chandra Singh v. Midnapore Zamindari Co., AIR 1942 PC 8. an Harswarup y. Anand Swarup, AIR 1942 All 410. Also see; Ajai Verma v. Ram Bharose, AIR 1951 794 (FB), Noor Mohd. v. Mahmud Khan, AIR 1930 All 699, Code of Civil Procedure, 14th Edn. p. 137, AIR 1991 SC 265, Sheodan Singh v. Daryao Kunwar, AIR. 1966 SC 1332; Trilok Chand v. Munshi, AIR Bi) ene Srikakulam Municipality v. Ranganathan, AIR 1971 SC 664; See also; Hardatt Sharma v. [ai Shamlal & Sons, AIR 1983 J & K 29, yb Abdul Majeed v. Salamat Hussain, AIR 1985 NOC 226 All. Ram Aseadh v. Dy, Director of Consolidation, AUR 1986 Al 167. ‘Scanned with CamSeanner6 i sties,! or misjoinder of parties, or mnultifariousness, or on the ground that the it was badly framed, or on the ground of technical mistake, or for failure of the plaintiff to produce probate or letters of administration or succession certificate, of for failure to furnish secunity for conte under Order 25, Rule 2, oF on the ground of improper valuation, or for failure ta pay additional Court fee ona plaint which was under-valued, or for trant of cause of action, or for want of notice, or on the ground that it is prematurey under all the situations noted above decision is not on merits, hence it will n@A operate as res judicata However, a matter will be said to have been ‘heard and finally decided’ that is on merits, even though the former suit might have been disposed of in any of the following manner (a) ex-parte; or (b)_ by dismissal under Order 17, Rule %; or (c)_ by a decree on an award, or (d)_ by oath tendered under Section 6 of the Indian Oaths Act, 1873; or | (e) by dismissal owing to plaintiffs failure to adduce evidence at the hearing. When a decision is taken in appeal the rule is that it iv the appellate decision and not the decision of the trial Court that operates as res judicata ® ‘A question was raised in a suit and after hearing finally decided, is a question of fact and it will be determined according to the facts and the circumstances of each case In order to ascertain what matter was heard and finally decided the pleadings and the judgment is to be examined. For the application of the rule of res judicata, the Court ié not concerned with the correctness or otherwise of the earlier judgment. The only exception to the doctrine of res-judicata is “fraud” that vitiates the decision and renders it a nullity. The Court has in more than one decision held that fraud renders any judgment decree or order a nullity and no est in the eyes of law Decision necessary for the determination of the suit For the application of rule of res judicata a finding of the Court must have been necessary for the determination of the suit. It is the right of appeal that indicate whether a finding was necessary or not. Whether a finding in an earlier case operates as res judicata, one of the tests as held by the Supreme Court of India in Ramesh Chandra v. Shiv Charan,? is to ascertain if a party Sit of Maharashtra v ‘Mis National Construction Co. Bombay, AIR 1996 SC 2367. law has been aptly summarised in Sheodan Singh v. Daryao Kumwar, AIR 1966 SC 1332. See, Mulla, Op cit p. 138. Onder 17, Rule 3 deals with a situation when a Court may proceed notwithstanding either party fails to produce evidence ete. Nurmaljit Singh v. Harnam Singh, AIR 1996 SC 2252. P.LM.A. Metropolitan Case, supra Smt, Naraini v. Durga Lal and others, AIR 1968 Raj 94 Sastry v..Govt. of A.P., AIR 2007 SC 1546; R. Unnikrishnan v. V.K. Mahenudevan, 6 7 168 a ‘Scanned with CamSeanner