.

RESEARCH NOTE

S. Legal Proposition Relevant Case Law and

NO. Paragraphs
1. Plea of res judicata is also not Escorts Farms Ltd. v. Commr.,
Kumaon Division, (2004) 4 SCC
available where there is no contest 281 : 2004 SCC OnLine SC
237 at page 306
on an issue between the parties and @ Para 53

there is no conscious adjudication of

an issue
2. Where an issue of law decided Canara Bank v. N.G. Subbaraya
Setty, (2018) 16 SCC 228 : 2018
between the same parties in a SCC OnLine SC 427 

former suit or proceeding relates to @ Para 34

the jurisdiction of the court, an

erroneous decision in the former suit

or proceeding is not res judicata in a

subsequent suit
3. where the matter has not been State of U.P. v. Jagdish Sharan
Agrawal, (2009) 1 SCC 689
decided on merit earlier, the doctrine
@ PARA 12
of res judicata is not applicable

This extract is taken from Escorts Farms Ltd. v. Commr., Kumaon Division,

(2004) 4 SCC 281 : 2004 SCC OnLine SC 237 at page 306
53. Plea of res judicata is also not available where there is no contest on an
issue between the parties and there is no conscious adjudication of an issue. In
the original order dated 11-8-1967 of the prescribed authority passed under the
unamended Ceiling Act, the school land to the extent of 250 acres, under an
obvious mistake, was treated to be land held, not by the holder Company but by
the school treating the latter to be a separate legal entity. It was never the case
of the holder Company or the Farm that 250 acres of land was held not by the
Company but by the school as a separate legal entity. Their claim with regard to
the school land was for exemption under clause (ix) of Section 6, as it stood prior
to the Act of 1973. The Company was claiming exemption for 250 acres of land
being the land held by the holder Company for educational purposes and such
claim for exemption could be laid on behalf of the Company in accordance with
clause (ix) of Section 6, as it stood in the original Amendment Act. The prescribed
authority, it appears, by an inadvertent mistake, instead of considering the claim
of the holder Company for exemption of land under clause (ix) of Section 6, as it
stood then, excluded the land as belonging to the school as separate legal entity.
This exclusion of 250 acres of land of the school from the extent of holding of
the holder Company was not a decision or a finding on an issue arising between
the parties but it was a clear mistake which is apparent from the fact that this
land was throughout treated by the holder Company as its own land and was
transferred by the Company by different sale deeds to seventy-five persons after
the cut-off date of 24-1-1971. On the date of second ceiling introduced by the
Amendment Act of 1973, the so-called land belonging to the school is claimed to
be held by the holder Company as the Company had transferred it to various
persons. On these admitted facts and nature of title of the land, plea of res
judicata cannot be allowed to be raised. The case initiated and proceeded with in
ceiling law is not an adversarial litigation between the State and the landowners.
It is enforcement of a social welfare legislation enacted in accordance with the
directive principles of State policy enshrined in Article 39 of the Constitution.

This extract is taken from Canara Bank v. N.G. Subbaraya Setty, (2018) 16 SCC
228 : 2018 SCC OnLine SC 427 at page 259
 34.2. To this general proposition of law, there are certain exceptions when it
comes to issues of law:
34.2.1. Where an issue of law decided between the same parties in a former
suit or proceeding relates to the jurisdiction of the court, an erroneous decision
in the former suit or proceeding is not res judicata in a subsequent suit or
proceeding between the same parties, even where the issue raised in the second
suit or proceeding is directly and substantially the same as that raised in the
former suit or proceeding. This follows from a reading of Section 11 of the Code
of Civil Procedure itself, for the Court which decides the suit has to be a court
competent to try such suit. When read with Explanation I to Section 11, it is
obvious that both the former as well as the subsequent suit need to be decided
in courts competent to try such suits, for the “former suit” can be a suit
instituted after the first suit, but which has been decided prior to the suit which
was instituted earlier. An erroneous decision as to the jurisdiction of a court
cannot clothe that court with jurisdiction where it has none. Obviously, a civil
court cannot send a person to jail for an offence committed under the Penal
Code. If it does so, such a judgment would not bind a Magistrate and/or Sessions
Court in a subsequent proceeding between the same parties, where the
Magistrate sentences the same person for the same offence under the Penal
Code. Equally, a civil court cannot decide a suit between a landlord and a tenant
arising out of the rights claimed under a Rent Act, where the Rent Act clothes a
special court with jurisdiction to decide such suits. As an example, under Section
28 of the Bombay Rent Act, 1947, the Small Cause Court has exclusive
jurisdiction to hear and decide proceedings between a landlord and a tenant in
respect of rights which arise out of the Bombay Rent Act, and no other court has
jurisdiction to embark upon the same. In this case, even though the civil court, in
the absence of the statutory bar created by the Rent Act, would have jurisdiction
to decide such suits, it is the statutory bar created by the Rent Act that must be
given effect to as a matter of public policy. [See, Natraj Studios (P)
Ltd. v. NavrangStudios [Natraj Studios (P) Ltd. v. Navrang Studios, (1981) 1 SCC 523 :
(1981) 2 SCR 466] , at SCR p. 482]. An erroneous decision clothing the civil court
with jurisdiction to embark upon a suit filed by a landlord against a tenant, in
respect of rights claimed under the Bombay Rent Act, would, therefore, not
operate as res judicata in a subsequent suit filed before the Small Cause Court
between the same parties in respect of the same matter directly and
substantially in issue in the former suit.
This extract is taken from Canara Bank v. N.G. Subbaraya Setty, (2018) 16 SCC
228 : 2018 SCC OnLine SC 427 at page 260
 34.2.2. An issue of law which arises between the same parties in a
subsequent suit or proceeding is not res judicata if, by an erroneous decision
given on a statutory prohibition in the former suit or proceeding, the statutory
prohibition is not given effect to. This is despite the fact that the matter in issue
between the parties may be the same as that directly and substantially in issue
in the previous suit or proceeding. This is for the reason that in such cases, the
rights of the parties are not the only matter for consideration (as is the case of
an erroneous interpretation of a statute inter partes), as the public policy
contained in the statutory prohibition cannot be set at naught. This is for the
same reason as that contained in matters which pertain to issues of law that
raise jurisdictional questions. We have seen how, in Natraj Studios [Natraj Studios
(P) Ltd. v. Navrang Studios, (1981) 1 SCC 523 : (1981) 2 SCR 466] , it is the public
policy of the statutory prohibition contained in Section 28 of the Bombay Rent
Act that has to be given effect to. Likewise, the public policy contained in other
statutory prohibitions, which need not necessarily go to jurisdiction of a court,
must equally be given effect to, as otherwise special principles of law are
fastened upon parties when special considerations relating to public policy
mandate that this cannot be done.
This extract is taken from Canara Bank v. N.G. Subbaraya Setty, (2018) 16 SCC
228 : 2018 SCC OnLine SC 427 at page 260
34.3. Another exception to this general rule follows from the matter in issue
being an issue of law different from that in the previous suit or proceeding. This
can happen when the issue of law in the second suit or proceeding is based on
different facts from the matter directly and substantially in issue in the first suit
or proceeding. Equally, where the law is altered by a competent authority since
the earlier decision, the matter in issue in the subsequent suit or proceeding is
not the same as in the previous suit or proceeding, because the law to be
interpreted is different.

This extract is taken from State of U.P. v. Jagdish Sharan Agrawal, (2009) 1

SCC 689 : (2009) 1 SCC (Civ) 315 : 2008 SCC OnLine SC 1749 at page 692
12. In Ram Gobinda Dawan v. Bhaktabala [(1971) 1 SCC 387] it was held as
follows : (SCC pp. 394-95, paras 21-24)
“21. It is interesting to note that though it was urged that the decision of
the Privy Council was given in default of appearance of B and his
mortgagee C and therefore the said decision will not operate as res judicata,
this Court did not hold that a decision given even in the first instance in
default of appearance of a party will operate as res judicata. On the other
hand, this Court categorically held that C, the mortgagee had fought out the
title of mortgagor B, both before the Land Acquisition Court and the High
Court and had obtained a judgment in his favour after a full contest.
22. It is the view of this Court that the mere fact that the mortgagee did
not choose to appear before the Privy Council and the decision of the Privy
Council was given in the absence of the mortgagee, is of no consequence as
the decisions of the High Court and the District Court have been given after
contest. Therefore, it will be seen that the decision of this Court relied on by
Mr Mukherjee is no authority for the wide proposition that even if there has
been no hearing and final decision by any court, at any stage, after contest,
the decision will operate as res judicata.
23. For an earlier decision to operate as res judicata it has been held by
this Court in Pulavarthi Venkata Subba Rao v. Valluri Jagannadha Rao [AIR 1967
SC 591] that the same must have been on a matter which was ‘heard and
finally decided’.
24. In Sheodan Singh v. Daryao Kunwar [AIR 1966 SC 1332] the question
whether a decision given by the High Court dismissing certain appeal on the
ground of limitation or on the ground that the party had not taken steps to
prosecute the appeal operates as res judicata, was considered by this Court.
In that case A had instituted against B two suits asserting title to certain
property. B contested those claims and also instituted two other suits to
establish his title to the same property as against A. A's suits were decreed
and B's suits were dismissed. B filed four appeals, two appeals against the
decision given in A's suits and two appeals against the dismissal of his two
suits. It is seen that all the appeals were taken on the file of the High Court
but the two appeals filed by B against the decision in the suits instituted by
him were dismissed by the High Court on the grounds that one was filed
beyond the period of limitation and the other for non-prosecution. At the
final hearing the High Court took the view that the dismissal of B's two
appeals, referred to above, operated as res judicata in the two appeals filed
by B against the decision in A's suits on the question of title to the property. It
was urged before this Court on behalf of B that the dismissal of his appeals
on the ground of limitation and non-prosecution by the High Court does not
operate as res judicata as the High Court cannot be considered to have
‘heard and finally decided’ the question of title. This contention was not
accepted. This Court referred to instances where a former suit was dismissed
by a trial court for want of jurisdiction or for default of the plaintiff's
appearance, etc. and pointed out that in respect of such class of cases, the
decision not being on merits, would not be res judicata in a subsequent suit.
It was further pointed out that none of those considerations apply to a case
 where a decision is given on the merits by the trial court and the matter is
taken in appeal and the appeal is dismissed on some preliminary ground, like
limitation or default in printing. It was held that such dismissal by an
appellate court has the effect of confirming the decision of the trial court on
merits, and that it ‘amounts to the appeal being heard and finally decided on
the merits whatever may be the ground for dismissal of the appeal’.”
The position was reiterated in State of U.P. v. Civil Judge [(1986) 4 SCC 558] .