RES JUDICATA

Exp II- The competence of the court

shall be determined irrespective of any Exp IV: Constructive res
provisions as to right of appeal from the judicata- “might and ought” to
decision of such Court be raised as ground of defence or
attack, will be deemed to be a
Exp VIII- An issue finally heard and decided by a court of matter D&S in issue
limited jurisdiction competent to decide such issue shall
operate as res judicata in a subsequent suit,
notwithstanding that such Court of limited jurisdiction was Exp III: Actually in issue:
not competent to try such subsequent suit. matter must have alleged
by one party and either
denied or admitted
expressly by another party
About:

➢ Section 11: “No Court shall try any suit or issue in which the matter directly and
substantially in issue has been directly and substantially in issue in a former suit
between the same parties, or between parties under whom they or any of them claim,
litigating under the same title, in a Court competent to try such subsequent suit or the
suit in which such issue has been subsequently raised, and has been heard and finally
decided by such Court”

Exp VI: Rep suits- all interested parties will

be deemed to claim under the person Exp I- “The expression “former suit” shall
instituting the suit if they are litigating for denote a suit which has been decided prior to
public right or a collective private right [an a suit in question whether or not it was
aspect of constructive res judicata] instituted prior thereto.”

Exp V- a relief claimed,

not expressly granted by
decree, will be deemed
to be refused.

➢ Explanation IV- “Constructive res judicata”

o “Might”: “Party had knowledge of the ground of attack or defence at the time
of the previous suit”
o “Ought”: “Compels the party to take such ground”
o Unless proved that a matter might and ought to be taken as a ground,
Constructive res judicata wont come into picture.
➢ Explanation VIII- “Competent Court”, “Court of limited jurisdiction”
o What is a court of limited jurisdiction? Is it only courts other than civil courts?
o Supreme Court in Sulochana Amma v Narayanan Nair- “No doubt main body
of section 11 was not amended, yet the expression ‘the court of limited
jurisdiction’ in Explanation VIII is wide enough to include a court whose
 jurisdiction is subject to pecuniary limitation and other cognate expressions
thereto.”
o When Section 11 is read with Explanation VIII, then it implies that: “an order
or an issue which had 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, notwithstanding the fact that such
court of limited or special jurisdiction was not a competent court to try the
subsequent suit. The technical aspect, for instance, pecuniary or subject-wise
competence of the earlier forum to adjudicate the subject-matter or to grant
reliefs sought in the subsequent litigation, should be immaterial when the
general doctrine of res judicata is to be invoked. Explanation VIII, inserted by
1976 Amending Act, was intended to serve this purpose and to clarify this
purpose and to clarify this position.”
o “If the scope of Explanation VIII is confined to the order and decree of an
insolvency court, the cope of enlarging Explanation VIII would be defeated
and the decree of civil courts of limited pecuniary jurisdiction shall stand
excluded, while that of the former would be attracted. Such an anomalous
situation must be avoided. The tribunal whose decisions were not operating as
res judicata would be brought within the ambit of Section 11, while the decree
of the civil court of limited pecuniary jurisdiction which is accustomed to the
doctrine of res judicata, shall stand excluded from its operation.” Further “it is
obvious from the objects underlying Explanation VIII, that by operation of the
non-obstante clause finality is attached to a decree of civil court of limited
pecuniary jurisdiction also to put an end to the vexatious litigation and to
conclusiveness to the issue tried by a competent court, when the same issue is
directly and substantially in issue in a later suit between the same parties or
their privies by operation of Section 11.”
➢ Explanation II: The question whether there is a bar of res judicata does not depend
on the existence of a right to appeal but on the question whether the same issue, under
the circumstances mentioned in section 11, has been heard and finally decided.

➢ Heard and Finally decided: Implies that there was application of judicial mind to
come to a decision on a contest matter. A decision to act as res judicata must be made
on merits. A decision of dismissal of suit for want of jurisdiction, or for default of
plaintiff’s appearance or any such technical defect, would not be a decision on merits
and hence, would not act as res judicata in the subsequent suit.

➢ Examples:
o A sues B for possession of property based on a sale deed. B impugns the deed
as fictitious, and court upholds the same. A subsequent suit for some other
properties under the said deed cannot be filed.
o A sues B for possession of certain property alleging that it has come to his
share on partition of joint family property, B’ contention is that partition has
not happened and is upheld by the court. A files subsequent suit against B for
partition of the joint family property- not barred.
o A, a partnership firm, filed a suit against B to recover an amount- suit
dismissed on ground that the firm is not registered under the partnership act.
The firm was registered thereafter, and a fresh suit filed for the same issues
and relief. Not barred- changing circumstances
o A petition filed under art 226- before HC- was dismissed on ground- disputed
questions of facts are involved and alternative remedy exists. A suit then filed
before civil court, is not barred by res judicata.
o A suit for one time period’s rent versus a suit for another time period’s rent-
not matter directly and substantially in issue.
o A sues B for possession of property on basis of ownership. Dismissed. Then
cannot claim possession as a mortgage. Constructive res judicata.
Case Brief: Jamia Masjid v Rudrappa

➢ Details of the 4th suit (OS No. 149 of 1998 arising from the suit instituted in 1984):
o Matter in issue- two-fold: Declaration of title of the suit property and permanent
injunction
o Parties: Jamia Masjid- President of Wakf Board (in representative capacity);
Rudrappa- Tenant
o CoA arose because the successors of Abdul Khuddus alienated the suit property

➢ ISSUE 1: Whether res judicata be a preliminary issue? (paras 26-27)

o Essentials of res judicata:
▪ “Matter must have been directly and substantially in issue in the former
suit”;
▪ “Matter must be heard and finally decided by the court in the former
suit”;
▪ “Former suit must be between the same parties or between parties under
whom they or any of them claim, litigating under the same title”;
▪ “Court in which the former suit was instituted is competent to try the
subsequent suit or the suit in which such issue has been subsequently
raised”
o Determination of whether res judicata is attracted is not always a “mixed
question of law and facts” (Referred to Sushil Mehta v Gobind Ram)
o A “matter in issue” may be an issue of fact or of law or mixed (Referred to
Mathura Jaiswal case)
▪ If purely of fact, then the decision in earlier proceeding will act as res
judicata in subsequent litigation
▪ If decision on a question of law i.e., interpretation of a statute, it will be
res judicata in a subsequent suit between the same parties where the CoA
is the same, for the expression “the matter in issue” in section 11 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 the
issue
▪ However, if the question is “purely of law and relates to the jurisdiction
of the Court”, res judicata cannot be applied to preclude a party from
challenging the validity of that order; Rationale- rule of [procedure
cannot supersede the law of the land
o Hence, to undertake the analysis on applicability of res judicata:
▪ First see if the conditions of section 11 are fulfilled, and
▪ Second, see if there has been any material alteration in law or facts since
the first suit which make res judicata inapplicable.
o Cannot contend that res judicata can never be a preliminary issue; it depends on
the case.
▪ If a mixed question of law and fact is raised, then it is important that the
res judicata issue awaits a full-fledged trial after evidence is adduced
▪ However, in this case, the determination will depend on the pleadings
and judgments in the earlier suit, which have been brought on record,
and hence can be dealt with as a prelim issue.
➢ ISSUE 2: Whether the suit filed in 1998 (out of which the instant proceedings arise) is
barred by res judicata (vis-à-vis the following three suits)?

o Three ‘former’ suits:

▪ OS No. 92 of 1950-51 [1st suit]
• “Matter in issue”- Suit instituted under s 92 of CPC for “settle
scheme for management of the mosque” + “directing defendant
to render accounts” thereof
• Parties- five residents (parties interested in the mosque) against
Abdul Khuddus (managing the mosque)
• Heard and finally decided?
• Whether res judicata applies?- need to answer three questions.

Scope of the 1st suit

instituted under s 92 Parties are same? Title over the suit
CPC property conclusively
decided?

o Observations on scope:
a. declaration of title of a property does not fall within
the reliefs provided by section 92;
b. the determination of the title to the suit property is
necessary for the final relief and hence, is ancillary to the
main relief (scheme of management in this case) under s
92.
o Parties in a representative suit:
a. First suit- a rep suit filed by interested parties; 4th suit
filed in rep capacity.
b. Immediately attract Exp VI (depicts one aspect of
constructive res judicata)
c. As rep suit is binding on all interested parties,
judgment in the first suit is binding on Jamia.
o “Conclusive decision” is an important element.
a. Twin test for identifying if an issue has been
conclusively decided:
i. Necessity Test (“Whether the adjudication of
the issue was ‘necessary’ for deciding on the
principal issue?”) [refer to the observations
on scope]
ii. Essentiality Test (“Whether the judgment in
the suit is based upon the decision on that
issue?”) [if the scheme would include the suit
property needed adjudication on the title of
the said property]
b. Whether matters in issue were similar?
i. No; two reasons (paras 51-52):
 1. changed circumstance (notification
declaring suit property as wakf
property in 1965)
2. A suit for administration; it
belonged to AK “prima facie”; does
not imply that it was the personal
property of AK (as also because it
was given to him for his services as
inam)
3. Hence, no adjudication on the
absolute title of the mosque

• Hence, no, 1st former suit is not res judicata for 4th suit. (Para 54)

▪ OS No. 748 of 1968

• Change in circumstance: Notification of declaration of the suit
property as wakf property.
• “Matter in issue”- Declaration that the property constitutes a
wakf and decree for possession of the suit property.
• Parties- Instituted by Mysore Wakf Board against AK and
Gururajarao
• CoA arose: when the plaintiff came to know that the 2nd
defendant has illegally and forcibly occupied the suit property
• Compromise petition under Order 23 Rule 1- 2nd defendant shall
continue to be the lessee of the suit property till expiry of the
lease and the lease amount shall be paid to the 1 st defendant.
• Whether res judicata applies?
o Argument- compromise deed (in relation to the
possession of the property) implied that other reliefs were
abandoned and cannot be raised in the subsequent suit.
o Following case authorities, decided that compromise
decree- not decision of a court and so principle of res
judicata would not apply. But, it “may in effect create
estoppel by conduct between the parties and the parties
by estoppel will be prevented from initiating a
subsequent suit.” (para 58)
o 2ndly, order 23, rule 3A bars a subsequent suit?-
provision is not applicable here- why?- only bars the
challenge to a compromise decree in the ground that it is
unlawful (para 60)
o Will estoppel bar subsequent suit in this case? – any
compromise between parties on the title to the suit
property? – compromise was only wrt “possession and
lease” and not on the title to the suit property. So, no
estoppel (para 60)
▪ OS No. 100 of 1983
• “Mater in issue”- Injunction simpliciter
• Parties- Instituted by Karnataka Wakf Board against son of AK
and the other defendants in favour of whom the property was to
be alienated by AM.
• CoA arose: interference by AM, along with other defendants, in
the possession of plaintiff
• Withdrawn (only after institution of the subsequent suit) + no
adjudication
• Whether res judicata applies?- No (paras 62-63)