SATYADHYAN GHOSAL AND OTHERS

Vs.

SM. DEORAJIN DEBI AND ANOTHER.,

PARTIES

Petitioner:
Satyadhyan Ghoshal and Others

Vs.

Respondent:
Sm. Deorajin Debi and another.

JUDGES

Honourable Mr. Justice K.C Das Gupta, Honourable Mr. Justice P.B Gajendragadkar, And
Honourable Mr. Justice K.N Wanchoo.

Introduction

The doctrine of Res Judicata in nations that have a civil law legal system is much narrower in
scope than in common law nations. According to the dictionary meaning, 'Res Judicata' means
a case or suit involving a particular issue between two or more parties already decided by a
court. Thereafter, if either of the parties approaches the same court for the adjudication of the
same issue, the suit will be struck by the law of 'res judicata'.

Section 11 of Code of Civil Procedure deals with this concept. It embodies the doctrine of Res

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Judicata or the rule of conclusiveness of a judgement, as to the points decided either of fact, or
of law, or of fact and law, in every subsequent suit between the same parties. It enacts that once
a matter is finally decided by a competent court; no party can be permitted to reopen it in a
subsequent litigation. In the absence of such a rule there will be no end to litigation and the
parties would be put to constant trouble, harassment and expenses.

FACTS

In this case, a landlord won a decree against the tenants for eviction from the property but was
not able to get possession and further then the act of Calcutta Thikka Tenancy Act came into
force. An application was made by the tenants under section 28 of the same act saying they
were thikka tenants and the munsiff ruled they were not and decree was not rescinded. By the
time the revision came to place the ordinance and amendment of act omitting section 28 had
already came forward. The court saw section 1 clause 2 of the same act to see whether
application under section 28 was still alive and answered in positive, held the appellant were
thikka tenant, okayed the revision application and remanded the case for Munsiff to decide
according to law. Munsiff took back the earlier decree after remand. High court then rejected
the landlord's application against Munsiff's orders and his question of applicability of section
28 was unsuccessful as the judge held there was Res Judicata between the parties.

ISSUES

Does the fact that in an earlier stage a court has decided an interlocutory matter in one way
and no appeal has been taken therefore or appeal did lie and a higher court at a later stage of
the same litigation consider the same matter again?

ARGUMENTS

1. Nalini Banjan Bhattacharjee and R. R. Biswa,3, for the appellants, contended that that
on a proper interpretation of s. 1 (2) of the Calcutta Thika Tenancy Amendment Act,
1953, it should be held that s. 28 of the original Act cannot, after the amending Act
came into force, be applied to any proceedings pending from the date of the
commencement of the Calcutta Thika Tenancy Ordinance, 1952.
2. D.N. Mukherjee on behalf of the respondent contended that the appellant was barred
by the principle of res judicata from raising before this Court the question whether on

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 the enactment of the Thika Tenancy Amendment Act, 1953, Section 28 of the Original
Act survives or not in respect of proceedings pending on the date of the
commencement of the Thika Tenancy Ordinance, 1952.

FINDINGS

It was held that the appellants were not precluded from raising before this Court the question
that S. 28 of the Original Thika Tenancy Act was not available to the tenants after the Thika
Tenancy Amendment Act came into force merely because they had not appealed from the High
Court's order of remand. An interlocutory order which did not terminate the proceedings and
which had not been appealed from either because no appeal lay or even though an appeal lay
an appeal was not taken, could be challenged in an appeal from the
final decree or order.
The principle of Res Judicata is invoked in the case of the different stages of proceedings in
the same suit the nature of the proceedings, the scope of the enquiry which the adjectival law
provides for the decision being reached as well as the specific provision made on matters
touching such decisions are some of the factors to be considered before the principle is held to
be applicable. Order IX Rule 7 does not put an- end to the litigation nor does it involve the
determination of any issues in controversy in the suit. A decision or direction in an interlocutory
proceeding of the type provided for by Order IX Rule 7 is not of the kind which can operate as
Res Judicata so as to bar the hearing on the, merits of an application under Order IX Rule 13.

An interlocutory order which did not terminate the proceedings and which had not been
appealed from either because no appeal was present or even though an appeal was present
and it was not taken, could be challenged in an appeal from the final decree or order. Remand
was an interlocutory judgement which did not terminate the proceedings and so the
correctness of it can been challenged in an appeal from the final order.

The principle of res judicata is based on the need of giving a finality to judicial decisions. What
it says is that once res is judicata, it shall not be adjudged again. Primarily it applies as between
past litigation and future litigation, when a matter - whether on a question of fact or a question
of law - has been decided between two parties in one suit or proceeding and the decision is
final, either because no appeal was taken to a higher court or because the appeal was dismissed,
or no appeal lies, neither party will be allowed in a future suit or proceeding between the same

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parties to canvass the matter again. This principle of res judicata is embodied in relation to suits
in S. 11 of the Code of Civil Procedure; but even where S. 11 does not apply, the principle of
res judicata has been applied by courts for the purpose of achieving finality in litigation. The
result of this is that the original court as well as any higher court must in any future litigation
proceed on the basis that the previous decision was correct.

The Supreme Court considered the applicability of the doctrine in the proceedings at different
stages in the same Suit and held as under: - “The principle of res judicata is based on the need
of giving a finality to judicial decision. What it says is that once some res is judicata, it shall
not be adjudged again. Primarily, it applies as between past litigation and future litigation. This
principle of res judicata is embodied in relation to Suits in Section 11 of the Code of Civil
Procedure; but even where Section 11 does not apply, the principle of res judicata has been
applied by courts for the purpose of achieving finality in litigation. The principle of res judicata
applies also as between two stages in the same litigation to this extent that a court, whether the
trial court or a higher court, having, at an earlier stage, decided a matter in one way, will not
allow the parties to re-agitate the matter again at the subsequent stage of the same proceedings.”

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