Res Judicata 2: by Johny Sir

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Res Judicata 2

BY JOHNY SIR
PROFESSIONALS’ LAW INSTITUTE
SCO 135/2, SECTOR 24-D
CHANDIGARH
99158-88172
4. litigating under the same title
• Same title means ‘same capacity’
• A verdict against a man suing in one capacity will not stop him when he sues in
another distinct capacity, in fact, is a different person in law.
• Where a suit is brought by a person to recover possession, from a stranger, of
math property claiming it as the heir of a deceased Mahant but the suit is
dismissed on his failure to produce a certificate of succession to establish his
heirship, the dismissal is no bar to a suit by him as manager of the math on
behalf of the math.
• Where A sues B for possession of 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 as a mortgagee is not barred.
5. in a Court competent to try such subsequent suit or the suit in which
such issue has been subsequently raised,
• Explanation II.—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.
• 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 as 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.
• The fifth condition of res judicata is that the court which decided the former suit must have been a
court competent to try the subsequent suit. Thus, the decision in a previous suit by a court, not
competent to try the subsequent suit, will not operate as res judicata. 
• The expression ‘competent to try’ means competent to try the subsequent suit if brought at the time
the first suit was brought. In other words, the relevant point of time for deciding the question of
competence of the Court is the date when the former suit was brought and not the date when the
subsequent suit was filed.
• In order that a decision in a former suit may operate as res judicata, the Court which decided that suit
must have been either:
• a court of exclusive jurisdiction or
• a court of limited jurisdiction or
• a court of concurrent jurisdiction.
5. in a Court competent to try such subsequent suit or the suit in which such issue has
been subsequently raised,
• Court of Exclusive Jurisdiction
• If a matter directly and substantially in issue in a former suit has been adjudicated upon by a court of exclusive jurisdiction, like Revenue Courts, Land
Acquisition Courts, Administration Courts, etc., such adjudication will bar the trial of the same matter in a subsequent suit in an ordinary Civil Court. Thus
Courts of revenue have jurisdiction in respect of certain matters to the entire exclusion of Civil Courts and the decision of Revenue Court, on such
matters, cannot be questioned in a civil court.
• Court of Limited Jurisdiction
• A decision on an issue heard and finally decided by a court of limited jurisdiction will also operate as res judicata in a subsequent suit irrespective of the
fact that such court of limited jurisdiction was not competent to try the subsequent suit.
• In Sulochana Amma v. Narayanan Nair[1994] 2 SCC 14 Supreme Court stated that 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 analogous thereto. Therefore, Section
11 is to be read in combination and in harmony with Explanation VIII. The result that would follow is 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 special jurisdiction, which
includes pecuniary jurisdiction, will operate as res judicata in a subsequent suit or proceeding, 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 example, pecuniary or subject wise competence of
the earlier forum to adjudicate the subject matter or to grant reliefs in the subsequent litigation, should be immaterial when the doctrine of res
judicata is to be invoked.
• Court of Concurrent Jurisdiction
• Where the Court which decided the former suit was a court of concurrent jurisdiction having competence to try the subsequent suit, the decision given
by it would operate as res judicata in a subsequent suit. Concurrent jurisdiction means concurrent as regards the pecuniary limit as well as the subject
matter of the suit. ‘Competency’ in Section 11 has no reference to territorial jurisdiction of the Court.
• In Church of South India Trust Assn. v. Telugu Church Council[(1996) 2 SCC 520.], the Supreme Court stated that Section 11 of the present code
envisages that the judgment in a former suit would operate as a res judicata if the Court which decided the said suit was competent to try the same by
virtue of its pecuniary jurisdiction and the subject matter to try the subsequent suit and that it is not necessary that the said court should have had the
territorial jurisdiction to decide the subsequent suit.
• Right of Appeal: Explanation II
• Explanation II to Section 11 makes it clear that for the purpose of res judicata the competence of the Court shall be determined irrespective of any
provision as to a right of appeal from the decision of such Court. The question whether there is a bar of res judicata does not depend on the existence of
a right of appeal but on the question whether the same issue, under the circumstances mentioned in Section 11, has been heard and finally decided.
6. and has been heard and finally decided by such Court.
• Relief claimed but not granted: Explanation V
• Explanation V to Section 11 provides that if a relief is claimed in a suit, but it is not expressly granted in the
decree, it will be deemed to have been refused and the matter in respect of which relief is claimed will be res
judicata.
• The sixth and final condition of res judicata is that the matter directly and substantially in issue in the subsequent
suit must have been heard and finally decided by a court in the former suit. The expression ‘heard and finally
decided’ means a matter on which Court has exercised its judicial mind and has after argument and consideration
come to a decision on a contested matter.
• 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 merits. Thus, if the former suit was dismissed by a court for the want of jurisdiction, or for default
of plaintiff’s appearance, or on the ground of misjoinder or non-joinder of parties, or on the ground that the suit
was not properly framed, or that it was premature, or that there was a technical defect, the decision not being on
merits, would not operate as res judicata in a subsequent suit.
• It can be considered in the light of the following:
• Dismissed in default – not heard and finally decided but the suit is barred by O.9 R.9
• Ex Parte Decree – heard and finally decided
• Abatement of Suit – Not heard and finally decided but barred by O.22 R.9
• Consent decree – Not heard and finally decided but barred by rule of estoppel
• Withdrawl without liberty to file fresh suit – but barred by O.23 R.1(4).
• Rejection of Plaint – Not heard and finally decided. Fresh suit is maintainable
• Other proceedings where the principle of res judicata applies are:
• Industrial Adjudication
• Public Interest Litigation
• Writ Petitions under Articles 32 and 226
• Ex parte decree
• Interim order or interlocutory order deciding a controversy in part between the parties
• Proceedings where res judicata is not applicable are:
• Taxation matters
• Res Judicata is not applicable to cases of habeas corpus petitions.
• Dismissal of suit in default
• Dismissal in limine
• Dismissal of Special Leave Petition in limine by a non speaking order
• Compromise decree, though party is precluded from challenging it by rule of estoppel[39]
• Fraudulent decree
• Withdrawal of suit
• In case of change in circumstances
• Change in law subsequent to a decision rendered by the Court.
Res Judicata & Estoppel
• The doctrine of res judicata operates as a bar on the jurisdiction of a court to try a suit which has been conclusively decided by the court with same
parties, same subject matter and under same title. All these provisions are provided under section 11 of the Code of Civil Procedure,1908.
• Whereas the doctrine estoppel as defined in Section 115 of the Indian Evidence Act, 1872 provides that “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 belief, neither he nor his
representative shall be allowed, in any suit or proceeding between himself and such person or his representative, to deny the truth of that thing.”
• Res judicata corresponds to the part of the doctrine of estoppel, which is known as estoppel by record. Estoppel as enunciated in Section 115 of the
Indian Evidence Act is by conduct or agreement or estoppel in pais. Thus, even though res judicata may be said to be included in the doctrine of
estoppel, as understood in the wider sense of the term, it must be distinguished from estoppel as distinctly provided for in the Indian Law of
Evidence.
• The doctrine of res Judicata can be distinguished from estoppel, as generally understood, on the following grounds:
• 1. The rule of res judicata is based on public policy, i.e., it is to the interest of the State that there should be an end to litigation and belongs to the
province of procedure.
• Estoppel, on the other hand, is part of the law of evidence and proceeds on the equitable principle of altered situation, viz., that he who, by his
conduct, has induced another to alter his position to his disadvantage, cannot turn round and take advantage of such alteration of other’s position.
• 2. Res judicata precludes a man from averring the same thing in successive litigations, while estoppel prevents a party from saying two contradictory
things at different times.
• 3. Res judicata is reciprocal and binds both the parties, while estoppel binds the party who made the previous statement or showed the previous
conduct.
• 4. Res judicata prohibits the court from entering into an enquiry as well as to a matter already adjudicated upon; estoppel prohibits a party, after
the inquiry has already been entered upon, from proving anything which would contradict his own previous declaration or acts to the prejudice of
another party who, relying upon these declarations or acts, has altered his position.
• 5. Res judicata prohibits an inquiry in limine, and bars the trial of a suit while estoppel is only a piece of evidence and emphasizes that a man should
not be allowed to retrace the steps already walked over.
• 6. Res judicata ousts the jurisdiction of the court, while estoppel shuts the mouth of a party.
• 7. The doctrine of res judicata results from a decision of the court, while estoppel results from the acts of the parties themselves.
Res Judicata & Estoppel - Question
• A landlady filed a civil suit for recovery of possession and mesne profits from her tenant. The tenant
pleaded that the rent controller, not the civil court has jurisdiction to entertain eviction suit. The plea is
legally correct. But the landlady contended that her two earlier eviction petitions were rejected by the
rent controller on objection of the tenant that it was the civil court and not the rent controller, which
has jurisdiction to entertain eviction suit against him as the Rent Act did not apply on his tenancy. She
has pleaded that those judgments of the Rent Controller constitute res judicata between the parties
and the tenant cannot be allowed to appropriate and reprobate and he also estopped from taking
inconsistent pleas in the civil suit. Dispose of the pleas of the tenant and landlady by a reasoned order.
• Solution: Principle of res judicata as contemplated in in Section 11 of CPC, 1908 bars the trial of any
suit as well as an issue, which has been decided in the former. Matter in issue can be of three kinds:
• Issue of fact;
• Issue of Law;
• Mixed issue of fact and law.
• A decision on issue of fact, even if erroneous, if attained finality will operate as res judicata between
same parties, if re-agitated in the subsequent suit. Similarly, decision on mixed issue of fact and law will
also operate as res judicata. However, in the present case, the issue is purely based on law, i.e. with
regard to jurisdiction to entertain the case. Thus, the main question for consideration in the case in
hand is whether the principle of res judicata and estoppel are applicable where the issue already
decided is ‘Issue of Law’ ? Before answering the above question there is need to refer the following
judgments laid down by the Hon’ble Apex Court:
• Solution Continued………..
• I. In the case of Mathura Prasad Bajoo Jaiswal v. Dossibai N.S. Jeejeebhoy AIR 1971 SC 2355
• The appellant-tenant a lessee of open land constructed a residential building on the land and applied to the Court of Civil Judge for fixation of Standard Rent. The
application was rejected by the Court holding that Rent Control Act, 1947 did not apply to open land let for constructing buildings for residence, education, business
trade or storage. The order was confirmed by a single judge of Bombay High Court in 1955. But some years later the High Court held in another case that a building
lease in respect of an open plot is not excluded from Section 6(1) of Bombay Rents, Hotel and Lodging House Rates Control Act, 1947 solely because open land was
used for residence or educational purposes after building a structure on it. Relying upon this decision, the appellant tenant filed a fresh petition in the court to Small
Causes for determining of standard rent. The trial judge rejected the application on the ground of res judicata holding that since it had been finally decided by the
High Court between the same land in the earlier proceedings for fixation of standard rent. This order was confirmed by the High Court.
• Held, the decision of Civil Judge that he had no jurisdiction to entertain the application for determination of standard rent is plainly erroneous. Where the law is
altered since the earlier decision, the earlier decision will not operate res judicata between the same parties. If the decision in the previous proceeding be regarded
as conclusive it will assume the status of a special rule of law applicable to the parties relating to the jurisdiction of the Court in derogation of the rule declared by
the Legislature.
• Res judicata - Scope and application - Decision based on erroneous interpretation of law, Held.
• i. A previous decision on a matter in issue alone is res judicata. The reasons for decision are not res judicata. A pure question of law unrelated to facts which give rise to right cannot be
deemed to be a matter in issue.
• ii. A decision on issue will not be res judicata where the law has since altered since earlier decision or when the decision relates to jurisdiction of court to try the earlier proceedings.
• iii. If by an erroneous interpretation of statute the court holds that it has no jurisdiction or assumes the jurisdiction erroneously, the question would not operate as res judicata.
• iv. A rule of procedure cannot supersede the law of land.
• II. However, In the case of Avtar Singh v. Jagjit Singh AIR 1979 SC 1911
• The Learned Counsel for the appellants submitted that the appellants were driven from pillar to post for the redress of their grievances. When they instituted the
suit in Civil Court, that Court held that it had no jurisdiction to try it. When the suit was filed in the Revenue Court, the said Court took a contrary view. Where could
the appellants then go? We do sympathize with the appellants dilemma but they were wrongly advised to do as they did. Either they ought to have followed the
matter in the First Civil Suit and insisted up to the end that the suit was triable by a Civil Court, or, they would have taken the matter further before the higher
authorities and Court from the order of the Revenue Court and persisted that the matter whether the Civil Court had jurisdiction to decide the dispute between the
parties or not was res judicata; the Revenue Court had no jurisdiction to go behind the decision of the Civil Court. The appellants did neither. It is unfortunate that
due to the wrong paths, which they followed under wrong advice, they have ultimately to fail on the technical ground of res judicata but there is no way out.
• III. Isabella Johnson v. M.A. Susai AIR 1991 SC 993
• We find that the decision of three learned Judges of this Court is Mathura Prasad Bajoo Jaiswal v. Dossibai, N.B. Jeejeebhoy (AIR 1971 SC 2355) has not been noticed
at all by the Division Bench comprising two learned Judges of this Court which 'delivered the judgment in Avtar Singh v. Jagjit Singh, AIR 1979 Supreme Court
1911 and hence, to the extent, that the judgment in Avtar Singh's Case takes the view that the principle of res judicata is applicable to an erroneous decision on
jurisdiction, it cannot be regarded as good law. 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 la
• Therefore, it is clear from the above that decision on question of Law does not create any bar by res judicata or Estoppel.
Res Judicata landmark cases in India
• Daryao v. State of Uttar Pradesh AIR 1964 SC 1457.
• the doctrine of res judicata is of universal application was established. The Supreme Court of India placed the doctrine
of res judicata on a still broader foundation.
• In this case, petitioners filed a writ petition in the High Court of Allahabad under Article 226 of the Constitution. But
the suit was dismissed. Then they filed independent petitions in the Supreme Court under the writ jurisdiction of
Article 32 of the Constitution. The defendants raised an objection regarding the petition by asserting that the prior
decision of the High Court would be operated as res judicata to a petition under Article 32. The Supreme Court
dismissed and disagreed with the petitions.
• The court held that the rule of res judicata applies to a petition under Article 32 of the Constitution. If a petition is filed
by the petitioner in the High Court under Article 226 of the Constitution and it is dismissed on the basis of merits, it
would be operated as res judicata to bar a similar petition in the Supreme Court under Article 32 of the Constitution.
• Devilal Modi vs. Sales Tax Officer AIR 1965 SC 1150.
• A challenged the validity of an order of assessment under Article 226. The petition was dismissed on merits. An appeal
against that order was also dismissed by the Supreme Court on merits. A again filed another writ petition in the same
High Court against the same order of assessment by taking some additional grounds. The High Court dismissed the
petition on merits. On appeal, the Supreme Court held that the petition was barred by the principle of constructive res
judicata. The Court held that if constructive res judicata is not applied to such proceedings a party can file as many
petitions as he likes and take one or two points every time. That clearly is opposed to the considerations of public
policy on which res judicata is based and would mean harassment and hardship to the opponent. Besides, if such a
course is allowed to be adopted the doctrine of finality of judgments pronounced by this Court would also be
materially affected.
Res Judicata landmark cases in India
• Avtar Singh v. Jagjit Singh AIR 1979 SC 1911
• The Subordinate Judge decided that the Civil Court had no jurisdiction to try the suit and directed the return of the plaint for presentation to the
proper Revenue Court. When the plaintiffs filed their claim in the Revenue Court their petition was returned holding that the Revenue Court had no
jurisdiction to try it. Thereupon the plaintiff again instituted a suit in the Court of sub-Judge. Held that either the plaintiff ought to have followed the
matter in the First Civil suit and insisted up to the end that the suit was triable by a Civil Court, or he would have taken the matter further before the
higher authorities and Court from the order of the Revenue Court and persisted that the matter whether the Civil Court had jurisdiction to decide
the dispute between the parties or not was res judicata; and the Revenue Court had no jurisdiction to go behind the decision of the Civil Court. The
plaintiffs did neither. The suit had to fail on the technical ground of res judicata.
• Isabella Johnson v. M.A. Susai AIR 1991 SC 993
• We find that the decision of three learned Judges of this Court is Mathura Prasad Bajoo Jaiswal v. Dossibai, N.B. Jeejeebhoy (AIR 1971 SC 2355) has
not been noticed at all by the Division Bench comprising two learned Judges of this Court which 'delivered the judgment in Avtar Singh v. Jagjit
Singh, AIR 1979 Supreme Court 1911 and hence, to the extent, that the judgment in Avtar Singh's Case takes the view that the principle of res
judicata is applicable to an erroneous decision on jurisdiction, it cannot be regarded as good law. 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
• State of Uttar Pradesh v. Nawab Hussain, AIR 1977 SC 1680
• M was a sub-inspector and was dismissed from the service of D.I.G. he challenged the order of dismissal by filing a writ petition in the High Court.
He said that he did not get a reasonable opportunity of being heard before the passing of the order. However, the argument was negatived and the
petition was dismissed. He again filed a petition on the ground that he was appointed by the I.G.P. and had no power to dismiss him. The defendant
argued that the suit was barred by constructive res judicata. However, the trial court, the first appellate court as well as the High Court held that the
suit was not barred by the doctrine of res judicata. The Supreme Court held that the suit was barred by constructive res judicata as the plea was
within the knowledge of the plaintiff, M and he could have taken this argument in his earlier suit. 
• Can Res Judicata be waived?
• In the case of P.C. Ray and Company Private Limited v. Union of India AIR 1971 Cal 512  it was held that the plea of res judicata may be waived by a
party to a proceeding. If a defendant does not raise the defence of res judicata then it will be waived. The principle of res judicata belongs to the
procedure and either party can waive the plea of res judicata. The court can decline the question of res judicata on the ground that it has not been
raised in the proceedings. 

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