Q. 7. Discuss briefly: Suit expressly barred.
Ans. Suit expressly barred.-A suit is said to be “expressly barred” when it is barred by any enactment for the time being in force. For instance, Section 170 of the Representation of the People Act, 1951, reads as thus:
“No Civil Court shall have jurisdiction to question the legality of any action taken or of any decision given by the Returning Officer or by any other person appointed under this Act in connection with an election”. Likewise cases expressly made triable by Industrial Tribunal, Income-tax Tribunal, etc Rent Tribunal cannot be tried by the Civil Court.
Suit impliedly barred.-A suit is said to be impliedly barred when it is barred by general principles of law as when they are barred being against the public policy or state or state policy. In K.S. Venkataraman v. State of Madras, AIR 1966 SC 1089, it was held that generally speaking, the broad guiding considerations are that wherever a right, not pre-existing in common law, is created by a statute and that statute itself provides a machinery for the enforcement of the right and the remedy having been created suo motiu and a finality is intended to the statutory proceedings, then, even in the absence of an exclusionary provision the Civil Courts jurisdiction is impliedly barred.
In Raja Ram Kumar v. Union of India, AIR 1988 SC 752 it was held that, if, however, a right pre-existing in common law is recognised by the statute and a new statutory remedy for its enforcement provided without expressly excluding the Civil Courts jurisdiction, then both the common law and the statutory remedies might become concurrent remedies leaving open an element of election to the persons of inherence.
For instance, where an Act creates an obligation and enforces its performance in a specific way, such performance cannot be enforced in any other way.
No bar of jurisdiction in matrimonial matters. In Samar Kumar Roy v. Jharna Bera, AIR 2018 SC 334, the suit was filed for the declaration of title including declaration as to legal character of alleged marriage between parties to suit, which had never taken place either de jure or de facto. In such a case civil Court’s jurisdiction to determine the aforesaid legal character was not barred either expressly or impliedly by any law.
Q. 8. Can the following suits be tried by a Civil Court?
(i) suit for religious office.
(ii) suit against expulsion from caste.
Ans. (i) Suit for religious office can be tried by a civil Court. Because Section 9 of Civil Procedure Code, 1908 provides that the Court shall have jurisdiction to try all suits of a civil nature excepting suits of which their cognizence is either expressly or impliedly barred. Further Explanation I to the said section says that a suit in which the right to property or to an office is contested is a suit of a civil nature, notwithstanding that such right may depend entirely on the decision of questions as to religious rites or ceremonies, and Explanation II to Section 9 lays down that for the purposes of this section, it is immaterial whether or not any fees is attached to the office referred to in Explanation I or whether or not such office is attached to a particular place.
Thus, a suit in which the right to an office is contested is a suit of civil nature even though such right may depend entirely on the decision of question as to religious rites or ceremonies. Attachment of fees to the office is not necessary. Thús suit for religious office is a suit of civil nature and civil Court has power to try such suit. So suit for religious office can be tried by a civil Court.
(ii) If in any suit the main considerable question is related to caste then such suit will not be of civil nature. If any person violates the rules of caste and in consequence of that he is deprived from caste related functions e.g. marriage, caste, but none of his legal right is violated. In other words he has not lost any of his legal rights, but lost only a social privilege. Therefore, such deprived person cannot file any civil suit. He can knock at the door of the caste tribunal only.
But where a man is ex-communicated from his caste then such ex- communication affects his status, character, and reputation. It is a infringement of his legal right. Therefore, he can file a civil suit to set aside the wrongful expulsion from caste and such suit can be tried by a civil Court
Q. 9. Distinguish a civil suit from a revenue suit.
Ans. Distinction between civil suit and revenue suit- Distinction between civil suit and revenue suit may be summarized as under:
(1) The subject-matter of revenue suit is only holdings, whereas the subject-matter of civil suit may be immovable property which is not holdings. movable property and office etc.
(2) Civil suits are tried by civil Court, whereas the revenue suits are tried by revenue court.
(3) The presiding officer who hears the civil suit is a judicial officer whereas the presiding officer who hears the revenue suit is not a judicial officer but he is an administrative or quasi-judicial officer.
Q. 10. Whether the following suits are of civil nature?
(i) A suit pertaining to the office of President of University Student Union.
(ii) A suit pertaining to right to worship in a public temple.
Ans (i) Suit pertaining to the office of President of University Student Union. Suit pertaining to the office of President of University Student Union is a suit of civil nature. Because Explanation 1 of Section 9 of Civil Procedure Code, 1908 provides that a suit in which the right to property or to an office is contested is a suit of civil nature, notwithstanding that such right may depend entirely on the decision of questions as to religious rites or ceremonies. Since in given question suit is related to office of President of University student union, in which the office of President of University Union is contested, therefore, such suit is suit of civil nature.
(ii) Suit pertaining to right to worship in a public temple- Suit pertaining to right to worship in a public temple is a suit of civil nature because Explanation 1 of Section 9 of C.P.C. provides that a suit in which the right to property or to an office is contested is a suit of civil nature, notwithstanding that such right may depend entirely on the decision of questions as to religious rites or ceremonies. Since in given question suit is related to right to worship in a public temple, therefore, such suit is of a civil nature. Because every person has a right to worship in a public temple, and no person can be prevented from worshipping in a public temple. Explanation I also says that a suit in which right depends entirely on the decision of question as to religious rights or ceremonies will be a suit of civil nature. The right of worship is a religious right. Therefore a suit in which right of worship is contested is a suit of civil nature.
Res-subjudice
Q. 11. What is res-subjudice? Explain.
OR
Does the Code of Civil Procedure make a provision for preventing Courts of concurrent jurisdiction from trying at the same time two parallel suits in respect of same matter in issue? If so, what? Discuss.
Ans.Stay of Suit [Res-subjudice] [Section 10]
Section 10 of the Code of Civil Procedure lays down the law with regard stay of suits where things are under consideration of pending adjudication by a Court. Section 10 of the Code reads:
“No Court shall proceed with the trial of any suit in which the matter in issue is also directly and substantially in issue in a previously instituted suit between the same parties, or between parties under whom they or any of them claim litigating under the same title where suit is pending in the same or any other Court in India having jurisdiction to grant the relief claimed, or in any Court beyond the limits of India established or continued by the Central Government and having like jurisdiction, or before the Supreme Court.
Explanation-The pending of a suit in a foreign Court does not preclude the Courts in India from trying a suit founded on the same cause of action.
The section stipulates a mandate to the Courts not to proceed with the trial of any suit in which the matter in issue is also directly and substantially in issue in a previously instituted suit between the same parties, and the Court in which the previous suit is pending is competent to grant the relief claimed. Ambika Sahu v. Sumitra Sahu, AIR 1991 Ori. 127].
Object of section. The object of the section is to prevent a Court of concurrent jurisdiction from simultaneously entertaining and adjudicating upon two parallel litigations, in respect of the same cause of action, the same subject-matter and same relief. The policy of the law is to confine the plaintiff to one litigation, thus obviating the possibility of contradictory verdicts by two or more Courts in respect of the same relief. Section 10, C.P.C. is intended to prevent multiplicity of proceedings and passing of contradictory decree by Courts of concurrent jurisdiction.
Conditions for application of Section 10. For the application of this section the following conditions must be fulfilled:
(1) A previously instituted suit is pending in a Court. In case of 5. Kumar v. Sudhakara, AIR 2009 Ker. 170 where there was pendency of execution proceeding in a previously instituted suit, it was held that this was not a ground to stay the subsequent suit by invoking Section 10. This section lays down a procedure. It does not confer upon the parties any substantive right.
(2) The matter in issue in both suits must be substantially and directly the same. [Ashok Kumar Yadav v. Noble Designs Pvt. Ltd., AIR 2006 Cal 237]
(3) Both the suits must be between the same parties or their representatives.
(4) Such parties must be litigating under the same title in both the suits.
(5) The Court in which the previous suit is pending must have jurisdiction to grant the relief claimed in the subsequent suit
(6) The previously instituted suit must be pending in the same Court in which the subsequent suit is brought, or in any other Court in India or in any Court beyond the limits of India established or continued by the Central Government, or in the Supreme Court. For the purpose of Section 10 the date of presentation of plaint and not the date of admission is the date of institution. Hirendra v. Dhirendra, ILR 62 Cal 1115; Prism Entertainment Put. Ltd. v Prasad Productions Pvt. Ltd., AIR 2006 Cal. 206].
In this section the term ‘suit’ includes appeals. Section 10, CPC is mandatory in character and once the conditions laid down are satisfied, the Court is debarred from proceeding with the trial of the later suit. The earlier suit cannot be stayed in the exercise of inherent power under Section 151. [Conceicoo Phillip Sequeira v. Pal Fransiscoo Sequeira, AIR 1976 Goa 48)
Stay of suit can not be ordered merely on account of pendency of criminal case between same parties. (Arun Bhimavad v. Anshul Jain, AIR 2016 MP 63]
Where one of the proceedings is not a suit. An important question in this regard is as to whether Section 10, C.P.C. can apply where one of the two proceedings is not a suit. In Inderpal Singh v. BT. Wollen Mill, (AIR 1974 Del. 95), the Delhi High Court answering the question in negative has observed that Section 10 of the Code of Civil Procedure applies only to suits and cannot apply where one of the two proceedings is not a suit.
Similarly, in Usha Rani v. Indermal, AIR 1988 Raj. 223, it was held that merely because the application under Section 20 of the Arbitration Act is numbered and registered as a suit, it does not become a suit within the meaning of the CP.C. and Section 10 will have no application. It was also pointed out that one test of the applicability of Section 10, CPC to a particular case is whether on the final decision being reached in the previous suit, such decision would operate as res judicata in the subsequent suit.
Effect of contravention. A decree passed in contravention of Section 10 is not a nullity and can be executed.
Consolidation of suits. The words “Court shall proceed with the trial of any suit were intended to bar the separate trial of any suit in which the matter in issue was also directly and substantially in issue in a previously instituted suit between the same parties. But these Words do not apply to the simultaneous hearing of a late and earlier suit after the consolidation of the two. Section 10 was not intended to take away the inherent powers of the Court to consolidate for the interests of justice in appropriate cases. [Gupta v. East Asiatic Co., AIR 1960 All. 184].
Matter in issue. In Tandon v. Rawat, [AIR 1978 Del. 221], the Delhi High Court observed that it is not the requirement of the law that matter in the issues involved in the two suits should be totally identical, but they must be substantially the same [G.P. Chetty v. M. Ramaswamy, (1967) 2 Andh WR 442]. In Wallace Co. Lid v. B.M.N. Sherwalee [AIR 1975 Cal. 411] See also Mehta Gandhi v. Shree Pipes Ltd., AIR 1990 Del. 139), it has been held that the expression “matter in issue” in Section 10 has reference to the entire subject- matter in issue between the parties and mere identity of some of the issues in both the suits is not sufficient to attract Section 10; and unless the decision of the suits operates as res judicata in the other suit it cannot be said that the matter in issue is directly and substantially the same in both the suits that is to say that the decision in one suit must non-suit the other suit before it can be said that the matter in both the suits is directly and substantially the same.
Q. 12. (a) What do you mean by res-judicata? What are the essentials of it?
OR
What do you understand by the principle of res-judicata? Discuss the essential conditions of the doctrine of res-judicata.
(b) State whether it applies to co-defendants.
Ans. (a) Res-judicata: Meaning of
Res-judicata is based on the following maxims of Roman Jurisprudence:
(i) Interest republicae ut sit finis litium. (It is in the interest of State that litigation should not be protracted but finished).
(ii) Nemo debet bis vexari pro una et eadem causa. (No man ought to be vexed twice for one and the same cause).
(iii) ‘Res-judicata pro veritate occipitur (A judicial decision must be accepted as correct).
Res judicata literally means, a matter adjudicated, a thing judicially acted upon or decided, a thing or matter settled by judgments. (Dr. Subramaniam Suami v. State of Tamil Nadu, AIR 2015 SC 460]
Res-judicata connotes a thing already adjudicated upon. ‘Res’ means a thing and judicate’ means already decided.
The rule as enunciated in Section 11 of the Civil Procedure Code runs asbfollows :
“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”.
Essentials of res judicata
To constitute a matter res-judicata the following conditions must be fulfilled:
(1) Matter directly and substantially in issue. There must be the matter directly and substantially i 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 former suit.
It is not enough to constitute a matter res judicata that it was in issue in the former suit. It is further necessary that it must have been in issue “directly and substantially”. And a matter cannot be said to have been “directly and substantially” in issue unless it was alleged by one party and denied or admitted either expressly or by necessary implication by other. [Loman Kutty v. Thomman, AIR 1976 SC 1645]
“A matter in issue” between the parties is the right claimed by one party and denied by the other, in another words it means the facts on which the right is claimed and the law which has applicability to determine that issue. Thus, in order to constitute a matter res-judicata, it is necessary that it was in issue in the former suit directly and substantially. For example.
A sues B as principal on contract, the suit is dismissed. Then A sues B as principal on the same contract. Held, that the suit was barred by the principle of res-judicata for “matter in issue” namely contract in dispute was the same in the subsequent suit as was in former suit. In another words, it was directly and substantially in issue in the subsequent suit.
If the matter was in issue directly and substantially in a prior litigation and decided against a party then the decision would be res-judicata in a subsequent proceeding.
Under Explanation IV it has also been made clear that 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 in such suit. For example:
A sues B for a sum of money on a contract for the supply of boats and on failing therein sues B again for the same amount as compensation for services rendered in supplying boats. The suit is barred inasmuch as the latter ground could have been advanced as a ground of attack in the former suit.
In the case of Y.L. Sud v. Ansal Properties and Industries Ltd., AIR 2006 (NOC) 894 (Del) it was observed by the Delhi High Court that when subsequent suit did contain identical cause of action, issue or rights determined of same parties the suit could not be stayed on the basis-of res judicata. If the questions raised in subsequent suit are altogether different than those raised in earlier case in subsequent suit such suit would not be dismissed on ground of res judicata Gwalior Sugar Company Ltd v State of M.P. AIR 2006 MP 218)
When the question of qualification or disqualification could have been raised and was not raised by the contesting respondents, then it cannot be said that principles of res judicata or constructive res judicata is applicable IV. Prakash v. M/s Govindswamy Naidu & Sons Charities, AIR 2022 SC 2795)
(2) Same parties. The former suit must have been a suit between the same parties or between parties under whom they or any of them claim Explanation VI of Section 11 is to be read with this condition which runs as thus:
“Explanation VI-Where persons litigate bona fide in respect of a public right 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”
Thus, the condition recognizes the principle that judgment and decrees bind only parties and privies. Privy in English Law means a person who claims under a party. When the parties in the subsequent suit are different from those in the former suit there is no res-judicata. This condition may be illustrated as thus:
A sues X for rent, X says that M and not A is the owner, and Court holds that A has failed to prove his title to the land in suit. A then sues X and M for a declaration of his title to the land. The suit is not barred because the parties in both the suits are not the same.
The case of Wali Mohd. v. Ralmat Bee, AIR 1999 SC 1136, illustrates the situation where parties and property in question are the same in the earlier and subsequent suit. Here ‘B’ in earlier suit filed against ‘A’ sought declaration of his right to manage and possess a graveyard and Dargah. The trial Court gave the finding that the property in question was waqf property and graveyard, Dargah and the house were under the management of A The Court gave a further finding that the house in question was used as Musafir Khana. It was held that both the above finding operate as res judicata in subsequent suit by ‘A’ as Mutwalli against B for possession.
For the purpose of this element meaning of term “former suit” shall be the same as defined under Explanation I which reads as thus.
“Explanation 1-The expression ‘former suit shall denote a suit which has been decided prior to the suit in question whether or not it was instituted prior thereto.”
In the case of Union of India v. Pramod Gupta, AIR 2005 SC 3708 it was held that the principle of res judicata would apply only when the lis (suit) was inter partes (between the same parties) and attained finality in respect of issue involved. The aforementioned principle will however, have no application in a case where the judgment or an order had been passed by a Court having no jurisdiction or in case involving pure question of law. It will have no value in a case where the judgment is not a speaking one.
For the application of Section 11 of C.PC, it is necessary that litigation was conducted bona fide, in the absence of fraud or collusion, negligence or even gross negligence would not amount to want of bona fide. [Kumarandy v V Subramania, 52 Mad LJ 641)
(3) Same title. The parties as aforesaid must have litigated under the same title in the former suit.
Term “Same title” connotes the “same capacity of the parties in which they sue or are sued. It has no concern with the cause of action or with the subject-matter of two suits. If right claimed in subsequent suit is the same as was in the previous suit, the subsequent suit will be barred.
Adversely, if a right is claimed under a different title the subsequent suit is not barred as res-judicata for example:
A sues B for possession of certain lands alleged to have come to his share on a partition of joint-family property with B. The defence is that the family property has not yet been divided, and the suit is dismissed on a finding to that effect. A subsequent suit by A against B for partition of the family property is not barred.
A brings a suit against B to recover possession of math property claiming it as the heir of a deceased mahant. The suit is dismissed because A failed to produce a certificate of succession to establish his heirship. If A brings another suit against B claiming the math property as manager of the math on behalf of the math, it will not be barred by res judicata because in the two suits A has sued in two different capacities.
First suit is instituted for possession as reversioner of A. Second suit is filed for the same relief as reversioner of B. In both the cases the claim is as an individual and therefore, under the same title. Hence the subsequent suit is barred.
In case of Harbans Singh v. Sant Hari Singh, AIR 2009 SC 677, where the appellant did not claim any right, title and the interest in his individual capacity but he was the vice-president of the Managing Committee which had raised the claim, the Supreme Court held that for all intent and purposes he was also a plaintiff in the suit and therefore affected by res-judicata.
(4) Competent Court. 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 subs subsequently raised. Explanations anations II and VIII of the section is to be read with this condition. The explanations read as thus:
“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 re 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.”
The Supreme Court has held that in order to determine whether a Court which decided the former suit had jurisdiction to try the subsequent suit, regard must be had to the jurisdiction of the Court at the date of the former suit and not to its jurisdiction at the date of the subsequent suit. [Jervantha v Hanumantha, AIR 1954 SC 9, M.H. Ravindranath v. MLH. Rao AIR 1988 Mad 177]
In case of Chandrabhai K. Bhoir v. Krishna Arjun Bhoir, AIR 2009 SC 1645 where an order was passed by the Court without jurisdiction, it was held that such order is a nullity, Coram non judice and non-est in the eye of law. Therefore, principle of res-judicata cannot apply in such cases.
In applying the principle of res-judicata it is the competency of original Court that should be considered. If the decision of the original Court is not within its jurisdiction the fact that the decision was confirmed in appeal or writ petition will not make it valid and binding.
Administrative decisions by executive authorities do not bind Courts and much less operate as res-judicata. [State of West Bengal v. Subhash Kumar Chatterjee, AIR 2010 SC 2927).
(5) Heard and finally decided.-This condition requires that 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. In other words, it should appear that the Court has exercised its judicial mind and thereafter has come to final decision upon any issue of law or fact, a decision which was necessary to the determination of the suit. [P. Venkata Subba Rao v Jagannath Rao, AIR 1967 SC 591].
Decision in earlier round of litigations operates as res judicata where challenge to legality of proceedings had not been negativated. [Indore Development Authority v. Manoharlal, AIR 2020 SC 1496].
Thus, Section 11 envisages a matter having been heard and decided finally by a Court and, therefore, that section does not apply to a consent decree [Parasuram v. Pandu, AIR 1956 Hyd. 178) Court further held that there cannot be res-judicata if the former suit had been dismissed as settled out of Court. Therefore, subsequent suit is not barred by res-judicata.
In the following cases a decision is said “to have been heard and finally decided” provided the decision was on merit:
(i) Ex-parte judgments and decree;
(ii) Dismissal of a suit under Order XVII, Rule 3, С.Р.С.
(ili) Decree and judgment based on an award.
(iv) Dismissal of suit owing to plaintiff’s failure to adduce evidence at the hearing.
(v) Dismissal of a suit under Order IX, Rule 3, C.P.C
Where a suit abates and attains finality, another suit for the same property becomes barred [Madan Mohan Mishra v. Chandrica Pandey, (2009) 2 Supreme 107.]
In the following cases a decision cannot be said “to have been heard and finally decided as the decision is not on merit of the cases :
(i) Suit dismissed for want of jurisdiction.
(ii) Suit dismissed for default of plaintiff’s appearance under Order IX Rule 8, but a fresh suit on the same cause of action may be barred under Order IX, Rule 9,
(ill) Suit dismissed for non-joinder or misjoinder of parties o multifariousness or the suit being badly framed or some othe technical ground.
(iv) Suit dismissed for plaintiff’s failure to produce probate or letters a ( administration or succession certificate when the same is requines by law to entitle the plaintiff to a decree.
(v) Suit dismissed for failure to furnish security for cost under Orde XXV, Rule 2
(vi) Where the earlier suit is dismissed on similar other technical ground without finding on the rights and interests of the parties.
Regarding this essential. Explanation V attached to Section 11 n deserved to be mentioned which runs as thus:
“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 hav been refused.”
But in a money suit where issue regarding payment of interest was no heard and decided in writ petition filed earlier the suit for the payment of interest would not be barred by res judicata. [State of Bihar v. Shakti Tube Ltd. AIR 2006 Pat. 177).
In case of Noharlal Verma v. Distt. Co-operative Central Bank Ltd. All 2009 SC 664, it was held that to constitute res-judicata it is not enough tha the matter was directly and substantially in issue in the previous suit bu requirement of the Section 11 is that the matter must have been heard an finally decided also. In other words it must be seen that in arriving at decision or definite finding upon the issue of law or fact the Court ha exercised its judicial mind.
Executability once upheld, second challenge would be barred by principle of res-judicata (Fingertips Solutions Pet Ltd v Dhanashre Electronics Ltd., AIR 2016 NOC 690 Cal.).
(b) Res-judicata between co-defendants
A matter may be res judicata between the co-defendants also. If A files suit against B and C. and there is a matter directly and substantially eithe actually or constructively in issue between 8 and C and unless al adjudication is given upon this matter. the suit of A against 8 and C cannot b determined, then the adjudication may operate as res judicata in a subsequen suit between B and C in which either of them is plaintiff and the othe defendant. The following conditions must be fulfilled before a matter can b res judicata between co-defendants-
(i) a conflict of interest between the co-defendants,
(ii) the necessity to decide that conflict in order to give the plainti appropriate relief,
(iii) a decision of the question between the co-defendants,
(iv) the co-defendants were necessary parties in the former su Gurdev Singh v. Chandrika Singh, ILR 36 Cal. 1931
The rules of res puticata amongst co-defendants is also governed by the rules which apply to normal rules of res judicata. [Most Rev PLA Metropolitan v. Moran Mar Marthoma, AIR 1995 SC 2001).
In Mahbob Sahab v. Syaed Ismail, (AIR 1995 SC 1205), the Supreme Court emphasized that while applying the doctrine of res judicata between co- defendants caution is to be taken. The Apex Court expressed its opinion in following words :
“The doctrine of res judicata would apply even though the party against whom it is sought to be enforced was not co-nominee made a party nor entered appearance nor did he contest the question. The doctrine of res judicata must, however, be applied to co-defendants with great caution, the reason is that fraud is an extrinsic collateral act, which vitiates the most solemn proceeding of Courts of Justice. If a party obtains a decree from the Court by practicing fraud or collusion, he cannot be allowed to say that the matter is res judicata and cannot be re-opened.”
Q. 13. Explain and illustrate the principle of constructive res judicata. Can an ex parte decree operate as an res judicata?
Ans. Constructive Res judicata
Constructive res-judicata is provided under Explanation IV to Section 11 of the Code. Explanation IV reads as thus:
“Any matter which might and ought to have been made a ground of attack or defence in the former suit shall be deemed to have been directly and substantially in issue in that suit.”
Thus, a matter which might or ought to have been made a ground of attack or defence is a matter which is constructively in issue, ie, though it is not actually in issue directly and substantially This section makes no difference between the claim that was actually made in a suit and the claim, that might and ought to have been made if the parties had opportunity of controverting it, that is, the same thing as if the matter had been actually controverted and decided. An adjudication is conclusive and final not only as to the actual matter determined but as to every other matter which the parties might have litigated and had been decided as incident to or essentially connected with the legitimate purview of the original action both in respect of matters of claim or defence [Aanaimuthu Thevar v. Alagammal, AIR 2005 SC 4004].
Explanation IV to Section 11 of the Code of Civil Procedure would have come into play only if same decision had been finally given before the second application was filed. In that event it could have been urged that all available point should have been urged before that decision was given.
In this case the second application was filed before any decision on the first application was given. The appellants could have been instead of filing a second application, amended their first application and taken these pleas in that application itself. Had they amended the first application there would have been no bar of res judicata or constructive res judicata. If that be so the contention that the second application was barred by principles of res judicata or constructive res judicata cannot be accepted (International Wollen Mills v. Standard Wool (VK) Ltd., AIR 2001 SC 2134]
A suit under Section 92 of the Code is a representative suit and as such binds not only the parties named in the suit title but ad those who are interested in the trust. It is clear that Section 11 read with its Explanation IV leads to the result that a decree passed in a suit instituted by persons to which Explanation IV applies will bar further claims by persons in the same right in respect of which the prior suit had been instituted. Explanation IV thus illustrates one aspect of constructive res judicata. The same result follows if a suit is either brought or defended under Order I, Rule 8. [R. Naidu v. V.N Charities, AIR 1990 SC 444].
In Food Corporation of India v. Ashis Kumar Ganguli, AIR 2009 SC 2582, the petitioners were absorbed in service by FCI., who were deputationists from the State Government. They filed first writ petition against their absorption in Grade III and it was allowed. They filed second writ petition for grant of advancement increment. It was pleaded that constructive res judicata will apply to the second appeal, but such plea was not admitted. In first petition no such claim has been raised where no certainty was existed as to grade. Such plea was also not raised before the High Court. It was held by the Supreme Court that such claim cannot be raised for the first time before the Apex Court.
Ex parte decree as a res judicata. A matter can be said to have been heard and finally decided notwithstanding that the former suit was disposed of ex-parte.
Q. 14. Distinguish between the followings:
1. Res judicata and Res subjudice.
2. Actual and constructive Res-judicata.
3. Res judicata and Estoppel.
Ans. 1. Res judicata and Res subjudice: Distinction
The rule of res judicata may be distinguished from res-subjudice in this respect, that rule of res-subjudice relates to a matter which is pending in judicial inquiry while the rule of res judicata relates to a matter adjudicated upon or a matter on which judgment has been pronounced.
Rule of res-subjudice bars the trial of a suit in which the matter directly and substantially is pending adjudication in a previous suit whereas rule of res judicata bars the trial of a suit or an issue in which the matter directly and substantially in issue already had been adjudicated upon in a previous suit.
2. Actual and constructive Res-judicata: Distinction
(1) Actual res-judicata is provided in Section 11 of the Code, while on the other hand constructive res-judicata is provided in Explanation IV attached to Section 11 of the Code.
(2) When the matter directly and substantially in issue in the subsequent suit had been directly and substantially in issue in the former suit, it shall be the case of actual res-judicata if other essential of res-judicata are satisfied.
(3) The rule of res-judicata is based on public policy, te, it is in the interest of the State that there be an end to litigation, interest republicate ut sit finis litiam.
The object of the rule of subjudice is to prevent Courts of concurrent jurisdiction from simultaneously trying two parallel suits in respect of the same matter in issue and the same reliefs claimed by the parties.
While on the other hand, when a matter which might or ought to have been made a ground of attack or defence but had not been so made, it would br the case of constructive res-judicata. In other words when a matter in issue in the subsequent suit was not directly and substantially in issue in the former suit but if deemed that it ought to have been so made, it would be the case of constructive res-judicata.
(4) Actual res-judicata is a genus while constructive res-judicata is a species.
3. Res judicata and Estoppel: Distinction
Generally, the doctrine of res-judicata is treated as a branch of the law of estoppel. Even then res judicata differs from estoppel in many aspects.
Doctrine of res judicata differs from estoppel chiefly in not resulting from an act of party himself but from a decision of Court, whereas estoppel is the act of a party himself.
The rule of res judicata proceeds on the ground of public policy, ie, there should be an end to litigation while the rule of estoppel proceeds upon the doctrine of equity, viz., that one who by his conduct has induced another to alter his position to his disadvantage, cannot be allowed to turn round and take advantage of such alteration in the other’s position.
Estoppel is a part of the Law of Evidence, as provided in Section 115 of the Indian Evidence Act. It prevents a man from saying one thing at one time and opposite thing at another time, while res judicata precludes a man from agitating the same thing in successive litigations.
The rule of res judicata prohibits an inquiry in limine (at the thresh-hold) and ousts the jurisdiction diction of the Court to try the case while estoppel is only a rule of evidence.
The doctrine of res judicata is based on the presumption that the decision given in former suit is true while estoppel prevents a party from revoking what he has already accepted as truth.
Q. 15. State the utility of res-judicata and elaborate its elements.
Ans. Utility of res-judicata. The rule of res-judicata prevents plurality of suits between the parties for the same relief after there has been executable judgment between them. This bar does not relate to judgments only but extends to all facts involved in it as necessary for decision, i.e., a judgment operates as a a bar with respect to all findings which are essential to sustain the judgment.
Thus, if a decree is passed on the footing of facts admitted res-judicata extends not merely to the actual decision in the case but to the common facts admitted by both the parties and made the foundation of the decree.
Multiplicity of the proceedings are tried to be barred by the provisions of res-judicata and it accords finality to an issue, which directly and substantially had arisen in the former suit between the same parties or their privies been decided and became final, so that parties are not vexed twice over, vexatious litigation would be put to an end and the valuable time of the Court is saved. It is based on public policy, as well as private justice. They would apply therefore, to all judicial proceedings whether civil or otherwise. It equally applies to quasi-judicial proceedings of the tribunals other than the civil Courts.
Q. 16. What is the position of constructive res-judicata with regard to a subsequent suit when a former suit has been dismissed for the want of jurisdiction?
Ans. When a former suit has been dismissed for the want of jurisdiction, it cannot operate as res-judicata to a subsequent suit. Because a judgment given by a Court which is not competent to deliver it cannot operate as res judicata. For the application of the rule of res-judicata, it is necessary that the Court trying the former suit must have been competent to try the subsequent suit itself. Explanation II of Section 11 is to be read with this condition. Mere competency of the former Court to try the issue raised in the subsequent suit is not enough. The competency of the former Court must have existed at the time of institution of the suit. In case of Gokul Mander v. Premanand, 29 IA 196 ILR 29 Cal 707, the Privy Council held: A decree in a previous suit cannot be pleaded as res-judicata in a subsequent suit unless the Judges by whom it was made had jurisdiction to try and decide not only the particular matter in issue, but also the subsequent suit itself in which the issue is subsequently raised.
Thus, when a former suit has been dismissed for the want of jurisdiction it cannot operate as res-judicata.
Q. 17. Whether doctrine of res-judicata is applicable to a proforma defendant?
Ans. Res-judicata and Proforma defendant. The rule of res judicata applies to proforma defendant also, unless the plaintiff has conveyed to the defendant that no relief would be claimed against him. [Official Assinee v Modholal Sindhu, AIR 1947 Bom. 217].
Illustration
A and B sue C. A dies pendente lite, and his son is brought on the record as a proforma defendant. On his refusal to join as a plaintiff, case is decided in C’s favour. Matter is not res judicata between C and D was a proforma defendant only. [M.K. Ratan v. Sunder Munda, AIR 1939 Pat. 225)
Foreign Judgment
Q. 18. What do you mean by a Foreign Judgment? When is a foreign judgment not conclusive? Are foreign judgments binding on the party of India?
Ans. Foreign Judgment: Meaning of “Foreign judgment” means the judgment of a foreign Court. [Section 2 (6))
When foreign judgment not conclusive. Section 13 of the Code provides that a foreign judgment shall be conclusive as to any matter thereby directly adjudicated upon between the same parties or between parties they of any of them claim litigating under the same title.
Thus, from the provision of Section 13 it is clear that foreign judgmen shall be conclusive and shall operate as res-judicata except in the six case mentioned in section, but it must be final and conclusive in that Court in which it was passed. It will operate as bar to fresh suit in this country on thr same cause of action. The judgment is to be treated as conclusive with respec to any matter thereby directly adjudicated upon between the same parties o between parties under whom they or any one of them claim litigating under the same title. What is conclusive under Section 13 is the judgment that is the fira adjudication and not the reasons given for the adjudication (M. Ponnastшат K.TP. Pillai (1980) 2 ML] 155]
A foreign judgment is not conclusive as to any matter directly adjudicated upon, if one of the conditions specified in clauses (a) to (f) of Section 13 is satisfied and it will then be open to a collateral attack. (Satya v. Teja Singh, AIR 1975 SC 105]. These conditions are as thus:
(1) Where the judgment has not been pronounced by Court of competent jurisdiction.
(2) Where the judgment is not given on merits of the case, e.g., an ex-parte judgment, a judgment on the basis of compromise.
(3) Where the judgment appears on the face of the proceedings to be founded on an incorrect view of the International Law, or a refusal to recognise the law of India in cases in which such law is applicable.
(4) Where proceedings in which the judgment was obtained are opposed to natural justice.
(5) Where the judgment has been obtained by fraud.
(6) Where the judgment sustains a claim founded on a breach of any law in force in India.
In Renu Sagar Powers Co. Ltd. v. General Electric Co. Ltd., AIR 1994 SC 860, it was held by the Supreme Court that if foreign judgment is against foreign policy, it cannot be accepted.
(1) Judgment by Court of competent jurisdiction.-Judgment of a foreign Court to be conclusive between the parties must be a judgment pronounced by a Court of competent jurisdiction. The Court delivering the judgment must be competent by law of the State which has constituted it and in international sense. It also must have directly adjudicated upon the matter before it.
(2) Foreign judgment given without merit.-Foreign judgment must be delivered after taking evidence and after applying mind regarding truth or falsehood of the case. Thus, if suit is dismissed for default of appearance of the plaintiff it shall not operate as res judicata.
(3) Foreign judgment founded on incorrect view of the international law. When foreign judgment is based on the incorrect view of the international law or refusal to recognise the law of India, where such law is applicable, it shall not be conclusive.
(4) Foreign judgment against natural justice. If the foreign judgment has been given in contravention of natural justice i.e without giving reasonable notice to the parties to the dispute or without affording adequate opportunity of presenting the case, it shall not acquire binding nature and shall not operate as res judicata. For the purpose of this exception “natural justice” means regularities in procedure, rather than merit of the case.
In Narhari v. Pannalal, AIR 1976 SC 164, the Supreme Court held that a decree passed by a foreign Court shall be valid and executable if the defendant had voluntarily submitted to its jurisdiction by filing a written statement to the plaint.
(5) Foreign judgment obtained by fraud-Where foreign judgment is obtained by misleading the Court, it shall not be conclusive. Further, fraud should be direct and actual In other words, it must consist of representations designed and intended to mislead. Mere concealment of fact is not sufficient to render null and void a foreign judgment.
All judgments whether pronounced by domestic or foreign Courts are void if obtained by fraud, for fraud vitiates the most solemn proceeding of a Court of Justice. [Mahboob Saheb v Syed Ismail, AIR 1995 SC 1205, Chengalnaraya v. Jagannath, AIR 1994 SC 853].
(6) Foreign judgment given in breach of any law in force in India. If foreign judgment is based on breach of Indian law for the time being in force in India, it shall not be conclusive. For example, if it is given in violation of provisions of law of limitation in India, it shall not be conclusive.
Binding on the parties of India. Foreign judgment would be binding on the both parties if it was passed on merits of case in presence of both parties by the competent court. [Sanjay Angad Chaddha v. Deepa Sanjay Chaddha, AIR 2011 NOC 393 Bom.].
As per Section 13, Order of Supreme Court of California deciding dispute regarding custody of minor child must be construed as conclusive and binding between parties. Minor child being citizen of U.S.A., Supreme Court of California shall have most intimating contact and closest concern, although while being in India for temple visit minor child had been snatched by mother from father with help from police. [P.K. Srikumar v. Harshitha Gopinathan AIR 2016 Mad. 187).
Q. 19. What do you mean by jurisdiction of the Court? What kinds this jurisdiction be of?
Ans. Jurisdiction of the Court: Meaning of In its wide sense the expression “jurisdiction” means the extent of the power of the Court for entertaining suits, appeals and applications for adjudication. The term “jurisdiction” in its technical sense means the extent of the authority or power of a Court to impart justice not only with reference to the subject-matter of the suit but also to the local and pecuniary limits within which the Court can entertain the suit presented before it.
Kinds of jurisdiction
Jurisdiction can be classified into the following four categories –
1. Jurisdiction over the subject-matter. Different Courts have beer allotted different types of work. A Small Causes Court has authority to try only certain suits of non-contentious types, ie, suit in respect of loan on promissory notes or bonds, suits for recovery of price of goods supplied of work done but it has no jurisdiction to try suits for partition or for injunctio or for specific performance of contract. Only the District Judge has the jurisdiction in respect of testamentary matters, divorce cases, cases o guardianship, insolvency proceedings.
2. Local or territorial jurisdiction. The territorial limit of the jurisdiction of a Court is fixed by the Government and beyond that limit it has no jurisdiction. Thus, the District Judge has jurisdiction within his district only. The High Court has jurisdiction over its State only and not beyond. In the same way the jurisdiction of a Munsif is also limited to a particular area.
3. Pecuniary jurisdiction. Some of the Courts are authorised to entertain suits or appeals upto a particular amount. Some of those Courts have unlimited pecuniary jurisdiction, such as the High Court, the District Judge and the Civil Judge have unlimited pecuniary jurisdiction.
4. Original or appellate jurisdiction. Some of the Courts exercise only original jurisdiction, e.g., the Munsif and the Judges of the Small Causes Court. The Civil Judges, District Judges and the High Courts have been conferred appellate power.