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res judicata - part 1

1.nemo debet bis vexari pro una et eadem causa (no man should be vexed for the same cause);

2.interest reipublicae ut sit finis litium (it is in the interest of the State that there should be an end to a litigation); and

3. res judicata pro veritate occipitur (a judicial decision must be accepted as correct).

Supreme Court of India

Lal Chand (Dead) By L.Rs. & Ors vs Radha Kishan on 17 December, 1976

In the circumstances, the present suit is also barred by the principle of res judicata. The fact that s. 11 of the Code of Civil Proce- dure cannot apply on its terms, the earlier proceeding before the competent authority not being a suit, is no answer to the extension Of the principle underlying-that section to the instant case. Section 11, it is long since settled, is not exhaustive and the principle which motivates that section can be extended to cases which do not fall strictly within the letter of the law. The issues involved in the two proceedings are identical, those issues arise as between the same parties and thirdly, the issue now sought to be raised was decided finally by a competent quasi- judicial tribunal. The principle of res judicata is con- ceived in the larger public interest which requires that all litigation must, sooner than later, come to an end. The principle is also founded on equity, justice and good con- science which require that a party which has once succeeded on an issue should not be permitted to be harassed by a multiplicity of proceedings involving determination of the same issue.

Supreme Court of India

Jaswant Singh & Anr vs The Custodian Of Evacuee ... on 7 May, 1985

It is well settled that in order to decide the question whether a subsequent proceeding is barred by res judicata it is necessary to examine the question with reference to the (i) forum or the competence of the Court, (ii) parties and their representatives, (iii) matters in issue, (iv) matters which ought to have been made ground for defence or attack in the former suit and (v) the final decision. In order that a defence of res judicata may succeed it is necessary to show that not only the cause of action was the same but also that the plaintiff had an opportunity of getting the relief which he is now seeking , in the former proceedings. The test is whether the claim in the subsequent suit or proceedings is in fact founded upon the same cause of action which was the foundation of the former suit or proceedings.

Supreme Court of India

Sheodan Singh vs Smt. Daryao Kunwar on 14 January, 1966

We may at the out set refer to the relevant provisions of s. 11 of the Code of Civil Procedure insofar as they are material for present purposes. They read thus :

"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. "Explanation I-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. It is not necessary to refer to the other Explanations.

A plain reading of s. 11 shows that to constitute a matter res judicata, the following conditions must be satisfied, namely-

(i)The matter directly and substantially in issue in the subsequent suit or issue must be the same matter which was directly and substantially in issue in the former suit;

(ii)The former suit must have been a suit between the same parties or between, parties under whom they or any of them claim;

(iii)The parties must have litigated under the same title in the former suit;

(iv)The court which decided the former suit must be a court competent to try the subsequent suit or the suit in which such issue is subsequently raised; and

(v)The matter directly and substantially in issue in the subsequent suit must have been heard and finally decided by the Court in the first suit. Further Explanation I shows that it is not the date on which the suit is filed that matters but the date on which the suit is decided, so that even if a suit was filed later, it will be a former suit if it has been decided earlier.

Supreme Court of India

Daryao And Others vs The State Of U. P. And Others(And ... on 27 March, 1961

We, must now proceed to state our conclusion on the preliminary objection raised by the respondents. We hold that if a writ petition filed by a party under Art. 226 is considered on the merits as &-contested matter, and is dismissed the decision thus pronounced would continue to bind the parties unless it is otherwise modified or reversed by appeal or other appropriate proceedings permissible under the Constitution. It would not be open to a party to ignore the said judgment and move this Court under Art. 32 by an original petition made on the same facts and for obtaining the same or similar orders or writs. If the petition filed in the High Court under Art. 226 is dismissed not on the merits but because of the laches of the party applying for the writ or because it is held that the party had an alternative remedy available to it, then the dismissal of the writ petition would not constitute a bar to a subsequent petition under Art. 32 except in cases where and if the facts thus found by the High Court may themselves be relevant even under Art. 32. If a writ petition is dismissed in limine and an order is pronounced in that behalf, whether or not the dismissal would constitute a bar would depend upon the nature of the order. If the order is on the merits it would be a bar; if the order shows that the dismissal was for the reason that the petitioner was guilty of laches or that he had an alternative remedy it would not be a bar, except in cases which we have already indicated. If the petition is dismissed in limine without passing a speaking order then such dismissal cannot be treated as creating a bar of res judicata. It is true that, prima facie, dismissal in limine even without passing a speaking order in that behalf may strongly suggest that the Court took the view that there was no substance in the petition at all; but in the absence of a speaking order it would not be easy to decide what factors weighed in the mind of the Court and that makes it difficult and unsafe to hold that such a summary dismissal is a dismissal on merits and as such constitutes a bar of res judicata against a similar The petition filed under Art. 32. If the petition is dismissed as withdrawn it cannot be a bar to a subsequent Gaj petition under Art. 32, because in such a case there has been no decision on the merits by the Court. We wish to make it clear that the conclusions thus reached by us are confined only to the point of res judicata which has been argued as a preliminary issue in these writ petitions and no other.

Supreme Court of India

Union Of India vs Pramod Gupta (D) By Lrs. & Ors on 7 September, 2005

The principle of res judicata would apply only when the lis was inter- parties and had attained finality in respect of the issues involved. The said principle will, however, have no application inter alia in a case where the judgment and/ or order had been passed by a court having no jurisdiction therefor and / or in a case involving pure question of law. It will also have no application in a case where the judgment is not a speaking one.

it is clear that if the earlier judgment which is sought to be made the basis of res judicata is delivered by a court without jurisdiction or is contrary to the existing law at the time the issue comes up for reconsideration such earlier judgment cannot be held to be res judicata in the subsequent case unless, of course, protected by any special enactment."

In Ramnik Vallabhdas Madhvani and Others Vs. Taraben Pravinlal Madhvani [(2004) 1 SCC 497],, it was observed:

"Principles of res judicata is a procedural provision. The same has no application where there is inherent lack of jurisdiction."

The question of application of principle of res judicata, thus, is required to be considered afresh in the light of the discussions made hereinbefore.

For the views we have taken, it is axiomatic, the principles of res judicata shall have no application in respect of the cross-objections filed by the Respondents.

Arjun Singh vs Mohindra Kumar & Ors on 13 December, 1963

It is needless to point out that interlocutory orders are of various kinds; some like orders of stay, injunction or receiver are designed to preserve the status quo pending the litigation and to ensure that the parties might not be prejudiced by the normal delay which the proceedings before the court usually take. They do not, in that sense, decide in any manner the merits of the controversy in issue in the suit and do not, of course, put an end to it even in part. Such orders are certainly capable of being altered or varied by subsequent applications for the same relief, though normally only on proof of new facts or new situations which subsequently emerge. As they do not impinge upon the legal rights of parties to the litigation the principle of res judicata does not apply to the findings on which these orders are based, though if applications were made for relief on the same basis after the same has once been dis- posed of the court would be justified in rejecting the same as an abuse of the process, of court. There are other orders which are also interlocutory, but would fall into a different category. The difference from the ones just now referred to lies in the fact that they are not directed to maintaining the status quo or to preserve the property pending the final adjudication, but are designed to ensure the just, smooth, orderly and expeditious disposal of the suit. They are interlocutory in the sense that they do not decide any matter in issue arising in the suit, nor put an end to the litigation. The case of an application under O. IX. r. 7 would be an illustration of this type. If an application made under the provisions of that rule is dismissed and an appeal were filed against the decree in the suit in which such application were made, there can be no doubt that the propriety of the order rejecting the reopening of the proceeding and the refusal to relegate the party to an earlier stage might be canvassed in the appeal and dealt with by the appellate court. In that sense, the refusal of the court to permit the defendant to "set the clock back" does not attain finality. But what we are concerned with is slightly different and that is whether the same Court is finally bound by that order at later stages, so as to preclude its being reconsidered. Even if the rule of resjudicata does not apply it would not follow that on every subsequent day on which the suit stands adjourned for further hearing the petition could be repeated and fresh orders sought on the basis of identical facts. The principle that repeated applications based on the same facts and seeking the same reliefs might be disallowed by the court does not however necessarily rest on the principle of resjudicata. Thus if an application for the adjournment of a suit is rejected, a subsequent application for the same purpose even if based on the same facts, is not barred on the application 'of any rule of res judicata, but would be rejected for the same grounds on which the original application was refused. The principle underlying the distinction between the rule of res judicata and a rejection on the ground that no new facts have been adduced to justify a different order is vital. If the principle of resjudicata is applicable to the decision on a particular issue of fact, even if fresh facts were placed before the Court, the bar would continue to operate and preclude a fresh investigation of the issue, whereas in the other case, on proof of fresh facts, the court would be competent, nay,, would be bound to take those into account and make an order conformably to the facts freshly brought before the court.

Delhi High Court

Subhashini Malik vs S.K. Gandhi & Ors on 6 September, 2016

The expression want or lack of jurisdiction means usurpation of power, unwarranted in law. Jurisdiction as a concept is incapable of strict conceptualisation as it has varied shades and hues.

146. Jurisdiction of Court to decide its own jurisdiction is somewhat paradoxical, yet as a first principle, it is accepted that each court, including a court or forum of limited jurisdiction, in the absence of a specific statutory mandate to the contrary, has the power to decide whether or not it can try and decide the matter. It is also difficult to conceive of a civil court or a tribunal which has omnibus and unlimited jurisdiction, unrelated and not circumscribed with reference to the subject matter, person, territory or the amount involved. This principle of legal self-reference has been dealt with subsequently also.

147. Explanation VIII to Section 11 relating to res judicata, incorporated by the Code of Civil Procedure (Amendment) Act, 1976, reads:-

―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 purport of the said Explanation is to incorporate and affirm the ‗bootstrap doctrine', which in Black's Law Dictionary, Eighth Edition, has been defined as:-

―If the court which rendered the judgment has, with the parties before it, expressly passed upon the jurisdictional question in the case, or had opportunity to do so because the parties could have raised the question, that question is res judicata, and is therefore not subject to collateral attack in the state in which the judgment issued on. This has been called the ‗bootstrap doctrine', the idea being that a court which initially had no jurisdiction can when the issue is litigated lift itself into jurisdiction by its own incorrect but conclusive finding that it does have jurisdiction.‖ This doctrine has its limitations especially when the enactment itself states that the judgment of the court of the limited jurisdiction can be challenged in collateral proceedings, or is not finally determinative, or when the defendant has not appeared. In the first situation, the question would arise whether the Legislature had granted power to the Court or forum of limited jurisdiction, the authority to decide its own jurisdiction. Indeed the Explanation VIII quoted above uses the expression ―competent to decide such issue‖. Pertinently in the present case, the Judges on the Original side of this Court exercising jurisdiction and power under Section 9 of the Code are not regarded as Courts of limited jurisdiction.

148. Secondly, a distinction must be drawn between subject-matter jurisdiction and pecuniary or territorial jurisdiction. In each situation, the question relates to the jurisdiction of the court, but in the case of territorial or pecuniary jurisdiction, the want of jurisdiction of this kind may be remedied by waiver, consent or acquiescence. These are treated as jurisdictional defects which can be cured. Thus, in spite of lack of jurisdiction, a party can be precluded from raising an objection even at the stage of appellate proceedings. There is case law which suggests that the Bootstrap Doctrine, without statutory backing, cannot give binding effect to a judgment by a Court that had no subject matter jurisdiction.

149. Section 21 of the Code of Civil Procedure, 1908 (CPC or Code for short) reads as under:-

―21. Objections to jurisdiction.- (1) No objection as to the place of suing shall be allowed by any Appellate or Revisional Court unless such objection was taken in the court of first instance at earliest possible opportunity and in all cases were issues are settled, at or before such settlement, and unless there has been a consequent failure of justice.

(2) No objection as to the competence of a Court with reference to the pecuniary limits of its jurisdiction shall be allowed by any Appellate or Revisional Court unless such objection was taken in the court of first instance at the earliest possible opportunity, and in all cases where sues are settled, at or before such settlement, and unless there has been a consequent failure of justice.

(3) No objection as to the competence of the executing Court with reference to the local limits of its jurisdiction shall be allowed by any Appellate or Revisional Court unless such objection was taken in the executing Court at the earliest possible opportunity, and unless there has been consequent failure of justice.‖

150. Section 11 of the Suit Valuation Act, 1887 reads:-

―11. Procedure where objection is taken on appeal on revision that a suit or appeal was not properly valued for jurisdictional purposes. -

(1) Notwithstanding anything 1[in section 578 of the Code of Civil Procedure (14 of 1882)] and objection that by reason of the over-valuation or under- valuation of quit or appeal a Court of first instance or lower Appellate Court which had no jurisdiction with respect to the suit or appeal exercise jurisdiction with respect thereto shall not be entertained by an Appellate Court unless. -

(a) The objection was taken in the Court of first instance at or before the hearing at which issues were first framed and recorded, or in the lower Appellate Court in memorandum of appeal to that Court, or

(b) The Appellate Court is satisfied, for reasons to be recorded by it in writing, that the suit or appeal was over-valued or under-valued, and that the over-valuation or under-valuation thereof has prejudicially affected the disposal of the suit or appeal on its merits.

(2) If the objection was taken in the manner mentioned in clause (a) of sub-section (1), but the Appellate Court is not satisfied as to both the matters mentioned in clause (b) of that sub-section and has before it the materials necessary for the determination of the other grounds of appeal to itself, it shall dispose of the appeals as if there had been no defect of jurisdiction in the Court of first instance or lower Appellate Court.

(3) If the objection was taken in that manner and the Appellate Court is satisfied as to both those matters and has not those materials before it, it shall proceed to deal with the appeal under the rules applicable to the Court with respect to the hearing of appeals; but if it remands the suits or appeal, or frames and refers issues for trial, or requires additional evidence to be taken, it shall direct its order to a Court competent to entertain the suit or appeal.

(4) The provisions of the section with respect to an Appellate Court shall, so far as they can be made applicable, apply to a Court exercising revisional jurisdiction under [Section 622 of the 'Code of Civil Procedure (14 of 1882)] or other enactment for the time being in force.

(5) This section shall come into force on the first day of July 1887.‖

151. In Kiran Singh and Others versus Chaman Paswan and Others, AIR 1954 SC 340, it was observed as under:-

―6. The answer to these contentions must depend on what the position in law is when a court entertains a suit or an appeal over which it has no jurisdiction, and what the effect of Section 11 of the Suits Valuation Act is on that position. It is a fundamental principle well established that a decree passed by a court without jurisdiction is a nullity, and that its invalidity could be set up whenever and wherever it is sought to be enforced or relied upon, even at the stage of execution and even in collateral proceedings. A defect of jurisdiction, whether it is pecuniary or territorial, or whether it is in respect of the subject-matter of the action, strikes at the very authority of the court to pass any decree, and such a defect cannot be cured even by consent of parties. If the question now under consideration fell to be determined only on the application of general principles governing the matter, there can be no doubt that the District Court of Monghyr was coram non judice, and that its judgment and decree would be nullities. The question is what is the effect of Section 11 of the Suits Valuation Act on this position.

7. Section 11 enacts that notwithstanding anything in Section 578 of the Code of Civil Procedure an objection that a court which had no jurisdiction over a suit or appeal had exercised it by reason of overvaluation or undervaluation, should not be entertained by an appellate court, except as provided in the section. Then follow provisions as to when the objections could be entertained, and how they are to be dealt with. The drafting of the section has come in -- and deservedly -- for considerable criticism; but amidst much that is obscure and confused, there is one principle which stands out clear and conspicuous. It is that a decree passed by a court, which would have had no jurisdiction to hear a suit or appeal but for overvaluation or undervaluation, is not to be treated as, what it would be but for the section, null and void, and that an objection to jurisdiction based on overvaluation or undervaluation, should be dealt with under that section and not otherwise. The reference to Section 578, now Section 99 CPC, in the opening words of the section is significant. That section, while providing that no decree shall be reversed or varied in appeal on account of the defects mentioned therein when they do not affect the merits of the case, excepts from its operation defects of jurisdiction. Section 99 therefore gives no protection to decrees passed on merits, when the courts which passed them lacked jurisdiction as a result of overvaluation or undervaluation. It is with a view to avoid this result that Section 11 was enacted. It provides that objections to the jurisdiction of a court based on overvaluation or undervaluation shall not be entertained by an appellate court except in the manner and to the extent mentioned in the section. It is a self-contained provision complete in itself, and no objection to jurisdiction based on overvaluation or undervaluation can be raised otherwise than in accordance with it. With reference to objections relating to territorial jurisdiction, Section 21 of the Civil Procedure Code enacts that no objection to the place of suing should be allowed by an appellate or Revisional Court, unless there was a consequent failure of justice.

It is the same principle that has been adopted in Section 11 of the Suits Valuation Act with reference to pecuniary jurisdiction. The policy underlying Sections 21 and 99 of the Civil Procedure Code and Section 11 of the Suits Valuation Act is the same, namely, that when a case had been tried by a court on the merits and judgment rendered, it should not be liable to be reversed purely on technical grounds, unless it had resulted in failure of justice, and the policy of the legislature has been to treat objections to jurisdiction both territorial and pecuniary as technical and not open to consideration by an appellate court, unless there has been a prejudice on the merits. The contention of the appellants, therefore, that the decree and judgment of the District Court, Monghyr, should be treated as a nullity cannot be sustained under Section 11 of the Suits Valuation Act.‖ A reading of the aforesaid paragraphs would show that the Supreme Court had accepted the general principle that a decree passed by the court without jurisdiction is a nullity and the plea of invalidity can be raised at the stage of execution or even in collateral proceedings. However, the Supreme Court did make a distinction between subject- matter and pecuniary/ territorial jurisdiction and observed that the question of over or undervaluation cannot be entertained by the appellate court, except when provided in Section 21 of Code. This principle stands out and is clear. The question of over-valuation or under- valuation has to be dealt with as per the terms of the said Section and not otherwise for when a judgment is rendered on merits, it should not be reversed purely on technical grounds, unless it has resulted in the failure of justice. Even on the question of subject-matter jurisdiction, some dent has been made by incorporation of Explanation VIII to Section 11 CPC, which pertains to res judicata and binding force on a judgment even of a court of limited jurisdiction, provided it is competent to decide the issue of jurisdiction. In that event, an unsuccessful party cannot initiate collateral proceedings notwithstanding that the court of limited jurisdiction was not competent to try such proceeding or issues. It is difficult to accept and approve that a contesting losing side/defendant can file a suit to declare a decree as a nullity for want of pecuniary jurisdiction. Collateral separate proceedings would not lie and would be rejected.

152. Section 15 of the Code reads as under:-

"S.15. Court in which suits to be instituted.-Every suit shall be instituted in the Court of the lowest grade competent to try it."

The aforesaid Section in simple and plain language states every suit has to be instituted in the court of the lowest grade competent to try it. When a suit is triable by a court of the lowest grade but is instituted in a court of higher grade, the latter court has jurisdiction to examine the question of its own jurisdiction and return the plaint if it does not have jurisdiction. It is the valuation in the plaint that determines jurisdiction, the averments made in the written statement generally being irrelevant to the question of jurisdiction. However, in view the provisions of Section 11 of the Suit Valuation Act, 1887 and the decisions of the Supreme Court in Tara Dev versus Thakur Radha Krishna Maharaj, AIR1987 SC 2085, Nandita Bose versus Ratanlal Nahata, AIR 1987 SC 1947, it is settled principle that although the plaintiff's valuation of a suit determines the pecuniary jurisdiction of the Court, such valuation of claims cannot be arbitrary. In V. Ramamirtham, Sole Proprietor, Glorious Pictures versus Rama Film Service, AIR 1951 Madras 93 (FB), Viswanatha Shastri, J. opined that the object of Section 15 of the Code is to prevent superior courts from being flooded or over-crowded with suits triable by the inferior courts. The Section primarily regulates the procedure and not ―jurisdiction‖.

The Section recognises that courts or more than one court would have jurisdiction to try a suit and, therefore, uses the expression ‗ the court of the lowest grade'. Reference to this Full Bench decision is not with a view to undermine the salutary object of Section 15 of the Code, but to highlight the difference between subject matter and pecuniary jurisdiction, the latter being dependent on the valuation of the suit These are different and distinct facets of jurisdiction, all of which cannot be put in a straitjacket.

153. Lastly, a distinction must be drawn between institution of the suit in the court of competent jurisdiction at the start of the proceedings, and subsequent change resulting lack of jurisdiction. The court or tribunal may subsequently lose jurisdiction in certain circumstances, including when the jurisdiction is ousted by the statutory provisions. This is what has happened and transpired in the present case.

04. Res judicata - part 1
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