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res judicata part 2

Supreme Court of India

Pandurang Ramchandra Mandlik ... vs Smt. Shantabai Ramchandra Ghatge ... on 12 September, 1989

Section 11 of the C.P.C. which deals with res judicata provides:

"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 par- ties, 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."

(Explanations I to VIII are not so relevant for the purpose of this case) In Duchess of Kingston's case Sir William de Grey said:

"From the variety of cases relative to judgments being given in evidence in civil suits, these two deductions seem to follow as generally true: first that judgment of a court of concurrent jurisdiction, directly upon the point, is, as a plea, a bar, or as evidence conclusive between the same parties, upon the same matter, directly in question in another Court; secondly that the judgment of a Court of exclusive jurisdiction, directly on the point, is, in like manner, conclusive upon the same matter, between the same parties, coming incidentally in question in another Court, for a different purpose. But neither the judgment of a Court, of concurrent or exclusive juris- diction is evidence of any matter which came collaterally in question, though within their jurisdiction nor of any matter incidentally cognizable, nor of any matter to be inferred by argument from the judgment."

Section 11 bars the trial of a suit or issue in which the matter directly and substantially in issue has already been adjudicated upon in a previous suit. This Section applies in terms to cases where the matter in issue in a subsequent 'suit' was an issue in a "former suit". A 'suit' is a proceeding which is commenced by a plaint. As provided in Section 26 of the C.P.C. every suit shall be instituted by the presentation of a plaint or in such other manner as may be prescribed.

It is true that s. 11 is now made applicable by the Explanations and interpretation to certain proceedings giving more extensive meaning to the word 'suit'. In its comprehensive sense the word 'suit' is understood to apply to any proceeding in a court of justice by which an individ- ual pursues that remedy which the law affords. The modes of proceedings may be various but that if a right is litigated between parties in a court of justice the proceeding by which the decision of the Court is sought may be a suit. But if the proceeding is of a summary nature not failing within the definition of a suit, it may not be so treated for the purpose of s. 11.

It is true that ex parte decrees operate to render the matter decided res judicata, and the defendants' failure to appear will not deprive the plaintiff of the benefit of his decree. But in the case of a suit in which a decree is passed ex parte, the only matter that can be 'directly and substantially in issue' is the matter in respect of which relief has been claimed by the plaintiff in the plaint. A matter in respect of which no relief is claimed cannot be 'directly and substantially in issue' in a suit in which a decree is passed ex parte though the Court may have gone out of its way and declare the plaintiff to be entitled to relief in respect of such matter.

The expression 'heard and finally decided' in s. 11 means a matter on which the court has exercised its judicial mind and has after argument and consideration come to a decision on a contested matter. It is essential that it should have been heard and finally decided. What operates as res judicata is the ratio of what is fundamental to the decision but it cannot be ramified or expanded by logical extension.

In Vithal Yaswant v. Shikandar Khan Mutumukhtan, AIR 1963 SC 385, it has been held by this Court that when a court bases its decision on more than one point, each of which would by itself be sufficient for the ultimate decision, the decision on each one of those points would be res judicata. In the instant case what were the points specifically urged and decided are not clear.

In Pandurang Mahadeo Kavade & Ors. v. Annaji Balwant Bokil & Ors., [1971] 3 SCC 530 it was held that in order to operate as res judicata it must be established that the previous decision was given by a court which had jurisdiction to try the present suit, and there would be no res judicata if the previous decision was by a court having no jurisdiction. Of course that was a case of pecuniary jurisdiction, but there is no reason why the same principle should not apply in other cases of courts without jurisdiction. The law is well settled that a court which had no jurisdiction to try a cause cannot by its own erroneous decision confer on itself competence to decide it and its decision on the question of jurisdiction cannot operate as res judicata. Conversely the decision relating to jurisdiction cannot be said to consti- tute the bar of res judicata where by an erroneous interpretation of a statute it holds that it has no jurisdiction. It is stated that there was no appeal filed by the defendants from the order of the Mamlatdar. That is not material.

In Ramchandra Rao v. Ramchandra Rao, [1922] 49 I.A. 129, the Privy Council decided that where the suit as to the title for compensation had been referred to the Court, a decree thereon was not appealed from, the question of title would be res judicata in a suit between the parties to the dispute.

In Bhagwan Dayal v. Mst. Reoti Devi, [1962] 3 SCR 440, a dispute arose as to proprietary title. A suit was filed in a Revenue Court under the U.P. Tenancy Act. The Revenue Court framed an issue thereon and referred it to the Civil Court as required by the Act. The Civil Court held that the respondent had a half share in the villages and on the basis of this finding the Revenue Court decreed his suit. Thereafter, the appellant filed a suit in Civil Court for a declaration that he was the absolute owner of all the property in the suit.