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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. The defendants contended that the suit was barred by res judicata. This Court held that a subsequent suit was not barred by res judicata by the Judgment of the Revenue Court, as it was not within the exclusive jurisdiction of the Revenue Court and suit was maintainable in the Civil Court. The Judgment of the Revenue Court on the issue of proprietary title could not operate as res judicata as a Revenue Court was not competent to try the subsequent suit. In the instant case, the Mamlatdar declined to exercise jurisdiction holding that the Act did not apply. If an issue is referred to it by the trial court under the Act, the question of jurisdiction would not arise and there could be no question of res judicata as to jurisdiction of the Mamlatdar on reference.

Supreme Court of India

Gangabai W/O Rambilas Gilda vs Chhabubai W/O Pukharajji Gandhi on 6 November, 1981

It seems to us that when a finding as to title to immovable property is rendered by a Court of Small Causes res judicata cannot be pleaded as a bar in a subsequent regular civil suit for the determination or enforcement of any right or interest in immovable property. In order to operate as res judicata the finding must be one disposing of a matter directly and substantially in issue in the former suit and the issue should have been heard and finally decided by the court trying such suit. A matter which is collaterally or incidentally in issue for the purposes of deciding the matter which is directly in issue in the case cannot be made the basis of a plea of res judicata. It has long been held that a question of title in a Small Cause suit can be regarded as incidental only to the substantial issue in the suit and cannot operate as res judicata in a subsequent suit in which the question of title is directly raised.

The next contention on behalf of the appellant is that sub-s.(1) of s. 92 of the Evidence Act bars the respondent from contending that there was no sale and, it is submitted, the respondent should not have been permitted to lead parole evidence in support of the contention. Section 91 of the Evidence Act provides that when the terms of contract, or of a grant, or of any other disposition of property, have been reduced to the form of a document, and in all cases in which any matter is required by law to be reduced to the form of a document, no evidence shall be given in proof of the terms of such contract, grant or other disposition of property, or of such matter, except the document itself. Sub-s. (1) of s. 92 declares that when the terms of any contract, grant or other disposition of property, or any matter required by law to be reduced to the form of a document, have been proved according to the last section, no evidence of any oral agreement or statement shall be admitted, as between the parties to any such instrument or their representatives in interest, for the purpose of contradicting, varying, adding to, or subtracting from, its terms And the first proviso to s. 92 says that any fact may be proved which would invalidate any document, or which would entitle any person to any decree or order relating thereto; such as fraud, intimidation, illegality, want of due execution, want of capacity in any contradicting party, want or failure of consideration, or mistake in fact or law. It is clear to us that the bar imposed by sub-s. (1) of s. 92 applies only when a party seeks to rely upon the document embodying the terms of the transaction. In that event, the law declares that the nature and intent of the transaction must be gathered from the terms of the document itself and no evidence of any oral agreement or statement can be admitted as between the parties to such document for the purpose of contradicting or modifying its terms. The sub- section is not attracted when the case of a party is that the transaction recorded in the document was never intended to be acted upon at all between the parties and that the document is a sham. Such a question arises when the party asserts that there was a different transaction altogether and what is recorded in the document was intended to be of no consequence whatever. For that purpose oral evidence is admissible to show that the document executed was never intended to operate as an agreement but that some other agreement altogether not recorded in the document, was entered into between the parties. Tyagaraja Mudaliyar and another v. Vedathanni. The Trial Court was right in permitting the respondent to lead parole evidence in support of her plea that the sale deed dated January 7, 1953 was a sham document and never intended to be acted upon. It is not disputed that if the parole evidence is admissible, the finding of the court below in favour of the respondent must be accepted. The second contention on behalf of the appellant must also fail.


There can be no doubt that the plea of res judicata can be waived by a party. The plea is decidedly dependent upon proof or disproof of so many facts. If a party chooses not to plead such facts, it can be stated to have waived the plea. In Firm Sansarchand Lachnman Das v. Dina Nath Dube, (AIR 1935 All 645), the plea of res judicata was deemed waived and it was observed that the basis of this salutary rule is that if a party who could raise the plea of res judicate does not raise the same when an opportunity is given to him he must be deemed to have waived it.

In Jagadish Chandra Deo v. Gour Hari Mahato. (AIR 1936 PC 258), it was held that a party raising a plea of res judicata is not entitled to go into the question of res judicata, when it has not been properly raised by the pleadings or in the issues, particularly in the issues. In the instant case, neither any plea has been taken, nor any issue was sought for.

In Neelakanta Pillai Mathe-van Pillai v. Neelamma Pillai. (AIR 1952 Tray-Co 452), the plea of res judicata was considered waived as it was not properly raised in the pleadings. It was further held that ordinarily, it is not permissible to allow a plea of res judicata to be raised for the first time in appeal. To invoke the doctrine of res judicata, the ingredients contemplated by Section 11 of the Civil P. C. should be satisfied. The Court has to see whether the elements that constitute res judicata are present in a given case, which means an investigation into the facts bearing upon the several aspects, contemplated by that section. It is not a pure question of law which could be debated at any stage. (See Anjanevulu v. Ramayya. (AIR 1965 Andh Pra 177) (FB). Similarly in Smt. Sukhmi v. Smt. Sukhbasi, (AIR 1967 All 423) and Girdhari Lal v. Guranditta. Mal. (1967) 69 Pun LR 1062 para 5--it was held that a plea of res judicata not pressed should be deemed to be waived.

Punjab-Haryana High Court

Chanan Dass vs Union Of India (Uoi) And Ors. on 8 May, 1968

It was held by a Division Bench of the Calcutta High Court in Rajani Kumar Mitra v. Ajmaddin Bhuiya, AIR 1929 Cal 163 -

"The bar of res judicata is one which does not affect the jurisdiction of the Court but is a plea in bar, which a party is at liberty to waive. .......

Where there are two conflicting decrees, the last should prevail on the ground that in the eye of law it is binding between the parties and the previous decree should be taken as pleaded in the latter suit and not given effect to, or must henceforth be regarded as dead."

In Nagenbala Dasee v. Sridam Mahato AIR 1933 Cal 69, it was observed:

"If a party does not put forward a plea of res judicata, he must be taken to have waived it and to have intentionally invited the Court to decide the case on the merits."

To the same effect is the decision of another Bench of the Calcutta High Court in Khaje Habibulla v. Bepin Chan-dra Rai. AIR 1936 Cal 454, where it was remarked-

"Where in an appeal by the plaintiff, from a suit which has been dismissed, although it is open to defendants to support the order of dismissal on the ground of res judicata, they do not do so and the suit is remanded to be heard on merits, they are precluded from raising the plea of res judicata subsequently."

In Firm Sansarchand Lachhman Das v. Dina Nath Dube AIR 1935 All 645, it was held-

"If two conflicting decrees have been obtained by parties in two different Courts or even from the same Court then the last one should be the effective decree between the parties and the first decree should be regarded as dead The basis of this salutary rule is that if a party who could raise the plea of res judicata does not raise the same when an opportunity is given to him he must be deemed to have waived it. The plea of res judicata is not one which affects the jurisdiction of a Court. It is a plea in bar and such a plea can be waived ."

Ram Harakh (Dead) By Lrs. vs Hamid Ahmed Khan (Dead) By Lrs. And ... on 28 August, 1997

All these aspects would be required to be considered before the plea of res judicata could be entertained. Such a contention of res judicata based on mixed questions of law and facts, therefore, cannot be entertained by us for the first time at this stage.. On the facts of the present cases it has to be held that the contention of res judicata was waived by the appellants before all the authorities below. It was also not a pure question of law. Hence it is too late in the day for the appellants to raise this contention for the first time at the stage of arguments in these appeals.

Supreme Court of India

Smt. V. Rajeshwari vs T.C. Saravanabava on 16 December, 2003

But as pointed out in Syed Mohd. Salie Labbai (Dead) By Lrs. & Ors. Vs. Mohd. Hanifa (Dead) by Lrs. & Ors.  (1976) 4 SCC 780, the basic method to decide the question of res judicata is first to determine the case of the parties as put forward in their respective pleadings of their previous suit and then to find out as to what had been decided by the judgment which operates as res judicata. It is risky to speculate about the pleadings merely by a summary of recitals of the allegations made in the pleadings mentioned in the judgment. The Constitution Bench in Gurbux Singh Vs. Bhooralal  (1964) 7 SCR 831, placing on a par the plea of res judicata and the plea of estoppel under Order II Rule 2 of the Code of Civil Procedure, held that proof of the plaint in the previous suit which is set to create the bar, ought to be brought on record. The plea is basically founded on the identity of the cause of action in the two suits and, therefore, it is necessary for the defence which raises the bar to establish the cause of action in the previous suit. Such pleas cannot be left to be determined by mere speculation or inferring by a process of deduction what were the facts stated in the previous pleadings. Their Lordships of the Privy Council in Kali Krishna Tagore Vs. Secretary of State For India in Council & Anr.  (1887-88) 15 Indian Appeals 186, pointed out that the plea of res judicata cannot be determined without ascertaining what were the matters in issues in the previous suit and what was heard and decided. Needless to say these can be found out only by looking into the pleadings, the issues and the judgment in the previous suit.

That apart the plea, depending on the facts of a given case, is capable of being waived, if not properly raised at an appropriate stage and in an appropriate manner. The party adversely affected by the plea of res judicata may proceed on an assumption that his opponent had waived the plea by his failure to raise the same. Reference may be had to Pritam Kaur w/o S. Mukand Singh Vs. State of Pepsu and Ors.  AIR 1963 Punjab 9 (Full Bench) and Rajani Kumar Mitra & Ors. Vs. Ajmaddin Bhuiya  AIR 1929 Calcutta 163, and we find ourselves in agreement with the view taken therein on this point). The Privy Council decision in Sha Shivraj Gopalji Vs. Edappakath Ayissa Bi & Ors.  AIR 1949 Privy Council 302, appears to have taken a different view but that is not so. The plea of res judicata was raised in the Trial Court, however, it was not pressed but it was sought to be reiterated at the stage of second appeal. Their Lordships held that being a pure plea in law it was available to the appellant for being raised. Their Lordships were also of the opinion that in the facts of that case, apart from the principle of res judicata, it was unfair to renew the same plaint in fresh proceedings. The Privy Council decision is distinguishable.

Reverting back to the facts of the present case, admittedly the plea as to res judicata was not taken in the Trial Court and the First Appellate Court by raising necessary pleadings. In the First Appellate Court the plaintiff sought to bring on record the judgment and decree in the previous suit, wherein his predecessor-in-title was a party, as a piece of evidence. He wanted to urge that not only he had succeeded in proving his title to the suit property by the series of documents but the previous judgment which related to a part of this very suit property had also upheld his predecessor's title which emboldened his case. The respondent thereat, apprised of the documents, did not still choose to raise the plea of res judicata. The High Court should not have entered into the misadventure of speculating what was the matter in issue and what was heard and decided in the previous suit. The fact remains that the earlier suit was confined to a small portion of the entire property now in suit and a decision as to a specified part of the property could not have necessarily constituted res judicata for the entire property, which was now the subject matter of litigation.

Supreme Court of India

State Of Punjab vs Bua Das Kaushal on 13 October, 1970

The only point which remains for disposal is whether the principle of res judicata could be waived and was actually waived in the present case. In Medapati Surayya v. Tondapu Bala Gangadhara Ramakrishna Reddi their Lordships observed ". . . there was no issue on this point and the question of res judicata has to be specially pleaded. The record shows that this question was not argued before the High Court and before the trial court respondent l's pleader argued exactly the contrary of his present argument, namely, that the decision in the previous suit could not operate as res judicata. That was obviously because two of the findings in that suit were in favour of the alienees. Their Lordships are therefore unable to accept this argument." (in this case the plea of waiver was not upheld but court recognized that res judicata can be waived)

The position in the present case is entirely different. Although no specific plea was taken in the written statement nor was any issue framed before the trial court but the necessary facts were present to the mind of the parties and were gone into by the court.

05. Res judicata - part 2
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