res judicata - some advance points (practice purpose)

Whether issue of res judicata can be decided as preliminary issue?

IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL

Writ Petition (M/S) No. 964 of 2015

Decided On: 05.04.2019

Cooper Pharma Vs. Shamshad Ahmad

Order 14 Rule 1 is in regard to the framing of issues. There are two kinds of issue. First, issue of fact; and second, issue of law. Under sub-rule (2) of Order 14, Rule 2, C.P.C., there is third kind of issue, which is mixed issue of law and of fact. In the present case, plea of res judicata has been taken by the defendant whereupon issue was framed by the trial court and it has been decided in favour of the plaintiffs. An issue of law can be decided as a preliminary issue whereas the mixed issue of fact and law cannot be decided as a preliminary issue. It is well settled that an issue of res judicata is a mixed issue of law and fact and it has to be decided on proper pleadings and evidence of parties. Thus, this Court is of the view that the trial court has committed illegality in deciding the issue of res judicata as the preliminary issue. However, suit need not to be dismissed at this stage under the provisions contained in Order 7 Rule 11 C.P.C and is apparently not barred by any law.

Whether second suit will be barred by res judicata if first suit was dismissed as it was premature?

IN THE HIGH COURT OF BOMBAY

Second Appeal No. 795 of 2005

Decided On: 16.04.2019

Shrikant Waman Pawaskar Vs. Deepali Dinanath Pawaskar

In the case of Sheodan Singh v. Daryao Kunwar, reported in MANU/SC/0264/1966 : AIR 1966 Supreme Court 1332 (V 53 G 257), wherein it is held that -

"In order that a matter may be said to have been heard and finally decided, the decision in the former suit must have been on the merits. Where, for example, the former suit was dismissed by the trial court for want of jurisdiction, or for default of plaintiff's appearance, or on the ground of non-joinder of parties or misjoinder of parties or multifariousness, or on the ground that the suit was badly framed, or on the ground of a technical mistake, or for failure on the part of the plaintiff to produce probate or letters of administration or succession certificate when the same is required by law to entitle the plaintiff to a decree, or for failure to furnish security for costs, or on the ground of improper valuation or for failure to pay additional court fee on a plaint which was undervalued or for want of cause of action or on the ground that it is premature and the dismissal is confirmed in appeal (if any), the decision not being on the merits would not be res judicata in a subsequent suit."

It is not that every matter decided in a former suit, can be pleaded as res-judicata in a subsequent suit. To consider a matter "res-judicata", one of the conditions is, 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. To support the plea of res-judicata, it is not enough that the same matter shall be in issue. It is also important that the matter was heard and finally decided. The expression "heard and finally decided" refers to a matter on which the Court, having exercised its judicial mind, has recorded a finding and arrived at a decision on a contested matter.

Thus, taking into consideration the facts of the case and the ratio laid down in the case of Shedon Singh (supra), I hold and conclude that since the rejection of the first suit on the ground that the same was premature and not on merits, the findings rendered in the first suit are not binding on the parties, as well as, on the learned trial Judge in the second suit on the ground of res-judicata. The Question is answered accordingly.

Procedural matters in criminal law do not create res judicata for subsequent consideration : SC

CRIMINAL APPEAL NO(s). 853 OF 2019

STATE REPRESENTED BY INSPECTOR OF POLICE

CENTRAL BUREAU OF INVESTIGATION ...APPELLANT(S)

VERSUS

M. SUBRAHMANYAM ...RESPONDENT(S)

In a corruption case, the CBI could not file authorization letter with the charge-sheet and therefore subsequently, they filed an application for bringing the same on record. The court rejected the same as the CBI could not give any satisfactory explanation. CBI again tried to bring the authorization on record by another application. This time the court applied Section 362 CrPC and rejected the application. Ultimately, the matter reached the Supreme Court.

It is in this context the Supreme Court observed "The truth and veracity of the authorisation order not being in issue, the failure to file it along with the charge­sheet was anomission constituting a procedural lapse only. The rejection of the first application on 11.03.2008 not having been ordered on merits, but for failure to furnish a satisfactory explanation for the delay, Section 362 Cr.P.C has no relevance on facts. We are, therefore, of the opinion that there was no impediment in the appellant seeking to bring the same on record subsequently under Section 173(2)(5)(a) of the Code. The consequences of disallowing the procedural lapse were substantive in nature".

It also observed "The failure to bring the authorisation on record, as observed, was more a matter of procedure, which is but a handmaid of justice. Substantive justice must always prevail over procedural or technical justice".

The Supreme Court further observed "To hold that failure to explain delay in a procedural matter would operate as res judicata will be a travesty of justice considering that the present is a matter relating to corruption in public life by holder of a public post".

It quoted some observations from its earlier judgment as "There is major difference between substantive provisions defining crimes and providing punishment for the same and procedural enactment laying down the procedure of trial of such offences. Rules of procedure are handmaiden of justice and are meant to advance and not to obstruct the cause of justice. It is, therefore, permissible for the court to expand or enlarge the meanings of such provisions in order to elicit the truth and do justice with the parties".

IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NO. 5276 OF 2008

Govindammal (Dead) By Lrs. and Ors. ...Appellants

Versus

Vaidiyanathan and Ors. ...Respondents

The Supreme Court has reiterated that the following four conditions are required to be satisfied while considering the applicability of the doctrine of res judicata as between co-defendants:

There must be a conflict of interest between the defendants concerned;

It must be necessary to decide the conflict in order to give the reliefs which the plaintiff claims;

The question between the defendants must have been finally decided; and

The co-defendants were necessary or proper parties in the former suit.

The court referred to Privy Council decisions in this aspect and also the decision of the Supreme Court in Mahboob Sahab vs. Syed Ismail and Others, and said: “It is true that under Section 11 of the CPC, when the matter has been directly or 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, the decree in the former suit would operate as res judicata between the plaintiff and the defendant or as between the co-plaintiffs or co-defendants. For instance, if in a suit by P against D1 and D2, the matter is directly and substantially in issue between D1 and D2 and adjudication upon that matter was necessary to determine the suit to grant relief to P, the adjudication would operate as res judicata in subsequent suits between D1 and D2 in which either of them is plaintiff or defendant. In other words, if a plaintiff cannot get his claimed relief without trying and deciding a case between the co-defendants, the court will try and decide the case in its entirety including the conflict of interest between the co-defendants and the codefendants will be bound by the decree. But if the relief given to the plaintiff does not require or involve a decision of any case between co-defendants, the co-defendants will not be bound as between each other.”

When issue of ownership in injunction suit will constitute res judicata?

Supreme Court of India

Union Of India vs Vijay Krishna Uniyal (D) Thr. Lrs on 23 October, 2017

A finding on title cannot be recorded in a suit for injunction, unless there are necessary pleadings and appropriate issue regarding title (either specific, or implied as noticed in Annaimuthu Thevar v. Alagammal, MANU/SC/0416/2005 : (2005) 6 SCC 202). Where the averments regarding title are absent in a plaint and where there is no issue relating to title, the court will not investigate or examine or render a finding on a question of title, in a suit for injunction. Even where there are necessary pleadings and issue, if the matter involves complicated questions of fact and law relating to title, the court will relegate the parties to the remedy by way of comprehensive suit for declaration of title, instead of deciding the issue in a suit for mere injunction."

The Court has noted that a finding of title cannot be recorded in a suit for injunction unless there are necessary and appropriate issues regarding title. This presupposes that it is not impermissible to do so. Further, where the averments regarding title are absent in a plaint and where there is no issue relating to title, the Court will not investigate or examine or render a finding on a question of title in a suit for injunction. In the present case, however, we find that not only there are clear pleadings relating to title but both sides proceeded with the trial on that assertion and invited the Court not only to frame issue regarding ownership and title in the suit property but also produced evidence in support of their respective claim in that behalf, which has been duly analysed by the Trial Court and the First Appellate Court. In the last sentence in paragraph 21(c) of the reported decision, no doubt, this Court has observed that the parties must be relegated to the remedy of a comprehensive suit by way of title instead of deciding that issue in a suit for injunction. However, that may be necessary in matters involving complicated questions of fact and law relating to title. In the present case, as observed earlier, the issue regarding title and ownership was directly put in issue and was a substantial issue adjudicated by the Court albeit in a suit for simpliciter injunction. It was not a complicated issue either on facts or in law. It has been rightly answered on the basis of admitted and indisputable facts discerned from the registered documents, admission deed, declaration deed and other documents. The decision in the case of Gram Panchayat of Village Naulakha (supra), is on the facts of that case, as is discerned from paragraphs 3 and 9 to 11 of the reported decision. The decision in the case of Purshottam Das Tandon, MANU/SC/0691/2014 : (2014) 9 SCC 344, is also on the facts of that case. The Court found that the claim of ownership of land was a contentious issue and was left open by the High Court in writ jurisdiction to be adjudicated by a competent civil court. In the present case, the fact situation leaves no manner of doubt that the issue of ownership of the suit property was directly and substantially put in issue before the civil court and was made subject matter of the suit.

18. In India, Mulla has referred to similar tests (Mulla, 15th Edn., p. 104). The learned author says: A matter in respect of which relief is claimed in an earlier suit can be said to be generally a matter 'directly and substantially' in issue but it does not mean that if the matter is one in respect of which no relief is sought it is not directly or substantially in issue. It may or may not be. It is possible that it was 'directly and substantially' in issue and it may also be possible that it was only collaterally or incidentally in issue, depending upon the facts of the case. The question arises as to what is the test for deciding into which category a case falls? One test is that if the issue was 'necessary' to be decided for adjudicating on the principal issue and was decided, it would have to be treated as 'directly and substantially' in issue and if it is clear that the judgment was in fact based upon that decision, then it would be res judicata in a latter case, (Mulla, p. 104). One has to examine the plaint, the written statement, the issues and the judgment to find out if the matter was directly and substantially in issue (Ishwer Singh v. Sarwan Singh and Syed Mohd. Salie Labbai v. Mohd. Hanifa MANU/SC/0510/1976 : (1976) 4 SCC 780). We are of the view that the above summary in Mulla is a correct statement of the law.

However, permitting the Respondents to assail the findings of the Courts below on the issue of ownership of property would be to overlook the cardinal principle that the Court would not ordinarily make an order, direction or decree placing the party appealing to it in a position more disadvantageous than in what it would have been had it not appealed .

It is well settled that GLR extract is conclusive of the fact that the land is covered by Old Grant and the rights enjoyed by the Plaintiff were merely possessory or occupancy rights in respect of the structures thereon. It is not necessary to dilate on the other authorities which are already considered in this decision.

Whether plaint can be rejected on ground of Res Judicata?

Supreme Court of India

Vaish Aggarwal Panchayat vs Inder Kumar & Ors on 25 August, 2015

The crux of the matter is whether, in the obtaining factual matrix, the High Court should have applied the principle of resjudicata. The cause of action for filing the suit is different. The grounds urged in the suit, as we find, are also quite different. Even if the plaint is read keeping in mind the cleverness and deftness in drafting, yet it is not prima facie discernible from the plaint that it lacks any cause of action or is barred by any law. On a perusal of the plaint alone it cannot be said that the suit is barred by the principle of resjudicata.

11. In this context, we may profitably refer to the decision in V. Rajeshwari v. T.C. Saravanabava[1]. In the said case, a two-Judge Bench while dealing with the concept of resjudicata has held:- “11. The rule of res judicata does not strike at the root of the jurisdiction of the court trying the subsequent suit. It is a rule of estoppel by judgment based on the public policy that there should be a finality to litigation and no one should be vexed twice for the same cause.

12. The plea of res judicata is founded on proof of certain facts and then by applying the law to the facts so found. It is, therefore, necessary that the foundation for the plea must be laid in the pleadings and then an issue must be framed and tried. A plea not properly raised in the pleadings or in issues at the stage of the trial, would not be permitted to be raised for the first time at the stage of appeal [see (Raja) Jagadish Chandra Deo Dhabal Deb v. Gour Hari Mahato[2], Medapati Surayya v. Tondapu Bala Gangadhara Ramakrishna Reddi[3] andKatragadda China Anjaneyulu v. Kattaragadda China Ramayya[4]].” After so stating, the Court further observed that:- “Not only the plea has to be taken, it has to be substantiated by producing the copies of the pleadings, issues and judgment in the previous case. Maybe, in a given case only copy of judgment in previous suit is filed in proof of plea of res judicata and the judgment contains exhaustive or in requisite details the statement of pleadings and the issues which may be taken as enough proof. But as pointed out in Syed Mohd. Salie Labbai v. Mohd. Hanifa[5] 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.”

12. We are conscious that the observations reproduced above were made in a different context but we have reproduced the same to understand the impact of the plea of resjudicata regard being had to the principle enshrined under Order VII Rule 11(d) of the C.P.C.

13. In this regard the pronouncement in Kamala and others v. K.T. Eshwara SA and others[6] would be seemly. In the said case while dealing with the principle engrafted under Order VII Rule 11(d) C.P.C., the Court has held thus:-

“21. Order 7 Rule 11(d) of the Code has limited application. It must be shown that the suit is barred under any law. Such a conclusion must be drawn from the averments made in the plaint. Different clauses in Order 7 Rule 11, in our opinion, should not be mixed up. Whereas in a given case, an application for rejection of the plaint may be filed on more than one ground specified in various sub-clauses thereof, a clear finding to that effect must be arrived at. What would be relevant for invoking clause (d) of Order 7 Rule 11 of the Code are the averments made in the plaint. For that purpose, there cannot be any addition or subtraction. Absence of jurisdiction on the part of a court can be invoked at different stages and under different provisions of the Code. Order 7 Rule 11 of the Code is one, Order 14 Rule 2 is another.

22. For the purpose of invoking Order 7 Rule 11(d) of the Code, no amount of evidence can be looked into. The issues on merit of the matter which may arise between the parties would not be within the realm of the court at that stage. All issues shall not be the subject-matter of an order under the said provision.” After so stating, while proceeding to deal with the concept of resjudicata, the Court opined:-

“23. The principles of res judicata, when attracted, would bar another suit in view of Section 12 of the Code. The question involving a mixed question of law and fact which may require not only examination of the plaint but also other evidence and the order passed in the earlier suit may be taken up either as a preliminary issue or at the final hearing, but, the said question cannot be determined at that stage.

24. It is one thing to say that the averments made in the plaint on their face discloses no cause of action, but it is another thing to say that although the same discloses a cause of action, the same is barred by a law.

25. The decisions rendered by this Court as also by various High Courts are not uniform in this behalf. But, then the broad principle which can be culled out therefrom is that the court at that stage would not consider any evidence or enter into a disputed question of fact or law. In the event, the jurisdiction of the court is found to be barred by any law, meaning thereby, the subject-matter thereof, the application for rejection of plaint should be entertained.”

14. In this regard a reference to a three-Judge Bench decision in Balasaria Construction (P) Ltd. v. Hanuman Seva Trust[7] and others would be frutiful. Be it noted the said case was referred to a larger Bench vide Balasaria Construction (P) Ltd. v. Hanuman Seva Trust[8]. The order of reference reads as follows:-

“4. This case was argued at length on 30-8-2005. Counsel appearing for the appellant had relied upon a judgment of this Court in N.V. Srinivasa Murthy v. Mariyamma[9] for the proposition that a plaint could be rejected if the suit is ex facie barred by limitation. As against this, counsel for the respondents relied upon a later judgment of this Court in Popat and Kotecha Property v. State Bank of India Staff Assn.[10] in respect of the proposition that Order 7 Rule 11(d) was not applicable in a case where a question has to be decided on the basis of fact that the suit was barred by limitation. The point as to whether the words “barred by law” occurring in Order 7 Rule 11(d) CPC would include the suit being “barred by limitation” was not specifically dealt with in either of these two judgments, cited above. But this point has been specifically dealt with by the different High Courts in Mohan Lal Sukhadia University v. Priya Soloman[11], Khaja Quthubullah v. Govt. of A.P.[12], Vedapalli Suryanarayana v. Poosarla Venkata Sanker Suryanarayana[13],Arjan Singh v. Union of India[14] wherein it has been held that the plaint under Order 7 Rule 11(d) cannot be rejected on the ground that it is barred by limitation. According to these judgments the suit has to be barred by a provision of law to come within the meaning of Order 7 Rule 11 CPC. A contrary view has been taken in Jugolinija Rajia Jugoslavija v. Fab Leathers Ltd.[15], National Insurance Co. Ltd. v. Navrom Constantza[16], J. Patel & Co. v. National Federation of Industrial Coop. Ltd.[17] and State Bank of India Staff Assn. v. Popat & Kotecha Property. The last judgment was the subject-matter of challenge in Popat and Kotecha Property v. State Bank of India Staff Assn. This Court set aside the judgment and held in para 25 as under:

“25. When the averments in the plaint are considered in the background of the principles set out in Sopan Sukhdeo case[18] the inevitable conclusion is that the Division Bench was not right in holding that Order 7 Rule 11 CPC was applicable to the facts of the case. Diverse claims were made and the Division Bench was wrong in proceeding with the assumption that only the non-execution of lease deed was the basic issue. Even if it is accepted that the other claims were relatable to it they have independent existence. Whether the collection of amounts by the respondent was for a period beyond 51 years needs evidence to be adduced. It is not a case where the suit from statement in the plaint can be said to be barred by law. The statement in the plaint without addition or subtraction must show that it is barred by any law to attract application of Order 7 Rule 11. This is not so in the present case.”

5. Noticing the conflict between the various High Courts and the apparent conflict of opinion expressed by this Court in N.V. Srinivasa Murthy v. Mariyamma and Popat and Kotecha Property v. State Bank of India Staff Assn. the Bench referred† the following question of law for consideration to a larger Bench:

“Whether the words ‘barred by law’ under Order 7 Rule 11(d) would also include the ground that it is barred by the law of limitation.””

15. The three-Judge Bench opined that there was no conflict of opinion and thereafter the matter came back to the Division Bench for adjudication. The Division Bench reproduced what has been stated by the three-Judge Bench. It is as under:-

“Before the three-Judge Bench, counsel for both the parties stated as follows:

“…It is not the case of either side that as an absolute proposition an application under Order 7 and Rule 11(d) can never be based on the law of limitation. Both sides state that the impugned judgment is based on the facts of this particular case and the question whether or not an application under Order 7 Rule 11(d) could be based on law of limitation was not raised and has not been dealt with. Both sides further state that the decision in this case will depend upon the facts of this case.”

16. After so stating, the Division Bench opined that in the facts of the said case, the suit could not be dismissed as barred by limitation without proper pleadings, framing of issue on limitation and taking evidence, for question of limitation is a mixed question of fact and law and on ex-facie reading of the plaint it could not be held that the suit was barred by time.

17. Coming to the case at hand we find that the allegations in the plaint are absolutely different. There is an asseveration of fraud and collusion. There is an assertion that in the earlier suit a decree came to be passed because of fraud and collusion. In such a fact situation, in our considered opinion, the High Court has fallen into error by expressing the view that the plea of resjudicata was obvious from the plaint. In fact, a finding has been recorded by the High Court accepting the plea taken in the written statement. In our view, in the obtaining factual matrix there should have been a trial with regard to all the issues framed.

18. Resultantly, the appeal is allowed and the order passed by the High Court is set aside and that of the appellate Judge is restored. The trial court is directed to proceed with the suit and dispose of the same within a period of six months hence. There shall be no order as to costs.

Whether plea of res judicata and O 2 R 2 of CPC can be decided in application for rejection of plaint?

HIGH COURT OF CHHATTISGARH, BILASPUR

F.A. No. 220 of 2 0 12

Sardar Satpal Singh V Smt. Saroj Shukla,

Hon'ble Shri Justice Goutam Bhaduri

Order dated;03/08 /2015

Citation;AIR 2015 Chhatisgarh 170

In order to attract the bar under Order 2 Rule 2, it has to be specifically pleaded by the defendant in the suit and the trial Court should have specifically framed a specific issue in that regard wherein the pleading in the earlier suit must be examined and the plaintiff is given an opportunity to demonstrate that the cause of action in the subsequent suit is different. Perusal of the case file of the Court below would show that alongwith the application under Section 11 read with Order 2 Rule 2 of CPC, the order of the earlier Civil Suit No.20-A/2003 was placed on record. The Supreme Court in case of Coffee Board v. Ramesh Exports Private Limited reported in (2014) 6 SCC 424, has reiterated the principles laid down in case of Alka Gupta v. Narender Kumar Gupta {(2010) 10 SCC

141} and Gurbux Singh v. Bhooralal {AIR 1964 SC 1810} and had reaffirm the proposition which reads as under :

“11. The bar of Order 2 Rule 2 comes into operation where the cause of action on which the previous suit was filed, forms the foundation of the subsequent suit; and when the plaintiff could have claimed the relief sought in the subsequent suit, in the earlier suit; and

both the suits are between the same parties. Furthermore, the bar under Order 2 Rule 2 must be specifically pleaded by the defendant in the suit and the trial court should specifically frame a specific issue in that regard wherein the pleading in the earlier suit must be examined and the plaintiff is given an opportunity to demonstrate that the cause of action in the subsequent

suit is different. This was held by this Court in Alka Gupta v. Narender Kumar Gupta, which referred to the decision of this Court in Gurbux Singh v. Bhooralal,wherein it was held that :

“13.....'6. In order that a plea of a bar under Order 2 Rule 2(3) of the Civil Procedure Code should

succeed the defendant who raises the plea must make out: (1) that the second suit was in respect of the same cause of action as that on which the previous suit was based; (2) that in respect of that cause of action the plaintiff was entitled to more than one relief; (3) that being thus entitled to more than one relief the plaintiff, without leave obtained from the court omitted to sue for the relief for which the second suit had been filed. From this analysis it would be seen that the defendant would have to establish primarily and to start with, the precise cause of action upon which the previous suit was filed, for unless there is identity between the cause of action on which the earlier suit was filed and that on which the claim in the latter suit is based there

would be no scope for the application of the bar'.” Therefore, necessarily in order to come to a finding and examining the cause of action pleaded by the plaintiff in the suit in between the suit filed earlier whether was one and same, there should have been proper opportunity of hearing by framing the issue in this regard. If certain facts are not pleaded in the written statement, the same cannot be substituted by way of an application and take the place of pleading. Furthermore, as has been followed by this Court in case of Ballu Ram Sahu & Another v. Smt. Lata Sahu & Another reported in 2014 (3) C.G.L.J. 99 and held by the Supreme Court in case of Madhukar D. Shende v. Tarabai Aba Shedage reported in (2002) 2 SCC 85 that the question of res judicata is a mixed question of law and fact and if the plea has not been raised by filing pleadings and the issues have not been framed, it cannot be held that the defendant has established the plea of res judicata by raising appropriate pleading. The plea therefore in the instant case cannot be

considered on the basis of the application under Section 11 readwith Order 2 Rule 2 of CPC in absence of any issues.

When dismissal of suit on account of extinguishment of cause of action would operate as res judicata in subsequent suit?

Supreme Court of India

Pawan Kumar Gupta vs Rochiram Nagdeo on 20 April, 1999

Bench: K.T. Thomas, D.P. Mohapatra.

Citation:AIR 1999 SC 1823,(1999)4 SCC 243

Issues No. 1 and 2 in that suit were formulated in the following words:

"1. Whether the plaintiff is owner of the suit premises?

2. Whether the defendant is tenant of plaintiff of disputed premises @ Rs.210/- p.m.?"

The decision of the court in that suit, on the above issues, was this: "I find that the plaintiff is the owner on the basis of sale-deed dated 23.1.1989 under section 2(b) of MP Accommodation Control Act; and when plaintiff is owner of the suit premises the defendant is definitely his tenant." The court in that suit then proceeded to consider the question of arrears of rent and held that "the plaintiff is entitled to obtain Rs.1400/- from the defendant towards arrears of rent; this rent has been deposited by the defendant in CCD which the plaintiff can withdraw." of course in the last para of the judgment the Court said that suit is "dismissed" and both parties were directed to bear their own costs.

Though the word "dismissed" has been employed in the last paragraph of the judgment a reading of it, as a whole, would show that the plaintiff had won the suit. The court found against the plea of the defendant that plaintiff was not the rightful owner of the building. Dismissal of the suit was not on account of any defect in the plaintiff's claim nor in the frame of the suit nor even on any technical reason, but solely because the amount claimed by the plaintiff from the defendant has been deposited by the defendant in the court during pendency of the suit. As the plaintiff was permitted to withdraw that amount his grievance in the suit would necessarily have been redressed fully.

Thus the sound legal position is this: If dismissal of the prior suit was on a ground affecting the maintainability of the suit any finding in the judgment adverse to the defendant would not operate as res judicata in a subsequent suit. But if dismissal of the suit was on account of extinguishment of the cause of action or any other similar cause a decision made in the suit on a vital issue involved therein would operate as res judicata in a subsequent suit between the same parties. It is for the defendant in such a suit to choose whether the judgment should be appealed against or not. If he does not choose to file the appeal he cannot thereby avert the bar of res judicata in the subsequent suit.

In this case the position is still stronger for the appellant. Dismissal of the first suit was only on account of what the respondent did during the pendency of the suit i.e. depositing the arrears of rent claimed by the appellant. The court permitted the plaintiff to withdraw that amount under deposit for satisfying his claim. Such a degree cannot be equated with a case where the suit was dismissed as not maintainable because any adverse finding in such a suit would only be obiter dicta. The finding made in OS 75-A/90 that appellant was the real owner of the building as per Ext. P.11-sale deed became final. If the respondent disputed that finding he should have filed an appeal in challenge of it.

We therefore agree with the plea of the appellant that there is bar of res judicata in re-agitating on the issue regarding appellant's title to the building.

How principle of res judicata is applicable in execution proceeding?

Supreme Court of India

Barkat Ali & Anr vs Badri Narain (D) By Lrs on 6 February, 2008

Order XXI Rule 22 CPC culminates in end of one stage before attachment of the property can take place in furtherance of execution of decree. The proceedings under Order XXI Rule 23 can only be taken if the executing Court either finds that after issuing notice, under Section XXI Rule 21 the judgment-debtor has not raised any objection or if such objection has been raised, the same has been decided by the executing Court. Sub rule (1) as well as sub rule (2) under Order XXI Rule 22, operates simultaneously on the same field. Sub rule (1) operates when no objection is filed. Then the Court proceeds and clears the way for going to the next stage of the proceedings namely attachment of the property and if the Court finds objections on record then it decides the objections in the first instance and thereafter clears the way for taking up the matter for attachment of the property if the objections have been overruled. Whether the order is made under sub rule (1) or sub rule (2), it has the effect of determining the preliminary stage before the attachment process is set in motion. In this background, the order of the Court to proceed with attachment on finding that no objection has been raised also operates as an order deciding the preliminary stage of the execution proceedings and operates as if the judgment-debtor has no objection to file. If thereafter, the judgment-debtor wants to raise an objection in the same proceedings in the absence of any modification of order passed under Order XXI Rule 22 sub rule (1) or (2), he has to take recourse to get rid of the order by way of appeal. There is no dispute and it has not been agitated that the order for proceeding by the judgment under Order XXI Rule 22 amounts to a decree under Section 47 of CPC and it is appealable as a decree i.e to say it is not an appeal against the interim order but an appeal against the decree which is provided against the final order. It means that at the different stages of the execution orders passed by the executing court have attained finality unless they are set aside by way of appeal before the higher forum. Otherwise they bind the parties at the subsequent stage of the execution proceedings so that the smooth progress of execution is not jeopardised and the stage which reached the finality by dint of various orders of the Order XXI, operates as res judicata for the subsequent stage of the proceedings. Since the order passed at different stage itself operates as a decree and is appealable as such, the same cannot be challenged in appeal against subsequent orders also, because appeal against an order passed under Order XXI Rule 22 does not amount to appeal against order at initial stage, but amounts to a decree finally determining the question. That is why no appeal against orders made under Order XXI has been provided under Order 43. In this background, where a judgment-debtor has an opportunity to raise an objection which he could have raised but failed to take and allowed the preliminary stage to come to an end for taking up the matter to the next stage for attachment of property and sale of the property under Order XXI Rule 23 which fell within the above principle, the judgment-debtor thereafter cannot raise such objections subsequently and revert back to earlier stage of proceedings unless the order resulting in termination of preliminary stage which amounts to a decree is appealed against and order is set aside or modified.

The principles of res judicata not only apply in respect of separate proceedings but the general principles also apply at the subsequent stage of the same proceedings also and the same Court is precluded to go into that question again which has been decided or deemed to have been decided by it at an early stage.

In Arjun Singh v. Mohindra Kumar and Ors. (AIR 1964 SC 993) it was observed as follows:

"Scope of principle of res judicata is not confined to what is contained in Section 11 but is of more general application. Again, res judicata could be as much applicable to different stages of the same suit as to findings on issues in different suits ..Where the principles of res judicata is invoked in the case of the different stages of proceedings in the same suit, the nature of the proceedings, the scope of the enquiry which the adjectival law provides, the decision being reached, as well as the specific provisions made on matters touching such decision are some of the material and the relevant factors to be considered before the principle is held applicable."

In Satyadhyan Ghosal and Ors. v. Smt. Deorajin Debi and Anr. (AIR 1960 SC 941) it was observed as follows:

"The principle of res judicata applies also as between two stages in the same litigation to this extent that a court, whether the Trial Court or a Higher Court having at an earlier stage decided a matter in one way will not allow the parties to re-agitate the matter again at a subsequent stage of the same proceedings."

Whether title suit filed by defendant will be barred by res judicata if plaintiff's suit U/S 6 of specific relief Act was decreed?

IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH

CR No. 2230 of 2019 (O&M)

Decided On: 31.05.2019

Rani Vs. Manoj and Ors.

Citation: AIR 2019 (NOC) 729 P& H

Consequently, very obviously, even as per sub-section (4) of Section 6 of the Specific Relief Act, the principle of res judicata does not get attracted when a suit instituted under that provision is decreed, except perhaps to the extent that any finding on who actually was in possession of the suit property at the relevant time, cannot be re-agitated in a separate suit.

As regards title to the suit property, to repeat, the principle of res judicata is specifically ousted by sub-section (4).

Naturally, that is the basic principle of res judicata, which however has absolutely no applicability when a suit under Section 6 of the Specific Relief Act is instituted and even decreed in favour of the plaintiff therein, with the defendant therein still not barred from raising the question of title in a subsequent suit.

14. Coming to the argument raised by learned counsel on the touchstone of Section 40 of the Evidence Act, though that provision would obviously be otherwise relevant even to apply the principle of res judicata, however, in the face of a statutory provision under a special Act enacted for the purpose of granting relief in specific circumstances, i.e. the Specific Relief Act, 1963, the aforesaid provision of the Evidence Act would not be applicable, because once the Act of 1963 stipulates that a suit brought under Section 6 of that Act would not debar a party to that lis from instituting a separate suit to prove his title thereto, naturally Section 40 of the Act of 1872 can have no application.

The said provision reads as follows:-

"40. Previous judgments relevant to bar a second suit or trial.- The existence of any judgment, order or decree which by law prevents any Courts from taking cognizance of a suit or holding a trial is a relevant fact when the question is whether such Court ought to take cognizance of such suit, or to hold such trial."

15. Consequently, in view of the above discussion, finding no ground to reverse the order of the trial court, this petition is dismissed.

It is however again made clear that as regards any finding on possession of the suit land as was recorded by the trial court in the previous lis (the judgment dated 03.10.2017 in the suit instituted under Section 6 of the Act of 1963), such finding of course cannot be adjudicated upon in the suit in the present lis, at least qua those who were parties to the suit under Section 6.

The suit in the present lis qua title and right of lawful possession of any of the parties thereto, and on the validity of the sale deeds dated 30.03.2007, would therefore be decided wholly on the merits thereof, as per evidence led by both the parties, with no observation made by this court in the present petition to be treated to be having any bearing on such merits of the case of either of the parties, except to the extent of any finding of possession of the suit property as recorded in the previous lis under Section 6

Whether judgment passed by court in previous suit will be res judicata if limitation for appeal or review has not expired?

Canara Bank Vs. N.G. Subbaraya Setty and Ors.Decided On: 20.04.2018

The conspectus of the above authorities shows that until the limitation period for filing of an appeal is over, the res remains sub judice. After the limitation period is over, the res decided by the first Court would then become judicata. However, questions arise as to what is to be done in matters where the hearing in the second case is shortly after the limitation period for filing an appeal in the first case has ended. At least two judgments, one of the Privy Council and one of the Bombay High Court, have referred to the fact that, in appropriate cases, the hearing in the second case may be adjourned or may be stayed in order to await the outcome of the appeal in the first case. See, Chandra Singh Dudhoria v. Midnapore Zemindary Co. Ltd. MANU/PR/0018/1941 : (1941) 69 IA 51 (PC) at 58-59 and Indra Singh and Sons Ltd. v. Shiavax. C. Cambata, MANU/MH/0018/1950 : ILR 1948 Bom 346 at 352.

If the period of limitation for filing an appeal has not yet expired or has just expired, the Court hearing the second proceeding can very well ask the party who has lost the first round whether he intends to appeal the aforesaid judgment. If the answer is yes, then it would be prudent to first adjourn the second proceeding and then stay the aforesaid proceedings, after the appeal has been filed, to await the outcome of the appeal in the first proceeding. If, however, a sufficiently long period has elapsed after limitation has expired, and no appeal has yet been filed in the first proceeding, the Court hearing the second proceeding would be justified in treating the first proceeding as res judicata. No hard and fast Rule can be applied. The entire fact circumstance in each case must be looked at before deciding whether to proceed with the second proceeding on the basis of res judicata or to adjourn and/or stay the second proceeding to await the outcome in the first proceeding. Many factors have to be considered before exercising this discretion-for example, the fact that the appeal against the first judgment is grossly belated; or that the said appeal would, in the ordinary course, be heard after many years in the first proceeding; or, the fact that third party rights have intervened, thereby making it unlikely that delay would be condoned in the appeal in the first proceeding.

10. Res judicata advance points

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