Thursday, 21 March 2019

What are exceptions to principle of Res judicata?

 Given the conspectus of authorities that have been referred to by us hereinabove, the law on the subject may be stated as follows:

(1) The general Rule is that all issues that arise directly and substantially in a former suit or proceeding between the same parties are res judicata in a subsequent suit or proceeding between the same parties. These would include issues of fact, mixed questions of fact and law, and issues of law.

(2) To this general proposition of law, there are certain exceptions when it comes to issues of law:

(i) Where an issue of law decided between the same parties in a former suit or proceeding relates to the jurisdiction of the Court, an erroneous decision in the former suit or proceeding is not res judicata in a subsequent suit or proceeding between the same parties, even where the issue raised in the second suit or proceeding is directly and substantially the same as that raised in the former suit or proceeding. This follows from a reading of Section 11 of the Code of Civil Procedure itself, for the Court which decides the suit has to be a Court competent to try such suit. When read with Explanation (I) to Section 11, it is obvious that both the former as well as the subsequent suit need to be decided in Courts competent to try such suits, for the "former suit" can be a suit instituted after the first suit, but which has been decided prior to the suit which was instituted earlier. An erroneous decision as to the jurisdiction of a Court cannot clothe that Court with jurisdiction where it has none. Obviously, a Civil Court cannot send a person to jail for an offence committed under the Indian Penal Code. If it does so, such a judgment would not bind a Magistrate and/or Sessions Court in a subsequent proceeding between the same parties, where the Magistrate sentences the same person for the same offence under the Penal Code. Equally, a Civil Court cannot decide a suit between a landlord and a tenant arising out of the rights claimed under a Rent Act, where the Rent Act clothes a special Court with jurisdiction to decide such suits. As an example, Under Section 28 of the Bombay Rent Act, 1947, the Small Causes Court has exclusive jurisdiction to hear and decide proceedings between a landlord and a tenant in respect of rights which arise out of the Bombay Rent Act, and no other Court has jurisdiction to embark upon the same. In this case, even though the Civil Court, in the absence of the statutory bar created by the Rent Act, would have jurisdiction to decide such suits, it is the statutory bar created by the Rent Act that must be given effect to as a matter of public policy. (See, Natraj Studios (P) Ltd. v. Navrang Studios and Anr., MANU/SC/0477/1981 : (1981) 2 SCR 466 at 482). An erroneous decision clothing the Civil Court with jurisdiction to embark upon a suit filed by a landlord against a tenant, in respect of rights claimed under the Bombay Rent Act, would, therefore, not operate as res judicata in a subsequent suit filed before the Small Causes Court between the same parties in respect of the same matter directly and substantially in issue in the former suit.

(ii) An issue of law which arises between the same parties in a subsequent suit or proceeding is not res judicata if, by an erroneous decision given on a statutory prohibition in the former suit or proceeding, the statutory prohibition is not given effect to. This is despite the fact that the matter in issue between the parties may be the same as that directly and substantially in issue in the previous suit or proceeding. This is for the reason that in such cases, the rights of the parties are not the only matter for consideration (as is the case of an erroneous interpretation of a statute inter parties), as the public policy contained in the statutory prohibition cannot be set at naught. This is for the same reason as that contained in matters which pertain to issues of law that raise jurisdictional questions. We have seen how, in Natraj Studios (supra), it is the public policy of the statutory prohibition contained in Section 28 of the Bombay Rent Act that has to be given effect to. Likewise, the public policy contained in other statutory prohibitions, which need not necessarily go to jurisdiction of a Court, must equally be given effect to, as otherwise special principles of law are fastened upon parties when special considerations relating to public policy mandate that this cannot be done.

(iii) Another exception to this general Rule follows from the matter in issue being an issue of law different from that in the previous suit or proceeding. This can happen when the issue of law in the second suit or proceeding is based on different facts from the matter directly and substantially in issue in the first suit or proceeding. Equally, where the law is altered by a competent authority since the earlier decision, the matter in issue in the subsequent suit or proceeding is not the same as in the previous suit or proceeding, because the law to be interpreted is different.

IN THE SUPREME COURT OF INDIA

Civil Appeal No. 4233 of 2018 (Arising out of SLP (C) No. 25649 of 2017)

Decided On: 20.04.2018

Canara Bank Vs. N.G. Subbaraya Setty and Ors.

Hon'ble Judges/Coram:
A.K. Goel and Rohinton Fali Nariman, JJ.


Citation: (2018) 16 SCC 228
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Whether right to speedy investigation is fundamental right?

 It is not necessary to refer to all the decisions of this Court articulating the mandate of the Constitution that there is implicit right Under Article 21 for speedy trial which in turn encompasses speedy investigation, inquiry, appeal, revision and retrial. To determine whether undue delay has occurred, one must have regard to nature of offence, number of Accused and witnesses, workload of the court and the investigating agency, systemic delays. Inordinate delay may be taken as presumptive proof of prejudice particularly when Accused is in custody so that prosecution does not become persecution. Court has to balance and weigh several relevant factors. Though it is neither advisable nor feasible to prescribe any mandatory outer time limit and the court may only examine effect of delay in every individual case on the anvil of Article 21 of the Constitution, there is certainly a need for in-house mechanism to ensure that there is no undue delay in completing investigation.

IN THE SUPREME COURT OF INDIA

M.A. No. 267 of 2017 in SLP (Crl.) No. 657 of 2017

Decided On: 01.05.2018

 Dilawar Vs. The State of Haryana and Ors.

Hon'ble Judges/Coram:
A.K. Goel and Indu Malhotra, JJ.
Citation: (2018) 16 SCC521
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Whether tenant is bound to pay stamp duty on copy of lease agreement if it is insufficiently stamped?

 Countering the said submissions, Mr. Asan Ali Khan, learned Counsel for the respondent submitted that when admittedly Exs.R1 to R8 are copies of the originals of the lease deeds executed between the petitioner and the respondent and they are for a period not exceeding 11 months, they are not compulsorily registrable and as such they can be looked into for collateral purposes. According to the learned Counsel, the copy available with the respondent need not be stamped and the original available with the petitioner alone are liable to be stamped in accordance with Indian Stamp Act; even if it is insufficiently stamped, it can be looked into for collateral purpose, namely, to ascertain the address of the premises, which is leased out and the question of insufficiency of stamp duty can be gone into only at the time of final disposal of RCOP. 
At the outset it has to be pointed out that when an agreement of lease is executed between the landlord and tenant, normally, lease agreement is prepared in duplicate i.e., both are originals, signed by both the landlord and tenant. If that being so, it cannot be contended by the respondent that the agreement available with the tenant is only a copy and not the original and therefore it need not be sufficiently stamped. Therefore, the contention of the learned Counsel for the respondent that Exs.R1 to R8 need not be stamped as contemplated in the Indian Stamp Act but the original agreement available with the petitioner alone has to be stamped in accordance with Indian Stamp Act cannot be countenanced.
IN THE HIGH COURT OF MADRAS

C.R.P. (PD) No. 853 of 2010 and M.P. No. 1 of 2010

Decided On: 07.07.2010

V. Jayaraman Vs. K.A. Ubaidur Rahman

Hon'ble Judges/Coram:
K. Mohan Ram, J.


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Whether it is mandatory to pay stamp duty on lease agreement entered for 11 months?

 Here, in this case, the document viz., the lease agreement comes within the purview of Schedule I of Section 35(a) of the Indian Stamp Act. Though the lease agreement entered for 11 months need not be registered, for the purpose of marking the document even for collateral purpose, it should be duly stamped.Further, the Hon'ble Supreme Court in the decision reported in MANU/SC/0942/2008 : (2008) 2 MLJ 1115 (SC) (Thiruvengada Pillai Vs. Navaneethammal) has held that even if an agreement is not executed on requisite stamp paper, it is admissible in evidence on payment of duty and penalty under Section 35 or 37 of the Indian Stamp Act. Therefore, when an instrument which is not duly stamped is produced before the Court for the purpose of admitting the same in evidence, as per Section 35 of the Stamp Act, such instrument cannot be admitted in evidence and if the person who produces the document is willing to pay the stamp duty penalty, then a duty is cast upon the Court to impound the document and direct the party to pay penalty as per proviso (a) to Section 35 of the Act and follow the procedure contemplated under Section 38(1) of the Act. In case, the person refuses to pay penalty as fixed by the Court and requested the Court to send the document to the Collector for impounding and determination of penalty and also the stamp duty payable on that document, the Court has to send the document in original to the Collector as contemplated under Section 38(2) of the Stamp Act. On receipt of such document, the Collector has to follow the procedure contemplated under Section 40 of the Act."

IN THE HIGH COURT OF MADRAS

C.R.P. (PD)(MD) No. 1992 of 2017 and CMP (MD) No. 10029 of 2017

Decided On: 21.06.2018

 A. Rajaram  Vs.  P. Chinnakani

Hon'ble Judges/Coram:
J. Nisha Banu, J.


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