Under which circumstances Judgment of court will not operate as res judicata?

  One other aspect which has to be considered in this connection is whether the finding in the civil proceedings that the zoning regulations of 1981 and multi-storeyed building regulations, 1981 are not retrospective and they will not be applicable to the application of the petitioner filed on 28-6-1980 operates as res judicata or not and in any event binding on the parties. In this connection, it would be necessary to understand the scope and ambit of Section 11 of the Code of Civil Procedure. It is well settled that a decision rendered on questions of fact between the parties in a former suit will operate as res judicata and binds the parties or persons claiming under it in a subsequently instituted proceeding. Similar is the position insofar as findings recorded in the former suit in respect of mixed questions of law and fact. It is also well settled that pure questions of law relating to the jurisdiction of the Court/Tribunal will not operate as res judicata, and cannot be deemed to have been finally determined. This is because of the fact that if erroneous interpretation of statute, the Court which has no jurisdiction holds that it has jurisdiction, that decision will not operate as res judicata between the parties, even if the cause of action in the subsequently instituted proceeding is the same. What is the position with regard to a decision rendered on a pure question of law? On the said question, it has been held in Mathura Prasad v. Dossibai, MANU/SC/0420/1970 : [1970] 3 SCR 830 that if the cause of action is the same both in the former and subsequent proceedings, then the decision on an issue of law will be res judicata between the same parties, if the cause of action is not the same in both the proceedings, it will not operate as res judicata. It is also held therein that when the law has since the earlier decision been altered by a competent authority, that will not operate as res judicata.

Where, however, the question is one purely of law and it relates to the jurisdiction of the Court or a decision of the Court sanctioning something which is illegal, by resort to the rule of res judicata a party affected by the decision will not be precluded from challenging the validity, of the order under the rule of res judicata, for a rule of procedure cannot supersede the law of the land.

Therefore, from this decision, it is clear that a decision on pure question of law will not operate as res judicata if the law has changed or altered by a competent Court or authority subsequent to the earlier decision. In fact, the learned Judges in para 7 of their Judgment reiterate the decision in the following manner.

Where the law is altered since the earlier decision, the earlier decision will not operate as res judicata between the same parties.

This is based on the premise that the rule of procedure indicated in Section 11, C.P.C. cannot supersede or override the law. This view has been followed and reiterated in the decisions reported in Sushil Kumar Mehta v. Gobind Ram Bohra, MANU/SC/0593/1989 : (1990) 1 SCC 193 and in Isabella Johnson v. M.A. Susai MANU/SC/0228/1991 : AIR 1991 SC 993 

{Para 18}

 IN THE HIGH COURT OF ANDHRA PRADESH

Writ Petn. No. 10019 of 1993

Decided On: 02.09.1994

3 Aces, Hyderabad Vs.  Municipal Corporation of Hyderabad

Hon'ble Judges:

S.S.M. Quadri, P.L.N. Sarma and B.S. Raikote, JJ.

Author: P.L.N. Sarma, J.

Citation:  MANU/AP/0002/1995.

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