Precedent Is Not Res Judicata: A Civil Judge’s Guide to Finality, Issue Estoppel, and Re-agitation of Issues

The Supreme Court’s decision in M/s Eminent Colonizers Pvt. Ltd. v. Rajasthan Housing Board is a valuable reminder that courts must not confuse the doctrine of precedent with the rule of res judicata. The judgment shows that even where another court has taken a different view on a similar clause, an issue already decided between the same parties cannot be reopened if that adjudication has attained finality.​

What makes the ruling especially important is that it goes beyond arbitration law and offers a broader lesson for civil adjudication. It helps judges distinguish among issues of law, issues of fact, and mixed questions of law and fact, and explains how each may operate in later proceedings through the doctrine of res judicata.

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Supreme Court: What are exceptions to the principle of Res Judicata on issue of law?

 34.1. 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.

34.2. To this general proposition of law, there are certain exceptions when it comes to issues of law:

34.2.1. 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 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 Cause 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 at SCR p. 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 Cause Court between the same parties in respect of the same matter directly and substantially in issue in the former suit.

34.2.2. 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 partes), 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, 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.

34.3. 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. 753 of 2026 

Decided On: 04.02.2026

Eminent Colonizers Private Limited Vs. Rajasthan Housing Board and Ors.

Hon'ble Judges/Coram:

J.B. Pardiwala and K.V. Viswanathan, JJ.

Author: K.V. Viswanathan, J

Citation: 2026 INSC 116, MANU/SC/0116/2026.

Read full judgment here: Click here.

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Supreme court explains the distinction between the doctrine of Precedent and Res Judicata

There is a clear conceptual distinction between precedent and res judicata. Salmond on Jurisprudence P.J. Fitzgerald (12th Edition) page 141 states "a judicial precedent speaks in England with authority; it is not merely evidence of the law but a source of it, and the courts are bound to follow the law that is so established". A decision between two parties which sets out a principle of law will operate as a precedent for disputes between two other parties too. A precedent operates in rem. In contrast, a res judicata operates in personam between the same parties either in the later stage of the same litigation between them or in a different litigation between them. That is the essential distinction between the two. {Para 24}

Res judicata operates in personam i.e. the matter in issue between the same parties in the former litigation, while law of precedent operates in rem i.e. the law once settled is binding on all under the jurisdiction of the High Court and the Supreme Court. Res judicata binds the parties to the proceedings for the reason that there should be an end to the litigation and therefore, subsequent proceeding inter se parties to the litigation is barred. Therefore, law of res judicata concerns the same matter, while law of precedent concerns application of law in a similar issue. In res judicata, the correctness of the decision is normally immaterial and it does not matter whether the previous decision was right or wrong, unless the erroneous determination relates to the jurisdictional matter of that body. [See Makhija Construction & Engg. (P) Ltd. v. Indore Development Authority,   MANU/SC/0302/2005 : (2005) 6 SCC 304]]

IN THE SUPREME COURT OF INDIA

Civil Appeal No. 753 of 2026 

Decided On: 04.02.2026

Eminent Colonizers Private Limited Vs. Rajasthan Housing Board and Ors.

Hon'ble Judges/Coram:

J.B. Pardiwala and K.V. Viswanathan, JJ.

Author: K.V. Viswanathan, J

Citation: 2026 INSC 116, MANU/SC/0116/2026.

Read full judgment here: Click here.

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Supreme Court: Under which circumstances an issue of law relating to jurisdiction of court erroneously decided in the former proceeding will not amount to res judicata?

28. In an erudite judgment, speaking for this Court Rohinton Fali Nariman, J. in Canara Bank v. N.G. Subbaraya Setty and Anr.   MANU/SC/0433/2018 : 2018:INSC:385 : (2018) 16 SCC 228, summarised the principles thus:

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

34.1. 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.

34.2. To this general proposition of law, there are certain exceptions when it comes to issues of law:

34.2.1. 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 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 Cause 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 at SCR p. 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 Cause Court between the same parties in respect of the same matter directly and substantially in issue in the former suit.

IN THE SUPREME COURT OF INDIA

Civil Appeal No. 753 of 2026 

Decided On: 04.02.2026

Eminent Colonizers Private Limited Vs. Rajasthan Housing Board and Ors.

Hon'ble Judges/Coram:

J.B. Pardiwala and K.V. Viswanathan, JJ.

Author: K.V. Viswanathan, J

Citation: 2026 INSC 116, MANU/SC/0116/2026

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Supreme Court: An illegality committed in the course of investigation does not affect the competence and jurisdiction of the court for trial

 In H.N. Rishbud v. State of Delhi [  MANU/SC/0049/1954 : AIR 1955 SC 196], it was held that an illegality committed in the course of investigation does not affect the competence and jurisdiction of the court for trial and where cognizance of the case has in fact been taken and the case has proceeded to termination of the invalidity of the preceding investigation does not vitiate the result unless miscarriage of justice has been caused thereby. When any breach of the mandatory provisions relating to investigation is brought to the notice of the court at an early stage of the trial the Court will have to consider the nature and extent of the violation and pass appropriate orders for such reinvestigation as may be called for, wholly or partly, and by such officer as it considers appropriate with reference to the requirements of Section 5A of the Prevention of Corruption Act, 1947.

IN THE SUPREME COURT OF INDIA

Criminal Appeal No. 1439 of 2017

Decided On: 18.08.2017

R.A.H. Siguran Vs. Shankare Gowda and Ors. 

Hon'ble Judges/Coram:

Adarsh Kumar Goel and U.U. Lalit, JJ.

 Citation: 2017 INSC 777, MANU/SC/1086/2017.

Read full judgment here: Click here.

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Bombay HC: In proceeding for maintenance U/S 18 of Hindu Adoption and maintenance Act, jurisdiction of court is ascertained as per provisions of S 20 of CPC

 In the present case, the suit for maintenance has been filed under Section 18 of the Hindu Adoptions and Maintenance Act, 1956. Unlike the provisions of Section 19 of the Hindu Marriage Act, 1955, no specific provision in regard to the court to which a petition shall be presented is made in the Hindu Adoptions and Maintenance Act, 1956. The Court must of necessity fall back upon the provisions of Section 20 of the Code of Civil Procedure, 1908. {Para 4}

5. Though under section 19(1) of the Hindu Marriage Act, 1955, a petition under that Act can be presented inter alia to the District Court within the local limits of whose ordinary original civil jurisdiction the marriage was solemnized, this can be construed to be a legislative recognition of the fact that the place where the marriage was solemnized does constitute a part of the cause of action for the purpose of a matrimonial proceeding under the Hindu Marriage Act, 1955. Undoubtedly, the provisions of Section 19 are applicable only to that Act and cannot be extrapolated to the Hindu Adoptions and Maintenance Act, 1956. Section 19(1) is, however, relevant for the limited purpose of demonstrating that it embodies legislative recognition of the fact that the place where the marriage was solemnized does constitute a part of cause of action, in certain cases.

IN THE HIGH COURT OF JUDICATURE AT BOMBAY

D.Y. CHANDRACHUD, J.

Shri. Chandrakant Anandrao Gurav Vs. Sou. Manisha Chandrakant Gurav

Civil Revision Application No.1386 of 2001

23rd April, 2002

Citation: 2002(4) ALL MR 295.

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Supreme Court: Motor Accident Claim Need Not Be Filed Before MACT Of Area Where Accident Occurred

The primary ground on which transfer has been sought is that the accident had taken place at Siliguri in the district of Darjeeling, West Bengal and, therefore, it would be expedient for the MACT at Darjeeling to decide the claim petition. {Para 3}

4. The provisions of the Act do not make it mandatory for the claimants to lodge an application for compensation under Section 166 thereof before the MACT having jurisdiction over the area where the accident occurred. On the contrary, sub-section (2) of Section 166 provides an option for the claimants to approach the MACT within the local limits of whose jurisdiction they (claimants) reside or carry on business or the defendant resides. The claimants having chosen the option to approach the MACT, Farrukhabad at Fatehgarh, U.P., a forum that law permits them to choose, no grievance can be raised by the petitioner. The contention is misconceived and, hence, stands overruled.

IN THE SUPREME COURT OF INDIA

Transfer Petition(s)(Civil) No.1792/2023; 

PRAMOD SINHA  Vs SURESH SINGH CHAUHAN & ORS.

Author: DIPANKAR DATTA; J.

Dated: 31-07-2023.

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Kerala HC: Notice Issued Against Dead Person Is Invalid; Participation Of Legal Heirs In Proceedings Doesn't Make It Legal

 Upon hearing the rival submissions of the parties, we are of the view that the Appeal must succeed. The precedents referred above would make it amply clear that the notices issued under Sections 148A(b) and 148 of the Act in the name of a dead person are invalid and 'non-est' in the eye of law. It is a nullity and not a mere irregularity which could be cured. It is true that, on the receipt of the above said notices, the legal heirs of the deceased Naringaparambail Bhaskaran/appellants herein appeared before the assessing authority. However, that by itself would not change the situation. We are of the opinion that the consent of the parties cannot confer jurisdiction to the assessing authority for initiation of an action which is otherwise illegal and 'non-est'.{Para 20}

21. In the light of the above discussions, we cannot agree with the view taken by the learned Single Judge that the legal heirs of the deceased assessee are estopped from taking a different stand in the writ petition, since they have appeared before the assessing authority and participated in the proceedings. Therefore, we are of the view that the initiation of proceedings against a dead person under Sections 148A(b) and 148 of the Income Tax Act are illegal and 'non-est'.

 IN THE HIGH COURT OF KERALA AT ERNAKULAM

WA No. 2093 of 2023

Decided On: 29.11.2024

N. Binoj and Ors. Vs. Income Tax officer, Ward-2, Tirur and Ors.

Hon'ble Judges/Coram:

Dr. A.K. Jayasankaran Nambiar and K.V. Jayakumar, JJ.

Author: K.V. Jayakumar, J.

Citation: MANU/KE/4803/2024.

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What is distinction between Maintainability of a proceeding And Jurisdiction of a Court to entertain any proceeding?

Having heard the learned Advocates for the respective parties and upon considering the record, it is evident that the Trial Court conflated the concepts of jurisdiction and maintainability. The terms "jurisdiction" and "maintainability" are often mistakenly

used interchangeably, yet they hold distinct legal connotations. A

precise understanding of the distinction is crucial for judicial

adjudication. Jurisdiction refers to the power and authority of a

court or tribunal to adjudicate a dispute and render a binding

decision. It is derived from the Latin words "juris" (law) and "dico" (I speak), which collectively signify "speaking by the law." The concept extends to the legal power to entertain, inquire into facts, apply the law, and issue enforceable judgments. Jurisdiction can be classified into three distinct categories:

Subject Matter Jurisdiction – The court’s power to deal with

a specific type of case based on statutory provisions.

Territorial Jurisdiction – The geographic area within which a

court can exercise its authority.

Pecuniary Jurisdiction – The monetary limits of a court’s

power to hear a case. {Para 11}

12. Jurisdiction derives its authority from statutes, and its

absence renders the court incompetent to decide the matter.

Jurisdiction does not depend on the correctness of the decision; a

court may decide rightly or wrongly, yet its jurisdiction remains

unaffected. It is foundational to the legitimacy of judicial

proceedings, as it embodies the legal capacity to entertain a suit

and adjudicate on the merits.

13. Maintainability pertains to whether a legal proceeding is

competent to be entertained, factoring in procedural and

substantive requirements. Maintainability relates to whether the

suit is procedurally valid and not inherently barred. A case

dismissed for lack of maintainability does not necessarily negate

the existence of jurisdiction, as it may only reflect procedural

infirmities. Unlike jurisdiction, maintainability addresses

preliminary objections arising from procedural non-compliance or statutory bars rather than the inherent authority of the court.

Examples of factors affecting maintainability include:

(i) Bar under Statutes: Prohibitions on the initiation of

proceedings due to legislative provisions (e.g., res judicata

under Section 11 of CPC).

(ii) Limitation Period: Filing of proceedings after the

prescribed period under the Limitation Act, 1963.

(iii) Locus Standi: The legal standing of the petitioner to

institute proceedings.

14. Jurisdiction derives its authority from statutes conferring

power on the court. Maintainability arises from procedural and

statutory compliance requirements for initiating proceedings. Lack of jurisdiction results in the nullity of proceedings, as the court inherently lacks authority to adjudicate. Non-compliance with maintainability bars leads to dismissal without deciding the merits of the case but does not affect the court’s inherent power.

15. Thus, while jurisdiction focuses on the court’s authority,

maintainability examines the legal validity of the proceedings.

19.  The jurisdiction of the Civil Judge, Senior Division, to

entertain such an application is derived under Section 2(c) of the

Act which defines court as a Civil Court having jurisdiction to

decide the questions forming the subject-matter of the reference if the same had been the subject-matter of a suit.

20. The Trial Court improperly conflated the provisions of

Section 20 with maintainability. Jurisdiction must be determined

based on the pleadings in the application. The petitioner’s

averments regarding the arbitration agreement and the alleged

consent by respondent No. 1 to appoint the arbitrator establish a

prima facie case for jurisdiction under the 1940 Act. The issue of

whether respondent No. 1 consented to the arbitrator’s

appointment or the draft award is a matter for substantive

adjudication and does not affect the Court’s jurisdiction to

entertain the application.

21. The Trial Court, while concluding that it lacked jurisdiction,

proceeded to consider the maintainability of the petitioner’s claim under Section 20 of the Arbitration Act, 1940. This consideration was beyond the scope of the Trial Court’s authority, as a finding of lack of jurisdiction precludes further deliberation on the merits or maintainability of the case.

22. In view of the above analysis, the Trial Court’s order reflects

a fundamental misapplication of legal principles.

IN THE HIGH COURT OF JUDICATURE AT BOMBAY

CIVIL APPELLATE JURISDICTION

WRIT PETITION NO.2315 OF 2015

Deepak Manaklal Katariay  V/s.  Ahsok Motilal Katariya

CORAM : AMIT BORKAR, J.

DATED : NOVEMBER 29, 2024

Citation: 2024:BHC-AS:46238

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What are basic principles for exercise of revisional jurisdiction by high court at the instance of a private complainant?

The High Court was exercising the revisional jurisdiction at the instance of a private complainant and, therefore, it is necessary to notice the principles on which such revisional jurisdiction can be exercised. Sub-section (3) of Section 401 of Code of Criminal Procedure prohibits conversion of a finding of acquittal into one of conviction. Without making the categories exhaustive, revisional jurisdiction can be exercised by the High Court at the instance of private complainant (1) where the trial court has wrongly shut out evidence which the prosecution wished to produce, (2) where the admissible evidence is wrongly brushed aside as inadmissible, (3) where the trial court has no jurisdiction to try the case and has still acquitted the accused, (4) where the material evidence has been overlooked either by the trial court or the appellate court or the order is passed by considering irrelevant evidence and (5) where the acquittal is based on the compounding of the offence which is invalid under the law. {Para 9}

 IN THE SUPREME COURT OF INDIA

Criminal Appeal No. 2420 of 2009 

Decided On: 17.12.2009

Sheetala Prasad and Ors. Vs. Sri Kant and Ors.

Hon'ble Judges/Coram:

R.V. Raveendran and J.M. Panchal, JJ.

Author: J.M. Panchal, J.

Citation:  AIR 2010 SUPREME COURT 1140, 2010 (2) SCC 190,MANU/SC/1915/2009.

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Whether Family Court Has Jurisdiction To Entertain original or independent application Seeking Reliefs U/S 18-22 of Domestic Violence Act?

Paragraph 12 of Raju Narayana Swamy(Supra)

"12. S.26 of the PWDV Act has been inserted with an

objective that in addition to the provisions of S.12, the

aggrieved person is entitled to any relief available under S.18,

S.19, S.20, S.21 and S.22 in any legal proceeding, before a

Civil Court, Family Court or a Criminal Court, affecting the

aggrieved person and the respondent whether such

proceeding was initiated before or after the commencement of

the PWDV Act. Sub-section (2) of S.26 further envisages that

any relief referred to in sub-section (1) may be sought for in

addition to and along with any other relief that the aggrieved

person may seek in such suit or legal proceeding before a civil

or Criminal Court. Sub-section (3) obliges the aggrieved

person to disclose the nature of the reliefs, if any. obtained in

any proceeding other than a proceeding under the Act. The

intention of the Legislature was to enable the aggrieved

person to secure the same relief in other proceedings before

the Civil, Family or Criminal Court, whether it was instituted

prior to or after the commencement of the PWDV Act. This

would enure to the convenience of the aggrieved person as

well as the respondent and would also prevent multiplicity or

proceedings and conflict of orders. However an application

under S.12 seeking various reliefs under S.18 to 22 cannot be

filed as an original or independent application before the

Family Court as the Act expressly stipulates that a proceeding

under S.12 of the PWDV Act has to be filed before the

Magistrate competent to entertain the application. The Family

Court will have jurisdiction under the PWDV Act to grant

relief to the victim of domestic violence only if there is an

existing legal proceeding and the application under S.26 of

the Act seeking relief under S.18 to 22 is filed in that

proceeding. The same view has been taken in Neetu Singh

(supra) and Kumari Behara (supra). Accordingly. I hold that

the Family Court Emakulam is having no jurisdiction to

entertain MC No. 367 of 2015 on the files of the said Court.

The same is quashed. However, the respondent will be at

liberty to approach the learned Magistrate having jurisdiction

under S. 12 of the PWDV Act or alternatively, before the

competent Court under S.26(1) of the PWDV Act, where any

legal proceeding affecting the parties are pending. The

petition is disposed of as above."

 IN THE HIGH COURT OF KERALA AT ERNAKULAM

 OP (FC) NO. 539 OF 2022

GEORGE VARGHESE Vs TREESA SEBASTIAN

Coram: MR. JUSTICE AMIT RAWAL&  MRS. JUSTICE C.S. SUDHA

Author: Amit Rawal, J.

Dated: 11th day of September, 2023.

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City Civil Court Mumbai now has pecuniary jurisdiction to try matters having claim upto 10 CR.

 https://drive.google.com/file/d/140Oy_Qdxof7pBN6nPxkOnhql-pijoVri/view?usp=sharing

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Whether the Civil court has jurisdiction to try suit relating to Maharashtra Gunthewari Development (Regulation, Upgradation and Control) Act, 2001?

The requirement of producing documentary proof of ownership or lawful possession of the land contained in clause (a) below sub-section (2) of section 4, is merely for the purposes of recording subjective satisfaction of the authority competent to grant regularization under section 3 of the said Act. There is no finality attached, as contemplated by section 18 of the said Act, to the question of title or of the possession gone into by the competent authority under section 3 or 4 of the said Act. The plenary jurisdiction of the Civil Court to decide the question of title and possession therefore, remains intact, and it is open for the Civil Court to find out whether, before granting of regularization, the property was owned and/or possessed by a person other than one at whose instance the regularization was granted under section 3 of the said Act. Such a suit cannot, therefore, be held to be barred under section 18 of the said Act. In the result, the petition is dismissed, holding that the jurisdiction of the Civil Court to entertain, try and decide a suit based on title and possession is not barred under section 18 of the Maharashtra Gunthewari Development (Regulation, Upgradation and Control) Act, 2001. {Para 9}

 IN THE HIGH COURT OF BOMBAY (NAGPUR BENCH)

S.A. No. 30 of 2016

Decided On: 26.08.2016

Sunderlal Vs. Nagpur Improvement Trust and Ors.

Hon'ble Judges/Coram:

R.K. Deshpande, J.

Citation:  MANU/MH/3000/2016,2017(4) ALLMR 378.

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How to determine the court's jurisdiction when an agreement contains both arbitration and recourse to court clauses for dispute settlement?

The law related to the jurisdiction of the court in the matters pertaining to arbitration is no longer res integra. It has been held in various pronouncements that all the matters arising out of an agreement/contract would be decided by the court in whose jurisdiction the seat of arbitration is decided.

 17. In the case of Shree Bhowani Cotton Mills vs Union Textile Traders, MANU/WB/0114/1966, the Calcutta High Court has held as under:

"4. the other contention on behalf of the petitioner was that it appeared from a clause of the agreement that the Courts at Calcutta would have jurisdiction, that it was open to the parties to come to a Court of law and therefore the agreement as to arbitration was vague. Settlement of dispute through the medium of arbitration and through recourse to Court of law are two different aspects. It may be that the parties envisaged disputes which are not covered by the arbitration clause and in such a case the parties might have recourse to a Court of law. That is why the parties stipulated that the Courts at Calcutta would have jurisdiction. I am unable to find any inconsistency between the provisions or to hold that there is any vagueness or uncertainty or that the clause providing for resort to Courts of law in Calcutta nullifies the arbitration agreement. Further, counsel, for the respondent rightly contended that in a document of this nature if there was any inconsistency the earlier clause would prevail unlike in a Will where the later clause would prevail. I make it quite clear that I do not hold that there is any inconsistency....."

18. Thus, in light of the detailed discussions above, this court is inclined to hold that clause 18.2 shall have a prevailing effect over the latter clause 18.3 of the agreement dated 26th August 2013 with respect to the mode of dispute resolution. It is further observed that parties have agreed for the arbitration proceedings to take place in New Delhi which can be construed as the "seat" of the arbitration and therefore, this court has the jurisdiction to entertain the present petition.

IN THE HIGH COURT OF DELHI

Arb. P. 1102/2022 and O.M.P. (I) (Comm.) 328/2022

Decided On: 18.01.2023

Sunil Kumar Chandra Vs. Spire Techpark Pvt. Ltd.

Hon'ble Judges/Coram:

Chandra Dhari Singh, J.

Citation: MANU/DE/0337/2023

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Whether issue of jurisdiction as to subject matter can be raised for the first time in Appeal?

Once the original decree itself has been held to be without jurisdiction and hit by the doctrine of coram non judice, there would be no question of upholding the same merely on the ground that the objection to the jurisdiction was not taken at the initial, First Appellate or the Second Appellate stage. {Para 18}

 IN THE SUPREME COURT OF INDIA

Civil Appeal No. 658 of 2008 

Decided On: 24.01.2008

Chief Engineer, Hydel Project and Ors.  Vs. Ravinder Nath and Ors.

Hon'ble Judges/Coram:

S.B. Sinha and V.S. Sirpurkar, JJ.

Citation: MANU/SC/0573/2008

Author: V.S. Sirpurkar, J.

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When the court can decide issue of limitation and jurisdiction of court as preliminary issue?

 Before this Court in Nusli Neville Wadia v. Ivory Properties, (2020) 6 SCC 557, the issue was whether the issue of limitation can be determined as a preliminary issue under Order XIV Rule 2. The three-judge bench of this court observed that if the issue of limitation is based on an admitted fact, it can be decided as a preliminary issue under Order XIV Rule(2)(b). However, if the facts surrounding the issue of limitation are disputed, it cannot be decided as a preliminary issue. This Court observed as follows:
51. […] As per Order 14 Rule 1, issues arise when a material proposition of fact or law is affirmed by the one party and denied by the other. The issues are framed on the material proposition, denied by another party. There are issues of facts and issues of law. In case specific facts are admitted, and if the question of law arises which is dependent upon the outcome of admitted facts, it is open to the court to pronounce the judgment based on admitted facts and the preliminary question of law under the provisions of Order 14 Rule 2. In Order 14 Rule 2(1), the court may decide the case on a preliminary issue. It has to pronounce the judgment on all issues. Order 14 Rule 2(2) makes a departure and the court may decide the question of law as to jurisdiction of the court or a bar created to the suit by any law for the time being in force, such as under the Limitation Act.
52. In a case, question of limitation can be decided based on admitted facts, it can be decided as a preliminary issue under Order 14 Rule 2(2)(b). Once facts are disputed about limitation, the determination of the question of limitation also cannot be made under Order 14 Rule 2(2) as a preliminary issue or any other such issue of law which requires examination of the disputed facts. In case of dispute as to facts, is necessary to be determined to give a finding on a question of law. Such question cannot be decided as a preliminary issue. In a case, the question of jurisdiction also depends upon the proof of facts which are disputed. It cannot be decided as a preliminary issue if the facts are disputed and the question of law is dependent upon the outcome of the investigation of facts, such question of law cannot be decided as a preliminary issue, is settled proposition of law either before the amendment of CPC and post amendment in the year 1976.{Para 14}

15. Since the determination of the issue of limitation in this case is not a pure question of law, it cannot be decided as preliminary issue under Order XIV Rule 2 of the CPC. Hence, we allow the appeal and set aside the judgment of the trial Judge dated 16 August 2018 and of the Single Judge of the High Court dated 4 September 2019. The issue of limitation which has been framed by the learned trial Judge may be decided, along with other issues at trial. 
Supreme Court

JUSTICE Dr Dhananjaya Y Chandrachud JUSTICE Surya Kant

M/s Mongia Realty and Buildwell Private Limited Vs. Manik Sethi

Civil Appeal No. 814 of 2022

31st January 2022

Author: Dr Dhananjaya Y Chandrachud, J.

Citation: 2022 ALL SCR (ONLINE) 152

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Whether Civil court can entertain a suit against Municipal Corporation even if its jurisdiction is barred S 433A of the MMC Act?

 Now, Section 433A of the Maharashtra Municipal Corporations Act creating a bar of jurisdiction of the Civil Court, being relevant, is reproduced below :

"433A. Bar of jurisdiction - Save as otherwise provided in this Act, any notice issued, order passed or direction issued by the Designated Officer, under sections 260, 261, 264, 267 or 478 shall not be questioned in any suit or other legal proceedings."

Undoubtedly, if the plaintiff comes before the Civil Court alleging that a notice issued under Section 260 of the said Act is illegal in any manner and seeks a declaration to that effect, then the bar of jurisdiction to try such a suit under Section 433A of the said Act shall operate. However, nonetheless, the inherent jurisdiction of a Civil Court in a suit challenging the notice under Section 260 of the said Act, on the limited grounds, viz. that the act of issuance of such notice is nullity, or that while issuing such notice, the mandatory provisions of the said Act have not been complied with, or that the Authority issuing such a notice has not acted in conformity with the fundamental judicial procedure, or that it is an abuse of exercise of power, or that the offending act has not been done in good faith, remains intact, in view of the aforestated law laid down in judicial pronouncement. The Civil Court is not precluded of its inherent jurisdiction to entertain and decide such challenge to a notice under Section 260 of the said Act, on such limited grounds, particularly when there is no forum available under the said Act to ventilate such grievances in respect of it. {Para 7}

IN THE HIGH  COURT OF JUDICATURE AT BOMBAY(NAGPUR BENCH)

R.K. DESHPANDE, J.

The Commissioner, Akola Municipal Corporation Vs. Bhalchandra S/O. Govind Mahashabde

Civil Revision Application No. 14 of 2013

29th April, 2013

Citation:  2013 (4) MHLJ 45 Bom,2013(5) ALL MR 190

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When court can decide issue of res judicata as preliminary issue?

 E.1 Res Judicata as a Preliminary issue

19. Before we undertake an analysis on the applicability of the principles of res judicata vis-à-vis the three suits that were initiated with regard to the suit property it is necessary to discuss the submission of counsel for the appellant that res judicata, being a mixed question of law and facts ought not to have been decided as a preliminary issue by the trial court. It was contended that any determination of the application of the principle of res judicata can only be made after evidence is adduced pursuant to a full-fledged trial. 

21. Order 14 Rule 2 CPC states that if questions of fact and law arise in the same suit, the court can dispose the case on the question of law alone if it relates to the following:

“(a) the jurisdiction of the Court, or

(b) a bar to the suit created by any law for the time being in force, and for that purpose may […]”

(emphasis supplied)

22.Justice K. Ramaswamy writing for a three judge bench of this court in Sushil Kumar Mehta v. Gobind Ram Bohra(1990) 1 SCC 193 held that the principle of res judicata cannot be fit into the pigeon hole of ‘mixed question of law and facts’ in every case. Rather, the plea of res judicata would be a question of law or fact or a mixed question of both depending on the issue that is claimed to have been previously decided. The court while determining the applicability of the plea of res judicata would determine if there has been any material alteration in the facts and law applicable:

“26. The doctrine of res judicata under Section 11 CPC is founded on public policy. An issue of fact or law or mixed question of fact and law, which are in issue in an earlier suit or might and ought to be raised between the same parties or persons claiming under them and was adjudicated or allowed uncontested becomes final and binds the parties or persons claiming under them. Thus, the decision of a competent court over the matter in issue may operate as res judicata in subsequent suit or proceedings or in other proceedings between the same parties and those claiming under them. But the question relating to the interpretation of a statute touching the jurisdiction of a court unrelated to questions of fact or law or mixed questions does not operate as res judicata even between the parties or persons claiming under them. The reason is obvious; a pure question of law unrelated to facts which are the basis or foundation of a right, cannot be deemed to be a matter in issue. The principle of res judicata is a facet of procedure but not of substantive law. The decision on an issue of law founded on fact in issue would operate as res judicata. But when the law has since the earlier decision been altered by a competent authority or when the earlier decision declares a transaction to be valid despite prohibition by law it does not operate as res judicata. Thus a question of jurisdiction of a court or of a procedure or a pure question of law unrelated to the right of the parties founded purely on question of fact in the previous suit, is not res judicata in the subsequent suit. A question relating to jurisdiction of a court or interpretation of provisions of a statute cannot be deemed to have been finally determined by an erroneous decision of a court. Therefore, the doctrine of res judicata does not apply to a case of decree of nullity. If the court inherently lacks jurisdiction consent cannot confer jurisdiction. Where certain statutory rights in a welfare legislation are created, the doctrine of waiver also does not apply to a case of decree where the court inherently lacks jurisdiction.”

23. In Mathura Prasad Bajoo Jaiswal v. Dossibai N.B Jeejeebhoy (1970) 1 SCC 613, the application of the plaintiff in the Court of the Civil Judge for the determination of Standard Rent under Section 11 of the Bombay Rents, Hotel and Lodging House Rates Control Act 1947 was dismissed on the ground that the statute did not apply to a case of open land let for the construction of buildings. This decision was affirmed in appeal. However, in view of another decision of the Bombay High Court which held that the statute would be applicable to leased land, the plaintiff filed a fresh proceeding in the Court of Small Causes. The Trial Court and the High Court held that the subsequent suit was barred by res judicata. However, Justice J C Shah writing for a 3-judge bench held that the subsequent suit was not barred by res judicata:

“5. But the doctrine of res judicata belongs to the domain of procedure: it cannot be exalted to the status of a legislative

direction between the parties so as to determine the question relating to the interpretation of enactment affecting the jurisdiction of a Court finally between them, even though no question of fact or mixed question of law and fact and relating to the right in dispute between the parties has been determined thereby. A decision of a competent Court on a matter in issue may be res judicata in another proceeding between the same parties: the “matter in issue” may be an issue of fact, an issue of law, or one of mixed law and fact. An issue of fact or an issue of mixed law and fact decided by a competent Court is finally determined between the parties and cannot be re-opened between them in another proceeding. The previous decision on a matter in issue alone is res judicata: the reasons for the decision are not res judicata.

11. The matter in issue, if it is one purely of fact, decided in the earlier proceeding by a competent Court must in a subsequent litigation between the same parties be regarded as finally decided and cannot be reopened. A mixed question of law and fact determined in the earlier proceeding between the same parties may not, for the same reason, be questioned in a subsequent proceeding between the same parties. But, where the decision is on a question of law i.e. the interpretation of a statute, it will be res judicata in a subsequent proceeding between the same parties where the cause of action is the same, for the expression “the matter in issue” in Section 11 of the Code of Civil Procedure means the right litigated between the parties i.e. the facts on which the right is claimed or denied and the law applicable to the determination of that issue. 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 that order under the rule of res judicata, for a rule of procedure cannot supersede the law of the land.

(emphasis supplied)

The court while undertaking an analysis of the applicability of the plea of res judicata determines first, if the requirements of section 11 CPC are fulfilled; and if this is answered in the affirmative, it will have to be determined if there has been any material alteration in law or facts since the first suit was decreed as a result of which the principle of res judicata would be inapplicable. We are unable to accept the submission of the appellants that res judicata can never be decided as a preliminary issue. In certain cases, particularly when a mixed question of law or fact is raised, the issue should await a full-fledged trial after evidence is adduced. In the present case, a determination of the components of res judicata turns on the pleadings and judgments in the earlier suits which have been brought on the record. The issue has been argued on that basis before the Trial court and the first appellate court; followed by two rounds of proceedings before the High Court (the second following upon an order of remand by this court on the ground that all parties were not heard). All the documentary material necessary to decide the issue is before the court and arguments have been addressed by the contesting sides fully on that basis.

REPORTABLE

IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

Civil Appeal No. 10946 of 2014

The Jamia Masjid Vs  Sri K V Rudrappa

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Supreme Court: A party can challenge adverse findings without filing cross objection

 The effect of the amendment was considered in Banarsi & Ors. v. Ram Phal (2003) 9 SCC 606., where this Court held that after the 1976 amendment, the respondent could file cross-objections against the ‘findings’ of the lower court, while previously cross-objections could only be filed when the decree of the lower court was partly against the respondent. Justice R.C Lahoti (as the learned Chief Justice then was), speaking for the two judge bench observed:

“10-. […] There may be three situations:

(i) The impugned decree is partly in favour of the appellant and partly in favour of the respondent.

(ii) The decree is entirely in favour of the respondent though an issue has been decided against the respondent.

(iii) The decree is entirely in favour of the respondent and all the issues have also been answered in favour of the respondent but there is a finding in the judgment which goes against the respondent.

11. In the type of case (i) it was necessary for the respondent to file an appeal or take cross-objection against that part of the decree which is against him if he seeks to get rid of the same though that part of the decree which is in his favour he is entitled to support without taking any cross-objection. The law remains so post-amendment too. In the type of cases (ii) and (iii) pre-amendment CPC did not entitle nor permit the respondent to take any cross-objection as he was not the person aggrieved by the decree. Under the amended CPC, read in the light of the explanation, though it is still not necessary for the respondent to take any cross-objection laying challenge to

any finding adverse to him as the decree is entirely in his favour and he may support the decree without cross-objection; the amendment made in the text of sub-rule (1), read with the explanation newly inserted, gives him a right to take cross-objection to a finding recorded against him either while answering an issue or while dealing with an issue. The advantage of preferring such cross-objection is spelled out by sub-rule (4). In spite of the original appeal having been withdrawn or dismissed for default the cross-objection taken to any finding by the respondent shall still be available to be adjudicated upon on merits which remedy was not available to the respondent under the unamended CPC. In the pre-amendment era, the withdrawal or dismissal for default of the original appeal disabled the respondent to question the correctness or otherwise of any finding recorded against the respondent.”

The court held that a memorandum of objection need not be filed when the appellant only assailed a ‘finding’ of the lower court:

“7. The High Court, in our view, was clearly in error in holding that the appellant not having filed a memorandum of cross-objections in terms of Order 41 Rule 22 of the Code, could not challenge the finding of the trial court that the suit was not barred by Order 2 Rule 2 of the Code. 

(emphasis supplied)

Reportable

IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

Civil Appeal No. 4448 of 2021

Shri Saurav Jain & Anr  Vs M/s A. B. P. Design 

Author: Dr Justice Dhananjaya Y Chandrachud

Dated: August 5, 2021

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Whether civil court can entertain suit in respect of Municipal Corporation even if its jurisdiction is specifically barred?

 In Shiv Kumar Chadha (supra) the Supreme Court in paragraph 28 of its decision observed thus:

"In spite of the bar prescribed under sub sections (4) and (5) of Section 343 and Section 347-E of the Corporation Act over the power of the courts, under certain special circumstances, the court can examine, whether the dispute falls within the ambit of the Act. But once the court is satisfied that either the provisions of the Act are not applicable to the building in question or the basic procedural requirements which are vital in nature, have not been followed, it shall have jurisdiction, to enquire and investigate while protecting the common law rights of the citizens."

Bombay High Court

Kishor S/O Ramalu @ Rambhau Telang vs The Municipal Commissioner, ... on 20 January, 2015

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