Supreme Court: K.V. George v. Secretary: Cementing Res Judicata in Indian Arbitration Law

 The Doctrine of Res Judicata in Arbitration: An Analysis of K.V. George v. Secretary (AIR 1990 SC 53)

Introduction

Arbitration is widely recognized as an efficient alternative to traditional litigation, offering parties a streamlined and final resolution to their disputes. However, the question often arises: can issues already decided in one arbitration be re-litigated in another? The Supreme Court of India, in the landmark case of K.V. George v. Secretary to Government, Water and Power Department (AIR 1990 SC 53), addressed this very issue by affirming the applicability of the doctrine of res judicata to arbitration proceedings. This article explores the facts, legal principles, and far-reaching implications of this judgment.

Background of the Case

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Whether the subsequent suit is barred by res judicata if there has been any material alteration in law or facts since the first suit was decreed?

 The court while undertaking an analysis of the applicability of the plea of res judicata determines first, if the requirements of Section 11 Code of Civil Procedure 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. 

IN THE SUPREME COURT OF INDIA

Civil Appeal No. 10946 of 2014

Decided On: 23.09.2021

The Jamia Masjid  Vs. K.V. Rudrappa (Since Dead) by L.Rs. and Ors.

Hon'ble Judges/Coram:

Dr. D.Y. Chandrachud, Vikram Nath and Hima Kohli, JJ.

Author: Dr. D.Y. Chandrachud, J.

Citation: MANU/SC/0691/2021.

Read full Judgment here: Click here

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How to distinguish whether a particular endowment is public or private?

  In Deoki Nandan v. Murlidhar and Others,8 a bench of five Judges of this Court has held that:

“the true beneficiaries of religious endowments are not the idols but the worshippers, and that the purpose of the endowment is the maintenance of that worship for the benefit of the worshippers, the question whether an endowment is private or public presents no difficulty. The cardinal point to be decided is whether it was the intention of the founder that specified individuals are to have the right of worship at the shrine, or the general public or any specified portion thereof. In accordance with this theory, it has been held that when property is dedicated for the worship of a family idol, it is a private and not a public endowment, as the persons who are entitled to worship at the shrine of the deity can only be the members of the family, and that is an ascertained group of individuals. But where the beneficiaries are not members of a family or a specified individual, then the endowment can only be regarded as public, intended to benefit the general body of worshippers.

Endowment can validly be created in favour of an idol or temple without the performance of any particular ceremonies, provided the settlor has clearly and unambiguously expressed his intention in that behalf. Where it is proved that ceremonies were performed, that would be valuable evidence of endowment, but absence of such proof would not be conclusive against it.”

 {Para 19}

20. Following the above ratio in The Commissioner for Hindu Religious and Charitable Endowments, Mysore v. Sri Ratnavarma Heggade (Deceased) by his L. Rs.,9 this Court has observed that:

“Neither a document nor express words are essential for a dedication for a religious or public purpose in our country. Such dedications may be implied from user permitted for public and religious purposes for sufficient length of time. The conduct of those whose property is presumed to be dedicated for a religious or public purpose and other circumstances are taken into account in arriving at the inference of such a dedication. Although religious ceremonies of Sankalpa and Samarpanam are relevant for proving a dedication, yet, they are not indispensable”

Thus, extinction of private character of a property can be inferred from the circumstances and facts on record, including sufficient length of time, which shows user permitted for religious or public purposes.

Where the beneficiaries of a trust or charity are limited to a finite group of identifiable individuals, the trust or charity is of a private character. However, where the beneficiaries are either the public at large or an amorphous and fluctuating body of persons incapable of being specifically identifiable, the trust or charity is of a public character.”

25. Therefore, in view of the judgments quoted above and the aforesaid statutory provisions, it must be held that the case of the appellant that there was no endowment or specific endowment must fail and has no legs to stand on. The dedication of the suit jewellery does not require an express dedication or document, and can be inferred from the circumstances, especially the uninterrupted and long possession of the suit jewellery by the respondent/Temple. The private character of the jewels had extinguished long back and the appellant has no basis to claim that the suit jewellery was inherited by him from his adoptive parents. The endowment is clearly public in nature and for the purposes of performing religious ceremonies. As confirmed by three courts, with which we are in agreement, the suit jewellery was dedicated for a specific purpose and can only be used during the performance of the religious ceremony during the Adipooram festival.

IN THE SUPREME COURT OF INDIA

 CIVIL APPELLATE JURISDICTION 

CIVIL APPEAL NOS. 3964-3965 OF 2009; 

R.M. SUNDARAM @ MEENAKSHISUNDARAM Vs  SRI KAYAROHANASAMY AND NEELAYADHAKSHI AMMAN TEMPLE 

Coram: AJAY RASTOGI; J., SANJIV KHANNA; J. 

Dated: JULY 11, 2022.

Read full Judgment here: Click here

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How to prove that a subsequent suit is barred by O 2 R 2 of CPC?

 In this regard, we would like to refer to judgment of this Court in Gurbux Singh v. Bhooralal AIR 1964 SC 1810 wherein it has been observed:

“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; (i) 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. No doubt, a relief which is sought in a plaint could ordinarily be traceable to a particular cause of action but this might, by no means, be the universal rule. As the plea is a technical bar it has to be established satisfactorily and cannot be presumed merely on basis of inferential reasoning. It is for this reason that we consider that a plea of a bar under Order 2 Rule 2 of the Civil Procedure Code can be established only if the defendant files in evidence the pleadings in the previous suit and thereby proves to the Court the identity of the cause of action in the two suits.

Just as in the case of a plea of res judicata which cannot be established in the absence on the record of the judgment and decree which is pleaded as estoppel, we consider that a plea under Order 2 Rule 2 of the Civil Procedure Code cannot be made out except on proof of the plaint in the previous suit the filing of which is said to create the bar. As the plea is basically founded on the identity of the cause of action in the two suits the defence which raises the bar has necessarily to establish the cause of action in the previous suit. The cause of action would be the facts which the plaintiff had then alleged to support the right to the relief that he claimed.”

The cardinal requirement for application of the provisions contained in Order 2 Rules 2(2) and (3), therefore, is that the cause of action in the later suit must be the same as in the first suit.”

IN THE SUPREME COURT OF INDIA

 CIVIL APPELLATE JURISDICTION 

CIVIL APPEAL NOS. 3964-3965 OF 2009; 

R.M. SUNDARAM @ MEENAKSHISUNDARAM Vs  SRI KAYAROHANASAMY AND NEELAYADHAKSHI AMMAN TEMPLE 

Coram: AJAY RASTOGI; J., SANJIV KHANNA; J. 

Dated: JULY 11, 2022.

Read full Judgment here: Click here

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Is the plea of res judicata, constructive res judicata, and Order II Rule 2 of CPC available if the civil court lacked subject matter jurisdiction in the previous suit?

 In fact, this argument would also recoil on the appellant insofar as he has raised the plea of res judicata and constructive res judicata/ Order II Rule 2 of the Code, for the said pleas would not be available in case the civil court had lacked subject matter jurisdiction.

IN THE SUPREME COURT OF INDIA

 CIVIL APPELLATE JURISDICTION 

CIVIL APPEAL NOS. 3964-3965 OF 2009; 

R.M. SUNDARAM @ MEENAKSHISUNDARAM Vs  SRI KAYAROHANASAMY AND NEELAYADHAKSHI AMMAN TEMPLE 

Coram: AJAY RASTOGI; J., SANJIV KHANNA; J. 

Dated: JULY 11, 2022.

Read full Judgment here: Click here

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When rule of res judicata / constructive res judicata is not applicable to any subsequent proceeding?

 Where the former suit is dismissed by the trial court for want of jurisdiction, or for default of the plaintiff’s appearance, or on the ground of non-joinder or mis-joinder 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 letter 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. Sheodan Singh v. Daryao Kunwar (SMT) AIR 1966 SC 1332The reason is that the first suit is not decided on merits.

32. In the present case, the suit filed in 1981 for appointment of the receiver for preparing an inventory of the suit jewellery was not decided on merits but was dismissed on the ground that the respondent had prayed for mandatory injunction and had not made a prayer for declaration of title. Thus, the suit was dismissed for technical reasons, which decision is not an adjudication on merits of the dispute that would operate as res judicata on the merits of the matter. Further, to succeed and establish a prayer for res judicata, the party taking the said prayer must place on record a copy of the pleadings and the judgments passed, including the appellate judgment which has attained finality. In the present case, the appellant did not place on record a copy of the appellate judgment and it is accepted that the second appeal filed by the respondent was dismissed, giving liberty to the respondent to file a fresh suit with a prayer of declaration of title/endowment in respect of the suit jewellery. The liberty granted was not challenged by the appellant. The right to file a fresh suit to the Temple, therefore, should not be denied. The bar of constructive res judicata/ Order II Rule 2 of the Code is not attracted.

33. The plea of constructive res judicata/Order II Rule 2 of the Code also fails as the cause of action in the first suit filed in 1981 was limited and predicated on account of the failure of the appellant to open the locks of the safe and the main door of the Kudavarai, the keys of which were available with the appellant and required joint operation. Here again, the party claiming and raising the plea of constructive res judicata/Order II Rule 2 of the Code must place on record in evidence the pleadings of the previous suit and establish the identity of the cause of actions, which cannot be established in the absence of record of judgment and decree which is pleaded to operate as estoppel.

IN THE SUPREME COURT OF INDIA

 CIVIL APPELLATE JURISDICTION 

CIVIL APPEAL NOS. 3964-3965 OF 2009; 

R.M. SUNDARAM @ MEENAKSHISUNDARAM Vs  SRI KAYAROHANASAMY AND NEELAYADHAKSHI AMMAN TEMPLE 

Coram: AJAY RASTOGI; J., SANJIV KHANNA; J. 

Author: SANJIV KHANNA, J.

Dated: JULY 11, 2022

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When would adverse findings given on any particular issue not be res judicata?

 E.2.3 Conclusive decision and Res Judicata

36. The locus classicus on the point of determining if an issue was ‘directly and substantially’ decided in the previous suit is the decision of Justice M Jagannadha Rao (writing for a two judge bench) in Sajjadanashin Syed MD B.E. Edr. (D) by Lrs. v. Musa Dadabhai Ummer.25 (2000) 3 SCC 350. During the course of the judgment, the Court analysed the expression “directly and substantially in issue” in Section 11 and laid down the twin test of essentiality and necessity:

“12. It will be noticed that the words used in Section 11 CPC are “directly and substantially in issue”. If the matter was in issue directly and substantially in a prior litigation and decided against a party then the decision would be res judicata in a subsequent proceeding. Judicial decisions have however held that if a matter was only “collaterally or incidentally” in issue and decided in an earlier proceeding, the finding therein would not ordinarily be res judicata in a latter proceeding where the matter is directly and substantially in issue.”

PART E

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 [AIR 1965 SC 948] and Syed Mohd. Salie Labbai v. Mohd. Hanifa [(1976) 4 SCC 780 : AIR 1976 SC 1569] ). We are of the view that the above summary in Mulla is a correct statement of the law.

19. We have here to advert to another principle of caution referred to by Mulla (p. 105):

“It is not to be assumed that matters in respect of which issues have been framed are all of them directly and substantially in issue. Nor is there any special significance to be attached to the fact that a particular issue is the first in the list of issues. Which of the matters are directly in issue and which collaterally or incidentally, must be determined on the facts of each case. A material test to be applied is whether the court considers the adjudication of the issue material and essential for its decision.”

(emphasis supplied)

37. Adverting to the decision in Mahant Pragdasji Guru Bhagwandasji (supra) and two earlier decisions26, the Court held that these were instances where in spite of adverse findings in an earlier suit, the finding on that specific issue was not treated as res judicata as it was purely incidental, auxiliary or collateral to the main issue in each of these cases and not necessary in the earlier case.

REPORTABLE

IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

Civil Appeal No. 10946 of 2014

The Jamia Masjid Vs  Sri K V Rudrappa

Author: Dr Dhananjaya Y Chandrachud, J

Dated:September 23, 2021

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When a party should file appeal against any finding given against it even if suit was dismissed against him?

It is well settled that the party against whom a finding is recorded has got a right of appeal even if ultimate decision may be in his favour if that finding operates as resjudicata in a subsequent suit or proceedings; but if it does not operate as rejudicata, then such a party has no right of appeal.

From the narration of above facts, it is amply clear that the finding on Issue No.1. in the decision Ex. PW5/A was returned after taking into account the entire evidence in respect of gift deed which was a matter directly and substantially in issue decided in the earlier suit (Ex. PW5/A) between the parties under whom the present plaintiff and defendant are claiming their title , therefore, the said finding on issue No.1 Ex.PW5/A operates as resjudicata in terms of the provisions of Section 11 of the C.P.C. Thus, in my view the judgment relied upon by the learned counsel for the appellant in the case of Ved Parkash (Supra) is not applicable because even if the main suit was dismissed vide judgment Ex. PW5/A but the finding recorded on issue No.1 was deciding the right of the parties would certainly attract provision of Section 11 of the C.P.C.and defendant No.1/appellant had a right to challenge that finding by way of further appeal. Once it has not been done, so it cannot be urged by the learned counsel for the appellant that it would not operate as resjudicata as he had no opportunity to challenge that finding in appeal. Moreover, issue deciding title of the property is a substantial issue and any decision on that issue in an earlier litigation between the same parties or parties or their predecessor-in-interest would certainly attract the provisions of Section 11 of C.P.C.

Punjab-Haryana High Court

Arjun Singh vs Bachan Singh And Others on 22 December, 2008

RSA No.2970 of 2008                 

CORAM:        MR. RAKESH KUMAR JAIN


Citation:2009(3) Civil court cases 8

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When subsequent application for setting aside exparte order shall not be barred by res judicata?

 In State of Maharashtra and others (supra) while considering the provisions of Section 11 of the Code of Civil Procedure it was observed in para 6 as under:

6. The important words are "has been heard and finally decided". The bar applies only if the matter directly and substantially in issue in the former suit has been heard and finally decided by a Court competent to try such suit. That clearly means that on the matter or issue in question there has been an application of the judicial mind and a final adjudication made. If the former suit is dismissed without any adjudication on the matter in issue merely on a technical ground of non-joinder, that cannot operate as res judicata."

In State of Uttar Pradesh and another (supra) it was held that dismissal of a suit for non-prosecution was not a decision on merit and hence, would not as par res judicata.

In Govindbhai Patel (supra) proceedings filed under the Tenancy Act were not entertained on the ground that the requisite certificate that was required to be filed along with the application had not been filed. In that context it was observed that dismissal of proceedings by an Authority not on merits but on account of some formal defect would not attract the principles of res judicata.

11. In the present case, as noted above both the earlier applications were not entertained on merits on account of failure to comply with the mandate of Section 17 of the Act of 1887. There was no adjudication on merits on the prayer for setting aside the ex parte decree. Thus, a vital ingredient for the applicability of the bar of constructive res judicata was missing. While deciding both the earlier applications, the Trial Court specifically observed that the applications were not maintainable due to non-compliance with the requirements of Section 17 of the Act of 1887. In the light of law referred to above it is therefore, clear that in absence of any adjudication on merits, the rejection of the earlier two applications would not operate as constructive res judicata and the subsequent application that was filed after complying with the provisions of Section 17 of the Act of 1887 was required to be considered on merits. Both the Courts were not justified in holding that as the earlier orders had attained finality, the proceedings were not tenable.

IN THE HIGH COURT OF BOMBAY (NAGPUR BENCH)

Writ Petition No. 385 of 2014

Decided On: 18.06.2015

Paramveersingh Santoshsingh Saini  Vs.  Tarachand

Hon'ble Judges/Coram:

A.S. Chandurkar, J.

Citation: 2015(4)ALLMR 862,2015(5) MHLJ 747

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Whether second suit is tenable if first suit is dismissed on ground that it was premature?

Mr. Sawant, the learned Counsel appearing for the respondent would contend that, when the first suit was dismissed having found it was pre-mature, subsequent suit cannot be said to be barred by res-judicata. Mr. Sawant, has relied upon the judgment of the Apex Court 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."

In the case at hand, the first suit was dismissed predominantly on the ground that it was premature and therefore the latter suit was not barred by res-judicata.

IN THE HIGH COURT OF BOMBAY

Second Appeal No. 795 of 2005

Decided On: 16.04.2019

Shrikant Waman Pawaskar  Vs. Deepali Dinanath Pawaskar

Hon'ble Judges/Coram:

Sandeep K. Shinde, J.
Citation: 2019 SCC ONLINE Bom 835

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Whether principle of Res judicata is applicable even if subject matter of dispute is different in both suits?

The principle of res judicata is well known. Explanation III to Section 11 states that the matter referred to must in the former suit have been alleged by one party and either denied or admitted, expressly or implied-ly, by the other. Explanation IV further states that any matter which might and ought to have been made ground of defence or attack in such former suit should be deemed to be a matter directly and substantially in issue in such suit. For the application of Section 11, C.P.C. it is not always necessary that the issue in conflict must be raised in the pleadings themselves as such conflict may come up for decision otherwise also in view of the stand taken by the parties in course of the hearing of the suit. It is also well settled that even if the subject matter of dispute be different, as in the instant case the period for which the rent was claimed was different in the two suits, if the matter is otherwise covered by Section 11 of the Code of the Civil Procedure the principle of res judicata will apply with equal force. This being the position the decision in Title Appeal No. 65 of 1962 will operate as res judicata against the pre-sent appellant and he cannot competently challenge in the instant suit about there being no relationship of landlord and tenant between him and the plaintiff. This is one aspect of the matter.

IN THE HIGH COURT OF PATNA

Appeal from Appellate Decree No. 76 of 1970

Decided On: 18.01.1980

Thakur Ram Sahai Sinha  Vs. Mostt. Bimla Devi and Anr.

Hon'ble Judges/Coram:

H.L. Agarwal and C.S.S. Sinha , JJ.

Citation: Citation : AIR 1980 Pat 204

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Whether principle of Res judicata is applicable to consent order?

A relief if it is not granted or if the judgment is silent regarding a particular relief; it is, both, in accordance with the principle of res judicata enumerated in Section 11 of the Code of Civil Procedure and also in accordance with general principle of res judicata, which, undoubtedly, applies to writ petitions also; it must be taken to have been impliedly refused and the bar of res judicata applies. In this case, the reasoning given by the Court would leave us in no doubt that the Court was not inclined to grant the relief as sought for. In fact, the Court had disposed of the writ petition in terms of the earlier judgment, wherein the Court had closed the matter.

52. That was a case, where there was a decision by the court on merits and not on consent and a particular prayer was refused by implication and, hence, it was held to be res judicata; but, in this case, we have first of all noticed that there is no decision. While Section 11 of the Code of Civil Procedure as such is not applicable to Article 226 and Section 11 only recognizes certain basic principles about the doctrine of res judicata, it is necessary to advert to the scheme of Section 11. In our view, the purpose appears to be to preclude the court from hearing the matter, which was directly and substantially in issue in a former proceeding between these parties, which was heard and finally decided by the said court. The Explanations intend to both clarify and enlarge the scope of the provision. An instance of enlarging the scope of the main provision is contained in Explanation IV, which provides that a matter, which might and ought to have been made ground of defence or attack in a former suit, is to be treated as a matter, which was directly and substantially in issue in the suit. Equally Explanation V also purports to deal with the case, where, though the court has neither granted nor refused expressly a relief, which was sought in the earlier suit, the law deems that in the case of silence in the matter the relief was refused. Explanation IV sets out the principle of constructive res judicata. We would think that, while it does expand the principle of res judicata; in that, a matter, which was not decided actually, is still regarded as barred by res judicata though it was not expressly finally decided by the court, it cannot apply to a case, where there is only a consent decree. This is for the reason that, running as a golden thread through the provisions, is the principle that the earlier suit must have been decided finally on merits. If a matter is heard and finally decided, then, provided the conditions are otherwise satisfied, a matter, which could have been raised by the plaintiff or by the defendant (ground of defence or attack), would be deemed to have been decided. This salutary principle is intended to advance the cause of justice by preventing parties from omitting or refusing to take up all the contentions, which they ought and might have taken. This principle, itself, is undoubtedly subject to many limitations, which, for a decision in this case, need not detain us. Suffice it to say, as already noticed, we cannot allow it to be invoked by the respondents in a case, where the earlier case itself was not finally heard and decided; but, instead, it was disposed of on consent.

IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL

Special Appeal No. 14 of 2015

Decided On: 12.05.2017

 Rajesh Goyal and Ors. Vs. State of Uttarakhand and Ors.

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Whether civil suit will be barred by Res judicata if judgment in that respect is given by state consumer forums?

Having respectfully gone through the cited decisions, in
my opinion, the State/National Forums have trappings of
Courts and are adjudicatory bodies, though not in strict sense
Courts, which decide and settle the consumers disputes and
matter connected therewith by adhering to the provisions of
Civil Procedure Code and these consumer Courts arejudiciary set up by the government to protect the consumer
rights and would fall within the meaning of Section 3 of Indian
Evidence Act.
 It is admitted fact that refund vouchers were similar to
Cheques and like Cheque books, refund vouchers printed in
the specialized format were given by the defendant bank to the
plaintiff for issuance thereof as is reflected in the answer to
question No. 21 and 25 given by the sole witness of the
plaintiff. In the particular period of time since there was no
system of payment of Cheque at par in all the branches of the
country, instrument of refund voucher payable at par all the
branches in the country was introduced by the defendant bank
and such facility was given to the plaintiff by the arrangement.
 It is well settled that in order to decide whether a
decision in an earlier litigation operates as res judicata, the
Court must look at the nature of the litigation, what were the
issues raised therein and what was actually decided in it.
In the present case having gone through the pleading of
the parties and the evidence-on-record and the judgments
rendered by the said forums, in unequivocal term it is clear
that the issues involved in this suit were substantially the
issues before the State Consumer Disputes Redressal
Commission which stood decided by the judgment dated31.3.2008 which attained its finality with the merger of
judgment and order of the National Consumer Dispute
Redressal Commission.
In the context of the foregoing discussions, on critical
examination of the judgments of the said forums and
considering the nature of the litigation and the issues raised
and decided therein being similar to the facts and
circumstances of the instant case, the issues now cannot be
reopened and re-agitated as in my opinion the suit is barred by
the principle of res judicata within the meaning of Section 11 of
Code of Civil Procedure.
IN THE HIGH COURT AT CALCUTTA
ORDINARY ORIGINAL CIVIL JURISDICTION
ORIGINAL SIDE
Present: The Hon’ble Justice Shivakant Prasad
CS 175 of 2010
M/s. Kesoram Industries Limited V Allahabad Bank

Judgment on : 03.04.2017

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Whether doctrine of res judicata is not applicable if previous order is Vague,cryptic and casual in nature?

Vague,cryptic and casual order in former proceeding containing finding that was neither directly in issue not properly examined can not amount to Res Judicata.

We reject submissions of the RETURNED CANDIDATE for

the following reasons:

(i) The 1st submission of the RETURNED CANDIDATE that

the subsequent and conflicting finding is not legally

tenable, if at all is based on any legal principle, it is

based either on the doctrine of res judicata or some

principle analogous to it based on public policy that there

must be finality to the judicial orders. Even if the

principle of res judicata is invoked, (we only presume

without examining the applicability of the same), what is

barred under Section 11 of CPC is the adjudication of an

issue which was directly and substantially in issue in a

former suit between the same parties and has been heard

and finally decided.

(ii) The question whether two affidavits were filed along with

the Election petition though was not directly in issue as

the RETURNED CANDIDATE never filed a rejoinder (to

the reply of the ELECTION PETITIONER wherein it was

stated that he had filed two affidavits alongwith the

election petition). In deciding the OR VII R 11 petition

the High Court never examined the question (it is an

issue of fact) whether there were two affidavits as pleaded

by the ELECTION PETITIONER in his reply to the said

petition. We have already recorded that the order in OR

VII R 11 petition is too casual. It does not take note of

either the facts in issue or identify the point to be

decided. Any finding of fact recorded in such

circumstances is required to be set aside if appealed

against by the aggrieved party if such an order is an

appealable order. Since the learned Judge dismissed the

OR VII R 11 petition though the finding is adverse to the

ELECTION PETITIONER, he need not have filed an

appeal Hardevinder Singh v. Paramjit Singh, 

(2013) 9 SCC 261, para 21 at page 268:

(iii) Therefore, we do not see any legal principle on the basis

of which the RETURNED CANDIDATE can successfully

contend that in view of the finding recorded in the order

dated 25.08.2014 the High Court could not have

recorded a finding in IA No.11665 of 2015 that two

affidavits were filed along with the Election petition.

Reportable

IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

CIVIL APPEAL No.2697 OF 2016

(Arising out of SLP (Civil) No.33933 of 2014)

Ajay Arjun Singh

Versus

Sharadendu Tiwari & Others 

Dated:March 15, 2016.

Citation:(2016) 6 SCC 576

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Whether erroneous determination of pure question of law in previous judgment will operate as res judicata in subsequent proceeding?

The distinction drawn by the High Court in the impugned judgment that an erroneous determination of a pure question of law in a previous judgment will not operate as res judicata in the subsequent proceeding for different property, though between the same parties, is clearly in accord with Section 11 of the CPC. Strictly speaking, when the cause of action as well as the subject matter i.e, the property in issue in the subsequent suit are entirely different, res judicata is not attracted and the competent Court is therefore not debarred from trying the subsequent suit which may arise between the same parties in respect of other properties and upon a different cause of action. In such a situation, since the Court is not debarred, all issues including those of facts remain open for adjudication by the competent Court and the principle which is attracted against the party which has lost on an important issue of fact in the earlier suit is the principle of estoppel, more particularly “issue estoppel” which flows from principles of evidence such as fromSections 115, 116 and 117 of the Indian Evidence Act, 1872 and from principles of equity. As a principle of evidence, estoppel is treated to be an admission or in the eyes of law something equivalent to an admission of such quality and nature that the maker is not allowed to contradict it. In other words it works as an impediment or bar to a right of action due to affected person’s conduct or action. “Estoppel by judgment” finds reference in the case of Ahsan Hussain Abdul Ali Bohari, Proprietor Abidi Shop v. Maina W/o Nathu Telanga[11]. It is taken as a bar which precludes the parties after final judgment to reagitate and relitigate the same cause of action or ground of defence or any fact determined by the judgment. If the determination was by a Court of competent jurisdiction, the bar will remain operative even if the judgment is perceived to be erroneous. If the parties fail to get rid of an erroneous judgment, they as well as persons claiming through them must remain bound by it.

However, as explained and held by this Court in the case of Mathura Prasad Sarjoo Jaiswal (supra), where the decision is on a pure question of law then a Court cannot be precluded from deciding such question of law differently. Such bar cannot be invoked either on principle of equity or estoppel. No equitable principle or estoppel can impede powers of the Court to determine an issue of law correctly in a subsequent suit which relates to another property founded upon a different cause of action though parties may be same. As explained earlier, in such a situation the principle of res judicata is, strictly speaking, not applicable at all. So far as principle of estoppel is concerned, it operates against the party and not the Court and hence nothing comes in the way of a competent court in such a situation to decide a pure question of law differently if it is so warranted. The issues of facts once finally determined will however, stare at the parties and bind them on account of earlier judgments or for any other good reason where equitable principles of estoppel are attracted.
REPORTABLE

Supreme Court of India

Satyendra Kumar & Ors vs Raj Nath Dubey & Ors on 6 May, 2016

Bench: Dipak Misra, Shiva Kirti Singh

CIVIL APPEAL NOS.4083-4084 OF 2016

[Arising out of S.L.P.(C)Nos.12915-12916 of 2014]

Citation:AIR 2016 SC 2231

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Supreme court; Every High Court must give due deference to enunciation of law made by another High Court

The Defendant-Appellant finally filed a Notice of Motion in
the Bombay High Court as late as 14.12.2005, in which it was successful in
being granted an injunction as recently as on 31.3.2012. We may reiterate that
every High Court must give due deference to the enunciation of law made by
another High Court even though it is free to charter a divergent direction.
However, this elasticity in consideration is not available where the litigants arethe same, since Sections 10 and 11 of the CPC would come into play. Unless
restraint is displayed, judicial bedlam and curial consternation would inexorably
erupt since an unsuccessful litigant in one State would rush to another State in
the endeavour to obtain an inconsistent or contradictory order. Anarchy would
be loosed on the Indian Court system. Since the Division Bench of the Bombay

High Court is in seisin of the dispute, we refrain from saying anything more.

 REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL APPEALLATE JURISDICTION
CIVIL APPEAL NO. 1018 OF 2006

Neon Laboratories Ltd. V Medical Technologies Ltd. & Ors.

VIKRAMAJIT SEN, J.
Dated;October 5, 2015.
Citation;(2016)2 SCC 672

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Good legal article on S10 and 11 of CPC and Section 115 of the Evidence

http://mja.gov.in/Site/Upload/GR/1st%20LEGAL%20WORK%20SHOP%20PAPER%20SUMMARY%2015-09-2015%20-%201%20to%2021.pdf

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When second suit is barred by principle of Res judicata?

Learned Court of First Instance had rightly observed that the plaintiffs could not have preferred their claim to the disputed land had they not been sons of Harbans Singh. The reasoning given by the Court of First Appeal while reversing the findings recorded under Issue No.5 are without justified ground and the same are perverse and are liable to be reversed. Merely giving the reasoning that the plaintiffs were not parties to the suit of  Singh does not make out a case that the present litigation is not covered as per principles of res judicata. Section 11 of the Code of Civil Procedure makes it ample clear that the former suit should be between the same parties or between the parties under whom they or any of them claim, litigating under the same title. The present case is certainly covered under the later part because the plaintiffs are claiming their title and litigating under the title of Harbans Singh only. Learned Court of First Appeal has completely ignored these facts while recording the findings and as such the said findings are hereby reversed.1

Punjab-Haryana High Court

(O&M;) Harbhajan Singh vs Parduman Singh Etc on 10 February, 2015

Citation;AIR 2015 (NOC) 841 (P&H)

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Landmark judgment of Supreme court on Res judicata

 The scope of application of doctrine of res judicata is in
question.
The literal meaning of “res” is “everything that may form an
object of rights and includes an object, subject-matter or status” and
“res judicata” literally means “a matter adjudged a thing judicially
acted upon or decided; a thing or matter settled by judgments”. “Res
judicata pro veritate accipitur” is the full maxim which has, over the
years, shrunk to mere “res judicata”, which means that res judicata is
accepted for truth.
24. The doctrine contains the rule of conclusiveness of the
judgment which is based partly on the maxim of Roman jurisprudence
“interest reipublicae ut sit finis litium” (it concerns the State that there

be an end to law suits) and partly on the maxim “nemo debet bis
vexari pro uno et eadem causa” (no man should be vexed twice over
for the same cause).
Even an erroneous decision on a question of law attracts the
doctrine of res judicata between the parties to it. The correctness or
otherwise of a judicial decision has no bearing upon the question
whether or not it operates as res judicata. (Vide: Shah Shivraj
Gopalji v. ED-, Appakadh Ayiassa Bi & Ors., AIR 1949 PC 302;
and Mohanlal Goenka v. Benoy Kishna Mukherjee & Ors., AIR
1953 SC 65).
25. In Smt. Raj Lakshmi Dasi & Ors. v. Banamali Sen & Ors.,
AIR 1953 SC 33, this Court while dealing with the doctrine of res
judicata referred to and relied upon the judgment in Sheoparsan
Singh v. Ramnandan Singh, AIR 1916 PC 78 wherein it had been
observed as under:
“…….. the rule of res judicata, while founded on ancient
precedents, is dictated by a wisdom which is for all
time….. Though the rule of the Code may be traced to
an English source, it embodies a doctrine in no way
opposed to the spirit of the law as expounded by the
Hindu commentators. Vijnanesvara and Nilakantha

include the plea of a former judgment among those
allowed by law, each citing for this purpose the text of
Katyayana, who describes the plea thus: 'If a person
though defeated at law, sue again, he should be
answered, ‘‘you were defeated formerly". This is called
the plea of former judgment.’... And so the application of
the rule by the courts in India should be influenced by no
technical considerations of form, but by matter of
substance within the limits allowed by law’’
26. This Court in Satyadhyan Ghosal & Ors. v. Smt. Deorajin
Debi & Anr., AIR 1960 SC 941 explained the scope of principle of
res-judicata observing as under:
“7. The principle of res judicata is based on the need of
giving a finality to judicial decisions. What it says is that
once a res is judicata, it shall not be adjudged again.
Primarily it applies as between past litigation and future
litigation, When a matter - whether on a question of fact
or a question of law - has been decided between two
parties in one suit or proceeding and the decision is
final, either because no appeal was taken to a higher
court or because the appeal was dismissed, or no appeal
lies, neither party will be allowed in a future suit or
proceeding between the same parties to canvass the
matter again. This principle of res judicata is embodied
in relation to suits in S. 11 of the Code of Civil
Procedure; but even where S. 11 does not apply, the
principle of res judicata has been applied by courts for
the purpose of achieving finality in litigation. The result
of this is that the original court as well as any higher
court must in any future litigation proceed on the basis
that the previous decision was correct.”
A similar view has been re-iterated by this court in Daryao &
Ors. v. The State of U.P. & Ors., AIR 1961 SC 1457; Greater
Cochin Development Authority v. Leelamma Valson & Ors., AIR
2002 SC 952; and Bhanu Kumar Jain v. Archana Kumar & Anr.,
AIR 2005 SC 626.
27. The Constitution Bench of this Court in Amalgamated
Coalfields Ltd. & Anr. v. Janapada Sabha Chhindwara & Ors.,
AIR 1964 SC 1013, considered the issue of res judicata applicable in
writ jurisdiction and held as under:
“…Therefore, there can be no doubt that the general
principle of res judicata applies to writ petitions filed
under Article 32 or Article 226. It is necessary to
emphasise that the application of the doctrine of res
judicata to the petitions filed under Art. 32 does not in
any way impair or affect the content of the fundamental
rights guaranteed to the citizens of India. It only seeks to
regulate the manner in which the said rights could be
successfully asserted and vindicated in courts of law.”
28. In Hope Plantations Ltd. v. Taluk Land Board, Peermade
& Anr., (1999) 5 SCC 590, this Court has explained the scope of
finality of the judgment of this Court observing as under:

“One important consideration of public policy is that
the decision pronounced by courts of competent
jurisdiction should be final, unless they are modified or
reversed by the appellate authority and other principle
that no one should be made to face the same kind of
litigation twice ever because such a procedure should be
contrary to consideration of fair play and justice. Rule of
res judicata prevents the parties to a judicial
determination from litigating the same question over
again even though the determination may even be
demonstratedly wrong. When the proceedings have
attained finality, parties are bound by the judgment and
are estopped from questioning it.”
(See also: Burn & Co., Calcutta v. Their Employees, AIR 1957 SC
38; G.K. Dudani & Ors. v. S.D. Sharma & Ors., AIR 1986 SC
1455; and Ashok Kumar Srivastav v. National Insurance Co. Ltd.
& Ors., AIR 1998 SC 2046).
29. A three-Judge Bench of this court in The State of Punjab v.
Bua Das Kaushal, AIR 1971 SC 1676 considered the issue and came
to the conclusion that if necessary facts were present in the mind of
the parties and had gone into by the court, in such a fact-situation,
absence of specific plea in written statement and framing of specific
issue of res judicata by the court is immaterial.
30. A similar view has been re-iterated by this court in Union of
India v. Nanak Singh, AIR 1968 SC 1370 observing as under:
“This Court in Gulabchand Chhotalal v. State of
Gujarat, AIR 1965 SC 1153 observed that the provisions
of Section 11 of the Code of Civil Procedure are not
exhaustive with respect to all earlier decision operating
as res judicata between the same parties on the same
matter in controversy in a subsequent regular suit, and
on the general principle of res judicata, any previous
decision on a matter in controversy, decided after full
contest or after affording fair opportunity to the parties
to prove their case by a Court competent to decide it,
will operate as res judicata in a subsequent regular suit.
It is not necessary that the Court deciding the matter
formerly be competent to decide the subsequent suit or
that the former proceeding and the subsequent suit have
the same subject-matter. There is no good reason to
preclude, such decisions on matters in controversy in
writ proceedings under Article 226 or Article 32 of the
Constitution from operating as res judicata in
subsequent regular suits on the same matters in
controversy between the same parties and thus to give
limited effect to the principle of the finality of decisions
after full contest.”


REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NO.10620 OF 2013
Dr. Subramanian Swamy 
V
State of Tamil Nadu & Ors.
Citation;AIR2014 SC460
Read original judgment here; click here

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Whether rule of res judicata will prevails over doctrine of lis pendens?

Res judicata means a matter adjudicated upon or a matter on which judgment has been pronounced. The rule of res judicata has been put on two grounds, the one the hardship to the individual that he should be vexed twice for the same cause, and the other, public policy, that it is in the interest of the State that there should be an end of litigation. (See Lockyer v. Ferryman (1877) 2 App. Cas. 519). The rule is based on this principle that the cause of action which would sustain the second suit does not any more survive, it being merged in the judgment of the first. It is well established that every suit has got to be sustained by a cause of action, and if by the decision reached in the first suit, meaning thereby a previously decided suit, the cause of action no more survives, being merged in the judgment, where could be the cause of action left which would sustain the second suit after the decision was reached in the first suit ? Up to the time the decision was reached in the first suit it would be possible to say that there is a cause of action which could sustain both the suits. The suits are pending and the cause of action can be litigated between the contesting parties. Once, however, the cause of action ceases to exist being merged in a judgment duly pronounced by a Court, the decision reached in that suit becomes res judicata. The cause of action which till then sustained the second suit does not survive any more and no Court after such decision has been reached by a competent Court in the previously decided suit would under the provisions of Section 11 of the Civil Procedure Code or otherwise on general principles would try any suit in which the same cause of action is contested between the same parties or parties under whom they or any of them claim litigating under the same title. The matter would be concluded between the parties, provided of course, the matter in issue was directly and substantially in issue in the previously decided suit. If it was only collaterally in issue, it would not be res judicata. Subject to this and other conditions which have been laid down in Section 11 of the Civil Procedure Code a decision reached in the previously decided suit would be res judicata and there will be no question whatever of the same matter being litigated over again in the second suit which, as has been observed above, would not be capable of being sustained any further by reason of the cause of action having merged in the judgment pronounced in the previously decided suit. This is the rule of res judicata.

12. Lis pendens is an action pending and the doctrine of lis pendens is that an alienee pendente lite is bound by the result of the litigation. As Lord Justice Turner said in the leading case of Bellamy v. Sabine (1857) 1 De G& J. 566 (pp. 578, 584) :

It is, as I think, a doctrine common to the Courts both of Law and Equity, and rests, as I apprehend, upon this foundation,that it would plainly be impossible that any action ol1 suit could be brought to a successful termination, if alienations pendente the were permitted to prevail. The Plaintiff would be liable in every case to be defeated by the Defendant's alienating before the judgment or decree, and would be driven to commence his proceedings de novo, subject again to be defeated by the same course of proceeding.

The Privy Council also has adopted the same principle in Faiyaz Husain Khany. Prag Narain (1907) I.L.R. 29 All. 339 : s.c. L.R. 34 I.A. 102 : s.c. 9 Bom. L.R. 656 where they lay stress on the necessity for final adjudication and observe that otherwise there would be no end to litigation and justice would be defeated. This doctrine of lis pendens is expounded in Story's Equity Jurisprudence, Vol. I, Section 406, in the terms following :

Ordinarily, it is true, that the decree of a court binds only the parties and their privies hi representation or estate. But he who purchases during the pendency of a suit, is held bound by the decree that may be made against the person from whom he derives title.... Where there is a real and lair purchase, without any notice, the rule may operate very hardly. But it is a rule founded upon a great public policy; for otherwise, alienations made during a suit might defeat its whole purpose, and there would be no end to litigation. And hence arises the maxim, pendents lite, nihil innovetur; the effect of which is not to annul the conveyance, but only to render it subservient to the rights of the parties in the litigation. As to the rights of these parties, the conveyance is treated as if it never had any existence; and it does not vary them.

13. It is also settled law that in the absence of fraud or collusion the doctrine of lis pendens applies to a suit which is decided ex parte or by a compromise. If the compromise has not been fairly and honestly obtained, the suit which ended in a compromise will not operate as lis pendens. This is the doctrine of lis pendens.

14. These principles are quite clear, and we have got to determine whether in the event of a conflict arising between the rule of res judicata and the doctrine of lis pendens either the one or the other should prevail. As has been observed before, the rule of res judicata rests on the necessity of having a finality in litigation, and so does the doctrine of lis pendens. Both have the same end in view, the former that as between the same parties, or their representatives-in-interest litigating under the same title, once the decision is reached in a suit, the same question shall not be canvassed in any other suit, and the latter that whatever the party may choose to do by way of transfers pendente lite, the transferee pendente lite shall be bound by the result of the litigation. There is, however, this difference between the two that the rule of res judicata is concerned with more actions than one, whereas the doctrine of lis pendens is concerned with the very same suit during the pendency of which there is an alienation of the right, title and interest of one of the parties thereto. In the case of res judicata the same cause of action may sustain various actions simultaneously, but once the cause of action is merged in the judgment pronounced in a previously decided suit, there is no cause of action left to sustain the second suit. In the case of lis pendens, however, the cause of action continues as it was, sustaining the suit which has been filed for the adjudication of the rights of the various parties thereto and the doctrine applies during the pendency of that suit sustained on that cause of action. Whatever be the transfers pendente lite, they do not affect the result of the litigation qua the parties to the suit, and the transferee pendente lite is bound by the result of that litigation, irrespective of whatever has happened between his transferor and himself. Once, however, even in the case where the doctrine of lis pendens applies a judgment is pronounced and the cause of action is merged in the judgment, that judgment is the final pronouncement which binds not only the parties to the suit but also the transferees pendente lite from them. The conveyance is treated as if it never had any existence. As Story has put it in the passage above quoted, the effect of it is not to annul the conveyance but only to render it subservient to the rights of the parties in the litigation. Whether this decision is reached in the same suit or in a different one and whether the cause of action which sustained the suit in which the doctrine of lis pendens applies was merged in the judgment pronounced in the very same suit or in another one, the position would be that that decision would determine the rights of the parties and would be binding on them as well as the transferees pendente lite from them. The transferee pendente lite would be legitimately treated as the representative-in-interest of the parties to the suit and the judgment which has been pronounced, whether in the same suit or in another, would be determinative of the rights of the parties. There would be then no lis or action which would survive. The lis or action can only be sustained by a cause of action. If the cause of action was merged in a judgment duly pronounced by a competent Court, there would be no more occasion for any lis to continue pending. If a judgment duly pronounced on that particular cause of action was to merge the cause of action in itself, that judgment would govern the rights of the parties, whether it is pronounced in the same suit in which the doctrine of lis pendens applies or in any other. If it is in the same suit, there would be no question of the applicability of the rule of res judicata. The rule of res judicata would come into operation only if it was pronounced in another suit which came to be decided earlier than the one in which the doctrine applied. But once that judgment was pronounced it would have the effect of finally determining the rights of the parties and the cause of action which would sustain the suit in which the doctrine of lis pendens applied would be merged in the judgment duly pronounced in what may be described as the previously decided suit. In our opinion, therefore, the rule of res judicata prevails over the doctrine of lis pendens and we have come to the conclusion that once a judgment is duly pronounced by a competent Court in regard to the subject-matter of the suit in which the doctrine of lis pendens applies, that decision is res judicata and binds not only the parties thereto but also the transferees pendente lite from them.

IN THE HIGH COURT OF BOMBAY

First Appeal No. 112 of 1946

Decided On: 25.03.1949

 

Digambarrao Hanmantrao Deshpande vs. Rangrao Raghunathrao Desai  

Respondent: Rangrao Raghunathrao Desai

Hon'ble Judges/Coram:
Bhagwati and Y.V. Dixit, JJ.

Citation:AIR1949Bom367, 

1949(51)BOMLR623,MANU/MH/0019/1949

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