Whether principle of res judicata is applicable if legality of previous order of court is subject matter of appeal before appellate court?

...When the proceedings have attained finality parties are bound by the judgment and are estopped from questioning it. They cannot litigate again on the same cause of action nor can they litigate any issue which was necessary for decision in the earlier litigation. These two aspects are "cause of action estoppel" and "issue estoppel". These two terms are of common law origin. Again, once an issue has been finally determined, parties cannot subsequently in the same suit advance arguments or adduce further evidence directed to showing that the issue was wrongly determined. Their only remedy is to approach the higher forum if available. The determination of the issue between the parties gives rise to, as noted above, an issue estoppel....

In the subsequent judgment of a Bench of two learned Judges in Narayan Dutt Tiwari (supra), it has been held that principles of res judicata and constructive res judicata apply also to successive stages of the same proceedings. However, in the present case this principle would not stand attracted for the simple reason that the legality of the order of eviction was the subject matter of a statutory appeal Under Section 15(1) (b) before the appellate authority. 

IN THE SUPREME COURT OF INDIA

Civil Appeal No. 5129 of 2017 (Arising out of SLP (C) No. 24952 of 2015)

Decided On: 11.04.2017

 Dalip Kaur Brar Vs. Guru Granth Sahib Sewa Mission (Regd.) and Ors.

Hon'ble Judges/Coram:

J.S. Khehar, C.J.I. and Dr. D.Y. Chandrachud, J.

Citation:(2017) 14 SCC159

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Whether Rule of issue estoppel prevents re-litigation of an issue?

The principle of issue-estoppel is also known as ‘cause of action estoppel’ and the same is different from the principle of double jeopardy or; autre fois acquit, as embodied in Section 403 Cr.P.C. This principle applies where an issue of fact has been tried by a competent court on a former occasion, and a finding has been reached in favour of an accused. Such a finding would then constitute an estoppel, or res judicata against the prosecution but would not operate as a bar to the trial and conviction of the accused, for a different or distinct offence. It would only preclude the reception of evidence that will disturb that finding of fact already recorded when the accused is tried subsequently, even for a different offence, which might be permitted by Section 403(2) Cr.P.C. Thus, the rule of issue estoppel prevents re-litigation of an issue which has been determined in a criminal trial between the parties. If with respect to an offence, arising out of a transaction, a trial has taken place and the accused has been acquitted, another trial with respect to the offence alleged to arise out of the transaction, which requires the court to arrive at a conclusion inconsistent with the conclusion reached at the earlier trial, is prohibited by the rule of issue estoppel. In order to invoke the rule of issue estoppel, not only the parties in the two trials should be the same but also, the fact in issue, proved or not, as present in the earlier trial, must be identical to what is sought to be re-agitated in the subsequent trial. If the cause of action was determined to exist, i.e., judgment was given on it, the same is said to be merged in the judgment. If it was determined not to exist, the unsuccessful plaintiff can no longer assert that it does; he is estopped per rem judicatam.1

Supreme Court of India

Ravinder Singh vs Sukhbir Singh & Ors. on 11 January, 2013

Bench: B.S. Chauhan, V. Gopala Gowda

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