Supreme Court: Under which circumstances a subsequent change of law will not render an earlier decision on a pure question of law ineffective as res judicata

The second limb of the High Court's reasoning, that Vineeta Sharma constitutes a 'change in law' which overrides res judicata is equally unsustainable. It is true that in Mathura Prasad Bajoo Jaiswal (supra), this Court in Para 9 held that a subsequent change in law can render an earlier decision on a pure question of law ineffective as res judicata. However, this exception applies only where the legal basis of the earlier decision has been undermined by the subsequent pronouncement. {Para 40}

41. The question, therefore, is whether Vineeta Sharma effects any change in the law relevant to the 2013 order. The answer, in our view, is in the negative. The 2013 order proceeded on the basis that even assuming the daughters are not coparceners and the partition is valid, the father died intestate and the daughters have a right in the father's share Under Section 8 of the H.S. Act. Vineeta Sharma (supra) deals with the scope of the 2005 Amendment vis-à-vis coparcenary rights and the saving clause for pre-2004 partitions. It holds, inter alia, that daughters become coparceners by birth, that the 2005 Amendment is retroactive in nature, and that Section 6(5) saves only partitions effected before 20.12.2004 by registered deed or court decree. What Vineeta Sharma (supra) does not do is alter the settled position which was the foundation of the 2013 order, that where a Hindu male dies intestate, his property devolves Under Section 8 on all Class I heirs including daughters. The "basis" of the 2013 judgment remains entirely undisturbed by Vineeta Sharma. The High Court's reasoning that Vineeta Sharma (supra) did away with the basis of the 2013 order is, with respect, erroneous.

 IN THE SUPREME COURT OF INDIA

Civil Appeal No. 7939 of 2026 (Arising out of SLP (C) No. 23709 of 2024)

B.S. Lalitha and Ors. Vs. Bhuvanesh and Ors.

Hon'ble Judges/Coram:

Augustine George Masih and Sanjay Karol, JJ.

Author: Augustine George Masih, J.

Citation: 2026 INSC 499, MANU/SC/0483/2026

Dated: MAY 15, 2026.

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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.

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Can the court refuse to vary a preliminary decree of partition in final decree proceedings if there is a change in law during those proceedings?

The decision of Vineeta Sharma (supra) also highlights that a change in law during the pendency of an appeal must be considered and appropriately applied. This Court relied upon United Bank of India, Calcutta v. Abhijit Tea Company Private Limited and Ors. reported in MANU/SC/0551/2000 : (2000) 7 SCC 357, wherein, it was held that:

20. Now, it is well settled that it is the duty of a court, whether it is trying original proceedings or hearing an appeal, to take notice of the change in law affecting pending actions and to give effect to the same. (See G.P. Singh: Interpretation of Statutes, 7th Edn., p. 406.) If, while a suit is pending, a law like the 1993 Act that the civil court shall not decide the suit, is passed, the civil court is bound to take judicial notice of the statute and hold that the suit -- even after its remand -- cannot be disposed of by it. {Para 77}

78. This Court in Vineeta Sharma (supra) clarified the entire position as follows:

107. Once the constitution of coparcenary changes by birth or death, shares have to be worked out at the time of actual partition. The shares will have to be determined in changed scenario. The severance of status cannot come in the way to give effect to statutory provision and change by subsequent event. The statutory fiction of partition is far short of actual partition, it does not bring about the disruption of the joint family or that of coparcenary is a settled proposition of law. For the reasons mentioned above, we are also of the opinion that mere severance of status by way of filing a suit does not bring about the partition and till the date of the final decree, change in law, and changes due to the subsequent event can be taken into consideration.

Xxx xxx xxx

114. In the instant case, the question is different. What has been recognised as partition by the legislation Under Section 6, accordingly, rights are to be worked out. This Court consistently held in various decisions mentioned above that when the rights are subsequently conferred, the preliminary decree can be amended, and the benefit of law has to be conferred. Hence, we have no hesitation to reject the effect of statutory fiction of the proviso to Section 6 as discussed in Prakash v. Phulavati [MANU/SC/1241/2015 : (2016) 2 SCC 36: (2016) 1 SCC (Civ) 549] and Danamma [Danamma v. Amar, MANU/SC/0064/2018 : (2018) 3 SCC 343: (2018) 2 SCC (Civ) 385]. If a daughter is alive on the date of enforcement of the Amendment Act, she becomes a coparcener with effect from the date of the Amendment Act, irrespective of the date of birth earlier in point of time.

APPLICATION OF THE AFORESAID PRINCIPLES OF LAW TO THE FACTS OF THE PRESENT CASE

79. Let us assume for the moment that the Trial Court would have decreed the suit in favour of the Plaintiff i.e., the daughter giving her 1/3rd share uniformly in all the properties including the ancestral properties. It could have been argued that the Trial Court could not have done so, having regard to the position of law, prevailing at the relevant point of time. However, after the decision of this Court in the case of Vineeta Sharma (supra) such allotment of share would be in accordance with law. 

80. It is in the aforesaid background that daughters are entitled to 1/3rd share in all the properties as scheduled in the plaint. The same would be in accordance with the dictum as laid in Vineeta Sharma (supra), while passing the final decree. At the cost of repetition, we state that by virtue of the preliminary decree passed by the Trial Court, which was confirmed by the Division Bench of the High Court, the issues decided therein will be deemed to have become final but as the partition suit is required to be decided in stages, the same can be regarded as fully and completely decided only when the final decree is passed. As the law governing the parties has been amended before the conclusion of the final decree proceedings, the party benefitted by such amendment (like the two daughters in the case on hand) can make a request to the Trial Court to take cognizance of the Amendment and give effect to the same.

81. We do not find any merit in the submissions canvassed by Mr. Basant, learned Senior Counsel appearing for the Appellants that in a partition suit, the preliminary decree cannot be varied in the final decree proceedings, despite the amendment of the law governing the parties.

 IN THE SUPREME COURT OF INDIA

Civil Appeal Nos. 2913-2915 of 2018

Prasanta Kumar Sahoo and Ors.  Vs.  Charulata Sahu and Ors.

Hon'ble Judges/Coram:

A.S. Bopanna and J.B. Pardiwala, JJ.

Author: J.B. Pardiwala, J.

Decided On: 29.03.2023

Citation: MANU/SC/0326/2023

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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.

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

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

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

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

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

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

{Para 18}

 IN THE HIGH COURT OF ANDHRA PRADESH

Writ Petn. No. 10019 of 1993

Decided On: 02.09.1994

3 Aces, Hyderabad Vs.  Municipal Corporation of Hyderabad

Hon'ble Judges:

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

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

Citation:  MANU/AP/0002/1995.

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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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Whether executing court can take into account change of law during the pendency of execution proceeding?

The first point having answered against the petitioner and in favour of respondent Nos. 4 and 5, it is really not necessary to go into legality and validity of the decree under execution. Assuming for the sake of argument that the decree is a legal and valid decree obtained and the same can be validly executed by initiating execution proceedings, but during the pendency of execution proceeding statute having been amended with retrospective effect the decree has become unexecutable. The decree even if legal, cannot be allowed to be executed in view of the retrospective amendment to the Bombay Rent Act. The executing Court can always take into account such change in law during the pendency of the execution proceedings so long as judgment debtor is in possession of the property which is a subject matter of decree. All questions, which can be gone into in a suit can also be gone into in the said proceedings. It is open to an obstructionist in proceedings started under Order 21 Rule 97 to raise a contention that decree being a nullity is not liable to be executed. This is so despite the fact that he cannot establish his independent right to possession. Matter can be investigated under Order 21 Rule 101, Mani Nariman v. Phiroz 1991 M.L.J. 376.

29. Apart from the above, the case of the respondents/obstructionists even otherwise stands on a higher footing. The objection filed by them under Order 21 Rule 97 of the Code of Civil Procedure were rightly adjudicated upon by the executing Court. The Apex Court in the case of Ashan Devi v. Phulwasi Devi, 2003(9) Scale 783 while interpreting Order 21 Rule 97 of the Code observed that Legislature purposely amended Order 21 to enable third parties to seek adjudication of their rights in execution proceedings themselves with a view to curtail the prolongation of litigation and arrest delay caused in execution of decrees. No separate suit is required to be filed. Proceedings under Order 21 Rule 97 of the Code are required to be tried as suit. In this view of the legal possession, no fault can be found with the impugned judgment and decree passed by the lower appellate Court.

IN THE HIGH COURT OF BOMBAY

Writ Petition No. 4323 of 1999

Decided On: 29.06.2004

Gordhandas Lalchnd  Vs.  Kubchand Tirthdas Tailor and Ors.

Hon'ble Judges/Coram:

V.C. Daga, J.

Citation: 2005(1) MHLJ 396

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Whether earlier decision will operates as res Judicata if there is change of law?

 Admittedly, IRCON failed to respond to the said request. In the
aforesaid circumstances, an independent arbitrator is required to be
appointed in this case. The only question that remains is whether Madhava
is entitled to approach this Court under Section 11 of the Act considering
its earlier petition had been dismissed.
15. The earlier petition had been dismissed prior to the enactment of the
Amendment Act. At the material time, if the parties agreed, an employee
of a party to the arbitral proceedings could be appointed as an arbitrator.
The said law no longer holds good as Section 12(5) of the Act begins with
a non obstante clause and notwithstanding any prior agreement between
the parties, a person who is related to a party as specified in Seventh
Schedule to the Act would be ineligible for being appointed as an
arbitrator. This issue was not before the Court while considering
Madhava’s earlier petition and, therefore, Madhava cannot be precluded
from approaching this Court in view of the substantive change in the law.
In Mathura Prasad Bajoo Jaiswal and Ors. v. Dossibai N.B.
Jeejeebhoy: (1970) 1 SCC 613, the Supreme Court had held as under:-
“7. Where the law is altered since the earlier decision, the
earlier decision will not operate as res judicata between the
same parties: Tarini Charan Bhattacharjee case. It is
obvious that the matter in issue in a subsequent proceeding
is not the same as in the previous proceeding, because the
law interpreted is different.”
17. In view of the principle as explained by the Supreme Court above,
the present petition cannot be rejected solely on the ground that Madhava’s
earlier petition had been dismissed.
IN THE HIGH COURT OF DELHI AT NEW DELHI
 Judgment delivered on: 19.12.2016
ARB.P. 159/2016
MADHAVA HYTECH-RANI (JV) Vs  IRCON INTERNATIONAL LIMITED 

CORAM
HON’BLE MR JUSTICE VIBHU BAKHRU

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Whether terms of contract can be changed considering change in law?

 When the tariff order itself is subject to periodic review it
is difficult to see how incorporation of a particular tariff
prevailing on the date of commissioning of the power project
can be understood to bind the power producer for the entire
duration of the plant life (20 years) as has been envisaged by
Clause 4.6 of the PPA in the case of Junagadh. That apart,
modification of the tariff on account of air cooled condensers
and denying the same on account of claimed inadequate
pricing of biogas fuel is itself contradictory.
REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NO. 5875 OF 2012
GUJARAT URJA VIKAS NIGAM LIMITED 
 V
TARINI INFRASTRUCTURE LTD. & ORS. 
RANJAN GOGOI, J.
Dated:JULY 05, 2016.
Citation:(2016) 8 SCC743

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Whether court to which case is remanded can take cognizance of change of law?

 However, as per the learned counsel for the respondent I cannot look into the judgments refereed to by me above. I am told that since the Supreme Court remanded the case with the direction to decide the objections "un the light of Noronah's judgment and on merit", I have no option but to confine myself within the four-corners of that order and therefore must not see beyond what had been laid down in Noronah case . A already noticed by me above, in Noronah case a challenge to the validity of limited tenancy was permitted even after the expiry of the limited lease. In other words, the learned counsel for the respondent wants me not to dismiss the objection petition on the basis of the subsequent pronouncements of the the Apex Court. In support he drew my attention to a judgment of the Madras High Court in Konappa Mudaliar v. Kusalaru alias Munuswami Pillai, , wherein it was held that it is not open to the lower Court, when an appellate Court remanded the case to il, to do anything but to carry out the terms of the remand even if it considers that the order of remand was not in accordance with the law and further that it cannot apply what it might consider correct position of the law.{Para 9}

10. Does the order of remand shut all the doors and windows to new light and fresh air ? Does it, to borrow the words of Cardozo compel me to "refuse to see the acres already sown and fruitful"? There can be a change in the normative system -- such as legislation or new case law or a change in the approach to the rules of interpretation. Am I supposed to ignore all that? Would I not thereby be uprooting the word written after Noronha's case and thereby, in effect calling the day night and the night day? At the stage when the order of remand was passed there existed, with respect to the facts that were before the court, only one lawful solution (We may call it even appropriate solution). But then, a Judge convinced of the correctness of a certain solution does not deny the existence of additional lawful solution and therefore acts in a manner which would not shun out stages of thought and Us development.

11. The perusal of the remand order would go to show that it is not formulated absolutely. When it uses the expression "in the light of it does not say that the matter must necessarily be decided in the terms of Noronha judgment. What is meant by that expression is that the said judgment should be kept in view, or in other words, it must be within the contemplation of the courts below while deciding the matter. It says nothing more. And, if that be so, does it not leave vast field open for different stages of thought and its development ?

12. The expression "and on merits" needs also to be noticed, for, it too lends support, and I hope I am right in thinking so, to my view. Of course the term "merits" is not very clearly defined and I am acutely conscious of the same. But then docs the word "merits" bears the sense of substantial legal rights of the parties to an action ? When we say "oh merits" do we not mean a decision on a matter of substance in law as distinguished from matters of form? And again, if that be so would the court be not obliged and required to take note of the latest binding pronouncements of the apex Court while dealing with the matter on merits ? To my mind, and I say so with all respect, the interpretation proposed by the learned Counsel for the respondent would lead in practice to an illogical result. The entire approach to the subject has to be based on ethical values such as fairness and justice. And, it is this fairness and justice which a Judge must seek and effectuate instead of being led off the trail by interpreting an order in a manner that would not breed justice but injustice. In other words, the order must be interpreted (if at all it needs to be interpreted) so as to manifest an intent that is consistent with convenience, logic and justice.

13. Since in my view of the order of remand, 1 can go into the judgments passed subsequent to the pronouncement in Nornha's case.

ORDER OF REMAND - Interpretation of-Supreme Court remanding the case for decision in the light of a particular decision-Subordinate Court can look into the subsequent decisions also to ascertain the correct position of law.

Delhi High Court

Hardit Singh Chadha vs Jagtar Singh Grover on 1 October, 1993

Equivalent citations: 1993 IVAD Delhi 501, AIR 1994 Delhi 189, 52 (1993) DLT 120, 1994 (28) DRJ 17, ILR 1994 Delhi 528, 1993 RLR 639

Bench: J Singh

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When change in law will operate retrospectively?

Reference may also be made upon the decision of this Court in Anant Gopal Sheorey v. State of Bombay AIR 1958 SC 915 where the legal position was stated in the following words: "4. The question that arises for decision is whether to a pending prosecution the provisions of the amended Code have become applicable. There is no controversy on the general principles applicable to the case. No person has a vested right in any course of procedure. He has only the right of prosecution or defence in the manner prescribed for the time being by or for the Court in which the case is pending and if by an Act of Parliament the mode of procedure is altered he has no other right than to proceed according to the altered mode. See Maxwell on Interpretation of Statutes on p. 225; The Colonial Sugar Refining Co. Ltd. v. Irving (1905) A.C. 369, 372). In other words a change in the law of procedure operates retrospectively and unlike the law relating to vested right is not only prospective.
SUPREME COURT OF INDIA

Ramesh Kumar Soni Vs. State of Madhya Pradesh on 26 February, 2013

[Criminal Appeal No. 353 of 2013 arising out of S.L.P. (CRL.) No.5663 of 2011]

T.S. THAKUR, J.
Citation:(2013) 14 SCC 696

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What will be effect of change Of Law during pendency of appeal?

The learned Judges relied on the principle that an appeal was a continuation of the suit and that the appeal would be governed by the newly enacted clause (a) of sub-s. (1) of s.5 even though the trial court decree had been passed earlier.

That a change in the law during the pendency of an appeal has to be taken into account and will govern the rights of the parties was laid down by this Court in Ram Sarup v. Munshi and others etc.(2), which was followed by this Court in Mula and others v. Godhu and others.(3) We may point out that in Dayawati and Another v. Inderjit and others(") this Court observed:-

"If the new law speaks in language, which expressly or by clear intendment, takes in even pending matters, the Court of trial as well as the Court of appeal must have regard to an intention so expressed, and the Court of appeal may give effect to such a law even after the judgment of the Court of first instance. "

Reference may also be made to the decision of this Court in Amarjit Kaur v. Pritam Singh and others(') where effect was given to a change in the law during the pendency of an appeal, relying on the proposition formulated as long ago as Kristnama Chariar v. G

(1) [1964] 6 S.C.R. 876,

(2) [1963] 3 S.C.R. 858.

(3) [1970] 2 S.C.R. 129.

(4) [1966] 3 S.C.R. 275

(5) [1975] I S.C.R. 605.

208

Managammal(1) by Bhashyam Iyengar J., that the hearing of an appeal A was, under the processual law of this country, in the nature of a rehearing of the suit. In Amarjit Kaur (supra) this Court referred also to Lachmeshwar Prasad Shukul v. Keshwar Lal Chaudhuri(2) in which the Federal Court had laid down that once a decree passed by a court had been appealed against the matter became sub judice again and thereafter the appellate court acquired seisin of the whole case, except that for certain purposes, for example, execution, the decree was regarded as final and the court below retained jurisdiction.

Supreme Court of India

Lakshminarayan Guin & Ors vs Niranjan Modak on 3 December, 1984

Citations: 1985 AIR 111, 1985 SCR (2) 202

BENCH:
PATHAK, R.S.
REDDY, O. CHINNAPPA (J)

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