Whether finding given by court without jurisdiction on merits of case will amount to res judicata?

In our opinion the High Court misconstrued the earlier order as it failed to note that the observations made thereunder were not binding since they were made without jurisdiction. It is useful to quote Corpus Juris Secundum2, which recognizes the difficulty faced by the High Court in application of res judicata in following words-

it is sometimes difficult to determine when a particular issue determined is of sufficient dignity to be covered by the Rule of estoppel.

Mulla3 has aptly cautioned against such mis-application of res judicata in the following manner-

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.

19. It is apparent from the perusal of the impugned order that the High Court stretched the ambit of 'finality' for some observations to the saying (relating to collateral aspects) that every such observation was final unless reversed in appeal, which had an effect of throttling the substantive justice out of life. We cannot approve such reasoning of the High Court that the issue had attained finality, since the observations were made by a court which went against its own findings that the court did not have any authority/jurisdiction to do so. Once the court concludes that a case is not maintainable Under Section 378 of Code of Criminal Procedure, it did not have any jurisdiction to make further observations on merits as has been done in this case.

IN THE SUPREME COURT OF INDIA

Criminal Appeal No. 164 of 2018 (Arising out of S.L.P. (Crl.) No. 2190 of 2017)

Decided On: 23.01.2018

 Municipal Corporation of Gr. Mumbai Vs. Pankaj Arora (Secretary) and Ors.

Hon'ble Judges/Coram:

N.V. Ramana and S. Abdul Nazeer, JJ.

Citation: (2018) 3 SCC 699

Print Page

Whether high court can decide appeal on merit if it was preferred against order of remand?

The High Court failed to see that when the first Appellate Court itself did not decide the appeal on merits and considered it proper to remand the case to the Trial Court, a fortiori, the High Court had no jurisdiction to decide the appeal on merits. Moreover, Order 43 Rule 1(u) confers limited power on the High Court to examine only the legality and correctness of the remand order of the first Appellate Court but not beyond that. In other words, the High Court should have seen that Order 43 Rule 1(u) gives a limited power to examine the issue relating to legality of remand order, as is clear from Order 43 Rule 1(u) which reads thus:- “1(u) an order under rule 23 or rule 23A of Order XLI remanding a case, where an appeal would lie from the decree of the Appellate Court”

25) It is well settled law that the jurisdiction to decide the appeal on merits can be exercised by the Appellate Court only when the appeal is filed under Section 96 or 100 of the Code against the decree. Such was not the case here.

Reportable

Supreme Court of India

J. Balaji Singh vs Diwakar Cole & Ors on 24 April, 2017

Bench: R.K. Agrawal, Abhay Manohar Sapre

Print Page

Whether appellate court can decide appeal on merit if both parties are absent?

We find from the record that the High Court decided the appeal in the absence of both parties. In other words, when  the appeal was called on for hearing, neither the counsel for the appellant nor the counsel for the respondent was present.

17) In such situation, provisions of Order 41 Rule 17 of the Civil Procedure Code, 1908 got attracted and, therefore, the High Court should have taken recourse to the powers under Order 41 Rule 17 for passing appropriate orders as contemplated in Rule 17. Indeed the explanation appended to Rule 17 in clear terms provides that nothing in this sub-rule shall be construed as empowering the Court to dismiss the appeal on merits.

18) In any event, the dismissal of appeal being essentially under Order 41 Rule 17, the appellant herein should have taken recourse to the remedy available under Order 41 Rule 19 by filing application to the High Court praying therein for readmission of their appeal by making out the sufficient cause for their non-appearance on the date when the appeal was listed for hearing instead of filing this appeal against the impugned order before this Court.

Reportable

Supreme Court - Daily Orders

Navniraman Development ... vs Divisional Commissioner And ... on 5 July, 2017

Citation:(2017)8 SCC 603

Print Page

When a judgment is considered as judgment on merits?

 

The appellant contends that the order of the English Court is not given
on merits and that it falls under Section 13(c) of the CPC as a result of
which it is not conclusive and therefore inexecutable. We cannot accept
such submission. A judgment can be considered as a judgment passed
on merits when the Court deciding the case gives opportunity to the
parties to the case to put forth their case and after considering the rival
submissions, gives its decision in the form of an order or judgment, it iscertainly an order on merits of the case in the context of interpretation of

Section 13(c) of the CPC.

REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NO. 10106 OF 2016
ARISING OUT OF
SPECIAL LEAVE PETITION (CIVIL) NO. 19791 OF 2013
M/S ALCON ELECTRONICS PVT. LTD
V
CELEM S.A. OF FOS 34320 ROUJAN, FRANCE & ANR. 
Dated:DECEMBER 09, 2016
Citation:(2017) 2 SCC253

Print Page