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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When court can grant interim measures U/S 9(ii)(b), (d) and (e) even if property or things are not subject matter of dispute in arbitration?

 Be that as it may, this court has already taken a view in case of Tata Capital Financial Services Limited vs. Deccan Chronicle Holdings Limited and Anr. (supra) that the proceedings undersection 9 for interim measures cannot be equated with the proceedings filed in a pending suit for referring the parties for arbitration under section 8 of the Arbitration Act. In my view, the principles laid down by this court in the said judgment can be extended in the present proceedings under section 9. The reliefs under section 9 for appointment of the Court Receiver in respect of the mortgage property through in respect of which no reliefs are claimed by the petitioner in the statement of claim, can still be granted in respect of the said properties to secure the claims of the petitioner under section 9 (ii) (d) of the Arbitration Act. This court has held in the said judgment that the court can grant interim measures under section 9(ii)(b), (d) and (e) even if the property or things are not subject matter of the dispute in arbitration. This court has also held that even if the petitioner gives up its claim for enforcement of mortgaged properties, interim measures can still be granted under section 9, even if the petitioner has made claim for recovery of money claim simplicitor in the statement of claim. I am respectfully bound by the said judgment.

Bombay High Court

Aditya Birla Finance Ltd vs Mr Carnet Elias Fernandes And Anr on 4 September, 2015

Bench: R.D. Dhanuka

ORDINARY ORIGINAL CIVIL JURISDICTION

ARBITRATION PETITION NO. 1118 OF 2015

Citation;AIR 2016(NOC)264 BOM

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