Chhattisgarh High Court
Case BriefsHigh Courts

Chhattisgarh High Court: In an appeal against the decision of Trial Court of dismissing the suit mainly on the ground that the suit preferred by the appellant was barred under the provisions of Section 11 Code of Civil Procedure,1908 (CPC), Arvind Singh Chandel, J. has observed that the suit preferred by the appellant is not barred under the provisions of Section 11 CPC and the Trial Court dismissed the suit only on the ground of res judicata and did not decide the other issues on merit.

In this case, the appellant filed a suit for possession of the house and also for damages on the basis of relationship of landlord and tenant, however, it was dismissed. Since the respondent did not vacate the house, another suit has been preferred by the appellant for vacant possession of the house and for damages. Further, the Trial Court dismissed the suit mainly on the ground that the subsequent suit preferred by the appellant is barred under the provisions of Section 11 CPC.

The Court took note of the ruling in Srihari Hanumandas Totala v. Hemant Vithal Kamat (2021) 9 SCC 99, Jamia Masjid v. K.V. Rudrappa 2021 SCC OnLine SC 792, wherein the Court held that the ingredients to attract Res Judicata are (i) The matter must have been directly and substantially in issue in the former suit; (ii) the matter must be heard and finally decided by the Court in the former suit; (iii) The former suit must be between the same parties or between parties under whom they or any of them claim, litigating under the same title; and (iv) the Court in which the former suit was instituted is competent to try the subsequent suit or the suit in which such issue has been subsequently raised.

The Court further took note of the ruling in Deva Ram v. Ishwar Chand, (1995) 6 SCC 733, wherein the Court observed that the basic requirement for the applicability of rule of res judicata is wanting and, therefore, in the absence of pleadings, in the absence of issues and in the absence of any finding, it is not open to the party to invoke the rule of res judicata.

The Court observed that in the previous suit the appellant never claimed his title over the suit house, and he only claimed himself as the landlord of the suit house on the basis of the will. In the previous suit, directly or indirectly, no question was involved that the plaintiff got title over the house on the basis of the will as there was no issue framed by the Court on this point. Therefore, the finding of the Court in the previous suit regarding execution of the will was incidental.

The Court also observed that in the previous suit the question, whether the plaintiff was the title holder of the suit house or not was not involved directly or indirectly. Further, the previous suit was filed under the provisions of Section 12(1)(d) of the Accommodation Control Act for eviction of the tenant from the suit house on the basis of bona fide need of the landlord. Moreover, the Court deciding the previous suit was not competent to decide the title of the appellant over the suit house directly or indirectly as the suit was preferred by the appellant on the basis of relationship between the parties as landlord and tenant only.

The Court further noted that the present suit has been preferred by the appellant for getting vacant possession of the suit house and damages claiming himself as the title holder of the suit house. Therefore, the finding of the Court below that the present suit preferred by the plaintiff is barred under the provisions of Section 11 CPC is not in accordance with law, hence, it held that the present suit preferred by the plaintiff is not barred under the provisions of Section 11 CPC.

[Santosh Kumar Sahu v. Smt. Basanti Bai, 2022 SCC OnLine Chh 1556, decided on 2.9.2022]


Advocates who appeared in this case :

Raja Sharma, Advocate, for the Appellant;

Dhirendra Prasad Mishra, Advocate, for the Respondent;

Karnataka High Court
Case BriefsHigh Courts

Karnataka High Court: A Division Bench of Alok Aradhe and J M Khazi, JJ. dismissed the appeal and quashed the impugned judgment directing the appellants to determine the compensation and pay the same to respondents.

The facts of the case are such that the original respondent 1 viz., Narayana Reddy, owner of an agricultural land, wherein the said land, as well as several other lands, were required for formation of a layout between Banaswadi Road and Hennur Road commonly known as HRBR Layout. A preliminary notification dated 21-03-1977 and a final notification dated 14-05-1980 was issued. The father of original petitioner filed a writ petition seeking to give effect to the resolution for de notification of the land which was thereby dismissed. Then, again a writ petition was filed challenging the validity of the notifications which was again dismissed. The original petitioner again filed a petition challenging the notifications without disclosing the factum of filing two previous writ petitions by the father. The impugned notifications were quashed and the writ petition was allowed holding that the petition does not suffer from delay and laches as the scheme was not substantially implemented as required under Section 27 of the Bangalore Development Authority Act, 1976 within five years from the date of the final notification and therefore, the scheme has lapsed. Thus, instant appeal was filed.

Counsel for the appellant submitted that the original petitioner was guilty of suppression of facts and the writ petition filed by the original petitioner suffered from delay and laches and the writ petition was barred by res judicata. It was also contended that the original petitioner cannot claim any benefit on the principle of negative equality and no legal right accrues to the original petitioner even if in some cases in which adverse orders have been passed against the appellants, it may not have preferred an appeal. However, it is fairly submitted that the land owners are entitled to just and fair compensation.

The Court relied on judgment Krishnamurthy v. Bangalore Development Authority, 1995 SCC OnLine Kar 498 wherein it was observed “It is also pertinent to note that proceeding under Section 27 of the Act would lapse only if two conditions are satisfied viz., failure to execute the scheme by dereliction of statutory duties without justification and substantial execution of the scheme depending upon the scheme.”

The Court observed that it is trite law that principles of constructive res judicata and res judicata apply to writ proceeding. In the instant case, the original petitioner who claims title in respect of property in question through his father is bound by the decision of previous writ petition and cannot be permitted to agitate the validity of the impugned notifications again on the principle of res judicata Thus, the challenge to the aforesaid notification is barred by principles of res judicata.

The Court further relied on judgment K. Jayaram v. Bangalore Development Authority, 2021 SCC Online SC 1194 and observed that the petitioner is guilty of suppression of material facts and has not approached the court with clean hands. Therefore, the discretionary jurisdiction under Article 226 of the Constitution of India, which is equitable and extraordinary cannot be exercised in favour of the original petitioner.

The Court relied on Chandigarh Administration v. Jagjit Singh, (1995) 1 SCC 745, and opined that even if some similarly situated persons have been granted benefit inadvertently or by mistake, the same does not confer any legal right on the original petitioner to claim similar relief. Therefore, even if some land owners may have been granted the benefit, inadvertently by the authority, the same would not confer any legal right on the original petitioner to claim the similar benefit.

The Court directed that the “appellants shall take steps within a period of six weeks to determine the compensation payable to respondents 1(a) to 1(d) and shall make payment of the amount of compensation as is permissible in law.” [Bangalore Development Authority v. Principal Secretary, Revenue Department W.A.  No. 4121  of  2017, decided on 24-05-2022]


Appearances-

For appellants- Mr Gurudas S Kannur and Gouthamdev C. Ullal

For respondents- Mr Rajashekar and S. Suresh Desai


Arunima Bose, Editorial Assistant has reported this brief.

Himachal Pradesh High Court
Case BriefsHigh Courts

Himachal Pradesh High Court: Tarlok Singh Chauhan, J. remarked “there has been no matrimonial relationship between the parties for the last nearly two decades, which in itself establishes that the parties are not in a position to live together any longer.”

The brief facts of the case are that the marriage of the appellant and respondent was solemnised in 1983 according to Hindu rites and ceremonies. However, on account of matrimonial discord, appellant filed a petition for divorce in the year 1985-86 which, however, was ultimately compromised.  Thereafter, the parties resided peacefully and out of wedlock two sons were born. But allegedly even after those differences continued which even took the shape of occasional violence. Both even accused each other of adultery. The Trial Court passed a decree of dissolution of marriage in favour of the husband. Aggrieved by the decree of divorce passed by the Trial Court below, the appellant – wife has filed the instant appeal.

Counsel for petitioner Suneet Goel submitted that the Trial Court erred in coming to the conclusion that the wife is living in adultery, which contention had already been negated by the Court while adjudicating the petition filed by the wife for maintenance under Section 125 CrPC.

Counsel for respondents Varinder Thakur submitted that as regards the findings recorded by Trial Court under Section 125 CrPC. the same were not binding on the matrimonial Court in the matrimonial disputes and secondly, there is ample amount of evidence available on record, which shows that wife was living in adultery

The Court relied on judgment Pranab Kumar Karmakar v. Aarti Karmakar, 2008 SCC OnLine Cal 833  and observed that the findings in a proceeding under Section 125 Cr.P.C. cannot be binding on matrimonial Court while dealing with an application for divorce on the ground of res judicata. A matrimonial Court is required to arrive at an independent finding based on a material laced before it.

The Court further observed in light of the pleadings, evidence and subsequent events, that there has been no matrimonial relationship between the parties for the last nearly two decades, which in itself establishes that the parties are not in a position to live together any longer. Moreover, each of the parties is already residing with a partner of opposite sex as husband and wife. Their relations are so strained that there is no possibility of reconciliation and the marriage between them has broke down irretrievably.

Thus, It would be unrealistic for law to not take notice of the fact that the irretrievable broke down of marriage must be considered as a ground for divorce.

The Court held “I find no merit in this appeal and the same is accordingly dismissed, leaving the parties to bear their own costs.” [Sunita Devi v. Suresh Kumar, 2022 SCC OnLine HP 1968, decided on 03-03-2022]


Arunima Bose, Editorial Assistant has reported this brief

Case BriefsHigh Courts

Delhi High Court: The Division Bench of Manmohan and Dinesh Kumar Sharma, JJ., expressed that just because the scholarship advertisement was published in the Urdu language, does not mean that it was targeted at students belonging to a particular community only.

Appellant’s Counsel submitted that the Income Tax Tribunal while passing the impugned order overlooked the fact that the Assessing Officer had found that the Respondent-assessee had given merit-cum-scholarship/financial assistance to candidates predominantly belonging to a particular religious community which is violative of Section 13(1)(b) of the Act. He further stated that the advertisement for an educational scholarship was published by the assessee in Urdu language and, that too, in one newspaper only.

Primary Issue


Whether in the facts and circumstances of the case, the Income Tax Appellate Tribunal was correct in allowing the appeal of the assessee ignoring the fact that the assessee had paid most of the scholarship amount to the students of a particular religious community which was a clear violation of Section 13(1)(b) of the Income Tax Act, 1961?

Analysis and Decision


High Court found that the Commissioner of Income Tax (Appeal) and Tribunal gave a concurrent finding of fact that the benefit of scholarship to the poor and needy students was not confined to students of a particular community and a perusal of the list submitted by the assessee showed that the benefit had been granted to students from all communities without any discrimination.

The Bench expressed that,

 “…just because advertisement was published in Urdu language and that too in one newspaper, it cannot be presumed that it was targeted at the students belonging to a particular community only.”

Adding to the above, Court stated that undoubtedly, the principle of res judicata and estoppel are not applicable in taxation matters.

Stating that consistency of approach must be maintained, High Court held that no substantial question of law arose in the present appeals. [Commr. Of Income Tax {Exemption) v. Hamdard National Foundation (India), 2022 SCC OnLine Del 979, decided on 6-4-2022]


Advocates before the Court:

For the Appellant: Abhishek Maratha, Sr. Standing Counsel.

For the Respondent: Salil Aggarwal, Sr. Advocate with Madhur Aggarwal and Uma Shankar, Advocates

Case BriefsSupreme Court

Supreme Court: The Division Bench comprising of Dr. Dhananjaya Y Chandrachud* and B V Nagarathna, JJ., partly allowed the petition challenging Union Government’s disinvestment of its shareholding in Hindustan Zinc Ltd. (HZL). The Bench, though held that the government was within its powers to disinvest its shares, it was of the opinion that a full-fledged CBI enquiry was required regarding previous disinvestment by the government. The Bench stated,

“There is no bar on the constitutional power of this Court to direct the CBI to register a regular case, in spite of its decision to close a preliminary enquiry.”

HZL was incorporated as a public sector company to develop the mining and smelting capacities, so as to substantially fulfil the domestic demand for zinc and lead. In 1991-92, the Union Government disinvested 24.08 per cent of its shareholding in HZL and again in 2002 it disinvested 26 per cent of its shareholding in HZL to a ‘strategic partner, Sterlite Opportunities & Ventures Ltd. (SOVL). Consequently, the Union Government was left with an equity holding of 49.92 per cent.

Res Judicata and PILs

While determining the issue that the first relief sought by the petitioners, i.e. residual disinvestment can occur only after the amendment of the Nationalisation Act 1976 was  substantially similar to the reliefs sought by Maton Mines Mazdoor Sangh when the disinvestment of 2002 and 2014, the Bench opined that the Court must be alive to the contemporary reality of “ambush Public Interest Litigations” and interpret the principles of res judicata or constructive res judicata in a manner which does not debar access to justice. The Bench expressed,

“While determining the applicability of the principle of res judicata under Section 11 of the Code of Civil Procedure 1908, the Court must be conscious that grave issues of public interest are not lost in the woods merely because a petition was initially filed and dismissed, without a substantial adjudication on merits.”

Considering that the three judges Bench had rejected the petition filed by Maton Mines Mazdoor Singh in limine, without a substantive adjudication on the merits of their claim, the Bench held that the instant petition was not barred by res judicata.

Whether disinvestment was barred by the Nationalisation Act 1976?

Relying on the object of the Nationalisation Act, 1976 which was to acquire control over the strategic mineral deposits of lead and zinc, since zinc plays important role in the country’s economy, the petitioners contended that disinvestment could not be made without amending the Nationalisation Act 1976. Assailing the contention of the petitioners, the Union Government made following submissions:

  1. After 16 March 1999, the mining of zinc has ceased to retain a strategic character, given the changes in industrial policy.
  2. There was no challenge to the disinvestment which took place in 1991-92 or in 2002.
  3. The HZL had ceased to retain its status as a government company within the meaning of Section 617 of the Companies Act 1956.

In view of the above, the Bench opined that it would be inconsistent to read an implied limitation on the transfer by the Union Government of its residual shareholding in HZL representing 29.54 per cent of the equity capital. Considering that HZL was not a government company, the Bench stated, when a decision has been taken by the government as a shareholder of a company to sell its shares, it acts as any other shareholder in a company who makes the decision on the basis of financial and economic exigencies.

Whether the decision in Centre for Public Interest Litigation would result in a bar on the disinvestment of the residual shareholding?

In Centre for Public Interest Litigation v. Union of India, (2003) 7 SCC 532, the Court had held that that the divestment of the shareholding of the Union Government in HPCL and BPCL, as a result of which the companies would cease to be government companies, could not be undertaken without amending the statutes under which they were nationalized. Distinguishing the decision in Centre for Public Interest Litigation, the Bench stated that HPCL and BPCL were government companies when the disinvestment action was challenged while HZL ceased to be a government company as a consequence of the disinvestment in 2002, since its shareholding fell below 51 per cent. The Bench opined,

“The fact that the Union Government is amenable to the norms set out in Part III of the Constitution would not impose a restraint on its capacity to decide, as a shareholder, to disinvest its shareholding, so long as the process of disinvestment is transparent and the Union Government is following a process which comports with law and results in the best price being realized for its shareholding.”

Hence, the Bench held that the decision of the Union Government, as an incident of its policy of disinvestment, to sell its shares in the open market, could not be questioned by reading a bar on its powers to do so, from the provisions of the Nationalisation Act 1976.

CBI’s preliminary enquiry

Evidently, in spite of conflicting opinion of the Director of CBI and the Director of Prosecution, CBI regarding the closure of the preliminary enquiry and conversion of it into a regular case; and the fact that the matter was referred to the Attorney General but the Court was not apprised of the status of referral, the preliminary enquiry was closed.

Upon perusal of reports and recommendations in favour of registration of a regular case, which indicated irregularities in the decision to disinvest 26 per cent, instead of 25 per cent, in the bidding process and the valuation of 26 per cent equity for disinvestment, the Bench opined that the disinvestment in 2002 evinced a prime facie case for registration of a regular case. The Bench stated,

“We are desisting from commenting on some crucial facts and names of individuals involved, so as to not cause prejudice to the investigation of the matter.”

Accordingly, opining that there was a prima facie case for cognizable offence, as mandated in para 9.1 of the CBI Manual, the Bench held that a full-fledged investigation must be conducted.

Hence, the petition was partially allowed. The CBI was directed to register a regular case and periodically submit status reports of its investigation to the Court.

[National Confederation of Officers Association of Central Public Sector Enterprises v. Union of India, 2021 SCC OnLine SC 1086, decided on 18-11-2021]


Kamini Sharma, Editorial Assistant has put this report together 


Appearance by:

For the Petitioners: Prashant Bhushan, Senior Counsel

For Union of India: Tushar Mehta, Solicitor General

For Sterlite Opportunities & Ventures Ltd. (SOVL): Harish Salve, Senior Counsel


*Judgment by: Justice Dhananjaya Y Chandrachud

Know Thy Judge| Justice Dr. DY Chandrachud

Case BriefsSupreme Court

Supreme Court: Dismissing a half a century old litigation (started in 1971), having five rounds of litigation at the stage of execution of a simple money decree, the Division Bench of Hemant Gupta and V. Ramasubramanian*,  JJ., put an end to what appeared as a never ending litigation by holding that res judicata is applicable on execution proceedings and the judgment debtor cannot be allowed to raise objections in instalments.

Background

The appellants-judgment debtor had challenged the impugned order whereby the High Court had confirmed the order of the Executing Court dismissing their application under Section 47 of the Code of Civil Procedure, 1908.

One Rama Rani Devi had filed a simple suit for recovery of money in Money from the appellant-judgment debtor (deceased) for recovery of a sum of Rs.3000. The suit was decreed ex parte and an execution petition was filed praying for the attachment and sale of 17 decimal of land (approximately about 7450 Sq.ft.) of the appellant-judgment debtor. Pursuant to which a sale proclamation was issued by the executing court after which the appellant-judgment debtor filed an application assailing the sale proclamation on the ground of material irregularity and fraud, but the same was dismissed and the auction was held.

Compromise between Judgment debtor and Auction Purchaser

 Initially, the judgment debtor had filed an under Order XXI, Rule 90 read with Section 152 of CPC praying for setting aside the auction sale on the ground of irregularities in the sale proclamation, however, he subsequently entered into a compromise with the auction purchasers. The memo of compromise reads as follows:

“ The petitioner and the auction purchaser Opp. party do settle the suit mutually in the following manner.

1) If the petitioner debtor pays the entire money due to the auction purchaser opposite part in cash within 15th December or if he deposits it in their credit in the court and the auction shall be revoked and the original execution case shall be disposed on full satisfaction.

2) Otherwise that is if the petitioner debtor does not pay the entire money due to the auction purchaser opposite party in cash within 15th December on deposits that amount in court within that date then the said auction shall remain effective and this present suit shall be dismissed with costs.”

Findings of the High Court

Noticeably, the amount of money deposited by the auction purchasers into court was Rs.5500/, but the decree debt was around Rs.3360/. Though the compromise memo did not refer to the decree debt, but repeatedly mentioned the words, “entire money due to the auction purchasers”, the judgment debtor admittedly deposited only a sum of Rs.3700 on the basis of the calculation provided by the court officer in terms of Order XXI, Rule 89 of CPC. Consequently, after several rounds of litigation, it was held by the High Court that the judgment debtor had failed to honour the commitment made in the compromise memo to deposit the entire amount due to the auction purchasers and that therefore the auction sale should be confirmed in favour of the auction purchasers.

Contention of the Judgment debtor

The only mantra, by the recitation of which the appellants hoped to succeed was Order XXI, Rule 64 of the Code, which enables an executing court to order “that any property attached by it and liable to sale or such portion thereof as may seem necessary to satisfy the decree, shall be sold and that the proceeds of such sale or a sufficient portion thereof 10 shall be paid to the party entitled under the decree to receive the same”.

It was the contention of the appellants that Order XXI, Rule 64 casts not a discretion, but an obligation, to sell only such portion of the property as may be sufficient to satisfy the decree.

Opinion and Analysis

Noticeably, the executing court had ordered the issue of notice of attachment under Order XXI, Rule 54 of the Code and it was only thereafter that the court directed the issue of sale proclamation under Order XXI, Rule 66; which was in conformity with proviso to sub rule (2) of Rule 66 gives a discretion to the court to dispense with a second notice to the judgment debtor of the date to be fixed for settling the terms of the proclamation of sale under Order XXI, Rule 66(2).

The sequence of events showed that the judgment debtor had sufficient opportunity to object to the inclusion of the entire property when an order was passed under Order XXI, Rule 54. Subsequently he had an opportunity to object to the inclusion of the whole of the property, by taking advantage of the amended clause (a) of sub rule (2) of Rule 66 of Order XXI, which speaks about sale of a part of the property that would be sufficient to satisfy the decree. But the judgment debtor despite filing a petition under Section 47, did not point out how the property being a vacant land of an extent of 17 decimals could have been divided.

Noticing that the objection relating to Order XXI, Rule 64 had been raised by the appellants-judgment debtor for the first time in the 5th round of litigation in execution, and that the 2nd round was kickstarted with a suit for a declaration that the auction sale was void despite the express bar of a separate suit, under Section 47(1) of CPC. The Bench remarked,

“…the appellants have  now exhausted almost all provisions available to a judgment debtor to stall execution and the case on hand is fit to be included in the syllabus of a law school as a study material for students to get equipped with the various provisions of the Code relating to execution.”

Findings and Conclusion

In the backdrop of above, the Bench held that the appellants could not be allowed to raise the issue relating to the breach of Order XXI, Rule 64 for the following reasons:

  1. A judgmentdebtor cannot be allowed to raise objections as to the method of execution in instalments. After having failed to raise the issue in four earlier rounds of litigation, the appellants could not be permitted to raise it;
  2. The original judgmentdebtor himself filed a petition under Section 47, and what was on hand was a second petition under Section 47 and, hence, it was barred by res judicata. The Bench explained that post insertion of Explanation VII under Section 11 of CPC by Act 104 of 1976 the provisions of res judicata will apply to a proceeding for the execution of a decree;
  3. The observations of the High Court that, “none of the parties shall have any claim whatsoever as against the applicant in respect of the purchased property which shall be deemed to be his absolute property on and from the expiry of 15th December, 1980”, had attained finality;
  4. Section 65 of the Code says that, “where immovable property is sold in execution of a decree and such sale has become absolute, the property shall be deemed to have vested in the purchaser from the time when the property is sold and not from the time when the sale becomes absolute”.
  5. The sale of a property becomes absolute under Order XXI, Rule 92(1) after an application made under Rule 89, Rule 90 or Rule 91 is disallowed and the court passes an order confirming the same, hence, the Court has to grant a certificate under Rule 94 indicating the date and the day on which the sale became absolute.

“…a conjoint reading of Section 65, Order XXI, Rule 92 and Order XXI, Rule 94 would show that it passes through three important stages (other than certain intervening stages). They are, conduct of sale; (ii) sale becoming absolute; and (iii) issue of sale certificate. After all these three stages are crossed, the 4th stage of delivery of possession comes under Rule 95 of Order XXI.”

Since, the appellants had raised the objection relating to Order XXI, Rule 64 at the 4th stage and it was not the case that the appellants were not aware of the fact that the property in entirety was included in the proclamation of sale, the claim on the basis of Order XXI, Rule 64 was rightly rejected by the High Court. In view of the above, the appeal was dismissed.

[Dipali Biswas v. Nirmalendu Mukherjee, 2021 SCC OnLine SC 869, decided on 05-10-2021]


Kamini Sharma, Editorial Assistant has put this report together 


Appearance by:

For the Appellants: Advocate RAUF RAHIM

For the Respondents: Advocate SATISH KUMAR


*Judgment by: Justice V. Ramasubramanian

Know Thy Judge | Justice V. Ramasubramanian

Case BriefsSupreme Court

Supreme Court: In an important ruling on Res Judicata, the 3-judge bench of Dr. DY Chandrachud*, Vikram Nath and Hima Kohli, JJ has held that the issues that arise in a subsequent suit may either be questions of fact or of law or mixed questions of law and fact.

“Issues that arise in a subsequent suit may either be questions of fact or of law or mixed questions of law and fact. An alteration in the circumstances after the decision in the first suit, will require a trial for the determination of the plea of res judicata if there arises a new fact which has to be proved. However, the plea of res judicata may in an appropriate case be determined as a preliminary issue when neither a disputed question of fact nor a mixed question of law or fact has to be adjudicated for resolving it.”

“Best method” to decide the question of res judicata:

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.

In Syed Mohd. Salie Labbai (dead) by L.Rs v. Mohd. Hanifa, (1976) 4 SCC 780, it was enunciated that before a plea of res judicata can be given effect, the following conditions must be proved:

(1) that the litigating parties must be the same;

(2) that the subject-matter of the suit also must be identical;

(3) that the matter must be finally decided between the parties; and

(4) that the suit must be decided by a court of competent jurisdiction.

The verdict in Alka Gupta v. Narender Kumar Gupta, (2010) 10 SCC 141, further made clear that

“The plea must be clearly established, more particularly where the bar sought is on the basis of constructive res judicata. The plaintiff who is sought to be prevented by the bar of constructive res judicata should have notice about the plea and have an opportunity to put forth his contentions against the same.”

Twin test for the identification of whether an issue has been conclusively decided in the previous suit is:

  1. The necessity test: Whether the adjudication of the issue was ‘necessary’ for deciding on the principle issue.
  2. The essentiality test: Whether the judgment in the suit is based upon the decision on that issue.

Res Judicata: Question of fact or law or mixed question of law and fact?

It has earlier been held by the Supreme Court that a determination of whether res judicata is attracted raises a mixed question of law and facts [Madhukar D Shende v. Tarabai Aba Shedage, (2002) 2 SCC 85 ; Ram Harakh v. Hamid Ahmed Khan, (1998) 7 SCC 484].

However, 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 pigeonhole 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.

In Mathura Prasad Bajoo Jaiswal v. Dossibai N.B Jeejeebhoy, (1970) 1 SCC 613, it was held that,

“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.

(…)

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.”

Can res judicata be decided as a preliminary issue?

Yes. 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.

[The Jamia Masjid v. KV Rudrappa,  2021 SCC OnLine SC 792, decided on 23.09.2021]

______________________________________________________________

Appearances before the Court:

For appellant: Senior Advocate V Mohana

For respondents: Senior Advocate Basava Prabhu Patil and Advocate Balaji Srinivasan


*Judgment by: Justice Dr. DY Chandrachud

Know Thy Judge| Justice Dr. DY Chandrachud

Case BriefsHigh Courts

Allahabad High Court: Dr Kaushal Jayendra Thaker, J., while addressing the matter observed that:

“…where there are multiple claims, MACT should place all the matters before the same Tribunal and the same tribunal should consolidate the matter and decide the same.” 

The instant appeal was at the behest of the claimants preferred against the award passed by the Motor Accident Claims Tribunal.

Factual Matrix

An accident took place on 26-02-2009 when the deceased along with her husband and another person namely Harendra Singh and others were travelling. The car was being driven by the claimant i.e. the husband. Further, it has been stated that a tanker coming from the opposite direction very negligently and carelessly turned to the right side of the road and rammed into the car causing an accident in which the wife of Harendra Singh, wife of claimant 1 and one other person namely child sustained multiple injuries.

Harendra Singh’s wife died due to the injuries and claimant’s wife suffered pain for almost about 3 months due to which she was hospitalised and later died.

Tribunal

Tribunal framed several issues and came to the conclusion that the husband of the deceased namely claimant 1 who was equally negligent and written the finding of the contributory negligence thereby halving the compensation awarded to the claimants.

Matter being considered in the High Court

In the above-background, the instant matter requires to be considered. the appellants are the legal heirs of the deceased.

Legal representatives rather heirs of the deceased felt aggrieved with the tribunals’ finding on the issue of negligence and compensation as far as the decision of the tribunal on other issues was concerned they attained finality.

Out of the said accident, as has been stated above, one other claim petition was being preferred by Harinder Singh v. Kamal Singh, MACP No. 104 of 2009 under Section 166 of the Motor Vehicles Act, 1988. This matter was tried before another tribunal wherein it was decided that the driver of the truck was solely negligent and claimants were to be compensated.

The above-stated decision was placed before the tribunal whose order is impugned.

Analysis and Decision

The truck rammed into the car causing 3 casualties of persons travelling in the Maruti van and caused injuries to other inmates of the car.

Supreme Court in the decision of Sudarsan Puhan v. Jayanta Mohanty, (2018) 10 SCC 552 and UPSRTC v. Mamta, (2016) 4 SCC 172 held that the appeal is a continuation of the earlier proceedings and High Court is under the legal obligation to decide all the issues of lis and decide it by giving reasons.

Bench stated that the tribunal has committed an error which is apparent on the face of the record and is against the settled principles of law.

Court dealt with the issue in the instant case under separate heads:

Issue of Negligence even in absence of applicability of the doctrine of res judicata and whether the same was rightly decided by the tribunal

Negligence: It means the failure to exercise care towards others which a reasonable and prudent person would in a circumstance or taking action which such a reasonable person would not.

If the injury rather death is caused by something owned or controlled by the negligent party then he is directly liable otherwise the principle of “res ipsa loquitur” meaning thereby “the things speak for itself” would apply.

Contributory Negligence: A person who either contributes or is co-author of the accident would be liable for his contribution to the accident having taken place.

Supreme Court recently in the decision of Archit Saini v. Oriental Insurance Company Ltd., (2018) 3 SCC 365, considered the principles of negligence.

In the decision of Khenyei v. New India Assurance Company Ltd., 2015 LawSuit (SC) 469, the question of joint and several liability was considered.

In the case of contributory negligence, a person who has himself contributed to the extent cannot claim compensation for the injuries sustained by him in the accident to the extent of his own negligence; whereas, in the case of composite negligence, a person who has suffered has not contributed to the accident but the outcome of the combination of the negligence of two or more other persons.

Hence, it can be seen that there is a difference between contributory and composite negligence.

Supreme Court in the decision of T.O. Anthony v. Karvarnan, (2008) 3 SCC 748 has held that in case of composite negligence, injured need not establish the extent of responsibility of each wrong doer separately, nor is it necessary for the court to determine the extent of liability of each wrong doer separately.

Qua applicability Of Doctrine Of Res Judicata where Decision On Negligence Was Decided By competent Tribunal in Claim Arising Out Of The Same Accident :

Doctrine of res judicata applies even if the decision by the earlier court is right or wrong but if it has attained finality between parties the doctrine shall apply and issues decided.

In light of the Gujarat High Court’s decision in United India Insurance Co. Ltd. v. Lajibhia Hamirbhai, the issue of negligence will operate as res judicata.

It is held in the said case that where the parties in two petitions are same, except the claimant, the decision by the tribunal in petition decided earlier, would operate as ‘res judicata’ as far as the issue of negligence is concerned in a subsequent petition.

Supreme Court’s decision in Ishwardas v. State of M.P., (1979) 4 SCC 163, it was held that in order to sustain the plea of res judicata, it is not necessary that all the parties to the litigations must be common. All that is necessary is that the issue should be between the same parties or between the parties under whom they or any of them claimed.

In the instant case, the claimants were being heirs of the deceased who succumbed to the injuries and qua them even if the tribunal was of the opinion that the driver of the car was negligent therefore it was a case of composite negligence.

Court concluded that there was no rebuttable evidence before the tribunal to hold the driver of the car also negligent. Tribunal misdirected itself in venturing to decide the issue afresh without discussing why he would not follow the earlier decision, therefore the said decision required modification.

Question of Legal Representative 

Section 2 (11) of the Code of Civil Procedure defines the term ‘legal representative’.

In the Supreme Court decision of GSRTC v. Ramanbhai Prabhatbhai, (1987) 3 SCC 234, it was held that for claiming compensation under either of the Acts the term legal cannot be given a narrow meaning as ascribed in Fatal Accidents Act 1855. Major, married son & earning son of the deceased can claim compensation. Dependency is not basic criteria for relief in accident cases to the claimants if they are a legal heir or legal representative of the deceased.

Legal Representative of Owner of Vehicle

Claimants before this Court and tribunal are the legal representatives of the deceased as they are husband and children who fall in Class-I heirship.

Hence, in view of the above, the deduction of compensation of claimant 1 by the tribunal cannot be sustained as he was claiming as an heir and not the driver or injured.

Compensation

Relying on the decision of the Supreme Court in Laxmidhar Nayak v. Jugal Kishore Behera, (2018) 1 SCC 746, it was held that the income of the housewife in the year 2009 would be Rs 4,000 per month, the amount would be Rs 48,000 per annum, to which as the deceased was 38 years of age, 25% will have to be added as she was self-employed.

Hence, the appeal was partly allowed and the Judgment and Decree passed by the tribunal shall stand modified to the aforesaid extent.

While parting with the judgment, the Court held that a direction is required to be given to all tribunals in the State that where there are multiple claims, MACT should place all the matters before the same Tribunal and the same tribunal should consolidate the matter and decide so that the situation as it arose in the present matter may not arise.[Dharam Veer v. Kamal Singh, 2020 SCC OnLine All 1404, decided on 26-11-2020]


Advocates who appeared for the matter:

Counsel for Appellant:- Mohan Srivastav
Counsel for Respondent:- Rahul Sahai, K.K.D

Case BriefsHigh Courts

Allahabad High Court: Pradeep Kumar Srivastava, J., while addressing the present matter, observed that:

… right of maintenance available to wife from husband is an absolute right and even divorce cannot affect this right unless the wife is disqualified on account of remarriage or her sufficient earning.

It was also observed:

Gender justice is a constitutional promise and the provision of maintenance provided under Section 125 of the Code is one of the tools to translate the constitutional promise into social reality. Moreover, Article 21 of the Constitution guarantees every person a right to live with dignity and a dignified life is not possible unless a fair and reasonable provision is made by the husband towards the maintenance of his divorced wife. Therefore, while interpreting and applying this beneficial legislation, the Constitutional vision of equality, liberty and justice, more particularly social justice to the women and marginalized sections of society, must be present when the courts are dealing with an application of destitute wife or helpless children and aged and infirm parents. Social justice adjudication or social context adjudication requires application of equality jurisprudence where the parties to a litigation are unequally situated in terms of socio-economic structure and dilution of the technical procedure often followed in adversarial system.

Instant criminal revision was preferred against the impugned judgment passed by Family Court under Section 125 of the Criminal Procedure Code, 1973 by which OP 2 – Divorced Wife was awarded Rs 3,000 as maintenance.

Before the Court below, the wife gave an application under Section 125 CrPC stating that she was married to revisionist according to the Muslim Personal Law and later during the course of her marriage, her husband and his family demanded motorcycle, refrigerator and dowry and on non-fulfilment of the same, she was beaten up and expelled along with her daughter. On being expelled she along with her daughter started living with her parents.

The wife was totally dependent on her father, later after the death of her father she was facing financial trouble and was not able to maintain herself, hence she claimed maintenance.

Present revision was filed by the husband challenging the impugned judgment on the ground that earlier a case under Section 125 CrPC for maintenance which was filed by wife was decided wherein the maintenance claim of the wife was rejected on the ground that being Muslim she was not entitled for maintenance after divorce beyond period of iddat and by this impugned judgment, the said judgment has been reviewed, which is contrary to law.

Revisionist’s Counsel contended that divorced Muslim wife is not entitled to maintenance under the law applicable to parties and the subsequent application is barred by the principle of res judicata.

In Mohd. Ahmed Khan v. Shah Bano Begum, (1985) 2 SCC 556, the issue before the court was that where a Muslim woman had been divorced by her husband and paid her mahr, would it indemnify the husband from his obligation to pay maintenance under the provisions of Section 125 CrPC. A five-Judge Constitution Bench of the Supreme Court held that the Code of Criminal Procedure controls the proceedings in such matters and overrides the personal law of the parties and in case of conflict between the terms of the Code and the rights and obligations of the individuals under personal law, the Code would prevail.

In the above-cited case, the important feature of the case was that the wife had managed the matrimonial home for more than 40 years and had borne and reared five children and was incapable of taking up any career or independently supporting herself at that late stage of her life and remarriage was an impossibility in that case. The husband, a successful Advocate, with an approximate income of Rs 5,000 per month provided Rs 200 per month to the divorced wife, who had shared his life for half a century and mothered his five children and was in desperate need of money to survive.

Supreme Court interpreted the provisions of the Act and Section 125 CrPC in such a way as to give recognition to the right of divorced Muslim wife to claim maintenance under Section 125 even for the period beyond iddat period and for the whole life unless she is disqualified for the reasons such as entering into marriage with someone else.

Hence, in view of the above Court found no force in the argument that a divorced Muslim wife is not entitled to maintenance beyond the iddat period.

Section 125 of the Code of Criminal Procedure has been enacted to achieve a social object and the object is to prevent vagrancy and destitution and to provide speedy remedy to deserted or divorced wife, minor children and infirm parents in terms of food, clothing and shelter and minimum needs of one’s life.

 Bench held that when the Supreme Court has interpreted and clarified the law and has laid down that the Muslim divorced wife can still claim maintenance under Section 125 CrPC despite the provisions of the Muslim Women (Protection of Rights on Divorce) Act, 1986, her claim cannot be defeated on the basis of an earlier decision of the court below and the earlier judgment cannot operate as res judicata.

Court while concluding its decision held that:

Section 125 of the Criminal Procedure Code has been enacted with a specific purpose to protect women and children and to prevent vagrancy and destitution among them. This law is not community-centric or religion centric and perhaps, one of the most secular enactment ever made in the country. It is an instrument of social justice and aims to render justice on the basis of equality to wife, in particular, may be divorced including a divorced Muslim wife.

In view of the above, the revision petition was dismissed and the Family Court’s decision was upheld. [Jubair Ahmad v. Ishrat Bano, 2019 SCC OnLine All 4065, decided on 18-10-2019]

Case BriefsHigh Courts

Allahabad High Court: Attau Rahman Masoodi, J., allowed the appeal and modified the impugned order by applying the principle of res judicata.

The factual matrix of the case is such that the present appeal has arisen out of the judgment and award dated 16-02-2016 delivered by Motor Accident Claims Tribunal (MACT) Lucknow in Claim Petition No. 275 of 2007 whereby compensation along with interest was awarded to the claimant who suffered serious eye injury. The accident involved two vehicles i.e., a truck and a car whereby the truck was insured by the appellant.

The correctness of the award is in question whereby the entire liability has been imposed on the appellant although the case was that of composite negligence and the tribunal ought to have considered the judgment delivered by MACT Gonda in the same matter. The appellant has also questioned the multiplier applied for calculation of the claim.

A plea of finality on the aspect of proportionate liability was advanced by the counsel for the appellant, Bhanu Prakash Dubey and Kartikey Dubey in the subsequent proceedings before MACT Lucknow on the basis of the judgment delivered by MACT Gonda. It was further submitted that since the judgment rendered in the earlier proceedings concerns the same accident, therefore, this issue too was liable to be decided in the manner already settled between the parties.

It was contended by Alka Dubey, counsel for the respondent that MACT Lucknow has not committed any error since it has exclusive jurisdiction and is not bound by Section 11 CPC.

The Court referred to Section 169 of Motor Vehicle Act, 1988 and Rules 209, 215, 220 of U.P. Motor Vehicle Rules, 1998 while deliberating over the present matter and observed that that the MACT is obligated to frame the issues on which the right decision of the claim appears to depend.

The Court relied on the judgment titled Canara Bank v. N.G. Subbaraya Setty, (2018) 16 SCC 228 and held that the findings of MACT Lucknow are not justifiable as it should have considered the objections of the appellant and weighed the same in accordance with law. The principle of res judicata was applicable between the parties and the same should have been applied on the aspect of proportional liability of both the parties, accordant with the earlier judgment/award.

Thus, the Court modified the award rendered by MACT Lucknow by fixing the liability to pay compensation equally to both the appellant and respondent. With respect to the appellant’s contention regarding multiplier, the Court accepted the same and held that MACT Lucknow ought to have applied the multiplier as 16 based on the age of the claimant.

In view of the above, the impugned judgment/award was modified to the aforesaid extent and the appeal was accordingly disposed of. [New India Assurance Co. Ltd. v. Vikas Sethi, 2020 SCC OnLine All 921, decided on 31-07-2020]

Jharkhand High Court
Case BriefsHigh Courts

Jharkhand High Court: Rajesh Kumar, J., allowed the petition filed by the petitioner stating that the tribunal has failed to pass a reasoned order by considering the evidence and pleading of the parties.

In the pertinent case, the petitioner moved to this Court for quashing of the award passed in Reference Case No. 34 of 2014 whereby the reference was in favor of the respondent, directing the petitioner to reinstate the service of the respondent as a daily wager.

The counsel for the petitioner submitted that even after passing an order for representation, the respondent has kept silent in this matter and after the lapse of 16 years, an industrial dispute was raised. Further, an award was passed which ordered for reinstatement of the workman as daily wager and option has been given for regularization but with no direction.

The Court held that from the perusal of the award it is observed that during the pleadings, neither any documents were exhibited nor any witnesses were examined and the Tribunal had passed its order only relying upon the judgment of Patna High Court passed in CWJC No. 4115 of 1997. The Court also observed the following :

It is trite that principle of res-judicata applies often in the case of Industrial Dispute. If there was an order in favour of the workman then the reference was not maintainable. The Tribunal is supposed to answer any reference by considering the evidence and pleading of the parties.”

In view of the above, the Court found that the impugned award passed in Reference Case is not sustainable and stands quashed as the Tribunal has passed the order without considering the pleading and evidence of the party. The Court also observed that the respondent was removed from daily wager w.e.f. March, 1997 and reference are of the year 2014 i.e. after a lapse of more than 16 years. In this manner as well, the dispute has become stale and requires no adjudication.[Employers in relation to the Management of UCO Bank v. Surendra Ramani, 2019 SCC OnLine Jhar 1118, decided on 26-08-2019]

Uttarakhand High Court
Case BriefsHigh Courts

Uttaranchal High Court: Sudhanshu Dhulia, J. dismissed the instant writ petition where the petitioner sought mandamus to command respondent not to demolish the construction of his residential house.

The disputed facts were that the constructed house of the petitioner was part of Gaon Sabha earlier. Subsequently, the land came under jurisdiction of Nagar Panchayat, and thereafter the petitioner received a notice under Section 4 of the U.P. Public Premises (Eviction of Unauthorized Occupants) Act, 1972, to which he replied and ultimately the Prescribed Authority found the petitioner to be in unauthorized occupation and passed an order for his eviction. The order was challenged by the petitioner in an appeal before the District Judge, Haridwar.

Therefore the appeal of the petitioner was allowed by District Judge merely on technical grounds such as that the notice which was given to the petitioner under Section 4 of the U.P. Public Premises (Eviction of Unauthorized Occupants), 1972 did not elaborate or disclose the land. The trial court also gave finding in favor of the petitioner that the Additional Sub Divisional Magistrate who had passed the eviction order was not the Prescribed Authority and all the proceedings were beyond his jurisdiction.

The Court observed that the order passed earlier was not on the merits of the case hence the rights were not determined. Hence the petitioner was eventually asked to vacate the land which was disputed, aggrieved by which he filed the writ.

Tapan Singh, counsel for the petitioner submitted that there was already a judicial determination in the favour of the petitioner, as to his rights on the land and the fresh notices for eviction and demolition were alleged to be illegal. They basically relied upon the judgment passed by the District Judge.

The Court in such circumstances observed that, in the earlier case, the appeal of the petitioner was allowed on a technicality, such as the validity of the notice and the jurisdiction of the authority. There was no determination on the merit of the case. Hence the new proceedings were therefore not barred. But further, it stated that relief sought by the petitioner was out of the purview of the Court by the way of writ and thus the petitioner was directed to apply to a competent Civil Court.[Mansab Ali v. Nagar Panchayat Landhaura, 2019 SCC OnLine Utt 588, decided on 05-07-2019]

Case BriefsHigh Courts

Bombay High Court: Sandeep K. Shinde, J. dismissed an appeal filed against the decree of prosecution passed in a civil suit. While dismissing the appeal the Court answered one substantial question of law — In a case of rejection of first suit on the ground that the same was premature, and not on merits; whether the finding rendered in the first suit would be binding on the parties as well as the trial Judge in the second suit on the ground of res judicata?

In the present case, the plaintiff had filed the first suit for possession of the suit property against her brothers-in-law based on the will of her father-in-law. However, the suit was dismissed on the ground that it was premature as the will was being proved in a different proceeding before the court. Subsequently, when the plaintiff filed the second suit, the trial court decreed her suit and granted a decree of possession. The defendants filed the present appeal thereagainst.

The defendants, represented by Rakesh Bhatkar, Advocate, argued that the matter was barred by the principle of res judicata as the first suit filed by the plaintiff had been dismissed. Per contra, V.S. Sawant instructed by P.M. Jadhav, Advocate appearing for the plaintiff submitted that since the earlier matter was not decided on merits, therefore, res judicata did not apply.

Explaining the law on the subject, the High Court observed: “It is not that every matter decided in a former suit, can be pleaded as res judicata in a subsequent suit. To consider a matter ‘res judicata’, one of the conditions is, the matter directly and substantially in issue in the subsequent suit must have been heard and finally decided by the Court in the first suit. To support the plea of res judicata, it is not enough that the same matter shall be in issue. It is also important that the matter was heard and finally decided.

It was explained further: “The expression ‘heard and finally decided’ refers to a matter on which the Court, having exercised its judicial mind, has recorded a finding and arrived at a decision on a contested matter.”

Following the ratio of the Supreme Court decision in Sheodan Singh v. Daryao Kunwar, AIR 1966 SC 1332 and considering the facts of the present case, the High Court held: “since the rejection of the first suit on the ground that the same was premature and not on merits, the findings rendered in the first suit are not binding on the parties, as well as, on the learned trial Judge in the second suit on the ground of res judicata.” The question was answered accordingly and the appeal was dismissed. [Shrikant Waman Pawaskar v. Deepali Dinanath Pawaskar, Second Appeal No. 795 of 2005, decided on 08-03-2019]

Case BriefsHigh Courts

Manipur High Court: Kh. Nobin Singh, J. allowed civil revision petition questioning the validity and correctness of the order passed by the Civil Judge, Senior Division, Imphal East.

In the present case, a suit was instituted by the petitioner in a land dispute, without the originals of the documents being filed in support of his case. When he realised his mistake, he filed an application praying for leave to file original documents which was rejected on the ground that the sufficient cause for non-production of the documents was not shown and that the provision of law under which the application had been filed, was not mentioned in the application. The second application was filed by the petitioner stating that he simply signed the application drafted by his counsel and due to lack of communication and under the impression that since the copies of the documents had been filed, their originals would be allowed to be filed without any objection. The Court of Civil Judge, Senior Division dismissed the application on the ground that the application was barred by the principles of ‘res judicata’ being a successive application in the same court on the same facts. Aggrieved thereby, the petitioner filed the instant civil revision petition before the High Court.

The Court observed, “the earlier application had been rejected on technical grounds and not on merits.” Reliance was placed on the judgment of the Supreme Court in Kewal Chand Mimani v. S.K. Sen, (2001) 6 SCC 512, where it was held, “if the earlier suit had not been decided on merits, the mere dismissal thereof could be of no help in invoking the principles of res judicata.”

The Court held that the principles of ‘res judicata’ would not be applicable in the instant case as the same applies to a case “where the earlier application or for that matter, a suit or any petition has been decided on merit and that too, between the same parties.”

Thus, the petition was allowed and parties were directed to appear before the Civil Judge, Senior Division, Imphal West.[Moiranthem Basanta Singh v. Thockchom Mangol Singh, 2019 SCC OnLine Mani 63, decided on 02-05-2019]

Case BriefsHigh Courts

Allahabad High Court: This writ petition was filed before a Divison Bench of Pankaj Kumar Jaiswal and Dr Yogendra Kumar Srivastava, JJ., for issuance of direction to respondent to consider the claim of petitioners for providing compensation in lieu of acquisition of plot situated in Village Pratap Patti District Varanasi in accordance with the provisions of Land Acquisition Act, 1894 along with interest and other consequential benefits.

Repondent submitted that petitioner on an earlier occasion filed a writ petition which was dismissed by the Court. Both the instant and earlier writ petitions were seeking similar reliefs which was dismissed and instant petition being filed with same cause of action could not have been entertained as the underlying principle under Order 23 Rule 1 of the Civil Procedure Code.

Catena of cases were referred to for understanding the settled principle that though the Code does not apply to writ proceedings but it may be extended to the same in the interest of administration of justice. Allahabad High Court Rules, 1952 were mentioned wherein Rule 7 of Chapter 22 specifically barred filing of a second application under Article 226 on the same facts.

High Court noted the specific bar in the aforementioned rule of the High Court Rules, 1952 and relied on the case of Forward Construction Co. v. Prabhat Mandal, (1986) 1 SCC 100 where it was held that the order dismissing the first writ petition operates as res judicata between the parties and the person against whom the order has been passed has got no right to file a second petition on the same set of facts and in light of the underlying principle in Civil Procedure Code which were founded on public policy, no second writ application could have been filed. Therefore, this writ petition was dismissed. [Pawan Kumar Singh v. State of U.P., 2019 SCC OnLine All 1777, order dated 13-02-2019]

Tripura High Court
Case BriefsHigh Courts

Tripura High Court: The Division Bench of Sanjay Karol, CJ and Arindam Lodh, J. dismissed an appeal filed against the judgment rendered by trial court dismissing a civil suit.

The trial court dismissed the suit on grounds of res judicata. It was found that the issue of declaration of title over the suit land had already been decided in an earlier judgment. Furthermore, the judgment in the earlier suit was challenged in appeal before the High Court, but the appeal was dismissed and the earlier judgment attained finality.

The High Court observed that a subsequent suit, though by another person, but dealing with same subject matter, is hit by the principle of res judicata. The issue in the present suit was directly and substantially in issue in the earlier suit. It was stated that all litigations must come to an end. In such circumstances, the court found no reason to interfere with the trial court’s judgment. Thus, the appeal was dismissed. [Shayamal Bhattacharjee v. State of Tripura, 2019 SCC OnLine Tri 2, decided on 02-01-2019]

Case BriefsForeign Courts

Sri Lanka Court of Appeal: This appeal was filed before a 2-Judge Bench comprising of A.H.M.D. Nawaz and E.A.G.R. Amarasekara, JJ.

Facts of the case were such that District Judge dismissed the plaintiff’s action on the premise that the plaintiff’s action was barred by the law of res judicata. Plaintiff had instituted this action seeking a declaration of title to the land and ejectment of defendant therefrom. Defendant contended that plaintiff had filed two actions on the same cause of action which were dismissed and thus the action before the district court was res judicata. It was submitted that the relationship between the plaintiff and defendant of licensor and licensee had already been terminated in the previous action and accordingly was decided against plaintiff against which he did not prefer an appeal thus, he could not file this action to terminate the relationship again.

Court of Appeal was of the view that one of the actions filed by plaintiff was wrongly decided but since there was no appeal filed against it, the purported cause of action in the present case becomes res judicata. The Court also noted that it cannot suo motu act in a revision to change the judgment wrongly decided since it dated back to 1997. Therefore, this appeal was dismissed. [Jalin Pedi Durayalage Manuel v. R.W. Pina, C.A. 425 of 2000 (F), decided on 14-12-2018]

Case BriefsSupreme Court

Supreme Court: A Bench comprising of N.V. Ramana and M.M. Shantanagoudar, JJ., dismissed an appeal filed against the judgment of a Division Bench of Madras High Court whereby it allowed a letters patent appeal filed by the plaintiff in a partition suit.

The plaintiff filed a suit in regard to a property dispute wherein he prayed for partition of the subject property. The trial court decreed the suit, which decision was reversed by the first appellate court on an appeal by the defendant. The plaintiff then filed a letters patent appeal thereagainst which was allowed by the said Division Bench. The facts of the matter were that earlier, the defendant and father of the plaintiff were co-defendants in two original suits relating to the same subject property filed against them. In the said suits, the court had decided in favour of the defendant’s title over the subject property. Now, therefore, in the present suit, the defendant claims applicability of the doctrine of res judicata against the plaintiff as the father of the plaintiff was a co-defendant with him in the suits wherein his title was declared over the said property.

The Supreme Court, referring to a plethora of judgments reiterated the principles for the applicability of the doctrine of res judicata. The Court cited Mahboob Sahab v. Syed Ismail, (1995) 3 SCC 693 wherein the Supreme Court considering the applicability o the said doctrine between co-defendants held that the four conditions must be satisfied, namely-

  1. There must be a conflict of interest between defendants concerned;
  2. It must be necessary to decide the conflict in order to give reliefs which the plaintiff claims;
  3. The question between the defendants must have been finally decided, and
  4. The co-defendants were necessary or proper parties in the former suit.

The Court reiterated that if a plaintiff cannot get his claimed relief without trying and deciding a case between the co-defendants, the court will try and decide the case in its entirety including the conflict of interest between the co-defendants and the co-defendants will be bound by the decree. But if the relief given to the plaintiff does not require or involve a decision of any case between co-defendants, the co-defendants will not be bound between each other.

On the facts of the instant case, the Court found that all the above conditions were not present. Therefore, no res judicata was applicable between the parties. In light of the above and other holdings, the appeal was dismissed. [Govindammal v. Vaidiyanathan,2018 SCC OnLine SC 2117, decided on 23-10-2018]

Case BriefsHigh Courts

Allahabad High Court: A writ petition was filed by Union of India and the Railway Administration before a  Division Bench comprising of B. Amit Sthalekar and Jayant Banerji, JJ., with a prayer to quash the order passed by Central Administrative Tribunal where original application filed by respondent to set aside order debarring petitioner from giving RRB exams, was allowed.

Facts of the case are that respondent applied for the post of Junior Engineer-II (Mechanical), Junior Engineer-II (Mechanical CADCAM) and Junior Engineer-II (Carriage and Wagon) through RRB. Respondent gave a written test in which he was declared passed. After the completion of the verification process when the final results were declared respondent’s name was not found. After inquiry by respondent to the concerned authority he got to know that he had been barred for lifetime from all RRB exams. It was informed to Nodal RRB that RRB Chennai had informed that he had been debarred. RRB Chennai informed him that it had not debarred him but the same had been done by Mumbai RRB. Later, it was found that RRB Mumbai barred respondent on the ground that he submitted two applications with different photographs for post of Apprentice Engineer (Mechanical). Respondent had challenged this order in his application. Petitioner approached Tribunal where Tribunal favoured respondent holding that order of debarment was unreasonable, unjust, and arbitrary and his natural rights had been violated. Therefore, respondent’s original application was allowed and concerned authority was directed to consider the candidature of respondent.

The railway prayed for setting aside of Tribunal’s order on the ground that respondent had committed fraud on Railway Authority by submitting two application. Petitioner submitted that earlier respondent had filed an original application before Chandigarh Tribunal where it was dismissed and thus original application was filed before Central Administrative Tribunal and thus was not maintainable.

The High Court was of the view that Chandigarh Tribunal dismissed the original application with a liberty to file a fresh application and the issues, in this case, were not decided by Tribunal, therefore, this will not act as res judicata. Petitioner failed to show any record when the debarment of respondent was communicated to him. Therefore, the court found no merit in the petition and the petition was dismissed. [Union of India v. Javier,2018 SCC OnLine All 1782, order dated 05-10-2018]

Case BriefsHigh Courts

Delhi High Court: A Single Judge Bench comprising of Valmiki Mehta, J. dismissed a regular first appeal filed under Section 96 CrPC, against the judgment of the trial court whereby appellant’s suit was rejected as barred by res judicata.

The suit for declaration, partition, possession and permanent injunction was filed by the appellant relating to the property purported to be received by him on the partition of the property after the death of his father. The respondents filed an application under Order VII Rule 11 CPC pleading that identical issue of ownership of the suit property had been raised and decided against the appellant in an earlier suit for injunction. The trial court held that the question of ownership of the suit property was directly in issue in the said injunction suit. The instant suit was rejected by the trial court as barred by res judicata. Aggrieved thus, the appellant was in appeal.

The High Court, in order to settle the issue, referred to various decisions of the Supreme Court and observed that once in a suit for injunction, title is in issue and decided, the said finding of the title will operate as res judicata in a subsequent suit where title is an issue. The Court was of the view that since the claim of ownership of appellant in the suit property was already decided against the appellant in the earlier suit, therefore, the trial court was justified in dismissing the present suit being barred by res judicata. In view of the discussion as mentioned hereinabove, the High Court held the appeal to be sans merit. The appeal was held to be an abuse of process of law and was dismissed with costs amounting to Rs 25000. [Randhir Singh v. Satish Kumar,2018 SCC OnLine Del 9879, dated 16-07-2018]