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Report No. 54

Section 11 and competence to try subsequent suit

1D.18. Under section 11, one of the conditions precedent for applying the bar of res judicata against the trial of any suit or issue is that the previous court must have been competent to try the subsequent suit or the suit in which the issue is now raised. The existence of this condition, to a certain extent, detracts from the finality of judgments, and gives rise to a certain amount of multiplicity of proceedings. No doubt, the principle behind this condition is a sound one, namely, that-the decision of a court of limited jurisdiction ought not to be final and binding on a court of unlimited jurisdiction, in the circumstances in which the condition applies. Nevertheless, it is true that if some method could be devised of avoiding such multiplicity, the attempt would be worth the trouble. We, therefore, set before ourselves the task of devising such a solution. The result of our study and discussions is given below:-

1D.19. An Allahabad1 case of civil revision is illustrative. The question for consideration before the High Court was whether the decision given by a Court of Small Causes in a suit for arrears of rent will operate as res judicata in a suit filed later in the court of Munsif for the recovery of arrears of rent for a different period and for ejectment.

1. Mansurul Haq v. Hakim Mohsin, AIR 1970 All 604 (606) (FB) (Case law reviewed).

1D.20. The Court of Small Causes had no jurisdiction to entertain the suit for ejectment and therefore, the latter suit had to be filed in the Court of Munsif. The dispute between the parties in the Court of Small Causes was about the rate of rent, whether it was Rs. 15 or Rs. 10 per month. The Judge fixed it as Rs. 10 only. In the subsequent suit, the plaintiff, while praying for ejectment, claimed rent for the period preceding the second suit at Rs. 15 per month. Therefore, the question arose whether the decision given by the Judge of the Small Causes Court about the rate of rent will operate as res judicata. Khare J. delivering the majority judgment, said that one of the conditions under section 11 was that the former %lift should have been decided by a Court competent to try such subsequent suit.

This condition has not been satisfied as the Court of Small Causes is not competent to try a suit for ejectment. It was contended by counsel for the applicants that the Court of Small Causes is a court of exclusive jurisdiction and, therefore, the general principles of res judicata will apply. It was also further contended that when general principles of res judicata will apply, the condition that the court deciding the former proceeding must also be competent to decide the subsequent suit has to be waived.1

1. Raj Lakshmi Dasi v. Banamali Sen, AIR 1953 SC 33, relied on.

1D.21. It was held that the Court of Small Causes was not to be a Court of exclusive jurisdiction, but merely a court of preferential jurisdiction, in view of the scheme of the Provincial Small Causes Courts Act and section 15, C.P.C. In the absence of a Court of Small Causes, the Court of Munsif has the jurisdiction to entertain and decide suits for the recovery of rent. Therefore, the decision of the Small Causes Court will not bar re-agitation of the same question in the subsequent suit, which the court of Small Causes was not competent to try.

113.22. Tripathi J., in his dissenting judgment, held that the Court of Small Causes exercises exclusive jurisdiction. Following a Supreme Court case,1 he held that on the general principles of res judicata, a previous decision on a matter in controversy, decided after full contest, will operate as res judicata in a subsequent regular suit irrespective of the fact whether the Court deciding the matter formerly had or had not been competent to decide the subsequent suit. Therefore, Tripathi J. held that the decision of the Judge of Small Causes Court operated as res judicata.

1. Gulab Chand Chhote Ltd. v. State of Gujarat, AIR 1965 SC 1153

1D.23. The Supreme Court1 has considered the question whether the word "suit" in section 11 can be liberally construed to mean even a part of the suit. It was urged that if the competence of the earlier court is going to be judged by reference to its competence to try the entire suit as subsequently instituted, then in many cases where the matter directly and substantially in issue had been tried between the parties by the earlier court, it may have to be tried again in a subsequent suit, because the earlier court had no jurisdiction to try the subsequent suit having regard to its pecuniary jurisdiction and that this would be anomalous.

It was held-"The world 'suit' has not been defined in the Code; but there can be little doubt that in the context the plain and grammatical meaning of the word would include the whole of the suit and not a part of the suit, so that in giving the word 'suit' its ordinary meaning, it would be difficult to accept the argument that a part of the suit or an issue in a suit is intended to be covered by the said word in the material clause. The argument that there should be finality of decisions and that a person should not be vexed twice over with the same cause can have no material bearing on the construction of the word 'suit'. Besides, if considerations of anomaly are relevant, it may be urged in support of the literal construction of the word 'suit' that the finding recorded on a material issue by the court of the lowest jurisdiction is intended not to bar the trial of the same issue in a subsequent suit filed before a court of unlimited jurisdiction. To hold otherwise would itself introduce another kind of anomaly."

1. Gulab Bai v. Manphool Bai, AIR 1962 SC 214 (217).

1D.24. Therefore, the suggestion that the word 'suit' should be liberally construed was not accepted. In other words, it is the whole of the suit which should be within the competence of the court at the earlier time, and not a part of it.

1D.25. Of course, if the earlier court was a court of exclusive jurisdiction-- such as, a revenue court on matters within its competence-its decision would be res judicata.1

1. Balwant Singh v. Saravij, AIR 1927 All 70 (FB).

1D.26. The position is substantially the same in England in this respect.

1D.27. Diplock L.J. explained the doctrine of res judicata1 in these terms

"The doctrine of issue estoppel in civil proceedings is of fairly recent and sporadic development, though none the worse for that. Although Hoystead v. Taxation Commissioner did not purport to break new ground, it can be regarded as the starting point of the modern common law doctrine, the application of which to different kinds of civil actions is currently being worked out in the courts.

This doctrine, so far as it affects civil proceedings, may be stated thus: a party to civil proceedings is not entitled to make, as against the other party, an assertion whether of fact or of the legal consequences of facts, the correctness of which is an essential element in his cause of action or defence, if the same assertion was an essential element in his previous cause of action or defence in previous civil proceedings between the same parties or their predecessors in title and was found by a court of competent jurisdiction in such previous civil proceedings to be incorrect, unless further material which is relevant to the correctness or incorrectness of the assertion and could not by reasonable diligence have been adduced by that party in the previous proceedings has since become available to him.

Whatever may be said of other rules of law to which the label of 'estoppel' is attached, 'issue estoppel' is not a rule of evidence. True, subject to the qualification which I have stated, it has the effect of preventing the party 'estopped' from calling evidence to show that the assertion which is the subject of the 'issue estoppel' is incorrect, but this is because the existence of the issue estoppel results in there being no issue in the subsequent civil proceedings to which such evidence would be relevant. Issue estoppel is a particular application of the general rule of public policy that there should be finality in litigation."

1. Mills v. Cooper, (1967) 2 All ER 100 (104) (Diplock L.J.).

1D.28. In the leading case of Duchess of Kingston1, Degrey, C.J. observed-

"From the variety of cases relative to judgments being given in evidence in civil suits, these two deductions seem to follow as generally true; first, that the judgment of a court of concurrent jurisdiction directly upon this point is as a plea, a bar or as evidence, conclusive, between the same parties upon the same matter, directly in question in another court; secondly, that the judgment of a court of exclusive jurisdiction directly upon the point is in like manner, conclusive upon the same matter, between the same parties, coming in incidentally in question in another court for a different purpose. But neither judgment of a tribunal of concurrent or exclusive jurisdiction is evidence of any matter which came collaterally in question, though within their jurisdiction, nor of any matter incidentally cognizable, nor of any matter to be inferred by argument from the judgment".

1. The Duchess of Kingston's case, (1776) 168 ER 1750; Cookle Cases and Statutes Evidence, (1963), pp. 129, 130.



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