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Report No. 54

Section 11-Explanation 2

1D.33. According to the Explanation 2 to section 11, for the purposes of this section, the competence of a court shall be determined irrespective of any provisions as to a right of appeal from the decision of such Court. It is necessary to examine the background of this Explanation.

1D.34. The reasons why the judgment of a court of record acts as an estoppel are, that it is against public policy and oppressive on the individual to re-agitate disputes which have been litigated once for all to finish.1

1. Speneer Bower Res Judicata, p. 2 cited in Phipson Manual of Law of Evidence, (1959), pp. 84, 85.

1D.35. It has been stated in England1 that matrimonial cases apart, a decision of an inferior court will operate as an estoppel in the High Court, but the decision must be one from which there was an appeal.

1. Goncha v. Goncha, (1896) 11 App Cas 541 referred to in Cross on Evidence, (1967), p. 275.

1D.36. Again, it was stated by Savigny1 that "everything that should have the authority of res judicata is, and ought to be, subject to appeal,1 and -reciprocally in appeal is not admissible on any point not having the authority of res judicata".

1. Savigny, System, section 293, cited in Ansutaben v. Sakharatn, 1883 ILR 7 Born 464 (468) (West J.).

1D.37. The history of the second Explanation to section 11 is interesting. Before 1908, there was a conflict of views in India on the question whether a judgment from which no second appeal lay to the High Court was res judicata. Some High Courts held that the earlier suit operates as res judicata, on the ground that requirement of the section was satisfied when the Court deciding the first suit was competent to try the subsequent suit, irrespective of the question whether the earlier decision was or was not subject to the same appeal as the decision in the subsequent suit would be, and that a different interpretation would be straining the language of the legislature.

Some High Courts, on the other hand, took the opposite view, and considered that the words "or jurisdiction competent" in the section admitted of the provisions of law relating to appealability being considered in giving effect to the principle of estoppel which the section is intended to enforce; and that, having regard to the difference in the grades of the Courts administering justice in this country and the qualifications of Judges which differ greatly it was better not to tie down, as far as possible, a court of higher jurisdiction by the decisions of inferior Courts.1

1. See Avanasi Gounden v. Nachaminal, 1906 ILR 29 Mad 195 (199) (reviews cases).

1D.38. The legislature, when it revised the Code in 1908, inserted the second Explanation in section 11, and, in effect, adopted the wider view.

1D.39. The second Explanation was, thus, intended to remove doubts arising in a particular class of cases as to the applicability of the section, when judgment had been given in a suit against which no appeal or no second appeal lay, and the question arose whether such judgment could operate as res judicata.

1D.40. The effect of the change made in 1908 is illustrated by post 1908 cases. It is sufficient to refer to one case.

1D.41. In an Allahabad case,1 a suit had been brought to recover damages on account of the fruit of a grove. The suit was dismissed on the ground that the plaintiff had failed to prove his title to the grove. There was no second appeal in the case, as the suit was one of a nature cognizable by a Court of Small Causes. It was held that a subsequent suit between the same parties for the recovery of possession of the grove and damages was barred by res judicata. The fact that the previous decision was not subject to second appeal was immaterial, in view of second Explanation to section 11.

1. Musaddi Lal v. Jwala Prasad, 16 IC 496 (All) (Chamier, J.).


1D.43. In view of the above background of the second Explanation to section 11, the Explanation should be retained.

Section 15A (proposed)-Objections as to the pecuniary jurisdiction

1D.42A. It often happens that the judgment of a Court which has tried a suit is challenged in appeal or revision on the ground that the Court had no pecuniary jurisdiction, that is to say, the Court was not competent to try the suit having regard to the value of the subject matter of the suit. (The limits of pecuniary jurisdiction of various courts are set out in the Civil Courts Act of the State concerned).

We are of the view that in the interests of expedition, the Code of Civil Procedure should contain a provision, similar to that contained in the section1 relating to objections as to place of suing, to the effect that objections as regards pecuniary jurisdiction should be raised at the earliest opportunity, and (even if so taken) should not prove fatal unless there has been a consequent failure of justice. While we recognise that there is a distinction between territorial competence and pecuniary competence, we have after some discussion, come to the conclusion that any theoretical basis that may exist for the present position should be regarded as over-ridden by the paramount consideration of avoiding delay.

1. Section 21.


1D.42B. Accordingly, we recommend that the following section should be inserted after section 15:

"15A. No objection as to the competence of a court with reference to the pecuniary limits of its jurisdiction shall be allowed by any appellate or revisional court unless such objection was taken in the court of first instance at the earliest possible opportunity and in all cases where issues are settled at or before such settlement and unless there has been a consequent failure of justice".

The Code of Civil Procedure, 1908 Back

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