Report No. 144
2.3.2. Question for consideration.-
For the present, we are concerned with the words "having jurisdiction to grant the relief claimed". Do these words refer to the relief claimed in the second suit or do they refer to the relief claimed in the first suit?
2.3.3. The Calcutta High Court1 has held that the above words refer to the relief claimed in the second suit.
1. Mirta Lina Private Ltd. v. Finlay Mills, AIR 1982 Cal 41 (47), para. 21, sub-para. (2) (Mrs. Monjula Bose, J.)
2.3.4. However, it appears that in a Bombay case1, Blagden, J. had some difficulty in construing the section. Although he reached the same conclusion, he did describe the wording of the section as 'curious'.
1. Sankalchand v. Prakash, AIR 1947 Born 84 (Blagden, J.).
2.3.5. Recommendation-It seems desirable to take the opportunity of making the matter clear, by adding in section 10, after the words "relief claimed", the words "in the suit subsequently instituted".
2.4. Section 11 and Consent Decrees
2.4.1. The principle of res judicata, as codified in section 11, has a number of facets, one of which is concerned with the operation of the doctrine in relation to compromise decrees.
2.4.2. Question to be considered-The question to be considered is this. Does this section 11 apply to consent decrees?
2.4.3. One view is that it does not. The following High Courts, namely:-
(a) Bombay (one case),1
(d) Rajasthan,4 and
(e) Sind,5 have taken the view mentioned above, namely, that section 11 does not apply to compromise decrees.
1. Minalal v. Kharsetji, ILR 30 Born 385 (408), cited by Mulla Code of Civil Procedure, (1981), Vol. 1, p. 14.
2. Manohar Lall v. Naraindass, AIR 1987 Del 226 (230, 231), para. 28 (G.C. Jain, J.).
3. Uphars v. Ka. Esiboll, AIR 1986 Gau 55 (56), paras. 4, 5 (Manisana Singh, J.).
4. Bhanwarlal v. Raja Babu, AIR 1970 Raj 104 (106) (D.M. Bhandari, C.J. and V.P. Tyagi, J.)
5. Ratanchand v. Anandrai, AIR 1933 Sind 53 (55) (Aston, A.J.C.) (Matters forming part of concept decrees are not res judicata, as they are not decided on the basis of hearing, though they may operate as estoppel, Mulla, 9th Edn., p. 29 cited).
2.4.4. But some High Courts have taken the view that for the purpose of res judicata, a consent decree has "to all intents and purposes, the same effect as a decree" passed after hearing. This view has been taken by the following High Courts:-
(a) Bombay (another case),1
(b) Calcutta,2 and
1. Bhai Shan/car v. Morarji, ILR (1912) 36 Born 283 (287) cited by Mulla Code of Civil Procedure, (1981), Vol. 1, p. 144.
2. Krishna Subala v. Dhanpati, AIR 1957 Cal 59 (64, 65) (DB).
3. Naidermal v. Uger Sain, AIR 1966 Punj 509 (512), para. 6.
2.4.5. In the Punjab case1, Justice S.K. Kapur observed as under:-
"It is well-established that a judgment based on consent is as much intended to put a stop to litigation between the parties, as a judgment which results from the decision of the Court after the matter has been fought out to the end in so far as the matter is actually dealt with by the consent decree. The question in all such cases is whether the consent decree did settle the issue between the parties".
2.4.6. In a Madras case1 it was emphasised that before a consent decree can operate as estoppel, the court, on the facts provided, must come to a clear conclusion that the parties intended that the consent decree should have the effect of deciding finally the question raised, for, "the fact that there was an active contest and the matter was actually put in issue, furnishes a valuable test".
1. Appalanarasiah v. Cittavadu, AIR 1934 Mad 454 (456) (Venkata Subba Rao, J.), following Govinda Krishna v. Venkatasubbiah, AIR 1929 Mad 694.
2.4.7. In a Patna case1 the position was thus described by the Division Bench:-
"A compromise decree, it is true, is not a decision of the court. It is the acceptance by the court of some thing to which the parties had agreed. It is in that sense, that compromise or consent decrees have been described as contract between the parties to which is superimposed the command of the court. The court merely sets its seal on the agreement entered into between the parties. It is, therefore, not a decision of the court non-application of its mind and the statutory bar of res judicata under section 11 of the Code of Civil Procedure is not attracted. But, at the same time, it is equally well-established that a judgment by consent or default is as effective an estoppel between the parties, as the judgment whereby the court exercises its mind on a contested case."
1. Garaj Narain v. Babulal, AIR 1975 Pat 38 (58, 62), para. 9 (DB).
2.4.8. Even though the matter may have passed from the stage of representation into an agreement, there are cases where the courts are entitled to entertain a plea of estoppel in order to prevent fraud or circuitry of action. Reliance in this connection may be placed on the decisions of the Supreme Court in Sunderbai v. Devaji Shankar Deshpande, AIR 1954 SC 82; Sailendra Narayan Bhanja Deo v. State of Orissa, AIR 1956 SC 346; and Pulavarthi Venkata Subba Rao v. Valluri Jagannadha Rao, AIR 1967 SC 591. As a matter of act a Bench decision of the Calcutta High Court in Secretary of State for India in Council v. Attendranath Dask, ILR 63 Cal 550 (558) was approved by the Supreme Court in the case of Sailendra Narayan Bhanja Deo (AIR 1956 SC 346). The paragraph quoted with approval runs as follows:
"the consent order is as effective as an order passed on contest, not only with reference to the conclusions arrived at in the previous suit but also with regard to every step in the process of reasoning on which the said conclusion is founded."
2.4.9. The point has come up before the Supreme Court more than once, but the decisions of the Court on the subject cannot with respect be easily reconciled. The earlier view of the Supreme Court was that a consent decree has the binding force of res judicata.1-2
1. Shankar v. Balkrishnan, AIR 1954 SC 352 (355), para. 9.
2. Sunderabai v. Devaji, AIR 1954 SC 82.
2.4.10. But later decisions of the Supreme Court seem to take a contrary view. It seems that the earlier decisions were not cited before the Court at the time when the later cases were decided.1
1. Subba Rao v. Jagannadhn Rao, AIR 1967 SC 591 (594, 595), para. 10; Baldev Das v. Filmistan Distributors, AIR 1970 SC 406.
2.4.11. The Supreme Court decision1 in Subba Rao's case was relied on in a Delhi case2 recently, for holding that where a previous petition for eviction is withdrawn as a result of a compromise, a subsequent application for eviction on the same ground is not barred by res judicata, because in order to create the bar of res judicata, the earlier case must have been "heard and finally decided" by the court. That is not the case where the decree is passed on compromise.
1. Subba Rao v. Jagannadha Rao, AIR 1967 SC 591.
2. Manoharlal v. Narain Dass, AIR 1987 Del 226 (230, 231), para. 28.
2.4.12. The Supreme Court has, in a very recent case, 1 adhered to their earlier view, and have approvingly referred to the 1954 case where they observed that a consent decree is as binding upon the parties hitherto as a decree passed by 'invitum', and that the compromise having been found not to be vititited by fraud misrepresentation, misunderstanding or mistake, the decree passed thereon has the binding force of 'res judicata'. The Supreme Court, further referred to the 1956 case2 and observed that 'a judgment by consent is intended to stop litigation between the parties just as much as a judgment resulting from a decision of the Court at the end of a long drawn out right', and that 'a compromise decree create an estoppel by judgment'.
1. Byrarn Pestonji Gariwala v. Union Bank of India, AIR 1991 SC 2234 (Dr. T.K. Thommen & R.M. Sahai, JJ.)
2. Sailendra v. State of Orissa, AIR 1956 SC 346.