Appeals Nos 1061 and 1627 to 1629 of 1966
Appeals by special leave from the judgment and order dated March 9 10 1965 of the Bombay High Court in Revision Applications Nos
1428 1427 1430 and 1676 of 1961
M C Chagla J L Hathi K L Hathi and K N Bhat for the appellants in all the appeals
R P Bhat Janendra Lal R A Gagrat and B R Agarwala for the respondent in all the appeals
The Judgment of the Court was delivered by Shah J
Under an indenture dated August 2 1950 Dossibai respondent in this appeal granted a lease of 555 sq yards in village Pahadi Taluka Borivli to Mathura Prasad appellant herein for constructing buildings for residential orbusiness purposes
The appellant constructed buildings on the land
He then submitted an application in the Court of the Civil Judge Junior Division Borivli District Thana that the standard rent of the land be determined under section 11 of the Bombay Rents Hotel and Lodging House Rates Control Act 1947
The Civil Judge rejected the application holding that the provisions of the Bombay Rents Hotel and Lodging House Rates Control Act 1947 did not apply to open land let for constructing buildings for residence education business trade or storage
This order was confirmed on September 28 1955 by a single Judge of the Bombay High Court in a group of revision applications  Mrs Dossibai N B Jeejeebhoy vs Hingoo Manohar Missar  Nos 233 to 242 of 1955
But in Vinayak Gopal Limaye vs Laxman Kashinath Athavale1 the High Court of Bombay held that the question whether section 61 of the Act applies to any particular lease must be determined on its terms and a building lease in respect of an open plot is not ex 1 ILR 832 cluded from section 61 of the Act solely because open land may be used for residence or educational purposes only after a structure is built thereon
Relying upon this judgment the appellant filed a fresh petition in the Court of the Small Causes Bombay for an order determining the standard rent of the premises
The application was filed in the Court of Small Causes because the area in which the land was situated had since been included within the limits of the Greater Bombay area
The Trial Judge rejected the application holding that the question whether to an open piece of land let for the purpose of constructing buildings for residence
education business or trade section 6 1 of the Act applied was res judicata since it had been finally decided by the High Court between the same parties in respect of the same land in the earlier proceeding for fixation of standard rent
The order was confirmed by a Bench of the Courtof Small Causes and by the High Court of Bombay
With special leave the appellant has appealed to this Court
The view expressed by the High Court of Bombay in Mrs Dossibai N B Jeejeebhoy vs Hingoo Manohar Missar Civil Revision Application No 233 of 1955 decided on September 28 1955 was overruled by this Court in Mrs Dossibai N B Jeejeebhoy vs Khemchand Gorumal  Others1
In the latter case the Court affirmed the view expressed by the Bombay High Court in Vinayak Gopal Limaye s case 2
But all the Courts have held that the earlier decision of the High Court of Bombay between the same parties and relating to the same land is res judicata
Section II of the Code of Civil Procedure which enacts the general rule of res judicata insofar as it is relevant provides  No Court shall try any suit or issue in which the matter directly and substantially in issue has been directly and substantially in issue in a former suit between the same parties or between parties under whom they or any of them claim litigating under the same title in a Court competent to try such subsequent suit or the suit in which such issue has been subsequently raised and has been heard and finally decided by such Court The Civil judge Junior Division Borivli was competent to try the application for determination of standard rent and he held that s 61 of the Bombay Rents Hotel and Lodging House Rates Control Act 1947 did not apply to open land let for construction of residential and business premises
The rule of res judicata applies if the matter directly and substantially in issue in a suit or proceeding was directly and sub 1 ILR 2 833 stantially in issue in the previous suit between the same parties and had been heard and finally decided by a competent Court
The Civil Judge Junior Division Borivli decided the application between the parties to the present proceeding for determination of standard rent in respect of the same piece of land let for construction of buildings for residential or business purposes
The High Court has held that a decision of a competent Court may operate as res judicata in respect of not only an issue of fact but mixed issues of law and fact and even abstract questions of law
It was also assumed by the High Court that a decision relating to the jurisdiction of the Court to entertain or not to entertain a proceeding is binding and conclusive between these parties in respect of the same question in a later proceeding
But the doctrine of res judicata belongs to the domain of procedure  it cannot be exalted to the status of a legislative direction between the parties so as to determine the question relating to the interpretation of enactment affecting the jurisdiction of a Court finally between them even though no question of fact or mixed question of law and fact and relating to the right in dispute between the parties has been determined thereby
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
A matter in issue between the parties is the right claimed by one party and denied by the other and the claim of right from its very nature depends upon proof of facts and application of the relevant law thereto
A pure question of law unrelated to facts which give rise to a right cannot be deemed to be a matter in issue
When it is said that a previous decision is res judicata it is meant that the right claimed has been adjudicated upon and cannot again be placed in contest between the same parties
A previous decision of a competent Court on facts which are the foundation of the right and the relevant law applicable to the determination of the  transaction which is the foundation of the right and the relevant law applicable to the determination of the transactions which is the soured of the right is res judicata
A previous decision on a matter in issue is a composite decision the decision of law can not be dissociated from the decision on facts on which the right is founded
A decision on an issue of law will be as res judicata in a subsequent proceeding between the same parties if the cause of action of the subsequent Proceeding be the same as in the previous proceeding but not when the cause of action is different nor 834 when the law has since the earlier decision been altered by a competent authority nor when the decision relates to the jurisdiction of the Court to try the earlier proceeding nor when the earlier decision declares valid a transaction which is prohibited by law
The authorities on the question whether a decision on a question of law operates as res judicata disclose widely differing views
In some cases it was decided that a decision on a question of law can never be res judicata in a subsequent proceeding between the same parties  Parthasardhi Ayyangar vs Chinnakrishna Ayyangar1 Chamanlal vs Bapubhai 2  and Kanta Devi vs Kalawati3
On the other hand Aikman J in Chandi Prasad vs Maharaja Mahendra Mahendra Singh1 held that a decision on a question of law is always res judicata
But as observed by Rankin CJ in Tarini Charan Bhattacharjee vs Kedar Nath Haldar5  Questions of law are of all kinds and cannot be dealt with as though they were all the same
Questions of procedure questions affecting jurisdiction questions of limitation may all be questions of law
In such questions the rights of parties are not the only matter for consideration
 We may analyse the illustrative cases retating to questions of law decisions on which may be deemed res judicata in subsequent proceeding
In Bindeshwari Charan Singh vs Bageshwari Charan Singh1 the Judicial Committee held that a decision of a court in a previous suit between the same parties that section 12A of the Chota Nagpur Encumbered Estates Act 6 of 1876 which renders void a transaction to which it applies was inapplicable was Yes judicata
In that case the owner of an impartable estate after his estate was released from management executed a maintenance grant in favour of his minor son B but without the sanction of the Commissioner as required by section 12A of the Act
B on attaining majority sued his father and brothers for a maintenance grant at the rate of Rs 4000 per annum
The claim was decreed and the plaintiff was awarded a decree for a grant of Rs 4000 inclusive of the previous grant of 1909 and the Court held that the grant of 1909 was valid in law
The father implemented the decree and made an additional maintenance grant upto the value of the decreed sum
In an action by the sons of B s brothers challenging the two grants on the plea that the grants were illegal and not binding upon them the Judicial Committee held that the plea was barred as res judicata in respect of both the grants in respect of the first because there was an express decision on the validity of the first grant in the earlier suit and in respect of the second the 1 ILR 3 AIR 1946 Lah 419
5 ILR 2 I LR 4 ILR 23 All
6 LR 63 IA 53
83 5 decision in the first suit was res judicata as to the validity of the second grant which was made in fulfillment of the obligation under the Court s decision
The Judicial Committee held that in respect of the first grant the decision that section 12A did not apply to the grant was res judicata and in respect of the second grant the construction between the same parties of section 12A was res judicata
Validity of the second grant was never adjudicated upon in any previous suit the second grant was held valid because between the parties it was decided that to the grant of maintenance of an impartible zamindari section 12A of the Chota Nagpur Encumbered Estates Act had no application
This part of the judgment of the Judicial Committee is open to doubt
Where the law is altered since the earlier decision the earlier decision will not operate as res judicata between the same parties  Tarini Charan Bhattacharjee s case1
It is obvious that the matter in issue in a subsequent proceeding is not the same as in the previous proceeding because the law interpreted is different
In a case relating to levy of tax a decision valuing property or determining liability to tax in a different taxable period or event is binding only in that period or event and is not binding in the subsequent years and therefore the rule of res judicata has no application see Broken Hill Proprietary Company Ltd vs Municipal Council of Broken Hill2 A question of jurisdiction of the Court or of procedure or a pure question of law unrelated to the right of the parties to a previous suit is not res judicata in the subsequent suit
Rankin observed in Tarini Charan Bhattacharjee s case1  The object of the doctrine of res judicata is not to fasten upon parties special principles of law as applicable to them inter se but to ascertain their rights and the facts upon which these rights directly and substantially depend and to prevent this ascertainment from becoming nugatory by precluding the parties from reopening or recontesting that which has been finally decided
 A question relating to the jurisdiction of a Court cannot be deemed to have been finally determined by an erroneous decision of the Court
If by an erroneous interpretation of the statute the Court holds that it has no jurisdiction the question would not in our judgment operate as res judicata
Similarly by an erroneous decision if the Court assumes jurisdiction which it does
not possess under the statute the question cannot operate as res judicata bet 1 ILR 2 83 6 ween the same parties whether the cause of action in the subsequent litigation is the same or otherwise
It is true that in determining the application of the rule of res judicata the Court is not concerned with the correctness or otherwise of the earlier judgment
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 a subsequent proceeding between the same parties
But where the decision is on a question law ie 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 Code of Civil Procedure means the right litigated between the parties ie 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 judicatafor a rule of procedure cannot supersede the law of the land
In the present case the decision of the Civil Judge Junior Division Borivli that he had no jurisdiction to entertain the application for determination of standard rent is in view of the judgment of this Court plainly erroneous  see Mrs Dossibai N B Jeejeebhoy vs Khemchand Gorumal  Others1 If the decision in the previous proceeding be
regarded as conclusive it will assume the status of a special rule of law applicable to the parties relating to the jurisdiction of the Court in derogation of the rule declared by the Legislature
The appeals are allowed and the orders passed by the High Court and the Court of Small Causes are set aside and the proceedings are remanded to the Court of First Instance to deal with and dispose them of in accordance with law
There will be no order as to costs throughout
YP Appeals allowed


Summary:
The appellant obtained lease of an open land for construction of buildings
After the constructions the appellant applied for determination of standard rent under the Bombay Rents Hotel and Lodging House Rates Control Act 1947
The application was rejected holding that the provi sions of the Act did not apply to open land let for construction
This view was confirmed by the High Court
Sometime thereafter in another case the High Court held that the question whether the provisions of the Act applied to any particular lease must be determined on its terms and a building lease in respect of an open plot was not excluded from the provisions of the Act solely because open land may be used from residence or educational purposes only after a structure is built thereon
Relying upon this judgment the appellant filed a fresh application for determining the standard rent
The Trial Judge rejected the application holding that question of the applicability of the Act was res judicata since it had been finally decided by the High Court between the same parties in respect of the same land in the earlier proceeding for fixation of standard rent
The order was confirmed by first appellate court and on further appeal by the High Court
HELDThe judgment did not operate as res judicata
A question relating
to the jurisdiction of a Court cannot be deemed to have been finally determined by an erroneous decision of the Court
If by an erroneous interpretation of the statute the court holds that it has no jurisdiction the decision will not operate as res judicata
Similarly by an erroneous decision if the Court assumes jurisdiction which it does not possess under the statute the decision will not operate as res judicata between the same parties whether the cause of action in the subsequent litigation is the same or otherwise
in determining the application of the rule of res judicata the court is not concerned with the correctness or otherwise of the earlier judgment
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 where the cause of action is the same for the expression the matter in issue in section 11 Code of Civil Procedure means the right litigated between the parties ie 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 because of the rule of res judicata for a rule of procedure cannot supersede the law of the land
83 1 if the decision in the previous proceeding be regarded as conclusive it will assume the status of a special rule of law applicable to the parties relating to the jurisdiction of_the Court in derogation of the rule declared by the Legislature
835G 836 F Parthasardhi Ayyangar vs Chinnakrishna Ayyangar ILR  Chamanlal vs Bapubhai ILR  Kanta Devi vs Kalawati AIR 1946 Lah
419 Tarini Charan Bhattacharjee vs Kedar Nath Haldar ILR  and Broken Hill Proprietary Company Ltd vs Municipal Council of Broken Hill  approved
Chandi Prasad vs Maharaja Mahendra Mahendra Singh ILR 23 All
5 disapproved
Bindeshwari Charan Singh vs Bageshwari Charan Singh LR 63 IA 53 doubted