Case: Dadu Dayalu Mahasabha, Jaipur (Trust) Vs. Mahant Ram Niwas

same thing as if the matter had been actually controverted and decided. It is true that where a matter has been constructively in issue it cannot be said to have been actually heard and decided. It could only be deemed to have been heard and decided. The first reason, therefore, has absolutely no force." It was furthermore opined:- "26. It is settled law that the principles of estoppel and res judicata are based on public policy and justice. Doctrine of res judicata is often treated as a branch of the law of estoppel though these two doctrines differ in some essential particulars. Rule of res judicata prevents the parties to a judicial determination from litigating the same question over again even though the determination may even be demonstratedly wrong. When the proceedings have attained finality, parties are bound by the judgment and are estopped from questioning it. They cannot litigate again on the same cause of action nor can they litigate any issue which was necessary for decision in the earlier litigation. These two aspects are "cause of action estoppel" and "issue estoppel". These two terms are of common law origin. Again, once an issue has been finally determined, parties cannot subsequently in the same suit advance arguments or adduce further evidence directed to showing that the issue was wrongly determined. Their only remedy is to approach the higher forum if available. The determination of the issue between the parties gives rise to, as noted above, an issue estoppel. It operates in any subsequent proceedings in the same suit in which the issue had been determined. It also operates in subsequent suits between the same parties in which the same issue arises. Section 11 of the Code of Civil Procedure contains provisions of res judicata but these are not exhaustive of the general doctrine of res judicata. Legal principles of estoppel and res judicata are equally applicable in proceedings before administrative authorities as they are based on public policy and justice." This Court opined that the Law of England as enunciated by the House of Lords in Arnold vs. National Westiminster Bank Plc. : (1991) 2 AC 93 = (1991) 3 All ER 41, HL to hold that the said principle will have no application in India stating:- "30. Mr. Salves assertions based on the aforesaid decision of the House of Lords may be valid to an extent but then in view of the principles of law laid down by this Court on the application of res judicata and estoppel and considering the provisions of Section 11 of the Code, we do not think there is any scope to incorporate the exception to the rule of issue estoppel as given in Arnold v. National Westminster Bank Plc.331. Law on res judicata and estoppel is well understood in India and there are ample authoritative pronouncements by various courts on these subjects. As noted above, the plea of res judicata, though technical, is based on public policy in order to put an end to litigation. It is, however, different if an issue which had been decided in an earlier litigation again arises for determination between the same parties in a suit based on a fresh cause of action or where there is continuous cause of action. The parties then may not be bound by the determination made earlier if in the meanwhile, law has changed or has been interpreted differently by a higher forum. But that situation does not exist here. Principles of constructive res judicata apply with full force. It is the subsequent stage of the same proceedings. If we refer to Order XLVII of the Code (Explanation to Rule 1) review is not permissible on the ground "that the decision on a question of law on which the judgment of the Court is based has been reversed or modified by the subsequent decision of a superior court in any other case, shall not be a ground for the review of such judgment". 31. Principle of issue estoppel and constructive res judicata had also been discussed at some length by this Court in Bhanu Kumar Jain (supra) to hold:- "29. There is a distinction between "issue estoppel" and "res judicata". (See Thoday v. Thoday) 30. Res judicata debars a court from exercising its jurisdiction to determine the lis if it has attained finality between the parties whereas the doctrine issue estoppel is invoked against the party. If such an issue is decided against him, he would be estopped from raising the same in the latter proceeding. The doctrine of res judicata creates a different kind of estoppel viz. estoppel by accord." 32. Yet again in Annaimuthu Thevar (Dead) by Lrs. vs. V. Alagammal and others : (2005) 6 SCC 202 a Division Bench of this Court held :- "27. The next question that arises is whether the issue of ownership and title in the suit house was directly and substantially in issue in the former suit or not. In the subsequent suit undoubtedly the foundation of claim is title acquired by the present appellant under registered sale deed dated 28-2-1983 from Muthuswami." 33. Even in a case of title, Explanation IV to Section 11 would apply. (See also Sulochana Amma vs. Narayanan Nair : 1994 (2) SCC 14 ). 34. Furthermore in terms of Section 5 of the Specific Relief Act, 1963 a suit for possession must be filed having regard to the provisions of the Code of Civil Procedure. If the statute provides for the applicability of the Code of Civil Procedure, there cannot be any doubt whatsoever that all the relevant provisions thereof shall apply. (See Shamsu Suhara Beevi vs. G. Alex and another : (2004) 8 SCC 569 ) & Hardesh Ores (P) Ltd. vs. Hede and Company :2007 (5) SCC 614 ).35. We have, therefore, no hesitation to hold that the impugned judgment cannot be sustained. The same is set aside. The appeal is allowed with costs. Counsels fee assessed at Rs.25,000/- (Rupees Twenty Five Thousand only).

Decision (1 = appeal accepted, 0 = rejected): 0

Explanation:
0[ds]19. The judgment of a court, it is trite, should not be interpreted as a statute. The meaning of the words used in a judgment must be found out on the backdrop of the fact of each case. The Court while passing a judgment cannot take away the right of the successful party indirectly which it cannot do directly. An observation made by a superior court is not binding. What would be binding is the ratio of the decision. Such a decision must be arrived at upon entering into the merit of the issues involved in the case.We, however, are not unmindful of the principles of estoppel, waiver and res judicata, are procedural in nature and, thus, the same will have no application in a case where judgment has been rendered wholly without jurisdiction or issues involve only pure questions of law. Even in such cases, the principle of issue estoppel will have no role to play. However, once it is held that the issues which arise in the subsequent suit were directly and substantial in issue in the earlier suit, indisputably Section 11 of the Code would apply.23. Similarly the provisions of Order II Rule 2 bars the jurisdiction of the Court in entertaining a second suit where the plaintiff could have but failed to claim the entire relief in the first one. We need no go into the legal philosophy underlying the said principle as we are concerned with the applicability thereof.Furthermore in terms of Section 5 of the Specific Relief Act, 1963 a suit for possession must be filed having regard to the provisions of the Code of Civil Procedure. If the statute provides for the applicability of the Code of Civil Procedure, there cannot be any doubt whatsoever that all the relevant provisions thereof shall apply. (See Shamsu Suhara Beevi vs. G. Alex and another : (2004) 8 SCC 569 ) & Hardesh Ores (P) Ltd. vs. Hede and Company :2007 (5) SCC 614 ).35. We have, therefore, no hesitation to hold that the impugned judgment cannot be sustained. The same is set aside. The appeal is allowed with costs. Counsels fee assessed at Rs.25,000/- (Rupees Twenty Five Thousand only).