DAYA SAPRA Vs. VISHNU DUTT SHARMA

JUDGEMENT

(1.) AN interesting question of law arises for consideration in the instant petition. It concerns the inherent power which a court of justice must possess to prevent misuse of its procedures in relation to an action initiation whereof may apparently be not inconsistent with the literal application of the law but otherwise would be manifestly unjust and unfair to the defendant amounting to an abuse of the process of law. In turn the question encompasses the scope of the principle of res judicata: Is Section 11 of the code of Civil Procedure 1908 exhaustive of the sweep of res judicata? How is the principle of res judicata impacted by Sections 40 to 43 of the Indian evidence Act 1872? Do the inherent powers of the court permit it to striffle a suit, cause whereof was an essential part of a prosecution for an offence under Section 138 of the Negotiable Instruments Act 1881 in particular when the suit is sought to be litigated with the same quality and quantity of evidence as formed the basis of the prosecution for the offence under section 138 of the Negotiable Instruments Act 1881?

(2.) EXPLAINING res judicata and its twin effect, George Spencer Bower in his treaties "the Doctrine of Res Judicata" Ilnd Edition, page 1, has to say:-

(3.) THE term 'res judicata' and the term 'estoppel by record' have at times been used (indiscriminately if I may beg to use the expression) to signify either, or both, resultant effect of binding nature of a final judicial decision pronounced by a court of competent jurisdiction. Spencer Brown however explains that it would be advisable to distinguish the two as: estoppel per rem judicatam; and, transit in rem judicatam.