MAYA RANI DAS Vs. MATASIN ALI

JUDGEMENT

(1.) A suit was filed for declaration of title, confirmation of possession and injunction. The defendant filed written statement and urged that the suit is barred by the principles of constructive res-judicata. The trial Court took up the issue of constructive res-judicata as a preliminary issue and held that the suit is barred by the principles of constructive res- judicata. There was an appeal and that also was dismissed affirming the judgment; of the trial court. Hence this second appeal.

(2.) I have heard Mr N. Choudhury, leamed counsel for appellants and Mr A.S. Choudhury, learned counsel for respondent. Mr. N. Choudhury, learned counsel for appellants submits that res-judicata is not a pure question of law but a mixed question of law and facts inasmuch as provided under S.11 of CPC. In order to satisfy the requirement of res-judicata, the following things are necessary: i) Identity of matter in issue, i.e. the matter directly and substantially in issue in the subsequent suit must be the same matter which was directly and substantially in issue in the former suit either actually (Expln. 3) or constructively (Expln. 4). The subject matter and the causes of action of the two suits may be different but the issues may be the same. Expln. III refers to direct res-judicata and Expln. IV to constructive res- judicata. It is not necessary that a distinct issue should be raised. It is sufficient if the matter was in issue in substance. ii) Identity of parties, ie the former suit must have been between the same parties or between parties under whom they or any of them claim (Expln. VI). iii) Same title. - the parties in the subsequent suit must have litigated under the same title in the former suit. iv) Concurrence of jurisdiction. - The Court which decided the former suit must have been competent to try the subsequent suit or the suit in which issue has been subsequently raised (Expln. II). New Expln. VIII has widened the scope of S 11 by doing away with the requirement as to concurrence of jurisdiction as to pecuniary limits in both the suits. v) Final decision. - The matter directly and substantially in issue in the subsequent suit must have been heard and finally decided in the former suit (Expln. V).

(3.) So, in order to satisfy all these things, there would be necessity of evidence and usually by framing the preliminary issue, a Court should not take evidence by way of instalments. If any authority is required for this proposition one may have a look at (1998) 8 SCC 623 (Lufthansa German Airlines-Vs- VIJ Sales Corporation) where in the question of limitation was decided as a preliminary issue and in that process the matter continued for a long 14 years from one court to other court and ultimately the matter reached the apex Court and the apex Court in para 4 of the judgment has pointed out as follows: