Scope of application of principle of res judicata

Resjudicata u/s 11 of CPC:

The law on the subject of Res Judicata may be stated as follows:

(1) The general rule is that all issues that arise directly and substantially in a former suit or proceeding between the same parties are res judicata in a subsequent suit or proceeding between the same parties. These would include issues of fact, mixed questions of fact and law, and issues of law.

(2) To this general proposition of law, there are certain exceptions when it comes to issues of law:

(i) Where an issue of law decided between the same parties in a former suit or proceeding relates to the jurisdiction of the Court, an erroneous decision in the former suit or proceeding is not res judicata in a subsequent suit or proceeding between the same parties, even where the issue raised in the second suit or proceeding is directly and substantially the same as that raised in the former suit or proceeding. This follows from a reading of Section 11 of the Code of Civil Procedure itself, for the Court which decides the suit has to be a Court competent to try such suit. When read with Explanation (I) to Section 11, it is obvious that both the former as well as the subsequent suit need to be decided in Courts competent to try such suits, for the “former suit” can be a suit instituted after the first suit, but which has been decided prior to the suit which was instituted earlier. An erroneous decision as to the jurisdiction of a Court cannot clothe that Court with jurisdiction where it has none. Obviously, a Civil Court cannot send a person to jail for an offence committed under the Indian Penal Code. If it does so, such a judgment would not bind a Magistrate and/or Sessions Court in a subsequent proceeding between the same parties, where the Magistrate sentences the same person for the same offence under the Penal Code. Equally, a Civil Court cannot decide a suit between a landlord and a tenant arising out of the rights claimed under a Rent Act, where the Rent Act clothes a special Court with jurisdiction to decide such suits. As an example, under Section 28 of the Bombay Rent Act, 1947, the Small Causes Court has exclusive jurisdiction to hear and decide proceedings between a landlord and a tenant in respect of rights which arise out of the Bombay Rent Act, and no other Court has jurisdiction to embark upon the same. In this case, even though the Civil Court, in the absence of the statutory bar created by the Rent Act, would have jurisdiction to decide such suits, it is the statutory bar created by the Rent Act that must be given effect to as a matter of public policy. (See, Natraj Studios (P) Ltd. v. Navrang Studios & Anr., (1981) 2 SCR 466 at

482). An erroneous decision clothing the Civil Court with jurisdiction to embark upon a suit filed by a landlord against a tenant, in respect of rights claimed under the Bombay Rent Act, would, therefore, not operate as res judicata in a subsequent suit filed before the Small Causes Court between the same parties in respect of the same matter directly and substantially in issue in the former suit.

(ii) An issue of law which arises between the same parties in a subsequent suit or proceeding is not res judicata if, by an erroneous decision given on a statutory prohibition in the former suit or proceeding, the statutory prohibition is not given effect to. This is despite the fact that the matter in issue between the parties may be the same as that directly and substantially in issue in the previous suit or proceeding. This is for the reason that in such cases, the rights of the parties are not the only matter for consideration (as is the case of an erroneous interpretation of a statute inter parties), as the public policy contained in the statutory prohibition cannot be set at naught. This is for the same reason as that contained in matters which pertain to issues of law that raise jurisdictional questions. We have seen how, in Natraj Studios (supra), it is the public policy of the statutory prohibition contained in Section 28 of the Bombay Rent Act that has to be given effect to. Likewise, the public policy contained in other statutory prohibitions, which need not necessarily go to jurisdiction of a Court, must equally be given effect to, as otherwise special principles of law are fastened upon parties when special considerations relating to public policy mandate that this cannot be done.

(iii) Another exception to this general rule follows from the matter in issue being an issue of law different from that in the previous suit or proceeding. This can happen when the issue of law in the second suit or proceeding is based on different facts from the matter directly and substantially in issue in the first suit or proceeding. Equally, where the law is altered by a competent authority since the earlier decision, the matter in issue in the subsequent suit or proceeding is not the same as in the previous suit or proceeding, because the law to be interpreted is different.

[Source: Canara Bank vs N.G. Subbaraya Setty decided by SC on 20 April, 2018]

Prosecution for perjury

Scheme of Section 195 read with sec. 340 of Cr. P.C.

The prosecution for perjury should be sanctioned by courts only in those cases where the perjury appears to be deliberate and conscious and the conviction is reasonably probable or likely.

No doubt giving of false evidence and filing false affidavits is an evil which must be effectively curbed with a strong hand but to start prosecution for perjury too readily and too frequently without due care and caution and on inconclusive and doubtful material defeats its very purpose. Prosecution should be ordered when it is considered expedient in the interests of justice to punish the delinquent and not merely because there is some inaccuracy in the statement which may be innocent or immaterial. There must be prima facie case of deliberate falsehood on a matter of substance and the court should be satisfied that there is reasonable foundation for the charge.

[Source: Chajoo Ram v. Radhey Shyam, AIR 1971 SC 1367, 1971 SCR 172]

In view of the language used in Section 340 CrPC the court is not bound to make a complaint regarding commission of an offence referred to in Section 195(1)(b), as the section is conditioned by the words “court is of opinion that it is expedient in the interests of justice”.

Continue reading “Prosecution for perjury”

Compensation for death due to medical negligence

How to value human life?

Human life is most precious. It is extremely difficult to decide on the quantum of compensation in medical negligence case as the same is highly subjective in nature.

In case of Sarla Verma (2009) 6 SCC 121, Supreme Court discussed “just compensation.

In Kunal Saha case (2014) 1 SCC 384, Supreme Court rejected the multiplier method and held that a “no-fault” motor vehicle accident should not be compared with the case of death from medical negligence under any condition. It was held that there were problems in using a “strait-jacket formula” for determining the quantum of compensation. The multiplier method used in motor accident cases thus is not conclusive for just, fair and adequate compensation. I

n Halsbury Laws of England 4thEdition page 446, it has been stated with regard to non-pecuniary loss that pattern of compensation awarded is for pain and suffering and loss of amenity constitutes a conventional sum which is taken to be a sum which society deems fair, fairness being interpreted in the light of previous decisions”.

In Nizam’s case (2009) 6 SCC 1 the Supreme Court did not apply the multiplier method and awarded compensation based on the nature of injury, expenditure incurred and expenditure likely in future. Thus there is no restriction upon courts while awarding compensation it has to be confined to what is demanded by the complainant.

In V. Krishna Kumar (2015) 9 SCC 388, Supreme Court while relying on the principle of “restitutio in integrum” as recognized in Malay Kumar Ganguly case (2009) 9 SCC 221 and Kunal Saha (2014) 1 SCC 384 has further weighed the “apportioning of inflation” based on the RBI data of average inflationary rate between 1990-1991 and 2014-2015 and formulated standard future value; (FV) formula as below:

FV = PV (Present Value) x (1+r)n ( r= rate of return; n = time period)

Recently, the Constitution Bench of Supreme Court in the case of National Insurance Co Ltd (2017) Scale 12 determined just compensation in fatal accident cases has inter alia concluded that while determining the income, an addition of 50% of actual salary to the income of the deceased towards future prospective, where the deceased had a permanent job and was below the age of 40 years, should be made. The addition should be 30%, if the age was between 40-50 years. In case the deceased is was between the age of 50-60 years the addition should be 15%. Actual salary should be read as actual salary less tax. In case the deceased was self employed of on a fixed salary, an addition of 40% of the established income when the deceased was less than 40 years of age, 25% when the deceased was 40 to 50 years and 10% for the age group between 50-60 years. The established income means the income minus the tax component.

Demand of additional consideration after execution of Sale Deed

Cancellation of sale due to non utilization:

In the first instance, it needs to be emphasised that there is no such condition of completion of construction within a period of two years in the sale deed. Such a condition was only in the allotment letter. However, after the said allotment, the appellant- Corporation not only received entire consideration but executed the sale deeds as well. In the sale deeds no such condition was stipulated. Therefore, the High Court is right in holding that after the sale of the property by the appellant-Corporation to the respondents, whereby the respondents acquired absolute marketable title to the property, the appellant-Corporation had no right to insist on the conditions mentioned in the allotment letter, which cease to have any effect after the execution of the sale deed.

Rights and duties of buyers and sellers:

Section 55 of the Transfer of Property Act deals with rights and liabilities of buyer and seller. As per this provision, when the buyer discharges obligations and seller passes/conveys the ownership of the property, the contract is concluded. Thereafter, the liabilities, obligations and rights, if any, between the buyer and seller would be governed by other provisions of the Contract Act and the Specific Relief Act, on the execution of the sale deed. The seller cannot unilaterally cancel the conveyance or sale. Continue reading “Demand of additional consideration after execution of Sale Deed”