There are various major questions of Law which are of importance in the present
case them being, firstly, the principle of Res Judicata as enshrined in Section
11 of the Code of Civil Procedure, 1908 (hereinafter CPC), secondly, principles
and rules laid down as under Order 41, Rule 4, of the CPC, and lastly principles
surrounding the Jurisdiction of the Civil Court enshrined in Section 9 of the
The principle of ex captio res judicata
i.e. Res Judicata, propound that
a matter once decided, with respect to a subject matter, parties, and cause of
action, by a competent court must act as a bar to the filing a subsequent suit
on the same.
The principles laid down in Order 41, Rule 4 of the CPC, explain
the principles of appeals with relation to suits entailing multiple Plaintiffs/
Petitioners/ Defendants/ Respondents. Lastly the principles under Section 9,
explain the inherent Jurisdiction of the Civil Court.
Analysis of Relevant Provisions:
While analysing the aforementioned cases the following Issues with respect to
the provisions of the CPC are evidently raised:
- Whether or not the abatement of an appeal against an ejectment decree on
death of one of several tenants defendants is justified?
- Whether or not the Court had the Jurisdiction to try the matter?
- Whether or not the Suit is barred by the principle of Res Judicata and
Section 11 of the CPC?
A) Abatement - Whether Justified:
The general rule is that on an appeal by one of the several plaintiffs or
defendants, an appellate court can reverse or vary the decree of the trial
court only in favour of the party appealing. However Order 41, Rule 4 is an
exception to this general notion and clarifies that any one of several
plaintiffs or defendants may obtain reversal of ‘whole decree' where it proceeds
on ground common to all. Therefore even if one of the Plaintiffs/ Defendants
expires, and the legal representatives do not inherit any legal right, the other
Plaintiffs or Defendants may pursue for reversal of the any Decree, even in
favour of the deceased Plaintiff.
In the present matter a contention put forth by the Counsel on behalf of the
Respondent on the ground that by reason of the ejectment decree (1st Matter) Lal
Chand had ceased to be a tenant, and upon his death during the pendency of the
appeal, the right to sue did not survive to his heirs.
However on a bare perusal of Order 41, Rule 4 of the CPC, it is evident in the
present factual matrix that, Firstly, the suit out of which this appeal arises
was filed by the Respondent not only against Lal Chand but against Kesho Ram and
Jhangi Ram also, who were Defendants 2 and 3 and the subsequent appeal was filed
by them collectively. Secondly, Defendant 2 and 3 were equally aggrieved by the
ejectment decree and they were entitled to an equal protection of the Slum
Clearance Act. Therefore the Court erred in not recognizing that the other
parties were empowered in seeking reversal of the earlier decree.
Section 9 CPC, deals with the jurisdiction of Civil Courts in India. It says
that the courts shall have jurisdiction to try all suits of a civil nature
excepting suits of which their cognizance is either expressly or impliedly
Therefore, it is evident from the language of Section 9 that the Civil Court has
Jurisdiction to entertain any matter which is of civil nature i.e. any matter
affecting private rights and obligations of a citizen. However at this juncture
it may be clarified that it is not Section 9 which confers a vast Jurisdiction
upon the Civil Court, Per Contra, the Civil Court has inherent Jurisdiction to
entertain any matter which Civil in nature.
Restriction: However, a Civil Court may not entertain any matter in which its
Jurisdiction is expressly or impliedly barred, i.e. any matter in which either a
separate statute or the CPC itself bars may not be entertained by the Civil
Courts, as it is at the exclusion of its inherent Jurisdiction. For example,
Consumer Forums, are empowered with primary Jurisdiction with respect to any
matter related to a consumer dispute.
In the present matter this principle has been strictly applied, since on a
combined reading of Section 19 (a) and Section 37 A of Slum Clearance Act it
is evident that the Jurisdiction of the Civil Court has specifically been
excluded. Therefore the Court was not competent in entertaining the present
C) Res Judicata:
The principle of Res Judicata or ex captio res judicata
is embodied under
Section 11 CPC, it follows the principle of the rule of conclusiveness of a
decree, judgement. Such a judgement may be with respect to questions of Law,
Fact or both.
The principle being that if a judgement given by a competent Court, did not hold
a final and conclusive value the parties would endless indulge in continuous
litigation, and cause constant trouble, harassment and unnecessary expenses to
the opposing party.
Therefore on a bare perusal of the provision itself it is clear that no cause of
action which has firstly, directly and substantially in issue has been directly
and substantially in issue in a former suit Secondly between the same
parties, thirdly before a competent Authority, fourthly litigating under the
same title, fifthly which has already been decided by such competent authority
shall be the subject matter of a fresh Litigation.
It is evident in the present matter the principles of Res Judicata formed an
important part of allowing the appeal and the dismissal of the High Court order,
since the matter had already been decided upon by a competent authority being
the Chief Commissioner of Delhi, as under Section 20 of the Slum Areas
(Improvement and Clearance) Act, 1956 the matter rests Res Judicata, i.e.
already conclusively decided. It was also held that, the earlier lower Court
order was not of importance, as the Lower Court did not possess the Jurisdiction
to entertain that matter.
The conditions as laid down for the principle of Res Judicata to be applicable
has been affirmed in various cases. These restrictions and conditions on the
applicability of the principle have also been reaffirmed in various recent
matters of Bhalki v. Gurappa
 and also in the matter of Gangai Vinayagar
Temple v. Meenakshi Ammal.
Furthermore, the principle has also been extended
to include scenarios wherein the issue essentially was different however in
order to contest that issue another issue had to be relied upon, in such a
matter if a decision in the first issue impliedly decides the later, such a
decision would be barred by Res Judicata. Lastly, various provisions
pertaining to the application of the Doctrine of Res Judicata between
Co-defendants, has also been affirmed in contemporary matters.
Conclusion and Suggestions
In the case at hand the appeal was dismissed, and the erroneous order of the
High Court was overruled. However on a keen perusal of the judgement it may be
observed that the applicability of the principle of Res Judicata, Section 9 of
the CPC as well as Order 41, Rule 4 of the CPC, were only understood and
applied, in the final appeal before the Supreme Court, the matter had been heard
before 7 Competent Authorities prior to this, however none of them succeeded in
taking cognizance of these principles. Such a failure hints towards the
deteriorating quality of the Judges in the Lower Judiciary, such a flaw must be
identified and rectified at an early stage itself to avoid unnecessary
- Code of Civil Procedure, 1908 - Section 9 - Jurisdiction of Civil
- Slum Areas (improvement And Clearance) Act, 1956 - Section 19(1) and
Section 37 A.
- Satyadhayn Ghosal v. Deorjin Debi, AIR 1960 SC 941; Daryao v. State of
UP., AIR 1961 SC 1457; Pandurang Ramachandra v. Shantibai Ramchandra, 1989
Supp (2) SCC 627; Supreme Court Employees Welfare Association v. Union of
India, 1989 (4) SCC 187, LIC v. India Automobiles & Co., 1994 SCC 286;
Sushil Kumar v. Gobind Ram, 1991 SCC 193; Sulochana Amma v. Narayanan Nair,
(1994) 2 SCC 14; Gangai Vinayagar Temple v. Meenakshi Ammal, (2009) 9 SCC
- supra note 3.
- Bhalki v. Gurappa, (2016) 2 SCC 200.
- Gangai Vinayagar Temple v. Meenakshi Ammal, (2015) 3 SCC 624.
- Pondicherry Khadi and Village Industries Board v. P. Kulothangan.,
(2004) 1 SCC 68.
- State of Gujrat v. Dilipbhai Shaligram Patil, (2006) 8 SCC 72; Makhija
Construction and Engg. (P) Ltd. v. Indore Development Authority, (2005) 6
SCC 304; Amarendra Komalam v. Usha Sinha, (2005) 2 SCC 251.