Theme-Analysis of Jamia Masjid v. KV Rudrappa,Sub-theme- Res judicata can be decided as a preliminary issue consisting of
questions of fact and law.
Recently a Supreme Court bench comprised of 3 judges Dr. DY Chandrachud, Hima
Kohli, and Vikram Nath gave a landmark ruling where it was decided by the
3-judge bench issue which is arising of subsequent suits may either fall in the
category of the question of fact or question of law and it can fall in both
A second appeal was dismissed by a Single Judge of the High Court of Karnataka
under Section 100 of the Code of Civil Procedure 1908 while averring the
decision of Trial Court and the First Appellate Court where it was held that
here the suit instituted by the appellant plaintiff is barred by the principle
of res judicata. Hence the appellant approached the court under a special leave
petition while challenging the decision of a single judge and hence leave is
granted on 8 December 2014.
Facts and Circumstance Involved
Initially while describing Jamia Masjid Gubbi in the cause title when the
appellant was instituting a suit for seeking a relief:
- Declaring the State Wakf Board is the owner while their possession of the
property in the suit it was found during a survey Gubbi village measure 2
acres and 4 guntas of non-agricultural land along with a cinema building
- A decree for possession against the defendant in the present case.
- Injunction to restrain the defendant in the present suit from
interfering in the possession and enjoyment of the plaintiff's property.
- An application present here decree for mesne profit.
Here in the present case person named H.S Gururajarao along with his brother
leased property that was in the suit for 8th December 1944. The suit, in this
case, was instituted by the wakf board against the person named Abdul Khuddus
and H.S. Gururajarao seeking possession of the suit property and a declaration
that the property constitutes a wakf. As soon as Abdul Khuddus, died then
defendants 6 to 9 took possession of the suit property.
mismanagement of the suit property were made against them. The Chairman, D.W.C
Tumkur recommended that the suit property be directly managed by the Board under
section 43(A) of the Wakf Act 1954. The cause of action arose on 16 April 1983
when Defendants 1 to 4 together with other defendants interfered with the
possession of the plaintiff on the strength of the sale in their favour executed
by Defendants 5 to 9.
The defendant here comprising 2 to 4 filed their written statement seeking that
present suit barred by res judicata also the district court in the said suit on
31st March 1954 declaring that suit of schedule property as personal property
Abdul Khuddus. Then, Abdul Khuddus instituted an appeal before the High Court
where he challenged the order given by the district court on 14 August 1959.
From the above situation, parties and subject matter of the first suit and the
existing suit are the same and thus the suit instituted by the appellant will be res judicata. Here the representative suit filed under section 92 of CPC is
binding for only parties which are named in the suit and also who are having an
interest in the said matter and hence any decision in any of the previous
representative suits will bind all interested parties even if they were not
impleaded as a party to the suit.
In the trial court the submission made prime facie found that here Abdul Khuddus
was possessing the title to the suit property and based on this it was
conclusively decided that Abdul Khuddas having an absolute title, is erroneous.
The court here will look that property is owned by the trust.
Considering Res Judicata as a Preliminary issue
In this case, it is emphasized on the point that determination of an application
under res judicata can be only done after deducing the evidence in the trial and
to support the fact present case seek reliance on the case Alka Gupta v.
Narender Kumar Gupta
 decided by a two-judge bench in this case trial court
dismissed the subsequent suit based on the preliminary ground where the filing
of the subsequent suit was barred under res judicata however it may be the case
that on appeal the two-judge bench of the present court held that second suit
could not be barred by res judicata.
The principle of res judicata bars the
right of the plaintiff to have adjudication on the claim and thus his plea must
be clearly established when the bar of the suit is itself based on constructive
res judicata and thus plaintiff should have noticed about the plea of having the
opportunity to present his case and the present case we don't see there was plea
with respect to constructive res judicata and neither the plaintiff in the
present said matter got the opportunity to meet the need of such plea.
The judgment noted that issues arising in any kind of subsequent suit may fall
in any category either question of law or question of fact or either in both
categories. If the suit is decided and there is any kind of alteration the suit
would be required to face the trial for determining the plea of res judicata
only when the news facts out the same situation are arising which are yet to be
proved. In case the plea for res judicata may be determined as a preliminary
issue when it is observed that neither any disputed question of fact nor any
kind of disputed question on law nor has been left which was to be discussed.
The court while determining the plea of res judicata checks the essential as
mentioned in section 11 under which states firstly that no man should be vexed
twice for the same offence with respect to same litigation, secondly it is
desirable that there is an end to litigation thirdly a judicial decision must be
accepted as correct and if all these essential are met and on that basis, it
will be seen that there is a material alteration in fact or law, as the first
suit was decreed as a result arising out of the principle of res judicata, will
turn out to be inapplicable.
The 3-judge bench to study the matter at length referred to the case of Syed
Mohd. Salie Labbai (dead) by L. Rs v. Mohd. Hanifa
 it was decided by the Hon'ble Supreme Court that before a plea of res judicata is passed the necessary
condition needs to be fulfilled where firstly that parties contesting in
litigation must be same, secondly the subject matter must be related to each
other, thirdly the matter is to be decided between the parties at hand, and
lastly, the court should be requisite jurisdiction to decide the matter.
Then the bench referred to the case of Alka Gupta v. Narender Kumar Gupta
where it was reiterated that plea should be clearly established when there is a
bar of the suit where a suit falls under the category of constructive res
judicata. The plaintiff should be provided the notice of plea and also with
equal opportunity for him /her to present his contention when the same person is
sought against the bar of constructive res judicata.
The twin test when the issue is to found that an issue has been conclusively
been decided on the previous suit:
- Firstly, the necessity test where it is seen that adjudication of the issue is
necessary to condition for determining the principle issue.
- Secondly essential test where it is seen that judgment of any suit is decided on
that very issue
Res Judicata: Question of fact or law or a mixed question of law and fact?
It is seen that the Hon'ble Supreme Court while deciding the plea of res
judicata brings the mixed question of fact and law.
It is to be noted that Justice Ramaswamy while referring to this case (a
three-judge bench case) Sushil Kumar Mehta v. Gobind Ram Bohra
, held that the
principle of res judicata cannot be used as a pigeonhole where there is a
question Infront of court coupled with facts and laws or both depending upon the
issues which had been previously been decided.
Then later three-judge bench in the case of Jamia Masjid v. KV Rudrappa
referred to the case of Mathura Prasad Bajoo Jaiswal v. Dossibai N.B
, where it was decided that a decision which is given by a court of
competent jurisdiction can result in res judicata in another proceeding even
when there are same parties the matter which is in issue may either be related
to issue of fact, law or either combination of both when the matter is decided
between the parties and later cannot be reopened between them in any other
proceeding. Any such previous decision on the matter pertaining to the issue
alone is res judicata.
The matter at hand resulting in an issue if it is previously decided in the
earlier proceeding by the court of competent jurisdiction must be subsequent
litigation which is between the same parties which is finally decided by the
court of competent jurisdiction and later the matter cannot be reopened. If the
matter had mixed question of law and fact which had been decided in the earlier
proceeding cannot be reopened with same reason per se in any subsequent
proceeding comprising same parties.
If there is a question pertaining to law
then the statute needs to be interpreted and it will be seen as res judicata in
a subsequent proceeding between the parties where the cause of action is the
same as the matter at hand in issue under section 11 of CPC means that
rights which are being litigated between the parties where the rights are being
claimed or denied and applicability of law is seen for determining the issue
where the question is based on the law it relates to jurisdiction of the court
or a decision which is illegal by resorting to rule of res judicata where a
party affected by the decision will not be precluded from just challenging the
validity of any order under the rule of res judicata and rules prescribed in
procedure cannot exceed the law of land.
Hence the court finally decided that yes res judicata can be determined as a
preliminary issue where there is particularly baggage of question comprising
question from law and fact. It can be done only after every piece of evidence is
determined and after the trial is completed.
- Jamia Masjid v. KV Rudrappa 2021 SCC OnLine SC 792
- Civil Procedure Code, 1908, Section 100
- Alka Gupta v. Narender Kumar Gupta (2010) 10 SCC 141
- Syed Mohd. Salie Labbai (dead) by L. Rs v. Mohd. Hanifa (1976) 4 SCC 780
- Madhukar D Shende v. Tarabai Aba Shedage, (2002) 2 SCC 85; Ram Harakh v.
Hamid Ahmed Khan, (1998) 7 SCC 484
- Sushil Kumar Mehta v. Gobind Ram Bohra (1990) 1 SCC 193
- Mathura Prasad Bajoo Jaiswal v. Dossibai N.B Jeejeebhoy (1970) 1 SCC 613
- Civil Procedure Code, 1908, Section 11