1962 Supreme(SC) 217

SUPREME COURT OF INDIA
S.K. DAS, M. HIDAYATULLAH AND J.C. SHAH, JJ.
R. Viswanathan and others (Appellants in C. A. Nos. 277 / 58; 281/58 and Respondents in C. A. 278/58) and R. Gajambal Ammal and others (Appellants in C A. Nos. 279/58,282/ 58 and Respondents in C. A. No. 280/58), appellants
Versus
Rukn-ul-Mulk Syed Abdul Wajid since deceased and others (Respondents in C. A. Nos. 277/58, 279/ 58, 281/ 58, 282 /58 and Appellants in C.A Nos. 78/58, 280/58 and 288/58) and
Versus
Gajambal Ammal and another (Respondents in C. A. No. 283/ 58, Respondents.
Civil Appeals No.s 277 to 283 of 1958.
4th May, 1962
Advocates appeared
Mr. S.T. Desai, Senior Advocate (Mr. B. R. L. lyengar, Advocate, with him) for Appellants in Civil Appeals Nos. 277, 279, 281 and 282/58 and Respondents Nos. l to 3 in C. A. No. 278/58;
Mr M.C. Sctalvad, Attorney- General for India and Mr. M. K. Nambiar, Senior Advocate (Messrs. E. V. Mathew an J. B. Dadachanji, Advocates, and M/s.S.N. Andley, Rameshwar Nath and P. L. Vohra, Advocates of M/s. Rajinder Narain and Co. with them) for Appellants in C. A Nos. 278,280 and 283/58; and Respondents in C. A. Nos. 277, 279, 281 and 282/58;
Mrs Ratna Rao Mr. K.R. Chaudhury, Advocates, for Respondent No. 6 in C.A. No. 278/58;
Mr. B. R. L. Iyenger, Advocate, for Respondets in C.A. No. 38/58; and Respondent in No. 1 in C. A. No. 283/58;
Mr.S. Venkatakrishnan, Advocate, for respondent No.2 in C.A. No 283/58.
Civil Appeals Nos. 277 and 278 of 1958.

Headnote:JUDGE INTERESTED IN MATTER - FOREIGN JUDGMENT - Foreign Courts—WHAT IS CONCLUSIVE IS JUDGMENT OF FOREIGN COURT NOT EVERY ISSUE FINALLY DECIDED AND HEARD IN A FOREIGN COURT – PRINCIPLES GOVERNING A JUDGMENT OF FOREIGN COURT TO BE CONCLUSIVE - MATTER”—MEANING – CONCLUSIVENESS - EVERY FOREIGN JUDGMENT IS NOT MADE CONCLUSIVE IN THE INDIAN COURTS – RULE OF CONCLUSIVENESS AND RES JUDICATA – FOREIGN JUDGMENT CONTRARY TO NATURAL JUSTICE – FOREIGN JUDGMENT IF ERRONEOUS – BIAS—INFERENCE OF

       -a proved interest in a Judge not only disqualifies him but renders his judgment a nullity

       -in case of foreign judgments, it is not necessary that it must be delivered before the suit in which it is set up was instituted

       -a judgment of a foreign Court to be conclusive between the parties must be a judgment pronounced by a Court of competent jurisdiction and competence contemplated by Section 13 of the code is in an international sense, and not merely by the law of the foreign State in which the Court delivering judgment functions. The rules of private international law of each State must, in the every nature of things differ, but by the comity of nations certain rules are recognised as common to civilised jurisdictions. Though part of the judicial system of each State these common rules have been adopted to adjudicate upon disputes involving a foreign element and to effectuate judgments of foreign Courts in certain matters or as a result of international conventions

       -this expression as used in Section 13 is not equivalent to the subject matter ; it means the right claimed

       -it means final adjudication and not the reasons

       -to be conclusive, a foreign judgment must be by a Court of competent both by the law of the State which has constituted it and in an international sense, and it must have directly adjudicated upon the matter which is pleaded as res judicata

       -the rule of conclusiveness of a foreign judgment is somewhat different in its operation from the rule of res judicata. Undoubtedly both the rules are founded upon the principle of sanctity of judgments competently rendered. But the rules of res judicata applies to all matters in issue in a former suit which have been heard and finally decided between the parties, and includes matters which might and ought to have been made ground of attack or defence in the former suit. The rule of conclusiveness for foreign judgments applies only to matters directly adjudicated upon. Manifestly, therefore, every issue heard and finally decided in a foreign Court is not conclusive between the parties. What is conclusive is the judgment. Again, the competence of a Court for the application of the rule of res judicata falls to be determined strictly by the municipal law; but the competence of the foreign tribunal must satisfy a dual test of competence by the laws of the State in which the Court functions, and also in an international sense,

       -according to recent trends in the development of Private International Law a plea that a foreign judgment is contrary to natural justice is admissible only if the party setting up the plea is not duly served, or has not been given an opportunity of being heard - R. Viswanathan v. Abdul Majid, AIR 1963 SC 1. It was also held that a foreign judgment is not regarded as conclusive if the proceeding in which the judgment was obtained is opposed to natural justice. It is the essence of a judgment of a Court that it must be obtained after due observance of the judicial process i.e. the Court rendering the judgment must observe the minimum requirements of natural justice - it must be composed of impartial persons, acting fairly, without bias, and in good faith, it must give reasonable notice to the parties to the dispute and afford each party adequate opportunity of presenting his case.

       -it would be conclusive, if the minimum requirements of judicial process are assured

       -no inference of bias is to be drawn, when the Judge merely suggests compromise