2006 Supreme(Bom) 1309

IN THE HIGH COURT OF BOMBAY
(V. C. Daga, J.)
DATTATRAYA SHIVAJI THORWAT and others - Petitioners.
vs.
SMT. CLOTHILDES SOUZA wd/o
CAETANO PIEDADE VAZ and others - Respondents.
Advocates Appeared
For petitioners: S. K. Kakodkar, Senior Counsel with Manish Salkar
For respondent Nos. 1 to 7: P. P. Singh
For respondent Nos. 8 to 12: T. George
For respondent No. 13 : Sudin M. S. Usgaonkar
For respondent Nos. 38 and 39 : Mike Mehta

Headnote:Civil Procedure Code, 1908 - Section 11 Doctrine of res judicata Scope. Doctrine of res judicata is often treated as a branch of the law of estoppel though these two doctrines differ in some essential particulars. Rule of res judicata prevents the parties to a judicial determination from litigating the same question over again even though the determination may even be demonstratedly wrong. When the proceedings have attained finality, parties are bound by the judgment and are estopped from questioning it. They cannot litigate again on the same cause of action nor can they litigate any issue which was necessary for decision in the earlier litigation. These two aspects are ’cause of action estoppel’ and "issue estoppel’. These two terms are of common law origin. Again once an issue has been finally determined, parties cannot subsequently in the same suit advance arguments or adduce further evidence directed to showing that issue was wrongly determined. Their only remedy is to approach the higher forum, if available. The determination of the issue between the parties gives rise to an issue estoppel. It operates in any subsequent proceedings in the same suit in which the issue had been determined. It also operates in subsequent suits between the same parties in which the same issue arises. Section 11 of Civil Procedure Code contains provisions of res judicata but these are not exhaustive of the general doctrine of res judicata.

       Civil Procedure Code, 1908 - Section 11 Res judicata A branch of law of estoppel Res judicata prevents litigants to a judicial determination of same question again even though determination could be wrong After proceedings attains finality Once decision attain finality parties are bound by said decision and are estopped from questioning it.

       Civil Procedure Code, 1908 - Section 11 and Order XLIII, Rule 1 Interim relief in suit to declare ex-parte decree as ab initio void ex-parte decree attained finality and operating as res judicata between the parties Rejection of interim relief to restrain defendants from interfering with plaintiff’s possession held do not call for interference in appeal against the order. The Appellate Court is not expected to interfere with the exercise of discretion of the Court of first instance and substitute its own discretion except where the discretion has been shown to have been exercised arbitrarily, or capriciously or perversely or where the Court had ignored the settled principles of law regulating grant of refusal of interlocutory injunction. An appeal against exercise of discretion is said to be an appeal on principle. The Appellate Court is not expected to reassess the material and seek to reach a conclusion different from the one reached by the Court below solely on the ground that if it had considered the matter at the trial stage it would have come to a contrary conclusion. If the discretion has been exercised by the trial Court reasonably and in a judicial manner the fact that the Appellate Court would have taken a different view may not justify interference with the trial Court’s exercise of discretion. It is only the lack of inherent jurisdiction that can be put forward to contend that the decree is ab initio void. If one turns to the factual matrix of the case, it cannot be disputed that a Civil Court, prima facie did have a jurisdiction to entertain Regular Civil Suit seeking cancellation of the saledeeds dated 24th June, 1978 and 22nd June, 1982. It is also not in dispute that the said Court decreed the suit, may be ex parte, on 31st July, 1996. It is also not in dispute that till the ex-parte decree in the suit, the Civil Court had jurisdiction to entertain and try the suit in question. It is undisputed that the said ex-parte decree became final and conclusive. Under these circumstances, the view taken by the Court below that the decree is not ab initio void cannot be faulted. The above decree, may be ex-parte will prima facie operate as res judicata between the parties. The trial Court, in the above backdrop, has rightly concluded that earlier adverse decree suffered by the plaintiffs will operate as res judicata and that neither prima facie case exists nor balance of convenience lies in favour of the plaintiffs. That no legal injury would be suffered by the plaintiffs, if no interim relief is granted. The view taken by the Court below is a reasonable and possible view warranting no interference.