Tutorial 4

Discuss the origin of Res Judicata. Do you perceive that Res Judicata is an essential
philosophy in the seemless dispensation of Justice. Your response must be educated of the
Decision of the SC in the case of M Nagabushana v/s. State of Karnataka 2011 3 SCC 408.
It can be said that the rule of res judicata might have been originated from the time when the first
family came into existence, as once an issue has been settled and there is no point to reopen that
matter. It was well understood by the Hindu lawyers and Mohammedan jurists. It was known to
the ancient Hindu Law as Purva Nyaya (former judgment). The basis of the doctrine of res
judicata is public interest and not absolute justice. As the basic purpose of law is to create
harmony and effectiveness in the society, the principle of res judicata helps to have efficacious
society as it put an end to the conflict and restricts a same matter or issue to be filed again and
again.
Section 11 of the Code of Civil Procedure embodies the doctrine of res judicata or the rule of
conclusiveness of a judgment, as to the points decided either of facts, or of law, or of fact and
law, in every subsequent suit between the same parties. It enacts that once the matter is finally
decided by a competent court, no party can be permitted to reopen it in a subsequent litigation. In
the absence of such a rule there will be no end to litigation and the parties would be put to
constant trouble, harassment and expenses.
Section 11 of the Code of Civil Procedure states that no Court shall try any suit or issue in which
the matter directly and substantially in issue has been directly and substantially in issue in a
former suit between the same parties, or between parties under whom they or any of them claim,
litigating under the same title, in a Court competent to try such subsequent suit or the suit in

which such issue has been subsequently raised, and has been heard and finally decided by such
Court.
The principal is also founded on justice, equity and good conscience which require that a party
who has once succeeded on an issue should not be harassed by multiplicity of proceedings
involving the same issue. It hereby avoids vexatious litigation.
M Nagabushana v. State of Karnataka, 2011 3 SCC 408. Appellant claims to be the owner of
the land bearing of Thotadaguddadahalli Village, Bangalore North Taluk. The appellant alleged
that the two plots of land were outside the purview of the Framework Agreement (FWA) and
notification issued under Sections 28(1) and 28(4) of Karnataka Industrial Areas Development
Act (KIAD Act). While dismissing the writ petition, the learned Single Judge held that the
acquisition proceedings in question were challenged by the writ petitioner, the appellant herein,
in a previous writ petition No.46078/03 which was initially accepted and the acquisition
proceedings were quashed. Then on appeal, the Division Bench (in writ appeal Nos.713/04 and
2210/04) reversed the judgment of the learned Single Judge. Thereafter, the Division Bench
order was upheld before this Court and this Court approved the acquisition proceedings.
Therefore, the writ petition, out of which this present appeal arises, purports to be an attempt to
litigate once again, inter alia, on the ground that the aforesaid blocks of land were outside the
purview of FWA dated 3.4.1997.
The principles of Res Judicata are of universal application as it is based on two age old
principles, namely, `interest reipublicaeut sit finis litium' which means that it is in the interest of
the State that there should be an end to litigation and the other principle is `nemodebet his veari,
siconstet curiae quod sit pro un aeteademn cause' meaning thereby that no one ought to be vexed

twice in a litigation if it appears to the Court that it is for one and the same cause. This doctrine
of Res Judicata is common to all civilized system of jurisprudence to the extent that a judgment
after a proper trial by a Court of competent jurisdiction should be regarded as final and
conclusive determination of the questions litigated and should forever set the controversy at rest.
That principle of finality of litigation is based on high principle of public policy. In the absence
of such a principle great oppression might result under the colour and pretence of law in as much
as there will be no end of litigation and a rich and malicious litigant will succeed in infinitely
vexing his opponent by repetitive suits and actions. This may compel the weaker party to
relinquish his right. The doctrine of Res Judicata has been evolved to prevent such an anarchy.
That is why it is perceived that the plea of Res Judicata is not a technical doctrine but a
fundamental principle which sustains the Rule of Law in ensuring finality in litigation. This
principle seeks to promote honesty and a fair administration of justice and to prevent abuse in the
matter of accessing Court for agitating on issues which have become final between the parties.
It was further held that it is in the interest of State that there should be an end to litigation. No
one ought to be vexed twice in a litigation if it appears to court that it is for one and the same
cause. Judgment of a proper trial by a competent court has to be treated as final and conclusive
determination of issues involved in matter. In absence of such principles great oppression might
be caused in pretext of law and there would be no end to litigation. Rich and malicious litigant
will succeed in vexing his opponent by repetitive suits and actions resulting in weaker party to
relinquish his rights. To prevent such anarchy doctrine of res judicata has been evolved.

Tutorial 5
Discuss whether foreign judgments are conclusive and binding in India. Throw light on the
decisions of the Supreme Court in cases of Ruchi Majoo v. Sanjeev Majoo 2011 6 SCC 479
as also Neerja Sarap v. Jayant Sarap 1994 6 SCC 461.
Section 13 deals with when the foreign judgments are not conclusive. Foreign judgment means
a judgment of a foreign court. In other words, a foreign judgment means adjudication by a
foreign court upon a matter before it. Thus, judgment delivered by courts in England, France,
Germany, USA, etc. are foreign judgments.
Section 13 and 14 embody the principle of private international law that a judgment delivered by
a foreign court of competent jurisdiction can be enforced by an Indian Court and will operate as
res judicata between the parties thereto except in cases mentioned in Section 13.
A foreign judgment shall be conclusive as to any matter thereby directly adjudicated upon
between the same parties or between parties under whom they or any of them claim litigating
under the same title except(a) Where it has not been pronounced by a Court of competent jurisdiction. This means that
if a foreign court has passed a judgment and that court does not have the jurisdiction to
adjudicate that particular matter then that judgment would not be conclusive in nature.
(b) Where it has not been given on the merits of the case. This means that it shouldnt be on
technicality. Taking an illustration, in a matter of divorce between A and B, the foreign court
passed an order ex parte in favor of wife. Such a judgment would not be conclusive in India as
the case is not decided on merits.

(c) Where it appears on the face of the proceedings to be founded on an incorrect view of
international law or a refusal to recognise the law of India in cases in which such law is
applicable. It is based on the concept of equity, justice and good conscience. Taking an
illustration, where A is Indian and B a Canadian girl, they get married in India and migrate to
Canada. They gave birth to a boy. Later things didnt work out for them they separated. The
husband later filed a suit in india claiming that the divorce was not in accordance of hindu law.
Comity of court will apply in this matter, because a court of competent jurisdiction passed the
decree. Once he was a Canadian he will be subject to Canadian law and it will be irrelevant that
the marriage was under hindu law.
(d) Where the proceedings in which the judgment was obtained are opposed to natural
justice;
(e) where it has been obtained by fraud;
(f) where it sustains a claim founded on a breach of any law in force in India.
Therefore, a foreign judgment is not conclusive as to any matter directly adjudicated upon, if one
of the conditions specified in clauses (a) to (f) of Section 13 is satisfied and it will be open to a
collateral attack.
The judgment of a foreign court is enforced on the principle that where a court of competent
jurisdiction has adjudicated upon a claim, a legal obligation arises to satisfy that claim. The rules
of private international law of each State must in very nature of things differ, but by the comity
of nations certain rules are recognised as common to civilised jurisdictions.

Ruchi Majoo v. Sanjeev Majoo, 2011 6 SCC 479. The present happens to be one such case
where legal proceedings have engaged the parties in a bitter battle for the custody of their only
child Kush, aged about 11 years born in America hence a citizen of that country by birth. These
proceedings included an action filed by the father, Respondent in this appeal, before the
American Court seeking divorce from the Respondent-wife and also custody of master Kush. An
order passed by the Superior court of California, County of Ventura in America eventually led to
the issue of a red corner notice based on allegations of child abduction leveled against the mother
who like the father of the minor child is a person of Indian origin currently living with her
parents in Delhi. The mother took refuge under an order dated 4th April, 2009 passed by the
Addl. District Court at Delhi in a petition filed under Sections 7, 8, 10, 11 of the Guardians and
Wards Act granting interim custody of the minor to her. Aggrieved by the said order the father of
the minor filed a petition under Article 227 of the Constitution of India before the High Court of
Delhi. By the order impugned in this appeal the High Court allowed that petition, set aside the
order passed by the District Court and dismissed the custody case filed by the mother primarily
on the ground that the Court at Delhi had no jurisdiction to entertain the same as the minor was
not ordinarily residing at Delhi.

A condition precedent for the Delhi Court to exercise

jurisdiction. The High Court further held that all issues relating to the custody of child ought to
be agitated and decided by the Court in America not only because that Court had already passed
an order to that effect in favour of the father, but also because all the three parties namely, the
parents of the minor and the minor himself were American citizens. The High Court buttressed
its decision on the principle of comity of courts and certain observations made by this Court in
some of the decided cases to which we shall presently refer.

Neeraj Sarap v. Jain Sarap, 1994 6 SCC 461. These appeals directed against the interim order
passed by the High Court in an appeal filed by Respondent 2 against rejection of an application
for setting aside of an ex parte decree, raise an important issue as to how to protect the rights and
interests of women who are deserted by non-resident Indians on decree of annulment obtained
from foreign courts.
The appellant M.A., B.Ed. daughter of a senior Air Force officer serving as a teacher and
drawing salary of Rs 3000 was married to Respondent 1, a Doctorate in Computer Hardware and
employed in United States, at the behest of her father- in-law approached through a common
family friend. How Respondent I met the appellant at Delhi upon his own request then picked
her from her aunt's place at Bombay before marriage is not necessary to be stated nor is it
necessary to narrate that the marriage was performed with gusto befitting the status of both the
families. The marriage was performed on 6-8-1989 and the appellant was taken for honeymoon
to Goa for few days. Respondent I returned to America on 24-8-1989, wrote letters to appellant
on 15-9-1989, 20-10-1989 and 14-11-1989 persuading her to give up her job and suggesting the
various avenues for

her career in America. Appellant believing all that tried for visa and

ultimately resigned her job in November 1989. But from December things started getting cold.
And when father of appellant wrote a letter in January 1990 to the respondent-husband about the
sufferings of her daughter, it did not bring forth any favourable response and in June 1990 the
respondent's brother came to Delhi and handed over two envelopes, one a petition for annulment
of marriage in a USA court and another a letter from her father-in-law.
But feasibility of a legislation safeguarding interests of women may be examined by
incorporating such provisions as-

(1) No marriage between a NRI and an Indian woman which has taken place in India may be
annulled by a foreign court;
(2) Provision may be made for adequate alimony to the wife in the property of

the

husband

both in India and abroad.

(3)The decree granted by Indian courts may be made executable

in foreign courts both on

principle of comity and by entering into reciprocal agreements like Section 44-A of the Civil
Procedure Code which makes a foreign decree executable as it would have been a decree passed
by that court.

Tutorial 6

What is the doctrine of equity acts in personam. Also illustrate the places of suing in case
of immovable property.
Equity acts in personam means that the defendant can be catch hold of by the courts. Sections
16-18 deals with the suits relating to immovable property. Clauses (a) to (e) of section 16 deal
with the following five kinds of suits, viz.:
i
ii
iii

Suits for recovery of immovable property;

Suits for partition of immovable property;
Suits for foreclosure, sale or redemption in case of mortgage of or charge upon

iv

immovable property;
Suits for determination of any other right to or interest in immovable property;

and
Suits for tort to immovable property.

These suits must be filed in the courts within the local limits of whose jurisdiction the property is
situate. The proviso of this question creates a flexibility in the place of suing. It states that, the
case can be instituted either in the court within the local limits of whose jurisdiction the property
is situate, or in the court within the local limits of whose jurisdiction the defendant actually and
voluntarily resides, or carries on business, or personally works for gain.
This proviso allows us to sue the defendant on the place where he lives. The rationale of this
proviso is that, the defendant can be catch hold of at any place by the courts and it helps in
dispensing justice. Therefore, this proviso embodies the doctrine of equity acts in personam.

Now let us understand this proviso through an illustration. A is the owner of Black Acre, and
Black Acre is situated in New Delhi. B resides in Aligarh, he along with others went to the
property of A and threatened him to hand over the property to him within 15 days. A being
scared, filed a suit of injunction against B. the question which arises is that, can the suit be filed
in Aligarh?
Considering the doctrine of equity acts in personam, a person can file a suit against a person who
has wrongly possessed the property. Then it can be filed where the defendant resides. But in the
present matter the property is not in possession of B, therefore, the suit cannot be filed in
Aligarh.

Tutorial 8

Explain comprehensively the methodology of arrest, detention and release from civil prison
of a judgment debtor.
The arrest, detention and release from civil prison of a judgment debtor is specified in Civil Code
of Procedure under section 55 to section 59. It has been comprehensively explained below:
Section 55: Arrest and Detention
(1) If the judgement-debtor fails to satisfy a decree he can be send to civil prison or in any other
place where such civil prison does not afford suitable accommodation.
(2) State Govt. can issue notification in the Official Gazette and declare that any person or a class
of persons will not be arrested in execution of a decree as his arrest could create in convenience
to the public.
(3) In case of execution of a decree for the payment of money the Court shall inform the
judgement-debtor that he may apply to be declared as insolvent and if the judgement-debtor
agrees to this then he may be discharged if there was no bad faith and would not be arrested.
Procedure:
A judgement-debtor may be arrested at any time and on any day in execution of a decree. After
his arrest, he must be brought before the Court as soon as practicable.
Arrest may be made at any point of time but not after sunset and not before sunrise.
For the purpose of making arrest, no dwelling house may be entered after sunset or before
sunrise. Further, no outer door of a dwelling house may be broken open unless such dwelling
house is in the accompany of the judgment-debtor and he refuses to prevents access thereto.

 Again, where the room is in the actual occupancy of a Pardanashin woman who is not the
judgement- debtor, reasonable time and facility should be given to her to withdraw there from.
No order to detention of the judgement-debtor shall be made where the decretal amount does
not exceed rupees five hundred. No judgement-debtor may be arrested unless and until the
decree holder pays into Court the subsistence allowance as fixed by the Court. Where the
judgement-debtor pays the decretal amount and costs of arrest to the officer, he should be
released at once.
Section 56: Where a decree if for the payment of money, a woman shall not be arrested in
execution of the same as per provision of this Section.
Section 57: A judgement-debtor shall not be arrested in execution of a decree unless and until the
decree holder deposits into the Court, an amount fixed by the judge sufficient for the sake of
subsistence of the judgement-debtor, from the time of his arrest until he can be brought before
the Court.
Section 58: Conditions of release of judgement-debtor:
A judgement-debtor may be released from detention in the following circumstances(a) Premature release,
(b) Release on the ground of illness.
(a) Premature Release:
A Judgement-debtor shall be released before the expiry of the period of detention on the
following grounds:

i
ii
iii
iv

on the amount mentioned in the warrant being paid; or

on the decree against him being otherwise fully satisfied; or
on the request of the decree-holder; or
On the omission by the decree-holder to pay subsistence allowance.

Such release, however, does not discharge the judgement-debtor from his debt, but he cannot rearrest on the same ground.
(b) Release on the Ground of Illness:
The Judgement-debtor may also be released by the Court or by the Government on the ground of
illness.
The provisions of Section 59 are based on purely humanitarian grounds. If the judgement-debtor
is suffering from serious illness, the Court should release him so as to escape from the moral
responsibility in case anything happens to him.
The following classes of persons cannot be arrested or detained in civil prison,
i
ii
iii

A woman,
Judicial officers, while going to preside in or returning from the Courts,
The parties, their pleaders, mukhtars, revenue agents and recognised agents and their
witnesses acting in obedience to a summons, while going to, or attending, or returning

iv
v

from the Court,

Members of legislative bodies; and
Any person or class of persons, whose arrest according to the State Government

vi

might be attended with danger or inconvenience to the public.

A judgement-debtor, where the decretal amount does not exceed Rs. 2000.

Tutorial 10
What are the essential postulates of the concept of notice under Section 80 of Civil
Procedure Code?
In ordinary suits, i.e. suits between individuals and individuals, notice need not be given to the
defendant by the plaintiff before filing a suit. Section 80 of the Code, however, declares that no
suit shall be instituted against the Government or a public officer in respect of any act purporting

to be done by such public officer in his official capacity, until the expiration of two months next
after notice in writing has been delivered to, or left at the office of:
I

In the case of a suit against the Central Government, except where it relates to a

II

railway, a Secretary to that Government;

In the case of a suit against the Central Government where it relates to a railway, the

III

General Manager of that railway;

In the case of a suit against the Government of the State of Jammu and Kashmir, the
Chief Secretary to that Government or any other officer authorised by that

IV

Government in that behalf;

In the case of a suit against any other State Government, a Secretary to that

Government or the Collector of the district; and

In the case of a public officer, such public officer.

The primary object underlying Section 80 is to afford an opportunity to the Government or

public officer to consider the legal position and to settle the claim put forward by the prospective
plaintiff if the same appears to be just and proper. The legislative intention behind this section is
that public money and time should not be wasted on unnecessary litigation and the Government
and public Officers, should be given a reasonable opportunity to examine the claim made
against them lest they should be drawn into avoidable litigation. The purpose of law is
advancement of justice.
A notice under Section 80 should contain:I
II
III
IV

Name, description and place of residence of the plaintiff.

A statement of the cause of action.
A statement of the relief claimed.
Notice should have been delivered to or left at the office of the appropriate authority,
and

Plaint, (when the suit is instituted after the expiration of 2 months of serving notice)
containing a statement that such a notice has been so delivered or left.

Failure to comply with these requirements will entail dismissal of the suit.
Statutory notice is not an empty formality. The object is to afford an opportunity to the
Government or a public officer to reconsider the matter in the light of the settled legal position
and take an appropriate decision in accordance with law. Such notice has, however, become an
empty formality. The administration is often unresponsive and shows no courtesy even to
intimate the aggrieved party why his claim is not accepted.
The provisions of Section 80 are express, explicit and mandatory and admit no implications or
exceptions. They are imperative in nature and must be strictly complied with. Notice under
Section 80 is the first step in the litigation. No court can entertain a suit unless the notice is duly
served under sub-section (1) of Section 80. If the section has done injustice, it is a matter which
can be rectified by a legislature and not by a Court.
Section 80(2) of the Code provides that a suit for obtaining an urgent or immediate relief against
the Government or any Public officer in respect of any act purporting to have been done by such
public officer in his official capacity may be instituted without serving any notice under Section
80. But, in such a case, the Court would not grant any relief unless the Government or the public
officer, as the case may be, has been given a reasonable opportunity of showing cause in respect
of the relief prayed for in the suit
Section 80(3) of the Code provides that the just claims of any person are not defeated on
technical grounds merely or error in the notice or any irregularity in the service, of the notice, if
the name, description and residence of the plaintiff has been so given in the notice as to enable

the appropriate authority or public officer to identify the person serving the notice and the notice
had been delivered or left at the office of the appropriate authority, and that the cause of action
and the relief claimed have been substantially indicated in the notice.
If we examine the scheme of the section it becomes obvious that the section has been enacted as
a measure of public policy with the object of ensuring that before a suit is instituted against the
Government or a public officer, the Government or the officer concerned is afforded an
opportunity to scrutinise the claim in respect of which the suit is proposed to be filed and if it be
found to be a just claim, to take immediate action and thereby avoid unnecessary litigation and
save public time and money by settling the claim without driving the person who has issued the
notice to institute the suit involving considerable expenditure and delay.