Thursday, June 29, 2023

First Exception: Imputation of truth which public good requires to be made or published

It is not defamation to imply anything that is true about another person if the imputation is made or published for the public benefit. It is an issue of fact, whether it is for the public interest or not.
To qualify for this exception, the accused must demonstrate that the statement he made was truthful in both substance and effect, not only in part. To prove that the statement was published for the public good or not, an investigation must be conducted into whether the publication aimed to provide any benefit to the whole or part of the public.
In Rajendra Vishwanath Chaudhary Versus Nayantara Durgadas Vasudeo (2012), there was a civil dispute between the parties over the property where the complainant’s school is located and managed. While the dispute was underway in civil court, the accused’s warning to the parents to enrol their children at their own risk in the summer program could not be regarded as defamatory or damaging to the complainant’s reputation. So, the aforesaid caution notice may not be regarded as imputations actionable under Section 499 of the IPC, 1860.

Second Exception: Public conduct of public servants

It is not defamation to state in good faith any view about a public servant’s conduct in the performance of his official responsibilities, or about his character, to the extent that his character shows in that conduct, and no further.
Every person has the right to speak on public officials’ actions that affect him as a citizen of the country, as long as their comments are not wrapped in hatred. In order for a comment to be fair,
- It should be based on the true facts.
- It should not impute corrupt or dishonest motives to the person whose conduct or work is being criticised unless such imputations are justified by the facts.
- It must be an honest and fair observation of the writer’s true perspective.
- It must be for the common good.
In Radhelal Mangalal Jaiswal Versus Sheshrao Anandrao Lad (2011), the Bombay High Court stated that any comment voiced in good faith by a government servant while engaging in the execution of his responsibilities would not be considered defamation. This suit focuses on a comment made by a Panchayat member. A member of the Panchayat helping a court of justice is included in the term of “public servant” under Clause 5 of Section 21, of the Indian Penal Code, 1860. As a result, members of the Panchayat’s view, given in good faith to help the Court of Justice, does not constitute defamation.

Third Exception: Conduct of any person touching any public question

It is not defamation to express in good faith any view on any person’s conduct in respect to any public issue, and to respect his character only to the extent that his character is revealed in that conduct. Publicists who participate in politics or other problems affecting the public might be criticised in good faith.
Comparative advertisement: A commercial advertisement is a type of speech, and “commercial speech” is protected by Article 19(1)(a) of the Constitution as part of the right to freedom of speech and expression. Comparative advertising is a form of advertising in which one party promotes his or her goods or services by contrasting them with those of another. The marketer has the right to brag about its technological superiority over the competitor’s goods. He cannot, however, degrade the competitor’s goods while doing so. Negative marketing is not permitted if the advertisement is a suggestive campaign against a competitor’s goods.
In Nippon Sheet Glass Co., Limited - Versus - Raman Fibre Sciences Private Limited (2011), the claim was that an advertisement by the petitioner and associated traders disparaged the respondents’ company. The associated traders confirmed that they carried out the supposed advertising on their own and that the petitioner company had no involvement. The petitioner is not charged with a crime under Section 500 of the Indian Penal Code (1860).

Fourth Exception: Publishing reports of court proceedings

Publication of a substantially true report of a Court of Justice’s proceedings, or the result of any such proceedings, is not defamation.
When judicial proceedings take place in an open court before a legally constituted judicial panel, the publishing, without malice, of a fair and accurate report of what happens before that tribunal is privileged.
In Maksud Saiyed Versus State of Gujarat & Others (2007), the appellant had business with the respondent company. Dena Bank had given the appellant a loan. As the loans were not recovered, an initial application was brought against him before the Ahmedabad Debts Recovery Tribunal for the recovery of Rs. 120.13 lakhs. Meanwhile, based on the pending suit, the respondent firm brought claims against the appellant business’s Managing Director. The Supreme Court concluded the statement that the issue was pending before the Debts Recovery Tribunal instead of the City Civil Court in Ahmedabad, could not be considered defamatory in and of itself, given the fact that a suit was pending.

Fifth Exception: Merits of the case decided in Court or conduct of witnesses and others concerned

It is not defamation to express in good faith any opinion about the merits of any case, civil or criminal, that has been decided by a Court of Justice, or about the conduct of any person as a party, witness, or agent in any such case, or about the character of such person, to the extent that his character appears in that conduct, and no further.
The court’s decision, the jury’s verdict, and the conduct of the parties and witnesses can all be made open to public debate. However, critique must be expressed in good faith and in a fair manner.
In Harbans Singh - Versus - State of Rajasthan (1998), the topic of whether the word “shatir” was defamatory was considered. According to the Rajasthan High Court, the term “shatir” may be offensive and disagreeable, but it is not always defamatory. The court’s decision to dismiss the case was upheld.

Sixth Exception: Merits of public performance

It is not defamation to express in good faith any view on the merits of any performance that its author has presented to the public’s judgement, or about the author’s character, so far as it is shown in such performance, and no further.
The purpose of this exception is to allow the public to be assisted in its evaluation of the public performance under review. All types of public performances can be legitimately criticised as long as the criticisms are presented in good faith and in a fair manner. Under this exception, good faith does not require logical infallibility, but rather proper care and attention.
In Ranganayakamma - Versus - K Venugopala Rao (1987), the appellant criticised the complainant’s preface to a book. In his defence, the appellant used exceptions 6 and 9 of Section 499. The Andhra High Court noted that the section of the petitioner’s critique that uses two defamatory terms has nothing to do with the substance of the complainant’s ‘Preface.’ The defamatory statements cannot be deemed to have been made in the public interest. As a result, the court determined that the petitioner was not protected under either the sixth or ninth exceptions.

Seventh Exception: Censure passed in good faith by a person having lawful authority over another

It is not defamation for a person who has power over another, whether given by law or growing out of a legitimate contract, to pass in good faith any criticism of the other person’s behaviour on issues to which such valid authority pertains.
This exception authorises a person under whose control others have been put, either by their own accord or by law, to criticise, in good faith, those who have been placed under his authority, inasmuch as that authority relates to the situation at hand. However, if this privilege is abused in any manner, the crime will be constituted.
Even if a man makes a good faith report to a servant’s master about the servant’s behaviour, he is not secure if he publishes the complaint in a newspaper.
A spiritual superior may be guarded by privilege when reciting and publishing a sentence of expulsion as long as the publication is limited to what is necessary to accomplish the purpose for which the privilege is granted, such as the censure of a member in religious matters or the communication of a sentence he is authorised to pronounce to those who are to be guided by it.
In ADM Stubbings - Versus - Shella Muthu, (1972), the plaintiff was dismissed from service after a full domestic inquiry in which the plaintiff was given the chance to protect himself. The result of such a domestic inquiry saying that the allegation was true could not form the basis of a defamation case because it is fully protected by exceptions 7 and 8 of Section 499, IPC, 1860. Holding otherwise would result in the administration of justice being hindered.

Eighth Exception: Accusation preferred in good faith to an authorised person

It is not defamation to make in good faith an accusation against someone to anybody who has authorised jurisdiction over that person in relation to the subject matter of the charge.
In order to establish a defence under this exception, the accused would have to show that the person who lodged the complaint had legal authority over the person who was being charged in the situation at hand. Besides, in a criminal defamation case, even defamatory allegations stated in a plaint are not completely protected.
In Yadav Motiram Patil - Versus - Rajiv G Ghodankar (2010), the accused No. 1 and other members of the society reached out to the police because the message they received contained some indecent images and defamatory statements against the accused No. 1’s daughter, and they expected assistance, which could include necessary action against the criminal. The issue is clearly protected by exception 8, and no case under Section 500 of the Indian Penal Code, 1860, could be brought out.
To be eligible for this exception, the charge must be made to a person in power over the person accused, and it must be made in good faith.

Ninth Exception: Imputation made in good faith by a person for the protection of his or others’ interests

Making an imputation on the character of the other person is not defamatory if the imputation is made in good faith to defend the interests of the person making the imputation, or anybody else, or for the public good.
According to this exception, the party to whom the information is communicated has an interest in safeguarding the person making the accusation. Apart from the maker’s bona fides, the person to whom the imputation is communicated must share a shared interest with the imputation maker that is served by the communication.
This exception applies to any imputation made in good faith, whereas the first exception only applies to genuine imputation for the public benefit. The accused must show that he responded in good faith.
In Vedurumudi Rama Rao - Versus - Chennuri Venkat Rao, (1997), a bank’s regional manager sent a private circular to his region’s branch managers, instructing them to exercise caution when dealing with people on the list, including the complainant. In the public interest and on orders from the Central Office, he published the directive in his executive capacity. According to the Court, the circular was protected under Exception 9. As a result, even if the accusations in the complaint were true, no violation of Section 500 would be established.

Section 499 IPC / Defamation;

According to Section 499, defamation can take place through words spoken or intended to be read, signs, and visible representations published or spoken about a person with the intent of damaging that person’s reputation, or with the sufficient knowledge to believe that the imputation will affect his reputation.
Illustration: ‘A’ is questioned about who took B’s watch. ‘A’ makes a gesture toward ‘Z’, implying that ‘Z’ has stolen B’s watch. Unless one of the exceptions applies, this constitutes defamation.
The words “makes or publishes” are highlighted in this section. The essence of the offence is the spreading of injurious imputation. When a defamatory remark is published, not only the publisher but also the maker is held liable. It is essential that the imputation be transmitted to a third party in order to establish the offence, because the purpose is to incite hatred of others.

Essential ingredients of Section 499 IPC

Reference to an aggrieved party

An imputation about a specific person or individual whose identity may be ascertained must be included in the remarks. It is not necessary for the person to be a single individual.
In CL Sagar Versus Mayawati (2003), the accusation was that the vice president of a political party defamed the complainant by saying in a public assembly that the party’s member with a lengthy mustache was a corrupt person. The complaint was unable to demonstrate that he was the only party member with a lengthy mustache. There was no such statement in the meeting’s press report. So, there was no offence.

Intention;

The words, signs, and imputations made by the person must either be intended to injure the reputation of an individual, or the accused must rationally know that his or her behaviour might cause such injury to constitute defamation.
In S Khushboo Versus Kanniammal (2010), since the appellant’s statement in the news magazine was a rather general acknowledgment of pre-marital sex and her comments were not directed at any individual or even a corporation, an association, or a collection of persons, it was held that it could not be construed as a personal attack on anyone’s reputation.

The statement must be defamatory

Whether a remark is defamatory or not is determined by how right-thinking people in the community interpret it. It is no defence to claim that the comment was not intended to be defamatory if the foreseeable impact was an injury to the plaintiff’s reputation. For example, the statement that ‘X’ is an honest man who has never stolen my watch in a sarcastic tone may be defamatory if the people who hear that, so believe that ‘X’ is a dishonest man who has stolen the watch.
In Goutam Sahu Versus State of Orissa (1999), the appellant married the plaintiff in a temple by exchanging garlands. He stayed with her for several days before demanding money and describing her as an unchaste woman with bad looks. According to the Orissa High Court, the components of Section 500, were prima facie established, and the accused was consequently subject to prosecution.

Forms of defamation

Such an imputation must have been made by

Words, uttered or intended to be read;
Signs/gestures; or
Visible representations

In Jacob Mathew Versus Manikantan, (2013), the complainant claimed that four images of an event were published in a newspaper, one of which revealed the complainant more or less undressed, causing defamation and injury to him. As the images were taken spontaneously to cover the event and not aimed to cover any particular person, it can never be said that the images were published in the newspaper with the intent, knowledge, or cause to think that they would hurt the complainant’s reputation. Proceedings are liable to be quashed.

Making or publishing any imputation;

The term “publication” refers to making the defamatory matter known to someone other than the individual who has been defamed. Imputations on a charge sheet delivered to the employee, for example, do not constitute publishing. Furthermore, communicating an imputation merely to the individual who has been defamed is not the same as publishing.
In Sukhdeo Versus State (1932), the president of the Municipal Committee sent a letter under a Municipal Act to a specific person, who responded with defamatory claims against the president. The president filed this response in the official file, and the members of the committee reviewed it. It was determined that the defamation had been published. The President’s placement of the reply on the official file was not a spontaneous or voluntary act on his behalf; it was his responsibility, and the accused knew or must have known that the contents of his reply would be disclosed to committee members.

Wednesday, June 28, 2023

Tuesday, June 27, 2023

maintenance and monetary relief

truly practice of joy is practice of law

When a court fails to apply Res Judicata and renders a divergent verdict on the same claim or issue and if the third court faces the same issue, it will apply a “last in time” rule. It gives effect to the later judgment and it does not matter about the result that came differently in the second time. This situation is typically the responsibility of the parties to the suit to bring the earlier case to the judge’s attention, and the judge must decide how to apply it, whether to recognize it in the first place.

extent of res judicata

The Doctrine of Res Judicata can be understood as something which restricts either party to “move the clock back” during the pendency of the proceedings. The extent of res judicata is wide and it includes a lot of things which even include Public Interest Litigations. This doctrine can be applied outside the Code of Civil Procedure and covers a lot of areas which are related to the society and people. The scope and the extent have widened with the passage of time and the Supreme Court has elongated the areas with its judgments.

Criticism to Res Judicata

Res judicata can also be applied to judgment that may be contrary to law. The doctrine of res judicata has been used for a long time and it encloses the general effect of one judgement upon another trial or proceeding. It includes matters not only those of bar but also those matters which should be litigated. For example, if a case has been dismissed on a specific ground by a court of law or equity and it is not deemed as a final judgment and technically res judicata will apply but it is not justified. If the chancellor has denied equitable relief on a principle but it was held by the court that the plaintiff is barred from proceeding as a legal remedy. Most of the equity cases involve res judicata and do not get beyond collateral estoppel. As it raises the difficulty of overlapping more than the failure to litigate issues.

The title to real estate and the right to collect rent depended upon one and the same construction of a will. In an interpleader over the rents, A got the decree. B appealed, without supersedeas, and secured a reversal, but, before his appeal was decided, A had sued him in ejectment, invoking the decree, and recovered a judgment for the real estate. B did not appeal from this judgment, but, after the reversal of the decree, he sued A in ejectment for the land, relying upon the reversal.

Res judicata as a concept under administrative law

Administrative Law deals with the structure, functions, and powers of the organs of administration. Administrative Law is also known as regulatory law and it is enforced by some type of government body. The law derives its power to enforce regulation from the government body. This applies to all public officials and agencies. An administrative body of government may rulemaking or enforce a specific agenda. It is technically considered as a branch of public law. The administrative authority is different from the legislative and judicial authority and necessitates the power to issue rules and regulations that are based on grant licenses and permits. The basic principles of this law are that no person shall be unheard or deprived of his right and a person cannot be a judge on his own in a case.

Res judicata works as a working principle under administrative law and has been adopted from the Civil Procedure Code.

How to defeat Res Judicata?

The doctrine of res judicata would not apply to the case until the conditions are met. The essential condition for the applicability is that the succeeding suit or proceeding is founded on the same cause of action on which the former suit was founded. The principle of res judicata can be defeated when the party has filed the suit on a reasonable ground for example in case a public interest litigation has been filed there is no reason not to extend the doctrine of res judicata. The PIL has been filed with a bona fide intention and the litigation cannot end.

Can Res Judicata be waived?

In the case of P.C. Ray and Company Private Limited - Versus - Union of India, it was held that the plea of res judicata may be waived by a party to a proceeding. If a defendant does not raise the defence of res judicata then it will be waived. The principle of res judicata belongs to the procedure and either party can waive the plea of res judicata. The court can decline the question of res judicata on the ground that it has not been raised in the proceedings.

Res Judicata landmark cases in India

Daryao v. State of Uttar Pradesh

In the historic case of Daryao Versus State of Uttar Pradesh, the doctrine of res judicata is of universal application was established. The Supreme Court of India placed the doctrine of res judicata on a still broader foundation. In this case, petitioners filed a writ petition in the High Court of Allahabad under Article 226 of the Constitution. But the suit was dismissed. Then they filed independent petitions in the Supreme Court under the writ jurisdiction of Article 32 of the Constitution. The defendants raised an objection regarding the petition by asserting that the prior decision of the High Court would be operated as res judicata to a petition under Article 32. The Supreme Court dismissed and disagreed with the petitions.

The court held that the rule of res judicata applies to a petition under Article 32 of the Constitution. If a petition is filed by the petitioner in the High Court under Article 226 of the Constitution and it is dismissed on the basis of merits, it would be operated as res judicata to bar a similar petition in the Supreme Court under Article 32 of the Constitution.

Devilal Modi vs. Sales Tax Officer

In the leading case of Devilal Modi Versus STO, B challenged the validity of an order of assessment under Article 226. The petition was dismissed on the basis of merits. The Supreme Court also dismissed the appeal that was made against the order on the basis of merits. B again filed another writ petition in the same High Court against the same order of assessment. This time the petition was dismissed by the High Court. The Supreme Court held that the petition was barred by the principle of res judicata.

Avtar Singh v. Jagjit Singh

A peculiar problem arose in the case of Avtar Singh Versus Jagjit Singh. A filed a civil suit, a contention regarding the arbitration of the Court was taken by B. The objection was sustained and the plaint was returned to the plaintiff for the presentation. The Revenue Court did not have any jurisdiction when A approached the Revenue Court so he returned the petition. Once again A filed a suit in the Civil Court. B contended that the suit was barred by the doctrine of res judicata.

Mathura Prasad v. Dossabai N.B. Jeejeebhoy

In the case of Mathura Prasad Versus Dossible N.B. Jeejeebhoy, it was held that res judicata constitutes between the parties to the previous case and cannot move again in collateral proceedings. Generally, a decision by a competent court operates as res judicata even on point of law. However, a question of law which is not related to facts that gives rise to the right, will not operate as res judicata. When the cause of action is different or the law is different, the decision has been already altered by an authority. The decision made will be declared as valid and res judicata will not operate in the subsequent proceeding.

Exceptions to res judicata

Cases where Res Judicata does not apply

The principle of res judicata does not apply in the Writ of Habeas Corpus as far as High Courts are concerned. Article 32 gives power to the Supreme Court to issue writs and some power is given to High Courts under Article 226. The Courts need to give proper reasoning while applying the doctrine of res judicata. There are some exceptions to res judicata which allow the party to challenge the validity of the original judgment even outside the appeals. These exceptions are usually known as collateral attacks and are based on jurisdictional issues. It is not based on the wisdom of the earlier decision of the court but the authority to issue it. Res judicata may not be applicable when cases appear that they need relitigation.

Instalment Supply private limited vs. Union of India

In cases of income tax or sales tax, the doctrine of res judicata does not apply. It was discussed in the case of Installment Supply Private Limited Versus Union of India, where the Supreme Court held that assessment of each year is final for that year and it will not govern in the subsequent years. As it determines the tax only for that particular period.

P. Bandhopadhya and others v. Union of India and others

In the case of P. Bandhopadhyay and others Versus Union of India and Others, The appeal was made in the Bombay High Court and the appellants asserted that they will be entitled to receive an amount as damages. The Supreme Court bench held that the appellants were not entitled to receive damages which were pensionary benefits under the Pension Rules 1972. They were entitled to receive benefits as the case was barred by the principle of res judicata.

In the case of Public Interest Litigation, the doctrine of res judicata does not apply. As the primary object of res judicata is to bring an end to litigation so there is no reason to extend the principle of public interest litigation.

Dismissal of special leave petition in limine does not operate as res judicata between the parties. A fresh petition will not be filed either under Article 32 or under Article 226 of the Constitution.

Beliram and Brothers v. Chaudhari Mohammed Afzal

In the case of Beliram and Brothers Versus Chaudhari Mohammed Afzal, it was held that a minors suit cannot be brought by the guardian of the minors. However, it was brought in collaboration with the defendants and the decree obtained was by fraud within the Indian Evidence Act, 1872 and it will not operate res judicata.

Jallur Venkata Seshayya v. Thadviconda Koteswara Rao

In the case of Jallur Venkata Seshayya Versus Thadviconda Koteswara Rao, a suit was filed in the Court so that certain temples are called public temples. A similar suit was dismissed by the Court two years ago and the plaintiff contended that it was negligence on the part of the plaintiffs (of the previous suit) and therefore the doctrine of res judicata can not be applied. However, the privy council said that the documents were suppressed which means that the plaintiff in the earlier suit had bona fide intention( something that is genuine and there is no intention to deceive).

What is Res Judicata and Collateral Estoppel?

The doctrine of collateral estoppel says that an issue or case that has been litigated cannot be litigated again. For collateral estoppel to apply, the following requirements are required.

The issue in the first and second case is the same; The party against whom the doctrine is invoked had the full opportunity to litigate the issue; That party actually litigated the issue; The issue litigated must have been necessary to the final judgment.

The doctrine of res judicata bars the re-litigation of a claim that has already been litigated. There are four factors that must be satisfied for res judicata to apply:

A previous case in which the same claim was raised or could have been raised;
The judgment in the prior case involved the same parties or their privies;
The previous case was resolved by a final judgment on the merits;
The parties should have a fair opportunity to be heard.

For example, Abela sued John who is a supervisor for sexually harassing her and due to that, she had to quit her job. Abela provided the evidence by producing emails written by him. But John argued that the emails were not real but the judge said that the emails were real and could be submitted as evidence. After a few months after the trial, Abela filed a lawsuit against her employer as he did not take any action about the complaint. If the emails that were submitted by Abela, were not genuine the issue would fall under collateral estoppel. The issue of authenticity of the emails was already decided in the previous case and hence the court cannot redecide the issue.

Res Judicata and Stare Decisis

Res judicata means a case that has already been decided or a matter settled by a decision or judgment. Res judicata and stare decisis both are related to matters of adjudication (arbitration). Stare decisis rests on legal principles whereas res judicata is based on the conclusiveness of judgment. Res judicata binds the parties while stare decisis operates between strangers and bins the courts to take a contrary view on the law already decided. Stare decisis is mostly about legal principle while res judicata relates to controversy.

Res judicata and Issue Estoppel

A person who has once been tried by a court of proficient jurisdiction for an offence and convicted of that offence cannot be tried again for the same offence as long as acquittal operates. This is given underSection 300(1) of the Civil Procedure Court. A party cannot proceed to reopen the case if the matter is finally decided by a competent or proficient court. This principle applies to criminal proceedings and it is not allowed in the stage of the same proceedings to try a person for an offence for which he has been acquitted.

Res judicata and Res Subjudice

The doctrine of res judicata and res subjudice varies in some factors –

Res sub judice applies to a matter that is pending trial whereas res judicata applies to a matter adjudicated or arbitrated.
Res subjudice prohibits the trial of a suit that is pending decision in a previous suit whereas res judicata prohibits the trial of a suit that has been decided in a former suit.

Res Judicata and Estoppel

Estoppel means the principle which prevents a person from asserting something that is contrary to what is implied by a previous action. It deals in Section 115 to Section 117 of the Indian Evidence act. The rule of constructive res judicata is the rule of estoppel. In some areas the doctrine of res judicata differs from the doctrine of estoppel –

Estoppel flows from the act of parties whereas res judicata is the result of the decision of the court.
Estoppel proceeds upon the doctrine of equity, a person has induced another to alter his position to his disadvantage can not turn around and take advantage of such alteration. In other words, res judicata bars multiplicity of suits and estoppel precludes multiplicity of representation of cases.
Estoppel is a rule of evidence and is enough for the party whereas res judicata expels the jurisdiction of a court to try a case and prevents an enquiry at the threshold (in limine).
Res judicata forbidden a person averring the same thing twice in the litigations and estoppel prevents the person from saying two opposite things at a time.
According to the principle of res judicata, it presumes the truth of decision in the former suit while the rule of estoppel precludes the party ton deny what he or she has once called truth.

Constructive Res Judicata

The rule of constructive res judicata in Section 11 of the Civil Procedure Code is an artificial form of res judicata. It provides that if a plea has been taken by a party in a proceeding between him and the defendant he will not be permitted to take pleas against the same party in the following proceeding with reference to the same matter. It is opposed to public policies on which the principle of res judicata is based. It would mean harassment and hardship to the defendant. The rule of constructive res judicata helps in raising the bar. Hence this rule is known as the rule of constructive res judicata which in reality is an aspect of augmentation of the general principles of res judicata.

In the case of State of Uttar Pradesh Versus Nawab Hussain, M was a sub-inspector and was dismissed from the service of D.I.G. he challenged the order of dismissal by filing a writ petition in the High Court. He said that he did not get a reasonable opportunity of being heard before the passing of the order. However, the argument was negatived and the petition was dismissed. He again filed a petition on the ground that he was appointed by the I.G.P. and had no power to dismiss him. The defendant argued that the suit was barred by constructive res judicata. However, the trial court, the first appellate court as well as the High Court held that the suit was not barred by the doctrine of res judicata. The Supreme Court held that the suit was barred by constructive res judicata as the plea was within the knowledge of the plaintiff, M and he could have taken this argument in his earlier suit.

Doctrine of Res Judicata

The double jeopardy provision of the Fifth Amendment to the U.S. Constitution protects people from being put on a second trial after the case has been judged. So the doctrine of res judicata addresses this issue and it bars any party to retry a judgment once it has been decided.

Section 11 of the Civil Procedure Court incorporates the doctrine of res judicata also known as “ rule of conclusiveness of judgment”. The doctrine of res judicata has been explained in the case of Satyadhyan Ghosal Versus Deorjin Debi. The judgment of the court was delivered by Das Gupta, J. An appeal was made by landlords who attained a decree for ejectment against the tenants who were Deorajin Debi and her minor son. However, they have not been yet able to get possession in execution soon after the decree was made. An application was made by the tenant under Section 28 of the Calcutta Thika Tenancy Act and alleged that they were the Thika tenants. This application was resisted by the landlords saying they were not Thika Tenants within the meaning of the Act.

The tenants moved to the High Court of Calcutta under the Civil Procedure Code. The court applied the principle of res judicata to achieve the finality in litigation. The result came that the original court, as well as the higher court, can proceed for any future litigation on the basis that the previous decision was correct.

The doctrine of res judicata says –

That no person should be disputed twice for the same reason.
It is the State that decides there should be an end to a litigation
A judicial decision must be accepted as the correct decision.

Pre-requisites for Res Judicata

Prerequisites of res judicata includes:

A judicial decision by proficient court or tribunal,
Final and binding and
Any decision made on the merits
A fair hearing
Earlier decision right or wrong is not relevant.

Nature and Scope of Res Judicata

Res judicata includes two concepts of claim preclusion and issue preclusion. Issue preclusion is also known as collateral estoppel. Parties cannot sue each other again after the final judgment on the basis of merits has reached in civil litigation. For example, if a plaintiff wins or loses a case against the defendant in the case say A, he cannot probably sue the defendant again in case B based on the same facts and events. Not even in a different court with the same facts and events. Whereas in issue preclusion it prohibits the relitigation of issues of law that have already been determined by the judge as part of an earlier case.

The scope has been decided in the case of Gulam Abbas Versus State of Uttar Pradesh. In this case the court incorporated the rules as evidence as a plea of an issue already tries in an earlier case. Judgment of this case was difficult as the judges should apply res judicata. It was decided that res judicata is not exhaustive and even if the matter is not directly covered under the provisions of the section it will be considered as a case of res judicata on general principles.

Res Judicata example and meaning

Res Judicata meaning

Res means “subject matter” and judicata means “adjudged” or decided and together it means “a matter adjudged”.

In simpler words, the thing has been judged by the court, the issue before a court has already been decided by another court and between the same parties. Hence, the court will dismiss the case as it has been decided by another court. Res judicata applies to both civil and criminal legal systems. No suit which has been directly or indirectly tried in a former suit can be tried again.

Res Judicata example

‘A’ sued ‘B’ as he didn’t pay rent. ‘B’ pleaded for the lessening of rent on the ground as the area of the land was less than the mentioned on the lease. The Court found that the area was greater than shown in the lease. The area was excess and the principles of res judicata will not be applied.
In a case, ‘A’ new lawsuit was filed in which the defendants requested that the Court dismiss the lawsuit with a plea of res judicata. She was barred from bringing a claim of res judicata because her previous claim was dismissed for fraud. The Court said that the defence of res judicata must be proved by evidence.

Principle of Res Judicata

The principle of res judicata seeks to promote the fair administration of justice and honesty and to prevent the law from abuse. The principle of res judicata applies when a litigant attempts to file a subsequent lawsuit on the same matter, after having received a judgment in a previous case involving the same parties. In many jurisdictions, this applies not only to the specific claims made in the first case but also to claims that could have been made during the same case.

Res Judicata

The concept of res judicata has evolved from the English Common Law System. The Common Law system has been derived from the overriding concept of judicial consistency. Res judicata took its place first in the Code of Civil Procedure from Common Law and then into the Indian Legal System. If either of the parties in a case approaches the same court for the judgment of the same issue then the suit will be struck by the doctrine of res judicata. Res judicata plays a role in administrative law as well. It helps to administer how efficiently the Judiciary works and disposes of the case. The doctrine of res judicata becomes applicable where there is more than one petition filed in the same or in some other court of India with the same parties and same facts. The parties involved in a case may file the same suit again just to harass the reputation of the opposite party and may do to get compensation twice. So to prevent such overloads and extra cases, the doctrine of res judicata plays a major role and importance in the Code of Civil Procedure.

Love Rain

arbitration and conciliation

kolkata airport

time is essence of law professional

section 145 of Cr. P. C.

faith in yourself

ganesha / ganapati

Monday, June 19, 2023

Section 160 (2) of Railway Act

Question;

Section 160(2) of Railway Act

Is this bailable or not bailable ?

Answer ;

Section 160(2) in The Railways Act, 1989 (2) If any person breaks any gate or chain or barrier set up on either side of a level crossing which is closed to road traffic, he shall be punishable with imprisonment for a term which may extend to five years. It mandates that a person when is arrested for other than non-bailable offence and the officer is prepared to grant bail while in custody, such person shall be released on bail. Meaning thereby the police officer has been authorised to release a person if he is arrested for a non bailable offence.

extension petition in civil suit

In the Court of the Learned 4^th Civil Judge (Junior Division), Alipore, South 24 Parganas

Title Suit no. 418 of 2023

In the matter of ;

1. Sukanta Bhowmick, Son of Ranjit Bhowmick, aged about 42 years, residing at Premises being no. 26, Lansdowne Terrace, Police Station – Lake, Kolkata – 700026, District South 24 Parganas, Mobile No.: 9830374676.

2. Smt. Gopa Bhowmick, Wife of Sukanta Bhowmick, aged about 40 years, residing at Premises being no. 26, Lansdowne Terrace, Police Station – Lake, Kolkata – 700026, District South 24 Parganas, Mobile No.: 8820146660.

3. M/s. Tumi Ashbey Bole, a Proprietorship Firm, carrying business of Restaurant with Bar, having its Office at Premises being no. 401, Ajoy Nagar, Postal Premises no. P-5, Ajoy Nagar, Police Station – Purba Jadavpur, Kolkata – 700075, District – South 24 Parganas, represented by its Sole Prorietor being the plaintiff nos. 1, Sukanta Bhowmick, Mobile No.: 9830374676, Email : tumiashbeybole@gmail.com

___________Plaintiffs

- Versus –

Smt. Sakti Sinha Roy, Wife of Late Subrata Sinha Roy, residing at Premises being no. 42/1B/1, P.G.H.Road, Post Office – Jadavpur University, Police Station – Jadavpur, Kolkata – 700032, District – South 24 parganas,

___________Defendant no. 1;

Extension Petition of Ad-interim Order of Injunction, dated 27/03/2023;

The Plaintiff, most respectfully sheweth;

1. That your petitioner/plaintiff has filed the instant case for Permanent Injunction, against the defendants on the grounds as stated in the plaint. Your petitioner along-with the said suit has also filed an application under Order 39 Rules 1 and 2, read with Section 151 of the Civil Procedure Code, praying for an order of temporary and or ad-interim injunction restraining the defendants, from interfering the peaceful possession of the plaintiffs in respect to the Schedule suit property and or from changing the nature, character, and possession of the Schedule suit property.

2. That the said application under Order 39 Rules 1 and 2, read with Section 151 of the Civil Procedure Code, upon being moved for hearing before the Learned Court, on 27/03/2023, the Learned court was pleased to grant an order directing the Plaintiff and the Defendant no.1, to maintain status quo in respect of nature and possession of the schedule property as stand on the said day, till 27/04/2023. The said Order dated 27/03/2023, has duly been communicated to the defendant no.1, in compliance with the provisions under Order 39 Rule 3 (a) and (b) of the Civil Procedure Code.

3. That the Defendant no.1, Smt. Sakti Sinha Roy, Wife of Late Subrata Sinha Roy, residing at Premises being no. 42/1B/1, P.G.H.Road, Post Office – Jadavpur University, Police Station – Jadavpur, Kolkata – 700032, District – South 24 Parganas, in-spite of having full knowledge of the Order dated 27/03/2023, being an order directing the Plaintiff and the Defendant no.1, to maintain status quo in respect of nature and possession of the schedule property as stand on the said day, till 27/04/2023, with a malafide intention to delay the sacred order of the Learned Court has disobeyed and or breached the said Order dated 27/03/2023, for her personal benefit and wrongful enjoyment of the schedule property.

4. On 31st day of March’ 2023, at about 1:30 pm, the Defendant no.1, Smt. Sakti Sinha Roy, with her associates visited the premises and trying to intervene into the schedule property by way of shouting and using filthy languages, in the name of the Plaintiffs, to the employee and staff of the plaintiffs. The Plaintiffs got such information and inform to the Police Station.

5. Again on 03/04/2023, at about 2:45 pm, she visited the premises and trying to break the gate and to put a whole in the wall with the help of her associates, on being asked by staffs of the plaintiffs in such unlawful doings of her, she tried to assault staffs and used most filthy languages. However with the intervention of the locale people, she fled away with her associate by putting dire threats to the staffs of the plaintiffs that she will again come and teach a lesson to everyone. The fact has been informed to the Police Station.

6. On 05/04/2023, at about 2:15 pm, again she visited the premises and trying to break the gate and to put a whole in the wall with the help of her associates, on being asked by staffs in such unlawful doings of her, she tried to assault staffs and used most filthy languages, and clearly put dire threat that she will not adhered to the order of the Learned Court, and she will do whatever she want to do. She created scene, welcoming people on way, she used most filthy languages and tried to assault staffs on duty. The fact has been informed to the Police. Due to intervention of Police, she left once again.

7. On 06/04/2023, at about 2:40 pm, she visited the premises and trying to break the gate and to put a whole in the wall with the help of her associates, on being asked by staffs of the plaintiffs in such unlawful doings of her, she tried to assault staffs and used most filthy languages. She obstructed staffs to enter into schedule premises, and put a whole in wall and installed AC machine and break the gate and tried to put a new gate of her in pursuance to established a new egress and ingress to her shop. The fact has been informed to the Police. The Police of the Survey Park Police Station visited the Schedule Premises and asked to stop any nature of changing the schedule property to the said Smt. Sakti Sinha Roy, and lodge an FIR number 55 of 2023, dated 06/04/2023, on Complaint of Staff of the plaintiffs. The said FIR is under Section 341, 323, 506, 114 IPC, Which is pending.

8. On 12/04/2023, at about 1:45 pm, she again visited with her associates, and shouted like anything and tried to break the boundary wall at the schedule premises, and said that she will remove everything in pursuing to take the property, and the Police cannot stop her. However, with intervention of the local people, who tried to make her understand that since the matter is prejudice before the Learned Court, it should be our duty to obey the direction of the Learned Court. She did not accept such statement though the intervention of the local people restrained her to do anything in that moment. Thus once again she fled away by way of putting threat on staffs of the plaintiff and to the plaintiffs, that she will come again with her more associates and will fulfill her unlawful desire.

9. On 14/04/2023, at about 2:30 pm, the said Smt. Sakti Sinha Roy with her associates, came at the schedule property, and tried to fell down the boundary wall and the fire extinguishers attached to the wall. The plaintiffs’ staffs asked not to do such unlawful act she aroused and assaulted the staff, using most filthy languages. The local people came around and intervened into therefore she again left the schedule premises, with dire threat to the plaintiffs and the plaintiffs’ staffs.

10. On 27/04/2023, at about 5 pm, the said Smt. Sakti Sinha Roy with her female associates came to front side gate of the plaintiffs premises, and breaking the front side gate forcibly and with criminal intimidation, even after resistance raised by the staffs of the plaintiffs.

11. On 28/04/2023, at about 5:30 pm the said Smt. Sakti Sinha Roy with her female associates, broken the pad lock and iron gate with hammer and theft the one cartoon wine bottle (Mc-Dowells), which valued as of Rs. 7,680/- (Rupees Seven Thousand and Six Hundred Eighty) only. This fact inform to the Survey Park Police Station on 29/04/2023.

12. That the said Smt. Sakti Sinha Roy, is much desperate and adamant lady in disobeying the Learned Court Orders, as well as creating disturbance, causing breach of peace, assault to the workers/ staffs, using most filthy languages, trespass into the plaintiffs property forcibly, breaking wall, and iron gates and theft by way of her continuous approach even after Police intervene into, time and again, she did not stop her unlawful activities.

13. That the Plaintiffs astonished to come across such dire act and unlawful deed of the said Smt. Sakti Sinha Roy, who disobeyed willfully, the Learned Court’s Order dated 27th day of March’ 2023, continuously, at the periodical interval in the following;

31/03/2023; 03/04/2023; 05/04/2023; 06/04/2023; 12/04/2023; 14/04/2023; 27/04/2023; and 28/04/2023;

14. That the entire fact has been lodged with the Survey Park Police Station by the Plaintiffs by way of Written Complaint dated 14/04/2023, though the Police did not take any appropriate recourse in compelling the direction of the Learned Court’s Order dated 27/03/2023, on the Defendant no.1, Smt. Sakti Sinha Roy and her associates, at the given Schedule Property.

15. That consequent unlawful acts and deeds of the said Smt. Sakti Sinha Roy, has been informed to the Survey Park Police Station on 27/04/2023, and on 29/04/2023, by way of written complaint. The Plaintiffs found that the Police show their inability in carrying the Law and Order and to protect the person and liberty. The inability of the Police being indulgence to the said Smt. Sakti Sinha Roy, in carrying her unlawful activities at the plaintiffs premises.

16. That the Defendant no.1, Smt. Sakti Sinha Roy, is much adamant in disobeying the direction given in the Order dated 27/03/2023, passed in Title Suit no. 418 of 2023, by the Learned Civil Judge (Junior Divisiopn) 4^th Court, Alipore, South 24 Parganas, and the inaction of the Police given due indulgence to her in continuing her disobeying the direction of the Learned Court’s Order dated 27/03/2023.

17. That the Plaintiffs’ suffering a lot in protecting his schedule property, as well as his business at the schedule property only due to the unlawful act of the said Smt. Sakti Sinha Roy, and her associates.

18. There is a reasonable threat and strong apprehension of encroachment of the property by the said Smt. Sakti Sinha Roy, at the said premises, which need to resist and restrained to prevent the property at the ground floor at the said premises which absolutely belongs to the plaintiffs.

19. That the Plaintiffs solely seeking protection from such unlawful deeds of the said Smt. Sakti Sinha Roy and her associates, at the premises, in pursuing peaceful running of their business.

20. That the Plaintiffs state that the defendant no.1, Smt. Sakti Sinha Roy, without responding to the plaintiffs request to abstain from carrying on her overt/ illegal acts as per the said order, threatened the plaintiffs with dire consequences, and tried to assault the plaintiffs’ staff having more man power and support of the some locale antisocial attached to her, towards her wrongful gains and enjoyment on the schedule property of the plaintiffs.

21. That the Plaintiffs state that the defendant no.1, Smt. Sakti Sinha Roy, with her associates showing/ expressing sever disrespect to the Order dated 27/03/2023, passed in Title Suit no. 418 of 2023, by the Learned Civil Judge (Junior Division), 4^th Court, Alipore, South 24 Parganas, which has been intentionally defying, disobeyed and violated the sacred order of this Learned Court and thus the defendant no.1, Smt. Sakti Sinha Roy, is guilty of disobedience/ breach of the Order dated 27/03/2023, passed in Title Suit no. 418 of 2023, by the Learned Civil Judge (Junior Division), 4^th Court, Alipore, South 24 Parganas.

22. That in the aforesaid facts and circumstances, the plaintiffs seeks extension of ad-interim order of injunction, dated 27/03/2023, till disposal of the present Suit.

23. That the preponderance of balance of convenience and in convenience are in favour of the Plaintiffs and the defendant no.1, will not prejudice.

24. That this application is made bonafide and in the interest of administration of justice.

It is therefore prayed that your Honour would graciously be pleased to admit this extension petition and extend the order dated 27-03-2023, passed by this Learned Court till disposal of the present Suit proceeding, in the interest of administration of justice, and or to pass such other necessary order or orders as your Honour may deem, fit, and proper for the end of justice.

And for this act of kindness, the petitioner as in duty bound shall ever pray.

VERIFICATION

We, (i) Sukanta Bhowmick, Son of Ranjit Bhowmick, residing at Premises being no. 26, Lansdowne Terrace, Police Station – Lake, Kolkata – 700026, District South 24 Parganas, and (ii) Smt. Gopa Bhowmick, Wife of Sukanta Bhowmick, residing at Premises being no. 26, Lansdowne Terrace, Police Station – Lake, Kolkata – 700026, District South 24 Parganas, are acquainted and conversant with the material facts stated in the plaint. We verify, & sign the plaint on 19^th day of June’ 2023, at the Court Premises.

AFFIDAVIT

We (i) Sukanta Bhowmick, Son of Ranjit Bhowmick, aged about 42 years, by faith Hindu, by Occupation Business, residing at Premises being no. 26, Lansdowne Terrace, Police Station – Lake, Kolkata – 700026, District South 24 Parganas, and (ii) Smt. Gopa Bhowmick, Wife of Sukanta Bhowmick, aged about 40 years, by faith Hindu, by Occupation Business, residing at Premises being no. 26, Lansdowne Terrace, Police Station – Lake, Kolkata – 700026, District South 24 Parganas, do hereby solemnly affirm and say as follows;

1. We are jointly carrying business of M/s. Tumi Ashbey Bole, a Partnership Firm, carrying business of Restaurant with Bar, having its Office at Premises being no. 401, Ajoy Nagar, Postal Premises no. P-5, Ajoy Nagar, Police Station – Purba Jadavpur, Kolkata – 700075, District – South 24 Parganas, and we are the Plaintiff in the present Suit. We are competent to swear this affidavit.

2. We are acquainted and conversant with the material facts stated in the Petition and are Competent to Swear this affidavit.

This is true to our knowledge.

3. That the statements made in paragraph number 1 to ____ of the Petition are true to our knowledge and the rests are our humble submissions before the Learned Court.

The above statements are true to our knowledge and belief.

DEPONENTS

Identified by me,

Advocate

Prepared in my Chamber,