To read the first part, click here: https://lawgicalhs30.in/part-i-framing-of-issues-its-importance-and-practical-difficulties-surrounding-it/
In the second part I will be talking about whether issue of res-judicata can be dealt as an preliminary issue, whether to frame issues when suit is ex-parte, relation between points for determination and issues, need for framing issue after filing of replication or rejoinder and lastly whether on the date of settlement of issues proceedings can be started ex-parte in the absence of defendant.
Res judicata: Question of fact or law or mixed question of law and fact? Can it be decided as a preliminary issue?
In an important ruling on Res Judicata in the case of The Jamia Masjid v. KV Rudrappa[i], , the 3-judge bench of Dr. DY Chandrachud, Vikram Nath and Hima Kohli, JJ has held that the issues that arise in a subsequent suit may either be questions of fact or of law or mixed questions of law and fact. An alteration in the circumstances after the decision in the first suit, will require a trial for the determination of the plea of res judicata if there arises a new fact which has to be proved.
However, the plea of res judicata may in an appropriate case be determined as a preliminary issue when neither a disputed question of fact nor a mixed question of law or fact has to be adjudicated for resolving it.
Best method” to decide the question of res judicata:
The court while undertaking an analysis of the applicability of the plea of res judicata determines first, if the requirements of section 11 CPC are fulfilled; and if this is answered in the affirmative, it will have to be determined if there has been any material alteration in law or facts since the first suit was decreed as a result of which the principle of res judicata would be inapplicable. In Syed Mohd. Salie Labbai (dead) by L.Rs v. Mohd. Hanifa[ii], it was enunciated that before a plea of res judicata can be given effect, the following conditions must be proved:
(1) that the litigating parties must be the same;
(2) that the subject-matter of the suit also must be identical;
(3) that the matter must be finally decided between the parties; and
(4) that the suit must be decided by a court of competent jurisdiction.
The verdict in Alka Gupta v. Narender Kumar Gupta[iii], further made clear that “The plea must be clearly established, more particularly where the bar sought is on the basis of constructive res judicata. The plaintiff who is sought to be prevented by the bar of constructive res judicata should have notice about the plea and have an opportunity to put forth his contentions against the same.”
Twin test for the identification of whether an issue has been conclusively decided in the previous suit is:
The necessity test: Whether the adjudication of the issue was ‘necessary’ for deciding on the principle issue.
The essentiality test: Whether the judgment in the suit is based upon the decision on that issue.
Res Judicata: Question of fact or law or mixed question of law and fact?
It has earlier been held by the Supreme Court that a determination of whether res judicata is attracted raises a mixed question of law and facts [Madhukar D Shende v. Tarabai Aba Shedage[iv],; Ram Harakh v. Hamid Ahmed Khan[v]]. However, Justice K. Ramaswamy writing for a three-judge bench of this court in Sushil Kumar Mehta v. Gobind Ram Bohra[vi], held that the principle of res judicata cannot be fit into the pigeonhole of ‘mixed question of law and facts’ in every case. Rather, the plea of res judicata would be a question of law or fact or a mixed question of both depending on the issue that is claimed to have been previously decided.
In Mathura Prasad Bajoo Jaiswal v. Dossibai N.B Jeejeebhoy[vii], it was held that, “A decision of a competent Court on a matter in issue may be res judicata in another proceeding between the same parties: the “matter in issue” may be an issue of fact, an issue of law, or one of mixed law and fact. An issue of fact or an issue of mixed law and fact decided by a competent Court is finally determined between the parties and cannot be re-opened between them in another proceeding. The previous decision on a matter in issue alone is res judicata: the reasons for the decision are not res judicata. (…) The matter in issue, if it is one purely of fact, decided in the earlier proceeding by a competent Court must in a subsequent litigation between the same parties be regarded as finally decided and cannot be reopened. A mixed question of law and fact determined in the earlier proceeding between the same parties may not, for the same reason, be questioned in a subsequent proceeding between the same parties. But, where the decision is on a question of law i.e. the interpretation of a statute, it will be res judicata in a subsequent proceeding between the same parties where the cause of action is the same, for the expression “the matter in issue” in Section 11 of the Code of Civil Procedure means the right litigated between the parties i.e. the facts on which the right is claimed or denied and the law applicable to the determination of that issue. Where, however, the question is one purely of law and it relates to the jurisdiction of the Court or a decision of the Court sanctioning something which is illegal, by resort to the rule of res judicata a party affected by the decision will not be precluded from challenging the validity of that order under the rule of res judicata, for a rule of procedure cannot supersede the law of the land.”
Can res judicata be decided as a preliminary issue? Yes. In certain cases, particularly when a mixed question of law or fact is raised, the issue should await a full-fledged trial after evidence is adduced.
An erroneous decision on a pure ‘question of law’ does not operate as ‘res judicata’ or ‘Estoppel’ for the Court to decide the question correctly in a subsequent lis between same parties
In the case of Mathura Prasad Sarjoo Jaiswal[viii], where the decision is on a pure question of law then a Court cannot be precluded from deciding such question of law differently. Such bar cannot be invoked either on principle of equity or estoppel. No equitable principle or estoppel can impede powers of the Court to determine an issue of law correctly in a subsequent suit which relates to another property founded upon a different cause of action though parties may be same. As explained earlier, in such a situation the principle of res judicata is, strictly speaking, not applicable at all. So far as principle of estoppel is concerned, it operates against the party and not the Court and hence nothing comes in the way of a competent court in such a situation to decide a pure question of law differently if it is so warranted. The issues of facts once finally determined will however, stare at the parties and bind them on account of earlier judgments or for any other good reason where equitable principles of estoppel are attracted.”
An erroneous determination of a pure question of law in a previous judgment will not operate as res judicata in the subsequent proceeding for different property, though between the same parties, is clearly in accord with Section 11 of the CPC. Strictly speaking, when the cause of action as well as the subject matter i.e, the property in issue in the subsequent suit are entirely different, res judicata is not attracted and the competent Court is therefore not debarred from trying the subsequent suit which may arise between the same parties in respect of other properties and upon a different cause of action. In such a situation, since the Court is not debarred, all issues including those of facts remain open for adjudication by the competent Court and the principle which is attracted against the party which has lost on an important issue of fact in the earlier suit is the principle of estoppel, more particularly “issue estoppel” which flows from principles of evidence such as from Sections 115, 116 and 117 of the Indian Evidence Act, 1872 and from principles of equity. As a principle of evidence, estoppel is treated to be an admission or in the eyes of law something equivalent to an admission of such quality and nature that the maker is not allowed to contradict it. In other words it works as an impediment or bar to a right of action due to affected person’s conduct or action.
When defendant is proceeded ex-parte, normally issues are not framed
No doubt, issues are to be framed after the filing of the pleadings by the parties and before the evidence starts. It is also not in dispute that when the defendant is proceeded ex parte, normally issues are not framed and case is put for ex-parte evidence of the plaintiff. The question is as to whether any advantage or right accrued in favour of the plaintiff by not framing of the issues. The answer has to be in the negative. There is no reason as to why the issues be not framed now, which exercise would be only a reflection of determining as to whether the parties are at variance with each other. It would facilitate the complete adjudication of the controversies involved and would rather be in the interest of both the parties. Therefore, in the facts of the case, framing of the issues cannot be treated as setting the clock back., (Finolex Cables Ltd. v. Finolux Auto Pvt. Ltd.[ix]).
If defendant makes no defence, framing and recording of issue by the Court does not arise. That too, in such a case, a Court need not frame and record an issue inasmuch as the defendant makes no defence at the first hearing of the suit. In Desi Kedri vs. Huzurabad Co-Operative Marketing Society Ltd.,, it was held that ”Issues need not be framed when there is no dispute with regard to material averments in the plaint.”
Points for determination
In Ramesh Chand Ardawatiya v. Anil Panjwani[x], the Apex Court has held as under:
“In a case which has proceeded ex parte the Court is not bound to frame issues under Order 14 and deliver the judgment on every issue as required by Order 20 Rule 5. Yet the trial Court should scrutinize the available pleadings and documents, consider the evidence adduced, and would do well to frame the “points for determination” and proceed to construct the ex parte judgment dealing with the points at issue one by one. Merely because the defendant is absent the Court shall not admit evidence the admissibility whereof is excluded by law nor permit its decision being influenced by irrelevant or inadmissible evidence.
Whether it is necessary to frame new issues after replication and rejoinder are filed
Order VIII Rule 9 of CPC permits the parties to file a subsequent pleading with the leave of the Court. It provides that no pleading subsequent to the written statement of a defendant other than by way of defence to set-off or counter-claim shall be presented except by the leave of the Court and upon such terms as the Court thinks fit; but the Court may at any time require a written statement or additionally written statement from any parties and fix a time of not more than thirty days for presenting the same.
Significantly the term ‘Replication’ does not find any place in CPC. However, in various cases, Plaintiff is permitted by Courts to file a rejoinder to the written statement filled by the defendant, such a rejoinder filled by the Plaintiff is termed as “Replication”.
‘Replication’ and ‘rejoinder’ have well defined meanings. Replication is a pleading by plaintiff in answer to defendant’s plea. ‘Rejoinder’ is a second pleading by defendant in answer to plaintiff’s reply i.e. replication. (Anant Construction (P) Ltd. vs Ram Niwas[xi])
In conclusion, pleadings play a vital role in ensuring a fair, efficient, and transparent civil justice system in India. Pleadings define the specific issues in dispute between the parties and outline the facts relied upon by each side, allowing the court to understand the nature of the case and focus on the points to be addressed during the trial.
Courts in India ensure that if permission for replication is being granted, issues shall be framed only after the replication is filed. Pleadings ensure both parties are aware of the claims and defenses against them as the plaintiff’s plaint informs the defendant of the case against him, the written statement allows the defendant to respond and present his version of events. This ensures a fair hearing and due process. Pleadings further prevent parties from introducing new issues or facts during the trial without prior notice and opportunity for the other party to respond. This maintains order and prevents surprise tactics, ensuring a focused and efficient trial.
When the case is fixed for settlement of issues
In the case of Peetamber Das & Others vs Bhoj Mal & Another[xii], the court held that the learned District Judge erred in taking evidence of the plaintiff ex-parte on March 15, 1985, as the case was fixed only for framing of issues. The presence of the defendant was not necessary for framing issues, and the court should have adjourned the case for evidence on a future date.
Issues: 1. Whether the court erred in taking evidence of the plaintiff ex-parte on March 15, 1985, when the case was fixed only for framing of issues? 2. Whether the defendant was deprived of an opportunity of a proper hearing by the court’s procedure?
Ratio Decidendi: 1. The court relied on Order XVII, Rule 2, CPC, which provides that if a defendant fails to appear on the day fixed for hearing, the court may proceed to hear the suit ex-parte. However, the court held that this rule was not applicable in the present case, as the case was fixed only for framing of issues, for which the presence of the defendant was not necessary. 2. The court held that the defendant was deprived of an opportunity of a proper hearing by the court’s procedure, as he could neither cross-examine the plaintiff nor produce his own evidence.
Rest of the topics will be dealt in final part.
[i] 2021 SCC OnLine SC 792
[ii] (1976) 4 SCC 780
[iii] (2010) 10 SCC 141
[iv] (2002) 2 SCC 85
[v] (1998) 7 SCC 484
[vi] (1990) 1 SCC 193
[vii] (1970) 1 SCC 613
[viii] AIR 1971 SC 2355
[ix] AIR 2007 Del. 268
[x] (2003) 7 SCC 350
[xi] 1994 IVAD Delhi 185
[xii] 1986 0 Supreme (Raj) 692