Section 11 provides 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, and so on. Now issues are of three kinds, issues of facts, issues of law and mixed issues of law and fact.
An issue of fact may be res judicata and mixed issue of law of law and fact may also be res judicata. Decision on an issue of law although erroneous operates as res judicata if the cause of action in the subsequent suit is also the “same as in the previous suit.
But there is a conflict of judicial opinion as to whether erroneous decision on a question of law operates as res Judicata when the causes of action are different. It has been held in some cases that it does not and in some that it does.
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The latter view was adopted by a Full Bench of the Calcutta High Court in Tarini Charan Bhattarcharya v. Kedar Nath Haldar, (33 Calcutta Weekly Notes, 126, F.C.) Ranking, C.J. who delivered the leading judgment and with whose view the other learned judges agreed, observed that the question whether a decision is correct or erroneous has no bearing upon the question whether it operates or does not operate as res judicata.
The doctrine is that in certain circumstances the court shall not try a suit or issue but shall deal with the matter on the footing that it is a matter no longer open to contest by reason of a previous decision.
In these circumstances it must necessarily be wrong for a court to try the suit or issue, come to own conclusions thereon and consider whether the previous decision is right or wrong. It was further observed that Section 11 says nothing about causes of action, nor does the section say anything about a point or points of law or pure points of law.
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The parties do not join issue upon academic or abstract questions but upon matters of importance to themselves and the section requires that the doctrine be restricted to matters in issue and of these of matters which are directly as well substantially in issue, and the principle of res judicata is not to be ignored merely on the ground that the reasoning, whether in law or otherwise, of the previous decision can be attacked on a particular point.
As regards the effect of decisions by change of law, it was observed in that case:
“The Legislature, by statute, may alter the right of parties and when it does so, it makes such provision as it thinks proper to prevent injustice. Courts of law are in no way authorized to alter the rights of parties.
They profess, at all events to ascertain the law and if the binding character of a decision upon a concrete question as to the term of a particular holding is to fluctuate with every alteration in the current of authority the courts will become an instrument for the unsettlement of rights rather than for the ascertainment thereof.”
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In Tarini Charan’s case, therefore, it was in effect held that the principle of res judicata does not apply when the Legislature alters the law by statute but courts of law cannot alter the rights of parties.
It has definitely been ruled by Courts, apart from Tarini Charon’s case, that a previous decision does not operate as res judicata on the same question when there has been” a change of law subsequent to that decision.
The question of res judicata is a mixed question of law and fact. That question of law when depends upon certain facts and if there is a finding regarding those facts recorded by the courts below, the High Court has to proceed to consider the decision on the question of res judicata on the basis that finding of fact which formed the foundation of the decision which has been held out for challenging the finding of the tribunal on the ground of res judicata is not to be interfered with by the court in second appeal. (Keepattel Bappu v. Kizhakke Valappil Muhammad, A.I.R. 1993 Kerala, 273).