No Res Judicata on Finding on Title in an Injunction Suit

Taken from: Res Judicata and Constructive Res Judicata

Saji Koduvath, Advocate, Kottayam.

No Res judicata, where –

Decision by fraud
Dismissal in limine
Suit was premature
Pure question of law
Compromise decree
Want of jurisdiction
Habeas corpus cases
Dismissal on ‘limitation’
New laws bring changes
Public interest litigation
Decision not on the merits,
Dismissal for want of notice
Suit was not properly framed,
Dismissal on technical ground
Default of plaintiffs appearance,
Decision by an incompetent court
Cases where re-litigation is needed
Misjoinder or non-joinder of parties
Grounds not taken up by appeal court
Findings on the Title in an injunction suit.
Dismissed in limine without a Speaking Order
Intermediate reliefs in interlocutory applications.
Findings not Necessary (for supporting decree)
Taxation cases. Liability to pay tax each year differs.
Lower Court findings where appeal decree was passed
Former decision was too perverse (no proper reasoning)
Adverse findings against one who got a favorable decree
Different causes of action, as in an injunction suit or in an eviction suit

Other Settled Position: No Res Judicata, When

Issue not decided/adjudicated.
Dismissal of earlier suit for res judicata.
Dismissal of earlier suit for insufficient court fees.
If the ultimate decision was that the suit was not maintainable.
Adverse findings against one, in favour of whom the suit was ultimately decided.
Findings on several grounds. In the appeal, only one ground was considered. Res judicata on that one ground alone.

What is Res Judicata?

‘Res’, in Latin, means a thing or matter; and ‘Judicata’ means decided or judged.

Thus, Res Judicata applies when the ‘matter is decided’.

It is based on the public policy of finality and conclusiveness of judicial decisions, and private interest of all persons sued; that is, one should not be tried twice for the same cause or a matter that has been directly and substantially in issue in an earlier suit. Sec. 11 of the Code of Civil Procedure, 1908, elucidates this principle.

Sec. 11, Civil Procedure Code, 1908, reads as under:

“Res Judicata – 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.” … (Explanations I to VIII)

Core Ingredients of Res Judicata

The matter in issue has been an issue in a former suit

Other Requirements

Same matter; Same Parties
Heard and finally decided
By a competent court

Bar by Res-judicata, When Attracted

Same matter in issue: The matter in issue in earlier suit and the subsequent suit must be directly and substantially same. It need not have been considered, actually; a constructive consideration will be sufficient. But, the consideration of the same should not have been ‘incidental or collateral’.
Same Parties: Parties to both suits must be same. It includes their privies on whom the concerned right or interest may have devolved.
Parties litigating under the same title: Parties must be litigating under the same title, in both suits. It refers to the capacity of persons who are suing or who are sued. That is, whether the suit is for the benefit of the person named in the suit alone, or whether that person also represents the interest of another or others. A decision on such a suit will be binding on all such persons represented, and it will be independent of any particular cause of action on which one sues or is sued. In Ram Gobinda v. Bhaktabala, AIR 1971 SC 664, it is observed that the test for res judicata is the identity of title in the two litigations and not the identity of the subject matter involved in the two cases. Explanation VI lays down that where persons litigate bona fide in respect of public right or of a private right claimed in common for themselves and others, all persons interested in such right shall, for the purposes of this section, be deemed to claim under the persons so litigating. It is clear that to attract Explanation VI, all persons who are represented in the representative capacity need not be expressly named in the suit. A suit instituted under Order I, rule 8, CPC will fall under this category.
Tried by a competent court: The former suit must have been tried by a competent court. The principle behind this proposition is that the finding of a Court of limited jurisdiction will not be final and binding. In Explanation II it is clarified that for the purposes of this section, the competence of a Court shall be determined irrespective of any provisions as to a right of appeal from the decision of such Court.
Heard and finally decided: The matter must have been heard and finally decided by the earlier court in the earlier suit. What is material is the date on which the earlier suit was decreed; and not its date of filing.

The Supreme Court pointed out five conditions to attract Res judicata, in Sheldon Singh v. Daryao Kunwar. AIR 1966 SC 1332. They were –

(i) The matter directly substantially in issue in the subsequent suit or issue must be the same matter which was directly and substantially in issue in the former suit;
(ii) The former suit must have been a suit between the same parties or between parties under whom they or any of them claim;
(iii) The parties must have litigated under the same title in the former suit;
(iv) The court which decided the former suit must be a Court competent to try the subsequent suit or the suit in which such issue is subsequently raised; and
(v) The matter directly and substantially in issue in the subsequent suit must have been heard and finally decided by the Court in the first suit.

In Mysore State Electricity Board v. Bangalore Woollen, Cotton, and Silk Mills Ltd., AIR 1963 SC 1128, it is emphasised that the court must look at the nature of the litigation, what the issues were raised therein, and what was actually decided in it, to decide whether a decision in an earlier litigation operated as res judicata.

Issue Must Have Been Raised

Sufficient pleading should have been raised by the party (in the subsequent suit) who seeks dismissal on bar by ‘res judicata’ so that an issue must have been raised on the same. (Kalawati Kotla vs. Shokilal, AIR 2013 Chh. 12)

In Madhukar D. Shende v. Tarabai Aba Shedage, AIR 2002 SC 637, it is observed as under:

“We are not inclined, in the facts and circumstances of this case, to weight the admissibility and binding efficacy of the decision rendered in the earlier suit on the doctrine of res judicata and holding the earlier decisions as conclusive between the parties. Res judicata is a mixed question of fact and law. We do not find the plea of res judicata having been raised in the plaint. Copies of pleadings and issues framed in the earlier suit have not been tendered in evidence and we do not find any issue on res judicata having been framed and tried between the parties in the present suit. No submission raising the plea of res judicata was made before any of the courts below or the High Court. We do not think such a plea can be permitted to be raised before this Court for the first time and at the hearing.”

Res Judicata: The issue should have been necessary to be decided

In PMA Metripolitan v. Moran Mar Marthoma, AIR 1995 SC 2001, it is held as under:

“57. It is fairly settled that the finding on an issue in the earlier suit to operate as res judicata should not have been only directly and substantially in issue, but it should have been necessary to be decided as well.”

No Res Judicata, in spite of findings (Ineffectual Res Judicata)

Though there may be a previous decision on a particular issue, it may not bar the trial of subsequent suit as res judicata in the following instances.

Former decision was not from a competent court; or order/decree was without jurisdiction. Fatma Bibi Ahmed Patel v. State of Gujarat, (2008) 6 S.C.C. 789.
Where ultimate decision in earlier case was on the ground that the suit was not maintainable, findings on merits in such cases do not constitute res judicata.
Adverse finding against a party in whose favour the suit or the appeal is ultimately decided: PMA Metripolitan v. Moran Mar Marthoma, AIR 1995 SC 2001; Bakerbag Subhanbeg Vs. Shrikant Laxminarayan Zanwar: 2008-3 All MR 656.
Former decision was too perverse for no proper reasoning was given.
Pure question of law. Raju Ramsing Vasave v. Mahesh Deorao Bhivapurkar, (2008) 9 S.C.C. 54.
Public interest litigation (M.C. Mehta v. Union of India, (2000) 5 S.C.C. 525). Principles of res judicata do not strictly apply to public interest writs – under Article 32 and Article 226.
Dismissal of earlier suits and writs in limine. Daryao v. State of Uttar Pradesh, A.I.R. 1961 S.C. 1457.
Dismissal of earlier suits and writs on technical ground or for want of parties: Ram Gobinda v. Bhaktabala, AIR 1971 SC 664; Shiromani Gurdwara Parbandhak Committee Vs Mahant Harman Singh AIR 2003 SC 3349.
Dismissal of earlier suits on a technical ground that they were for a mere declaration without seeking consequential relief: Inacia Martins v. Narayan Hari Naik AIR 1993 SC 756.
First suit was dismissed for want of notice: Ramasami v. Thalawasal Marudai Reddi, l.L.R. 47 Mad. 453.
First suit was dismissed on the ground of bar by ‘limitation‘. Munishi Chinadandasi v. Munishi Pedda Tatiah, AIR 1921 Mad 279; Krishnan Vs. Perumal Nadar, AIR 1973 Mad 81
Dismissal of earlier suit for default of plaintiff or on limitation. Ram Gobinda v. Bhaktabala, AIR 1971 SC 664.
In earlier suit, the plaintiff was non-suited on the ground of limitation, res judicata, mis-joinder, insufficient court fees on the plaint, jurisdiction or a like technical and preliminary ground: Venkatasuryanarayana v. Sivasankara-narayana (1914) 17 M.L.T. 85, Rama Krishna Naidu v. Krishnaswami Naidu, 36 M.L.J. 641.
If appeal in earlier litigation was dismissed on technical grounds, lower court decision holds the field. Sheodan Singh v. DaryaoKunwar, AIR 1966 SC 1332.
Findings on several grounds against a party. In appeal lower court decree confirmed; but, only one ground considered. Res judicata on that one ground alone.
Cases where re-litigation is needed.
Habeas corpus cases. If one habeas corpus petition is dismissed, then subsequent petition with fresh grounds will not be discarded. Sunil Dutt v. Union of India, A.I.R. 1982 S.C. 53.
New laws bring new changes that lead to the filing of a subsequent suit with the same cause of action.
Decision in the former suit has been obtained by fraud (Section 44 of the Indian Evidence Act, 1872 refers to such judgments). Beli Ram v. Chaudri Mohammad Afzal, (1948) 50 Bom.L.R. 674.
Different causes of action, as in an injunction suit or in an eviction suit.
Intermediate reliefs in interlocutory applications.
Taxation cases. Liability to pay tax each year differs is independent of each other. Broken Hill Proprietary Co. Ltd. v. Broken Hill Municipal Council, 1926 A.C. 94. Instalment Supply Private Limited v. Union of India, AIR 1962 S.C. 53.

No Res Judicata on a Finding on Title, in an Injunction Suit

In Sulochana Amma Vs. Narayanan Nair [(1994) 2 SCC 14] it is observed as under:

“The decision in earlier case on the issue between the same parties or persons under whom they claim title or litigating under the same title, it operates as a res-judicata. A plea decided even in a suit for injunction touching title between the same parties, would operate as res-judicata. It is a settled law that in a Suit for injunction when title is in issue, for the purpose of granting injunction, the issue directly and substantially arises in that suit between the parties when the same is put in issue in a later suit based on title between the same parties or their privies in a subsequent suit, the decree in injunction suit equally operates as a res-judicata.”

Anathula Sudhakar Vs. P. Buchi Reddy, AIR 2008 SC 2033, the Supreme Court held that where the issue of title involves complicated or complex questions of fact and law, or where court feels that parties had not proceeded on the basis that title was at issue, the court should not decide the issue of title in a suit for injunction. It is clear that findings of title in such suits are redundant so far as res judicata is concerned, The Court proceeded to hold as under:

“Where there are necessary pleadings regarding title, and appropriate issue relating to title on which parties lead evidence, if the matter involved is simple and straight-forward, the court may decide upon the issue regarding title, even in a suit for injunction. But such cases, are the exception to the normal rule that question of title will not be decided in suits for injunction. But persons having clear title and possession suing for injunction, should not be driven to the costlier and more cumbersome remedy of a suit for declaration, merely because some meddler veraciously or wrongfully makes a claim or tries to encroach upon his property. The court should use its discretion carefully to identify cases where it will enquire into title and cases where it will refer to plaintiff to a more comprehensive declaratory suit, depending upon the facts of the case.”

(Both, Sulochana Amma and Anathula are referred to in T. Ravi Vs. B. Chinna Narasimha, 2017-7 SCC 342)

An incidental finding will not constitute res judicata.

In Sajjadanashin Sayed v. Musa Dadabhai Ummer, (2000) 3 SCC 350, it is observed as under:

“24. Before parting with this point, we would like to refer to two more rulings. In Sulochana Amma v. Narayanan Nair [(1994) 2 SCC 14] this Court held that a finding as to title given in an earlier injunction suit would be res judicata in a subsequent suit on title. On the other hand, the Madras High Court, in Vanagiri Sri Selliamman Ayyanar Uthira-soma-sundareswarar Temple v. Rajanga Asari [AIR 1965 Mad 355 : ILR (1965) 1 Mad 232] held (see para 8 therein) that the previous suit was only for injunction relating to the crops. Maybe, the question of title was decided, though not raised in the plaint. In the latter suit on title, the finding in the earlier suit on title would not be res judicata as the earlier suit was concerned only with a possessory right. These two decisions, in our opinion, cannot be treated as being contrary to each other but should be understood in the context of the tests referred to above. Each of them can perhaps be treated as correct if they are understood in the light of the tests stated above. In the first case decided by this Court, it is to be assumed that the tests above-referred to were satisfied for holding that the finding as to possession was substantially rested on title upon which a finding was felt necessary and in the latter case decided by the Madras High Court, it must be assumed that the tests were not satisfied. As stated in Mulla, it all depends on the facts of each case and whether the finding as to title was treated as necessary for grant of an injunction in the earlier suit and was also the substantive basis for grant of injunction. In this context, we may refer to Corpus Juris Secundum (Vol. 50, para 735, p. 229) where a similar aspect in regard to findings on possession and incidental findings on title were dealt with. It is stated:
“Where title to property is the basis of the right of possession, a decision on the question of possession is res judicata on the question of title to the extent that adjudication of title was essential to the judgment; but where the question of the right to possession was the only issue actually or necessarily involved, the judgment is not conclusive on the question of ownership or title.””
(Quoted and followed in: M.S. Ananthamurthy v. J. Manjula, Neutral Citation: 2025 INSC 273; 27.02.2025)

“21. To summarise, the position in regard to suits for prohibitory injunction relating to immovable property, is as under:
(a) Where a cloud is raised over the plaintiff’s title and he does not have possession, a suit for declaration and possession, with or without a consequential injunction, is the remedy. Where the plaintiff’s title is not in dispute or under a cloud, but he is out of possession, he has to sue for possession with a consequential injunction. Where there is merely an interference with the plaintiff’s lawful possession or threat of dispossession, it is sufficient to sue for an injunction simpliciter.
(b) As a suit for injunction simpliciter is concerned only with possession, normally the issue of title will not be directly and substantially in issue. The prayer for injunction will be decided with reference to the finding on possession. But in cases where de jure possession has to be established on the basis of title to the property, as in the case of vacant sites, the issue of title may directly and substantially arise for consideration, as without a finding thereon, it will not be possible to decide the issue of possession.
(c) But a finding on title cannot be recorded in a suit for injunction, unless there are necessary pleadings and appropriate issue regarding title (either specific, or implied as noticed in Annaimuthu Thevar [Annaimuthu Thevar v. Alagammal, (2005) 6 SCC 202] ). Where the averments regarding title are absent in a plaint and where there is no issue relating to title, the court will not investigate or examine or render a finding on a question of title, in a suit for injunction. Even where there are necessary pleadings and issue, if the matter involves complicated questions of fact and law relating to title, the court will relegate the parties to the remedy by way of comprehensive suit for declaration of title, instead of deciding the issue in a suit for mere injunction.
(d) Where there are necessary pleadings regarding title, and appropriate issue relating to title on which parties lead evidence, if the matter involved is simple and straightforward, the court may decide upon the issue regarding title, even in a suit for injunction. But such cases, are the exception to the normal rule that question of title will not be decided in suits for injunction. But persons having clear title and possession suing for injunction, should not be driven to the costlier and more cumbersome remedy of a suit for declaration, merely because some meddler vexatiously or wrongfully makes a claim or tries to encroach upon his property. The court should use its discretion carefully to identify cases where it will enquire into title and cases where it will refer to the plaintiff to a more comprehensive declaratory suit, depending upon the facts of the case.”
(Quoted and followed in: M.S. Ananthamurthy v. J. Manjula, Neutral Citation: 2025 INSC 273; 27.02.2025)

(Both, Sulochana Amma and Anathula Sudhakar are referred to in T. Ravi Vs. B. Chinna Narasimha, 2017-7 SCC 342)

In Hem Nolini Judah v. Isolync Saroibashini Bose, AIR 1962 (SC) 1471, it was held that questions of title are not decided in proceedings for the grant of probate or letters of administration.

See Blog: Declaration and Injunction

Binding Precedent and Res Judicata – a Couplet

One is strictly legal, and the other is mainly factual.

Ratio Decidendi is the Binding Precedent. It is Not Findings on Facts or Issues. It applies only if a question of law is decided.

Binding Precedent refers to a judicial rule or principle established in an earlier binding decision that must be followed in subsequent similar cases.
Res Judicata applies to findings of both law and fact. It bars the same parties from re-litigating issues that have already been finally decided.
Binding Precedent pertains strictly to legal principles and technically bind courts, not parties.

No ‘Binding Precedent’ if earlier decision was –

without taking into account the statutory provision or factual situation
wrong in law.

Ratio decidendi
               •➧ Ratio decidendi alone is the Binding Precedent.
               •➧ Ratio decidendi is a statement of principles of law.
               •➧ Ratio decidendi is the vital element in the decision.
           •➧ Ratio decidendi literally means “reason for deciding”.
               •➧ Ratio decidendi is the essence, and not every observation.
               •➧Ratio decidendi is a declaration of law in a speaking order.
            •➧ Ratio decidendi is the Legal Principle Guiding the Decision.
               •➧ Ratio decidendi alone binds under Article 141 of the Constitution.
              •➧ What is binding is discernible Ratio and the Principle, not the Conclusion.
              •➧ A case is only an authority for what it decides, and not for what logically follows from it.
             •➧ It is important to read and analyse the Entire Judgment, and the ratio decidendi is to be isolated.
              •➧ Words in a Judgment are Not to be Interpreted as a Statute; Words in it are Not to be Taken Literally.
              •➧ The abstract ratio decidendi (ascertained on a consideration of the judgment) alone has the force of law.
             •➧ For the Legal Principles Guiding the Decision constitute ‘Ratio Decidendi’, it is always necessary to see what the facts were.

Precedents – only if they decide a question of law
              •➧ A Case is only an Authority for what it Actually Decides.
              •➧ Decision Applicable Only to Facts Cannot be a Binding Precedent.
              •➧ Binding Precedent Helps in Promoting Certainty and Consistency.
              •➧ A decision is available as a precedent only if it decides a question of law.
              •➧ An order made merely to dispose of the case cannot have the value or effect of a binding precedent.
              •➧ The precedential value is attached only to orders which are preceded by a detailed judgment.

Obiter Dicta
              •➧ Obiter dictum is the passing expression or opinion in a judgement.
              •➧ The obiter dicta of the Supreme Court are taken with considerable weight.
              •➧ In India, obiter dictum of a High Court may have to be followed by the lower courts in its jurisdiction.

Per Incuriam
•➧ ‘Per incuriam’ is used to denote findings out of ignorance of law.

Stare decisis
•➧ Stare decisis is a legal doctrine that requires courts to follow precedents

Common law
              •Common law is the body of unwritten law, based upon precedents, the previous decisions.
              •➧ Common law delved precedents; whereas the civil law system dwelled upon codified system of law.
              •➧ The Courts in India apply the common law, especially, in the arena where there are no enacted Civil Laws to apply.

Essence in a Decision is its Ratio and Not Every Observation

The Supreme Court (B.V. Nagarathna, J.)observed in Secunderabad Club v. CIT, 2023 SCC OnLine SC 1004, 2023-457 ITR 263 (SC), as under:

“22. Further, the precedential value of an order of the Supreme Court which is not preceded by a detailed judgment would be lacking inasmuch as an issue would not have been categorically dealt with. What is of essence in a decision is its ratio and not every observation found therein, nor what logically follows from the various observations made therein.”

Words in a Judgment are Not to be Interpreted as a Statute

B.V. Nagarathna, J. continued (in Secundrabad Club v. CIT, 2023 SCC OnLine SC 1004, 2023-457 ITR 263 (SC) as under:

“21. In the context of understanding a judgment, it is well settled that the words used in a judgment are not to be interpreted as those of a statute.

Words in a Judgment – Rendered Contextually; Not be Taken Literally

B.V. Nagarathna, J. pointed out (in Secundrabad Club v. CIT, 2023 SCC OnLine SC 1004, 2023-457 ITR 263 (SC) as under:

“This is because the words used in a judgment should be rendered and understood contextually and are not intended to be taken literally.”

No implication – a decision is an authority for what decided

“Further, a decision is not an authority for what can be read into it by implication or by assigning an assumed intention of the judges and inferring from it a proposition of law which the judges have not specifically or expressly laid down in the pronouncement. In other words, the decision is an authority for what is specifically decides and not what can logically be deduced therefrom.”

No Res Judicata on Finding on Title in an Injunction Suit

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