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(i) Civil Procedure Code, 1908, Section 11 – res judicata – “directly and substantially in issue” – If the matter was in issue directly and substantially in a prior litigation and decided against a party then the decision would be res judicata in a subsequent proceeding – If a matter was only ‘collaterally or incidentally' in issue and decided in an earlier proceeding, the finding therein would not ordinarily be res judicata in a latter proceeding where the matter is directly and substantially in issue – Fundamental rule is that a judgment is not conclusive if any matter came collaterally in question or if any matter was incidentally cognizable (Halsbury's Laws of England (Vol. 16, para 1538) (4th Ed), (R. v. Knaptoft Inhabitants, (1824) 2 B and C 883; Heptulla Bros v. Thakore, (1956 (1) WLR 289 (297) (PC); (Sanders (otherwise Saunders) v. Sanders (otherwise Saunders) (1952) 2 All England Reporter 767 at 771. Referred. [Para 12]
A collateral or incidental issue is one that is ancillary to a direct and substantive issue; the former is an auxiliary issue and the latter the principal issue. The expression ‘collaterally or incidentally' in issue implies that there is another matter which is ‘directly and substantially' in issue (Mulla, Civil Procedure Code 15th Ed., p. 104). [Para 14]
When a question arises before the Courts as to whether an issue was earlier decided only incidentally or collaterally, the Courts could deal with the question as a matter of legal principle rather than on vague grounds. [Para 25]
What is the test for deciding into which category a case falls ?
It is not to be assumed that matters in respect of which issues have been framed are all of them directly and substantially in issue.
Res Judicata – title.
(ii) Civil Procedure Code, 1908, Section 11 – Res judciata – Well settled that an earlier decision which is binding between the parties loses its binding force if between the parties a second decision decides to the contrary – Then, in the third litigation, the decision in the second one will prevail and not the decision in the first – Bombay Public Trust Act, 1950 Section 2 and 9. [Para 28]
