Additional Issue Of Bar Of Res Judicata Cannot Be Framed In Final Judgement Without Awarding Parties Opportunity To Hear: Bombay High Court

The Bombay High Court has held that an additional issue of bar of res judicata cannot be included in the final judgment without providing the parties with proper notice and an adequate opportunity to present evidence.

The Court was considering an Appeal against a judgement dismissing the Suit with a cost of ₹1 lakh payable to the High Court Legal Services Authority.

The division bench of Justice M. S. Sonak and Justice Jitendra Jain observed, "While the Court unquestionably has the power to frame additional issues or modify or recast existing ones, it is equally imperative that the parties be provided with a sufficient opportunity to address these new or altered issues. Generally, such additional issues should not be included in the final judgment without providing the parties with proper notice and an adequate opportunity to present evidence, if they wish, or to address these issues in accordance with established legal procedures."

The Appellant was represented by Advocate Dr. K.K. Khanna while the Respondent was represented by Advocate Niranjan Shimpi.

Facts of the Case

Counsel for the Appellant submitted that the Suit has primarily been dismissed by invoking the bar of res judicata and pointed out that such a plea was never raised by the Respondents (Defendants) in their written statement, and consequently, no issue relating to the bar of res judicata was ever raised. He submitted that it was only in the impugned judgment that the Suit was dismissed primarily by invoking the bar of res judicata.

On the other hand, Counsel for the Respondents, submitted that the claim in the Suit was raised by the Appellant/Plaintiff in at least four arbitration proceedings and therefore the very institution of the Suit was an abuse of the legal process and, in any event, barred by the principles of res judicata or the principles analogous thereto.

Reasoning By Court

The Court at the outset pointed out that throughout the entire written statement, no plea of res judicata is raised by arguing that the awards issued by the Arbitrators constitute res judicata concerning the claims raised in the Suit.

"Notably, no issue of res judicata was framed because such an issue was never raised in the written statement or otherwise urged at the stage of settlement of issues. Therefore, the parties, including the Appellant, had no opportunity of knowing that such an issue was going to be invoked and that he was expected to deal with the same," the Court observed.

It stated that it is only after noting that this was the most seminal issue in the Suit, the single judge proceeded to frame an additional issue, invoking the bar of res judicata under Section 11 of the CPC, in the final judgment and decree.

The Court conclusively held that an additional issue of bar of res judicata cannot be included in the final judgment without providing the parties with proper notice and an adequate opportunity to present evidence.

"In this case, as noted earlier, no defence of res judicata was raised in the written statement. No issue of res judicata was initially framed on 14 January 2011. Therefore, if an additional issue relating to res judicata needed to be framed, the parties should have been given an opportunity to address this issue by leading relevant evidence or, if they chose to rely solely on documents, by referring to all relevant documents for determining this issue....," the Court observed.

Stressing that plea of res judicata must be pleaded and proved in a specific manner which may even require the production of the two plaints on which the plea of res judicata is based and that there are several defences available to a party when faced with a plea of res judicata, the Court cited V Rajeshwari Vs. T.C. Saravanabava, wherein it was held that the plea of res judicata is founded on proof of certain facts and then by applying the law to the facts so found.

"It is, therefore, necessary that the foundation for the plea must be laid in the pleadings, and then an issue must be framed and tried. A plea not properly raised in the pleadings or in issues at the stage of the trial would not be permitted to be raised for the first time at the stage of appeal. Furthermore, not only must the plea be taken, but it must also be substantiated by producing copies of the pleadings, issues, and judgment from the previous case," the Court observed.

The Court was satisfied that the procedure adopted was not entirely consistent with the principles of natural justice, and therefore the impugned judgment and decree were liable to be set aside.

The Appeal was thus allowed.

Cause Title: M/s. Unique Integrated Transport & Management Consultancies Pvt. Ltd. vs. Mahanagar Telephone Nigam Ltd. & Ors. (2025:BHC-OS:10200-DB)

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