# MATHURA PRASAD BAJOO JAISWAL & ORS v. DOSSIBAI N. B. JEEJEEBHOY

- **Citation:** [1970] 3 S.C.R. 830
- **Court:** Supreme Court of India
- **Decided:** 1970-02-26
- **Case number:** Civil Appeals Nos. 1061 and 1627 to 1629 of 1966
- **Bench:** J. C. Shah, K. S. Hegde, A. N. Grover
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/mathura-prasad-bajoo-jaiswal-ors-v-dossibai-n-b-jeejeebhoy-4972
- **Pages:** 7

## Headnote

B
Code of Civil Procedure
(Act 5 of
1908), s. 11-Jurisdiction of
Court-Erroneous decision-If res judicata.
The appellant obtained lease of an open land for constructioμ of buildings.
After the constructions, the appellant applied 'for determination of
standard rent under the Bombay Rents, Hotel and Lodging House Rates
Control Act, 1947.
The application was rejected holding that the provi·
C
sions of the Act did not apply to open land let for construction. This view
\ras confirmed by the High Court. Sometime thereafter in another case
the High Court held that the question whether the provisions of the Act
applied to any particular lease must be determined on its terms and a
building lease in respect of an open plot was not excluded from the provisions of the Act solely because open land may be used from reside·nce or
educational purposes only after a structure is built thereon.
Relying upon
this judgment, 1hc appellant filed a fresh application for determining the
D
standard rent. The Trial Judge rejected the, application holding that question
of the applicability of the Act was res judicata since it had been finally
decided by the High Court between the same paq.ies in respect of the same
land in the earlier proceeding for fixation of standard rent.
The order
was confiimed by first appellate court and on further appeal by the High
Court.
HELD : The judgment did not operate as res judicata.
E
A question relating to the jurisdiction of a Court cannot be deemed to
have been finally determined by an erroneous decision o'f the Court.
If
by an erroneous interpretation of the statute the court holds that it has no
jurisdiction, the decision will not, operate as res judicata.
Similarly by an
erroneous
0decision if the Cotirt assumes
jurisdiction
which it does not
possess under the statute, the decision will not operate as res judicata be·
hrcen the same parties, whether the cause
of action
in the subsequent
F
litigation is the same or other\vise.
In determining the application of the rule of res judicnta the court is
not concerned \vith the correctness or otherwise of the earlier judgment.
The matter in issue. if it is one purely of fact, decided in the earlier pro·
ceedins by a competent court must in a subsequent litigation between the
same parties be regarded as finally decided and cannot be reopened.
A
nlixed question o'f law and fact determined in the earlier ptoceeding be·
G
t\\·een the same parties may not, for the ~me reason, be- questioned in a
subsequent proceeding between the same parties where the cause of action
is the same, for the expression
''the matter in issue" in s. 11, Code of
Civil Procedure means the right
litigated
between the parties, i.e., the
facts on which the right is claimed ot denied and the law applicable to the
determination of that issue.
Where. however, the question is one purely
of la\\' and it rcb.tes to the jurisdiction of the Court or a decision of the
Court sanctioning: son1ething which is illegal, by resort to the rule o'f res
H
judicata a party affected by the decision will not be precluded from
challenging the validity of th.at order because of the rule of res judicata.
for a rule of procedure can.not supersede the law of the land.
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MATHURA PRASAD V, DOSSIBAI (Shah, J.)
831
If the decision in the previous proceeding be regarded as conclusive it
will assume the status of a special rule elf law applicable to the parties relating to the jurisdiction of the Court, in derogation of the rule declared
by the 'Legislature.
f835G-836 Fl
Parllzasardhi Ayyangar v. Chinnakrishna Ayyangar,
I.LR. 5 Mad.
304, Chamanlal v. Bapubhai, I.LR. 22 Born. 669, Kanta Devi v. Kalalvati, A.LR. 1946 Lah. 419, Tarini Charan Bhattacharjee v. Keda1· Nath
Haldar, I.LR. 56 Cal. 723, and Broken Hill Proprietary Company Ltd.
v. Municipal Council of Broken Hill, 1926 A.C. 94, approved.
Chandi Prasad v. Maharaja Mahendra Mahrndra Singh, I.L.R. 23 All.
5, disapproved.
Bindeshwari Charan Singh v. Bagesl11vari, Chara

## Text

830
MATHURA PRASAD BAJOO JAISWAL & ORS.
v.
DOSSIBAI N. B. JEEJEEBHOY
February 26, 1970
A
(J. C. SHAH, K. S. HEGDE AND A. N. GROVER, JJ.]
B
Code of Civil Procedure
(Act 5 of
1908), s. 11-Jurisdiction of
Court-Erroneous decision-If res judicata.
The appellant obtained lease of an open land for constructioμ of buildings.
After the constructions, the appellant applied 'for determination of
standard rent under the Bombay Rents, Hotel and Lodging House Rates
Control Act, 1947.
The application was rejected holding that the provi·
C
sions of the Act did not apply to open land let for construction. This view
\ras confirmed by the High Court. Sometime thereafter in another case
the High Court held that the question whether the provisions of the Act
applied to any particular lease must be determined on its terms and a
building lease in respect of an open plot was not excluded from the provisions of the Act solely because open land may be used from reside·nce or
educational purposes only after a structure is built thereon.
Relying upon
this judgment, 1hc appellant filed a fresh application for determining the
D
standard rent. The Trial Judge rejected the, application holding that question
of the applicability of the Act was res judicata since it had been finally
decided by the High Court between the same paq.ies in respect of the same
land in the earlier proceeding for fixation of standard rent.
The order
was confiimed by first appellate court and on further appeal by the High
Court.
HELD : The judgment did not operate as res judicata.
E
A question relating to the jurisdiction of a Court cannot be deemed to
have been finally determined by an erroneous decision o'f the Court.
If
by an erroneous interpretation of the statute the court holds that it has no
jurisdiction, the decision will not, operate as res judicata.
Similarly by an
erroneous
0decision if the Cotirt assumes
jurisdiction
which it does not
possess under the statute, the decision will not operate as res judicata be·
hrcen the same parties, whether the cause
of action
in the subsequent
F
litigation is the same or other\vise.
In determining the application of the rule of res judicnta the court is
not concerned \vith the correctness or otherwise of the earlier judgment.
The matter in issue. if it is one purely of fact, decided in the earlier pro·
ceedins by a competent court must in a subsequent litigation between the
same parties be regarded as finally decided and cannot be reopened.
A
nlixed question o'f law and fact determined in the earlier ptoceeding be·
G
t\\·een the same parties may not, for the ~me reason, be- questioned in a
subsequent proceeding between the same parties where the cause of action
is the same, for the expression
''the matter in issue" in s. 11, Code of
Civil Procedure means the right
litigated
between the parties, i.e., the
facts on which the right is claimed ot denied and the law applicable to the
determination of that issue.
Where. however, the question is one purely
of la\\' and it rcb.tes to the jurisdiction of the Court or a decision of the
Court sanctioning: son1ething which is illegal, by resort to the rule o'f res
H
judicata a party affected by the decision will not be precluded from
challenging the validity of th.at order because of the rule of res judicata.
for a rule of procedure can.not supersede the law of the land.
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MATHURA PRASAD V, DOSSIBAI (Shah, J.)
831
If the decision in the previous proceeding be regarded as conclusive it
will assume the status of a special rule elf law applicable to the parties relating to the jurisdiction of the Court, in derogation of the rule declared
by the 'Legislature.
f835G-836 Fl
Parllzasardhi Ayyangar v. Chinnakrishna Ayyangar,
I.LR. 5 Mad.
304, Chamanlal v. Bapubhai, I.LR. 22 Born. 669, Kanta Devi v. Kalalvati, A.LR. 1946 Lah. 419, Tarini Charan Bhattacharjee v. Keda1· Nath
Haldar, I.LR. 56 Cal. 723, and Broken Hill Proprietary Company Ltd.
v. Municipal Council of Broken Hill, 1926 A.C. 94, approved.
Chandi Prasad v. Maharaja Mahendra Mahrndra Singh, I.L.R. 23 All.
5, disapproved.
Bindeshwari Charan Singh v. Bagesl11vari, Charan Singh, L.R. 63 I.A.
53, doubted._
CIVIL APPELLATE JURISDICTION : Civil Appeals Nos. 1061
and 1627 to 1629 of 1966.
Appeals by special leave from the judgment and order dated
March 9, 10, 1965 of the Bombay High Court in Revision Applications Nos. 1428, 1427, 1430 and 1676 of 1961.
M. C. Chagla, J. L. Hathi, K. L. Hathi and K. N. Bhat for
the appellants (in all the appeals).
R. P. Bhat, Janendra Lal, R. A. Gagrat and B. R. Agarwa/a,
for the respondent (in all the appeals).
The Judgment of the Court was delivered by
Shah, J.
Under an indenture dated August 2, 1950, Dossibai-respondent in this appeal-granted a lease of 555 sq. yards
in village Pahadi, Taluka Borivli to Mathura Prasad-appellant
herein-for constructing buildings for residential or business purposes. The appellant constructed buildings on the land. He then
submitted an application in the Court of the Civil Judge, Junior
Division, Borivli, District Thana, that the standard rent of the land
be determined under s. 11 of the Bombay Rents, Hotel and Lodging House Rates Control Act, 1947. The Civil Judge rejected the
application holding that the provisions
of .the Bombay Rents,
Hotel and Lodging House Rates Control Act. 1947, did not apply
to open land let for constructing buildings for residence, education, business, trade or storage.
This order was confirmed on
September 28, 1955, by a si,ngle Judge of the Bombay High Court
in a group of revision applications : Mrs. Dossibai N. B. Jeejeeblwv
v. Hi11goo Manohar Missar: Nos. 233 to 242 of 1955.
But
in Vinayak Gopa/ Limaye v. Laxman Kashinath Athavale(1) the
High Court of Bombay held that the question whether s. 6(1) 0f
the Act applies to any particular lease must be determined on its
terms and a building lease in respect of an open plot is not ex-
(1) 1.L.R. [19561 Born. 827.
832
SUPREME COURT REPORTS
[1970] 3 s.c.R.
duded from s. 6(1) of the Act solely because open land may be
A
used for residence or educational purposes only after a structure
is built thereon. Relying upon this judgment, the appellant filed
a fresh petition in the Court of the Small Causes, Bombay, for an
order determining the standard rent of the premises. The application was filed in the Court of Small Causes because the area in
which the land was situated had since been included within the• B
limits of the Greater Bombay area. The Trial Judge rejected the
application holding that the question whether to an open piece
of land let for the purpose of constructing buildings for residence.
education, business or trade s. 6 ( 1) of the Act applied was res
judicata since it had been finally decided by the High Court between the same parties in respect of the same land in the earlier
proceeding for fixation of standard rent. The order was confirmC
ed by a Bench of the Court of Small Causes and by the High Court
of Bombay. With special leave, the appellant has appealed to this
Court.
The view expressed by the High Court of Bombay in Mrs.
Dossibai N. B. Jeejeebhoy v. Hingoo Manohar Missar (Civil) Revision Application No. 233 of 1955 (decided on September 28,
1955) was overruled by this Court in Mrs. Dossibai N. B. Jee;eebhoy v. Khemchand Gorumal & Others('). In the latter case the
Court affirmed the view expressed by the Bombay High Court in
Vinayak Gopal Limaye's case(2 ).
But all the Courts have held that the earlier decision of the
High Court of Bombay between the same parties and relating to
the same land is res judicata.
Section 11 of the Code of Civil
Procedure which enacts the general rule of res judicata, insofar
as it is relevant, provides :
"No Court shall try any suit or issue in which the
matter ilirectly and substantially in issue has been ilirectly 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 com~tent 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."
The Civil Judge, J uni()r Division, Borivli, was competent to try
the application for determination of standard rent, and he held
thats. 6(1) of the Bombay Rents, Hotel and Lodging House Rates
Control Act, 1947, did not apply to open land let for construction
of residential and business premises.
The rule of res judicata applies if "the matter directly and substantially in issue" in a suit or proceeding was ilirectly and sub-
(I) l.L.R. [1956J Born. 827.
(2) [1962J 3 S.C.R. 928.
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MATHURA PRASAD v. DOSSIBAI (Shah, J.)
833
stantially in issue in the previous suit between the same parties
and had been heard and finally decided by a competent ~o~rt.
The Civil Judge, Junior Division, Borivli, d~cided the appl~cat!on
between the parties to the present procec:dmg for detenrunation
of standard rent in respect of. the ~ame p1ec: of land let for con·
struction of buildings for res1denllal or busmess purposes. The
High Court has held that a decision of a com~tent Court may
operate as res judicata in respect of not only an lSSUe of fact, but
mixed issues of Jaw and fact and even abstract questions of law.
It was also assumed by the High Court that a decision relating to
the jurisdiction of the Court to ~ntertain or not to e1_1te~ain a
proceeding is binding and conclusive between these parlles m res·
pect of the same question in a later proceeding.
But the doctrine of res judicata belongs to the domain of pro·
cedure : it cannot be exalted to the status of a legislative direction
between the parties s<:> as to determine the question relating to the
interpretation of enactment affecting the jurisdiction of a Court
finally between them, even though no question of fact or mixed
question of Jaw and fact and relating to the right in dispute bet·
ween the parties has been determined thereby. A decision of a
competent Court on a matter in issue may be res judicata in an·
other proceeding between the same parties : the "matter in issue"
may be an issue of fact, an issue of JaW, or ~me 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-0pened 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.
A matter in
issue between the parties is the right claimed by one party and
denied by the other, and the claim- of right from its very nature
depends upon proof of facts and application of the relevant law
thereto.
A pure question of law unrelated to facts which give
rise to a right, cannot be deemed to be a matter in issue. When
it is said that a previous decision is res judicata, it is meant that
the right claimed has been adjudicated upon and cannot again be·
placed in contest between the same parties. A previous decision
of a competent Court on facts which are the foundation of the
right and the relevant law applicable to the deterniination of the
transaction which is the foundation of the right and the relevant
law applicable to the determination of the transactions which is
the source of 'the right is res judlcata.
A previous decision on a
matter in issue is a composite decision : the decision of law cannot be dissociated_ ~rom the decision on facts on which the right is
founded.-
A decJS10n on an issue of law will be as res judicata
in a subsequent proceeding between the same parties, if the cause
of action of the subsequent proceeding be the same as in the previous proceeding, but not when the cause of action is different, nor
834
SUPREME COURT REPORTS
[1970) 3 S.C.R.
when the law has since the earlier decision been altered by a competent authority, nor when the decision relates to the jurisdiction
of the Court to try the earlier proceeding, nor when the earlier
decision declares valid a transaction which is prohibited by law.
The authorities on the question whether a decision on a question of law operates as res judicata disclose widely differing views.
In some cases it was decided that a decision on a question of law
can never be res judicata in a subsequent proceedimg between the
same parties : Parthasardhi Ayyangar v. Chinnakrishna Ayyangar('); Chamanlai v. Bapubhai('); and Kanta Devi v. Kalawati( 3 ).
On the other hand Aikman, J., in Chandi Prasad v. Maharaja
Mahendra Mahendra Singh(') held that a decision on a question
of law is always res judicata.
But as observed by Rankin, C.J.,
in Tarini Charan Bhattacharjee v. Kedar Nath Haldar(') :
"Questions of law are of all kinds and cannot be
dealt with as though they were all the same. Questions
of procedure, questions affecting jurisdiction, questions
of limitation, may all be questions of law. In such questions the rights of parties are not the only matter for
consideration."
We may analyse the illustrative cases relating to questions of law,
decisions on which may be deemed res judicata in subsequent proceeding. In Bindeshwari Charan Singh v.
Bageshwari Charan
Singh( 6 ) the Judicial Committee held that a decision of a court
in a previous suit between the same parties that s. I 2A of the Chota
Nagpur Encumbered Estates Act 6 of 1876 which renders void a
trainsaction to which it applies was inappljcable, was res judicata.
In that case the owner of an impartible estate, after his estate was
relea~ed from management, executed a maintenance grant in favour of his minor son B, but without the sanction of the Commissioner as required by s. l 2A of the Act. B on attaining majority sued his father and brothers for a maintenance grant at the
rate of Rs. 4,000 per annum.
The claim was decreed, and the
plaintiff was awarded a decree for a grant of Rs. 4,000 inclusive
of the previous grant of 1909, and the Court held that the grant
of 1909 was valid in law.
The father implemented the decree
and made an additional maintenance grant upto the value of the
decreed sum. In an action by the sons of B's brothers challenging
the two grants on the plea that the grants were illegal and not
binding upon them, the Judicial Committee held that the plea was
barred as res judicata in respect of both the grants-in respect of
the first because there was an express decision on the validity of
the first grant in the earlier suit, and in respect of the second the
(I) I.LR. 5 Mad. 304.
(2) I.LR. 22 Born. 669.
(3) A.LR. [1946] Lah. 419.
(4) I.LR. 23 All. 5.
(5) l.L.R. 56 Cal. 723.
(6) LR. 63 I.A. 53. ·
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MATHURA PRASAD V, DOSSIBAI (Shah, /.)
835
decision in the first suit was res judicata as to the validity of the
second grant which was made in fulfilment of the obligation under
the Court's decision. The Judicial Committee held that in respect
of the first grant, the decision that s. 12A did not apply to the
grant, was res judicata, and in respect of the second grant the
construction between the same parties of s. 12A was res judicata.
Validity of the second grant was never adjudicated upon in any
previous suit; the second grant was held valid because between
the parties it was decided that to the grant of maintenance of an
impartible zamindari s. 12A of the Chota Nagpur Encumbered
Estates Act had no application. This part of the judgment of the
Judicial Committee is open to doubt.
Where the law is altered since the earlier decision, the earlier
decision will not operate as res judicata between the same parties :
Tarini Charan Bhattacharjee's case('). It is ol:!vious.that the matter in issue in a subsequent proceeding is not the same as in the
previous proceeding, because the law interpreted is different.
In a case relating to levy of tax a decision valuing property or
determining liability to tax in a different taxable period or event
is biinding only in that period or event, and is not binding in the
subsequent years, and therefore the rule of res judlcata has no
application; see Broken Hill Proprietary Company Ltd. v. Municipal Council of Broken Hill(').
A question of jurisdiction of the Court, or of procedure, or a
pure question of law unrelated to the right of the parties to a previous suit, is not res judicata in the subsequent suit. Rankin, C.J.,
observed in Tarini Charan Bhattacharjee's case(') :
"The object of the doctrine of res judicata is not to
fasten upon parties special principles of law as applicable to them inter se, but to ascertain their rights and
the facts upon which
these rights directly
and substantially depend; and to prevent
this ascertainment
from becoming nugatory by precluding the parties from
reopening or recontesting that which has been finally
decided."
A question relating to the jurisdiction of a Court cannot be deemed to have been finally determined by an erroneous decision of the
Court. If by an erroneous interpretation of the statute the Court
holds that it has no jurisdiction, the· question would not, in our
judgment, operate as res judicata.
Similarly by an erroneous decision if the Court assumes jurisdiction which it does not possess
under the statute, the question cannot operate as res judicata bet-
(l) l.L.R. 56 Cal. 723.
(2) [1926] A.C. 94.
836
SUPREME COURT REPORTS
[1970] 3 S.C.R.
ween the same parties,_ whether the cause of action in the subsequent litigation is the same or otherwise.
It is true that in determining the application of the rule of res
judicota the Court is not concerned with the correctness or otherwise of the earlier judgment.
The matter in issue, if it is one
purely of fact, decided in the earlier proceeding by a competent
court must in a subseguent 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 law, i.e. the interpretation of a statute,
it will be res judicata in a subsequent proceeding betwe.en the same
parties where the cause of actiqn is the same, for the expression
"the matter in issue" in s. 11 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.
In the present case the decision of the Civil Judge,
Junior Division, Borivli, that he had no jurisdiction to entertain
the application for determination of standard rent, is, in view of
the judgment of this Court, plainly erroneous : see Mrs. Dossibai
N. B. Jeejeebhoy v. Khemchand Gorumal & Others('). If the
decision in the previous proceeding be regarded as conclusive it
will assume the status of a special rule of law applicable to the
parties relating to the jurisdiction of the Court in derogation of
the rule declared by the Legislature.
The appeals are allowed, and the orders passed by the High
Court and the Court of Small Causes are set aside and the proceedings are remanded to the Court of First Instance to deal
with and dispose them of in accordance with law. There will be
no order as to costs throughout.
Y.P.
Appeals allowed.
(1) [1962] 3 S.C.R. 928.
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