Lack of jurisd. v/s irregular exercise thereof

What is the cause of action/grounds for the second suit?

Bar of limitation is a jurisdictional error

Normally, Res-judicata applies and 2nd suit must fail on that score.

Filing 2nd suit is abuse of process of law.  Appeal is the proper remedy.

shridhar please read the problem carefully , he has raised a legitimate query.

If in spite of alternative statutory remedy petition under Article 226/227 of the constitution is filed in the High Court and the High Court entertain the same, does it also amount to Jurisdictional error? I am of the view that all error of law are Jurisdictional error.

@JSDN

Sir, I could understand the query.

That's why I asked the author to provide the grounds of the 2nd suit.

Why because if the 2nd suit is on the ground that the lack of jurisdiction is based on purely question of law, res-judicata will not apply.  Otherwise, if it involves purely question of fact or mixed question of fact and law, then 2nd suit will not lie on the ground of res-judicata.

Padam,

A Nice question indeed. 

Well you've not specified whether the Defendant took the plea specifically in the first suit. If he did not - it amounts to a waiver - and no collateral suit can be filed in any case. Though the court is mandated as per S.3 of the Limitation Act, 1963 to dismiss the suit even if limitation is not set up as a defence, failure or oversight of court would not in any manner - lead to the decree being called a nullity or void. - and a decree once passed can be challenged in collateral proceedings only when it's a nullity or void. Which means inherent lack of jurisdiction. The decree becomes non est as the court had no authority to pass the decree. That is not the case here. 

However if he did take up the issue - and court gave a wrong decision - it would not bind as erroneous decisions on pure questions of law are not RJ - as per Mathura Prasad v. Dossibai (1979) and M.A.Susai v. Issabella (1991) 

My opinion is that above case is not a jurisdictional error.

All jurisdictional errors are error of law but not other way round always and the gap is between the two is wide enough to distinguish them from each other.

Had the party approached court within the Bar of Limitation, was the court competent to hear the matter?

-------------If the answer is Yes, then in above case court may have erred to exercise the jurisdiction  but it it is not a inherent want of jurisdiction.

Validity of order order may challenged in execution or by way of collateral proceedings if the order is void ab initiobut if it is voidable the one has to take recourse to appeal or revision at competent jurisdiction.

What may be deemed as void ab initio order?

Ans:

If the order suffers from inherent want of jurisdiction (if Court didn't have jurisdiction at all to exercise it, then applying it erroneously does not come into picture here, and hence it is one of such instance of 'want of jurisdiction')

OR

If Order is obtained by fraud upon court (as again fraud upon the opposite party) but in the latter case, one again has to get it recalled/set aside by moving application under sec 151 or under review sec 114. But colleteral proceedings aren't justfied (else people would resort to filing a declaratory suits or collateral suits in the same jurisdiction 'to get the orders declared as null and void' instead of approaching to appeal or review jurisdiction!!!) as RJ does come into action.

I feel that in above  case 2nd suit as a collateral proceedings is a abuse of process.

Shridhar and all others.

What he says that he has filed a second suit for declaration the decree as nulity and opponent has taken objection that he should have gone in appeal.

The issue posed is very important and comes in every day life in many court cases.

Please go futher deep in this matter since it is of immense importance .