Res judicta sec.11 of cpc
adv. rajeev ( rajoo )
(Querist) 20 August 2016
This query is : Resolved
Dear Learned Members,
My question is that Daughter has filed a suit for partition claiming her in the share of her father in an ancestral properties, contending that suit properties are purchased out of the income of the ancestral business. Prior to this daughter's father had filed a suit for partition claiming his share in the ancestral properties, but that suit dismissed. observing that plaintiff failed to prove the ancestral properties.In this case defendants had denied that suit properties are ancestral properties. In this suit daughter was not a party to the suit.
In the suit filed by daughter, defendants have filed Ws and admitted that there was an ancestral business.
Now the defendants have filed an application u/s sec.11 of CPC stating that already suit filed by the father is dismissed as such sec. 11 is applicable to the daughter's suit.
In my opinion first of all daughter was not a party to the suit and defendants had not agreed that suit properties were not ancestral property, which they have admitted in the daughter's suit. As such sec. 11 is not applicable. Whether I am wrong or right. Any citations please let me know.
dr g balakrishnan
(Expert) 21 August 2016
resjuducata not applicable pls. i agree with you.
cherukuri prasad
(Expert) 21 August 2016
Res Judicata applies to issues not to parties. In the eye of law, the suit filed by the daughter is non-maintainable because there is nothing to decide by the court as it was already decided that the defendants do not have any right in the ancestral property.
Ms.Usha Kapoor
(Expert) 21 August 2016
Your assumption is right. That's because parties are not the same. In the dismissed first suit daughter was not a party. For the application of doctrine of resjudicata parties should be same.Here daughter is a different party. Secondly main issue of property being ancestral was admitted by defendants unlike in the dismissed suit giving a new cause of action. Hence the suit is not barred by the doctrine of resjudicata.
Read section 11 and order 2 rule 2 of CPC.
adv.bharat @ PUNE
(Expert) 21 August 2016
For the application of doctrine of resjudicata parties should be same.Here daughter is a different party.
Res Judicata applies to issues not to parties.
Hence the suit is not barred by the doctrine of resjudicata.
dev kapoor
(Expert) 22 August 2016
"Daughter has filed a suit for partition claiming her in the share of her father in an ancestral properties" but as the suit filed by her father was dismmised on failure to prove 'ancestral property',suit in the present form is not maintainable.As the decision of court holding the suit property as NOT ANCESTRAL,how can a daughter claim her share stating that suit property is"ancestral property."Indeed the defendants have admitted in WS in the daughter's suit that suit-property is 'ancestral property',they are estopped in that, as in earlier suit they must have denied that property is ancestral and not they cannot take a diagonally different plea.
ramesh
(Expert) 22 August 2016
If the respondents are one and the same in both the suits they they are estopped in the later suit.
as they can not state differently in two suits for the same issue.
adv. rajeev ( rajoo )
(Querist) 22 August 2016
Thanx to all the learned members.
when it is admitted by the defendants in the suit filed by the daughter, which was not admitted in the previous suit, in my opinion it is an hide and seek play by the defendants played in the earlier suit. So in my opinion daughter has right to seek her share. Res judicta is not applicable.
vamsi
(Expert) 22 August 2016
Resjudicata is applicable on the issues not for the parties. Te suit which is filed by the daughter is maintainable. It is not barred under the doctrine of resjudicata.
krishna mohan
(Expert) 23 August 2016
Analysis to the core. Really interesting. Since matter not reached finality Res judicata seem not apply.
dev kapoor
(Expert) 23 August 2016
Hi Mr.Mohan,
Please read these words in question, " Prior to this daughter's father had filed a suit for partition claiming his share in the ancestral properties, but that suit dismissed"
Moreover question has been satisfactorily addressed by experts.
dr g balakrishnan
(Expert) 23 August 2016
res judicata is not applied robotically and mechanically but by proper reasoning based logic only that way sec 11 in the CPC 1908 was born.
Dr J C Vashista
(Expert) 24 August 2016
The father applied for partition of ancestral property was declined by defendants (through WS) on the plea that the property is "not ancestral" consequently suit was dismissed, subsequently "daughter of father (who was not a party in the suit)" filed the suit for partition of the "same" property is which admitted by defendants as ancestral property/its proceeds, is bit confusing/require further elaboration/ clarification.
I agree with experts, doctrine of res-judicata is inapplicable in the suit filed by daughter.
dr g balakrishnan
(Expert) 03 February 2017
Res judicata is a lehgal proposition when a matter is finally decided it cannot be revisited per se sec 11 of CPC 1908
