Res judicata
Querist :
Anonymous
(Querist) 28 August 2011
This query is : Resolved
if a financial institution files a case in DRT and after trial it is decided by tribunal that instituion did not have jurisdiction to file in DRT, can the institution again file the case in civil court for the claim?
Advocate Bhartesh goyal
(Expert) 28 August 2011
Yes,if the case is within the period of limitation then the case may be filed else not.
Raj Kumar Makkad
(Expert) 28 August 2011
Yes. Even if a case is filed in the legal fora having no jurisdiction, the period spent there is also condoned and such litigation if originally filed with wrongful jurisdictional place within time is deemed to have been filed at subsequent place.
Chanchal Nag Chowdhury
(Expert) 28 August 2011
Yes. Res judicata occurs when the matter is finally decided between the parties. In this case, the matter was dismissed for want of jurisdiction & not on merits. Therefore,Res judicata does not apply.
prabhakar singh
(Expert) 28 August 2011
As already rightly pointed out by Mr.Chanchal Nag Chowdhury the matter does not relate to
RES JUDICATA.
Mr.Raj kumar Makkad is right in opining that period consumed in litigating in court having no jurisdiction can be excluded.
The problem in hand is covered by provisions contained in section 14 of the Limitation Act.In order to take benefit of this section the plaintiff/applicant seeking the benefit has to prove in subsequent proceedings that he/she was prosecuting the case with DUE DELIGENCE and in GOOD FAITH.
To drive the point home the very provision is reproduced here in below:
The Limitation Act, 1963
14. Exclusion of time of proceeding bona fide in court without jurisdiction -
(1) In computing the period of limitation for any suit the time during which the plaintiff has been prosecuting with due diligence another civil proceeding, whether in a court of first instance or of the appeal or revision, against the defendant shall be excluded, where the proceeding relates to the same matter in issue and is prosecuted in good faith in a court which, from defect of jurisdiction or other cause of a like nature, is unable to entertain it.
(2) In computing the period of limitation for any application, the time during which the applicant has been prosecuting with due diligence another civil proceeding, whether in a court of first instance or of appeal or revision, against the same party for the same relief shall be excluded, where such proceeding is prosecuted in good faith in a count of first instance or of appeal or revision, against the same party for the same relief shall be excluded, where such proceeding is prosecuted in good faith in a court which, from defect of jurisdiction or other cause of a like nature, is unable to entertain it.
(3) Notwithstanding anything contained in rule 2 of Order XXIII of the Code of Civil Procedure, 1908 (5 of 1908), the provisions of sub-section (1) shall apply in relation to a fresh suit instituted on permission granted by the court under rule of that Order, where such permission is granted on the ground that the first suit must fail by reason of a defect in the jurisdiction of the court of other cause of a like nature.
Explanation - For the purpose of this section, -
(a) In excluding the time during which a former civil proceeding was pending, the day on which that proceeding was instituted and the day on which it ended shall both be counted;
(b) Plaintiff or an applicant resisting an appeal shall be deemed to be prosecuting a proceeding;
(c) Misjoinder of parties or of causes of action shall be deemed to be a cause of a like nature with defect of jurisdiction.
