JUDGMENT By the Court.—Heard Sri S.A. Imam, learned counsel for appellant and Sri Kaushlendra Nath Singh, learned counsel for respondent No. 3. 2. This is appellant’s appeal under Section 96 of Code of Civil Procedure, 1908 (hereinafter referred to as ‘CPC’) arising out of order dated 4.8.2009 deciding issue No. 4 relating to res judicata against plaintiff & final Judgment and decree dated 26.3.2011 & 28.3.2011 passed by II Additional Civil Judge (Senior Division), Court No. 2, Ghaziabad. Answering issue No. 4, Court has held that Original Suit No. 400 of 2007 is barred by principles of res judicata and, accordingly, same has been dismissed. 3. Facts giving rise to present appeal, in brief, are as under : 4. Appellant M/s Tulison Industrial (Machines) Pvt. Ltd. (hereinafter referred to as ‘plaintiff-appellant’) is a company registered under provisions of Indian Companies Act, 1956 (hereinafter referred to as ‘Act 1956’) carrying on industrial activities, primarily for development and assistance of small scale industries. U.P. State Industrial Development Corporation, Kanpur (hereinafter referred to as ‘U.P.S.I.D.C.’) allotted industrial plot No. 9, Site No. 2, Loni Road, Ghaziabad, measuring 40,364 sq. yards to plaintiff-appellant, vide lease deed dated 23.1.1971. Term of lease was for a period of 90 years and duly registered with concerned Sub Registrar under the provisions of Registration Act, 1908. U.P.S.I.D.C. cancelled lease deed by order dated 31.1.1972. Thereafter, U.P.S.I.D.C. divided plot No. 9 in two parts, i.e., plot No. 9 measuring area 15,974 sq. yards and plot No. 9A measuring area 24,390 sq. yards. Another person was inducted by U.P.S.I.D.C. over plot No. 9 and plaintiff-appellant claimed to continue in possession over plot No. 9A. 5. In the meantime, plaintiff-appellant had submitted a representation to U.P.S.I.D.C. and same remained unanswered. Board of Directors of U.P.S.I.D.C. In the meeting dated 30.3.1977 resolved to restore plot No. 9A measuring 24390 sq. yards to plaintiff-appellant and it was also resolved that lease deed executed earlier in favour of plaintiff-appellant would be deemed to be subsisting. Plaintiff-appellant was also permitted to deposit Rs. 27,098/- on 10.4. 1972. This decision of U.P.S.I.D.C. dated 30.3.1977 came to the knowledge of plaintiff-appellant in 1993. yards to plaintiff-appellant and it was also resolved that lease deed executed earlier in favour of plaintiff-appellant would be deemed to be subsisting. Plaintiff-appellant was also permitted to deposit Rs. 27,098/- on 10.4. 1972. This decision of U.P.S.I.D.C. dated 30.3.1977 came to the knowledge of plaintiff-appellant in 1993. Despite that resolution of Board of UPSIDC for restoration of plot No. 9A is subsisting in favour of plaintiff-appellant and same has not yet revoked, proceedings were initiated under U.P. Public Premises (Eviction of Unauthorized Occupants) Act, 1972 (hereinafter referred to as ‘ U.P. Act 1972’), for eviction of appellant from plot in question. Prescribed Authority, Ghaziabad passed order on 21.3.1980 for eviction of plaintiff-appellant from plot in question. Misc. Appeal No. 8 of 1980 was filed by plaintiff-appellant under Section 9 of U.P. Act, 1972 challenging order dated 21.3.1980. This appeal was allowed by Court of IV Additional District Judge, Ghaziabad, vide Judgment dated 31.10.1984. 6. Thereafter, plaintiff-appellant instituted Original Suit No. 984 of 1984 for restoration of possession over plot No. 9 measuring 15,974 sq. yards which, in the meantime, was allotted to M/s Hind Forg, a proprietorship concern and possession was handed over to it. Aforesaid suit was decreed, vide Judgment and decree dated 16.3.2004. Certified copy of Judgment dated 16.3.2004 was communicated to Regional Manager, U.P.S.I.D.C. on 31.7.2004. Thereafter, vide letter dated 29.7.2004, followed by subsequent communications dated 20.10.2004, 18.12.2004, 10.1.2005, 17.1.2005 etc., plaintiff-appellant requested for delivery of possession over part of original plot No. 9 measuring 15,975 sq. yards. U.P.S.I.D.C., however, invited plaintiff-appellant inviting for amicable settlement of dispute in terms of resolution dated 30.3.1977. However, pending aforesaid proceedings for amicable settlement, U.P.S.I.D.C. published a news item inviting applications for allotment of plot measuring 20,000 sq. meters without mentioning plot number or giving other details of plot. On inquiry being made by plaintiff-appellant, it came to his knowledge that said advertisement is for land in dispute, which was earlier allotted to plaintiff-appellant, i.e., plot Nos. 9 and 9A. Under these circumstances, plaintiff-appellant filed Civil Misc. Writ Petition No. 68650 of 2006 seeking following reliefs : “i) to issue a writ, order or direction calling for the records and to quash the impugned paper advertisement dated 8.11.2006 (Annexure 10 to this writ petition). 9 and 9A. Under these circumstances, plaintiff-appellant filed Civil Misc. Writ Petition No. 68650 of 2006 seeking following reliefs : “i) to issue a writ, order or direction calling for the records and to quash the impugned paper advertisement dated 8.11.2006 (Annexure 10 to this writ petition). ii) to issue any other writ, order or direction restraining the respondents from interfering with the right and possession of the petitioner over Plot No. 9A, Site No. 2, Loni Road, Ghaziabad, pursuant to the paper advertisement dated 8.11.2006. iii) to issue any other writ, order or direction which this Hon’ble Court made deem fit and proper under the circumstances of the instant case so that justice be done. iv) to award cost of the petition to the petitioner as against the respondents.” 7. Writ petition was contested by U.P.S.I.D.C. stating that plaintiff-appellant had initially deposited earnest money of Rs. 18,426/- and balance amount was to be paid in annual installments with interest of Rs. 1,60,790/- in eight yearly installments with interest @ 9% per annum but plaintiff-appellant failed to deposit said installments and, as such, it committed breach of terms and conditions of lease deed. Therefore, lease was cancelled by U.P.S.I.D.C. On 31.1.1972. After cancellation of said allotment, plot No. 9 was divided into two parts whereafter plot No. 9A was allotted to M/S K.G. Plastochem India Private Ltd. Lease deed in favour of M/S K.G.. Plastochem India Private Ltd. was executed on 12.12.2006 and physical possession was handed over on 13.12.2006. So far as resolution dated 30.3.1977 is concerned, it was pleaded that pursuant thereto, plaintiff-appellant had to execute a compromise which he failed to enter and said resolution lost its efficacy. 8. This writ petition was decided, vide Judgment dated 5.12.2007 and relevant extract of said Judgment reads as under : “Learned counsel for the petitioner vehemently urged that the decision taken by the Board in its meeting held on 30.3.1977 for restoring the possession of plot No. 9A in favour of the petitioner has not been subsequently modified or superseded by any other resolution of the Board and, therefore, there was no occasion for the respondent Corporation to issue the advertisement for allotment of the said plot. Sri Vivek Mathur, learned counsel appearing for the respondent Corporation, however, submitted that the resolution of the Board clearly required a compromise to be entered into between the petitioner and the respondent Corporation but no such compromise was executed and, therefore, in the absence of any such compromise, the resolution of the Board does not help the petitioner at all. He further contended that the petitioner has approached this Court after a period of almost 29 years from the date the Board passed the resolution and, therefore, the petitioner is not entitled to any relief whatsoever. Sri H.N. Singh, learned counsel appearing for the private respondent, in whose favour the said plot has been allotted, made similar statements. It is not in dispute that as the petitioner had failed to comply with the terms and conditions contained in the lease-deed executed on 23.1.1971, the allotment of plot No. 9 in favour of the petitioner had been cancelled by the UPSIDC by the order dated 31.1.1972. The petitioner has placed reliance upon the resolution of the Board taken in the meeting held on 30.3.1977 but the said resolution does not help the petitioner as the compromise deed was never executed between the petitioner and the respondent Corporation as was contemplated under the resolution. The petitioner kept quite for a long period of 29 years and if he was really interested in the compromise he would have approached this Court at the earliest but the petitioner did not do so. On other hand, the petitioner vide Original Suit No. 984 of 1984 for allotment of 15965 sq. yds. even though under the resolution of the Board, the petitioner was not entitled for allotment of the said area. The conduct of the petitioner clearly disentitles the petitioner from claiming any relief under Article 226 of the Constitution. The petitioner never wanted to implement the resolution of the Board. It is only when the advertisement was issued by the respondent Corporation on 8.11.2006 for allotment that the petitioner approached this Court. This apart, the petitioner cannot derive any benefit from the resolution of the Board as the compromise that was required to be entered into was never executed between the parties. There is, therefore, no merit in this petition. It is, accordingly, dismissed.” 9. This apart, the petitioner cannot derive any benefit from the resolution of the Board as the compromise that was required to be entered into was never executed between the parties. There is, therefore, no merit in this petition. It is, accordingly, dismissed.” 9. While aforesaid writ petition was pending, vide plaint dated 9.3.2007, plaintiff-appellant instituted Original Suit No. 400 of 2007 impleading U.P.S.I.D.C. and its Regional Manager, Ghaziabad as defendant Nos. 1 &2 and M/s Plastochem India Private Ltd. Sole prayer sought therein reads as under : “(a) That through the decree of prohibitory injunction the defendants may kindly be restrained from evicting the plaintiff from the plot No. 9A measuring 24390 sq. yards situated in site No. 2 Loni Road, Industrial Area, Ghaziabad without adopting due process of the law. The defendant be further restrained from making any kind of development of the land of the said plot or allowing any other person to carry out any kind of development on the land of the said plot.” 10. Before Trial Court, plaintiff-appellant also filed an application for ad interim injunction under Order 39 Rule 1 & 2 C.P.C. alongwith application 6C, which was decided by order dated 20.11.2007. While allowing said application, Trial Court restrained defendants from evicting plaintiff-appellant from disputed land except in accordance with law and not forcefully. 11. Defendant No. 3 in Original Suit No. 400 of 2007, i.e., M/s K.G. Plasto Chem (India) Private Ltd. preferred F.A.F.O. No. 3390 of 2007 before this Court and this Court initially stayed injunction order dated 20.11.2007. Subsequently, same was confirmed on 15.10.2008. Plaintiff-appellant then moved recall application wherein this Court on 26.5.2009 passed an order directing that respondents shall not be evicted from premises in question. 12. Subsequently, same was confirmed on 15.10.2008. Plaintiff-appellant then moved recall application wherein this Court on 26.5.2009 passed an order directing that respondents shall not be evicted from premises in question. 12. Original suit No. 400 of 2007, in the meantime, proceeded further and Trial Court formulated following issues : ^^mHk; i{kksa ds vfHkopuksa ds vk/kkj ij fuEufyf[kr okn fcUnq l`ftr fd;s tkrs gSa%& 1- D;k yht ds fujLrhdj.k dk vkns'k fnukad 31-1-72 voS/k 'kwU; ,oa fu"izHkkoh gS] ;fn gka rks izHkko~+\ 2- D;k izfroknh la0 1 o 2 csn[kyh dk vkns'k izkIr djs cxSj oknh dks csn[ky djus ,oa fookfnr lEifRr dks izfroknh la0 3 dks vkcafVr djus esa l{ke Fks] ;fn gka rks izHkko\ 3- D;k izfroknh la0 1 o 2 }kjk oknh dks fof/kd izfdz;k viukdj fookfnr lEifRr ls csn[ky fd;k x;k] tSlk fd izfroknh dk dFku gS] ;fn gka rks izHkko\ 4- D;k nkok oknh jsl tqfMdsVk ds fl+)kUr ls ckf/kr gS\ 5- D;k nkok oknh fofufnZ"V vuqrks"k vf/kfu;e dh /kkjk 34] 41 ls ckf/kr gS\ 6- D;k izfroknh la0 3 ,d cksukQkbM ijpstj gS vkSj izfroknh la0 3 dh dksbZ vf/kdkj mlds i{k esa izfroknh la0 1 o 2 }kjk fu"ikfnr yht MhM ds vk/kkj ij izkIr gks x;k gS] ;fn gka rks izHkko\ 7- D;k nkok oknh lh-ih-lh- ds vkns'k 7 fu;e 22 ds rgr [kkfjt gksus ;ksX; gS\ 8- D;k oknh dks dksbZ okn gsrqd izkIr ughsa gqvk\ 9- D;k nkok oknh vYi ewY;kafdr gS vkSj iznRr U;k; 'kqYd vi;kZIr gS\ 10- D;k izfroknh oknh ls fo'ks"k gtkZ ikus dk vf/kdkjh gS\ 11- vuqrks”k\^^ On the basis of the pleadings of both the parties, the following issues are framed: 1. Whether the order dated 31.11.1972 for cancellation of the lease is illegal, null and void? If so, its effect? 2. Whether the defendants 1 and 2 had the right to evict the plaintiff and allot the disputed property to the defendant 3 without obtaining the eviction order? If so, its effect? 3. Whether the plaintiff, as averred by the defendant, was evicted by the defendant 1 and 2 by following legal process? If so, its effect? 4. Whether the claim of the plaintiff is barred by the principle of res judicata? 5. Whether the claim of the plaintiff is barred by Sections 34 and 41 of the Specific Relief Act? 6. 3. Whether the plaintiff, as averred by the defendant, was evicted by the defendant 1 and 2 by following legal process? If so, its effect? 4. Whether the claim of the plaintiff is barred by the principle of res judicata? 5. Whether the claim of the plaintiff is barred by Sections 34 and 41 of the Specific Relief Act? 6. Whether the defendant 3 is a bona fide purchaser and the defendant 3 has acquired any right by virtue of the lease deed executed in his favour by the defendant 1 and 2? If so, its effect? 7. Whether the claim of the plaintiff is liable to be rejected under Order 7 Rule 22 of the C.P.C.? 8. Whether the plaintiff had no cause of action? 9. Whether the claim of the plaintiff is undervalued and Court fee paid is insufficient? 10. Whether the defendant is entitled to get special compensation from the plaintiff? 11. Any relief? (English translation by the Court) 13. Defendants sought to press before Trial Court to decide issue 4 as a preliminary issue which was not accepted by it. Hence, defendant 3, M/s K.G. Plasto Chem (I) Private Limited came to this Court by way of Civil Misc. Writ Petition No. 459 of 2009 and stated that issue of res judicata being an issue going to root of matter, same should be decided as a preliminary issue. Writ petition was decided by learned Single Judge (Hon’ble Sabhajeet Yadav, J), vide Judgment dated 5.3.2009 and allowing same, learned Single Judge set aside Trial Court’s order dated 17.10.2008 whereby it has held that issue not. 4 shall be decided alongwith other issues. This Court directed Trial Court to decide issue relating to res judicata as a preliminary issue and thereafter to proceed to decide suit accordingly. Paragraph Nos. 27, 28 and 29 of said Judgment read as under : “27. In view of the aforesaid discussion, I am of the considered opinion that the view taken by Court below is wholly erroneous and contrary to the view taken by me, therefore, the impugned order dated 17.10.2008 cannot not be sustained and the same is hereby quashed. Paragraph Nos. 27, 28 and 29 of said Judgment read as under : “27. In view of the aforesaid discussion, I am of the considered opinion that the view taken by Court below is wholly erroneous and contrary to the view taken by me, therefore, the impugned order dated 17.10.2008 cannot not be sustained and the same is hereby quashed. The trial curt is directed to consider the case of the petitioner afresh in the light of observations made herein before and decide the issue of res judicata raised by the petitioner as preliminary issue first and thereafter proceed with the suit accordingly and shall decide the same within a period of six months from the daate of production of certified copy of the order passed by this Court. 28. However, the question of res judicata shall be decided expeditiously preferably within a period of one month from the date of production of certified copy of this order before the Court concerned. 29. With the aforesaid observation and direction, writ petition succeeds and allowed to the extent indicated herein before.” 14. Thereafter, Trial Court has decided issue 4, vide order dated 4.8.2009, answering in favour of defendants. It has held that since plaintiff-appellant has already lost before this Court in Writ Petition No. 68650 of 2006, wherein also a mandamus restraining respondents from interfering with right and possession of plaintiff-appellant over plot No. 9A, Site II, Loni Road, Ghaziabad was prayed for and declined, hence, aforesaid Judgement between parties operates as res judicata and original suit for prohibitory injunction, therefore, was not maintainable. There was no mention of word ‘dismissal of suit or consignment of record’. Thus, an amendment application was filed by defendant 3, which was allowed by order dated 26.3.2011 and Court below directed for preparation of formal decree accordingly. This order dated 4.8.2009 as amended by order dated 26.3.2011 has been assailed in present appeal whereby suit was dismissed as barred by principle of res judicata. 15. Learned counsel for plaintiff-appellant contended that writ petition was dismissed by Judgement dated 5.12.2007 on the ground of laches and, therefore, it would not operate as res judicata and Court below has completely erred in law in taking a view otherwise. It is said that Trial Court has misread Judgment of writ Court that writ petition was dismissed on merits, which was factually wrong. It is said that Trial Court has misread Judgment of writ Court that writ petition was dismissed on merits, which was factually wrong. Hence, findings recorded in respect of issue 4 are also perverse. He argued that reliefs sought in writ petition and that sought in suit, are differently separate/different, hence, Section 11 was not attracted in case in hand. Learned counsel lastly contended that M/s K.G. Plastochem (India) Private Ltd. defendant 3 has surrendered lease to U.P.S.I.D.C. during pendency of Original Suit, vide letter dated 11.6.2008,and, in that view of matter, there was no occasion to take any step for ouster of plaintiff-appellant from land in dispute and Trial Court by applying principle of res judicata for dismissing suit, has committed manifest illegality. 16. Learned counsel appearing for defendant-respondent U.P.S.I.D.C. contended that writ petition was dismissed on merits and not on laches as claimed. Even otherwise relief against eviction or continuous possession in fact were same and, therefore, suit has rightly been dismissed as barred by principle of res judicata. 17. In our view, two points for determination have arisen to decide this appeal : (I) Whether Civil Misc. Writ Petition No. 68650 of 2006 decided by Judgment dated 5.12.2007 was decided on merits or dismissed only on the ground of laches? (ii) Whether Court below has rightly held and applied principle of res judicata by answering issue 4 in favour of defendants and has rightly dismissed suit? 18. We have already quoted operative part of Judgment dated 5.12.2007 passed by Division Bench of this Court in plaintiff-appellant’s Civil Misc. Writ Petition No. 68650 of 2006. A finding of fact has been recorded therein that plaintiff-appellant failed to comply with terms and conditions of lease deed dated 23.1.1971. It has also recorded finding that resolution was passed on 30.3.1977 but plaintiff-appellant itself has failed to execute a compromise deed in terms of said resolution and kept quite for a period of 29 years which shows that plaintiff-appellant was not interested in compromise. It also refers to Original Suit No. 984 of 1984 filed by plaintiff-appellant for allotment of plot No. 9 area 15965 sq. yards which shows that neither it was entitled for land in question nor said plot No. 9 area 15965 was in his possession. It also refers to Original Suit No. 984 of 1984 filed by plaintiff-appellant for allotment of plot No. 9 area 15965 sq. yards which shows that neither it was entitled for land in question nor said plot No. 9 area 15965 was in his possession. Court then held that conduct of plaintiff-appellant disentitled it from claiming any relief under Article 226 of Constitution of India as it never wanted implementation of resolution dated 30.3.1977 of Board and it is only when advertisement was published on 8.11.2006 by U.P.S.I.D.C. for allotment of land in question that it has approached this Court. Writ petition, therefore, was dismissed on merits, clearly and apparently, as is evident from the Judgment. It has not been dismissed on the ground of laches though silence maintained by plaintiff-appellant for a period of 29 years is one of the considerations besides others. Thus, submission on the part of plaintiff-appellant that writ petition was dismissed only on the ground of laches is not correct. Point 1 is, therefore, answered against plaintiff-appellant. 19. Now we come to second question. Before discussing legal niceties of issue, we find it appropriate to have certain facts, as have emerged from record, in a chronological manner : 20. In 1971, there was a single plot No. 9 in industrial area, Site II, Loni Road, Ghaziabad owned by U.P.S.I.D.C. measuring 40,364 sq. yards. A lease deed was executed on 23.1.1971 between U.P.S.I.D.C. through its Executive Engineer and another and plaintiff-appellant in respect of aforesaid land leasing only for a period of 90 years commencing from 23.1.1971. Copy of lease deed dated 23.1.1971 shows that lease deed was executed in consideration of Rs. 18,426/-, which was already paid and balance amount of Rs. 1,60, 970 with 9 per cent interest was payable in eight yearly installments of Rs. 22900.77, by 23rd September of each year commencing from 23.9.1971. Last installment was payable by 23.9.1978. Though plaintiff-appellant has pleaded that possession of entire land was also given and mentioned in the lease deed so executed, but we find neither mention of any such fact in the lease-deed itself nor any memo of possession or other document transferring possession to plaintiff-appellant by U.P.S.I.D.C. Plaintiff-appellant also failed to deposit installment due in September 1971. Hence, U.P.S.I.D.C. cancelled lease deed, vide order dated 31.1.1972. Said cancellation was made after giving notice to plaintiff-appellant. Hence, U.P.S.I.D.C. cancelled lease deed, vide order dated 31.1.1972. Said cancellation was made after giving notice to plaintiff-appellant. Thereafter, U.P.S.I.D.C. bifurcated plot in two parts, i.e., plot No. 9 area 15,974 sq. yards and plot No. 9A area 24,390 sq. yards. Plot No. 9A was allotted to M/s Prem Engineering Works and Plot No. 9 was allotted to Ghaziabad Municipal Board. M/s Prem Engineering Works intended to set up an industrial unit while Ghaziabad Municipal Board intended to set a milk processing unit. Later on Ghaziabad Municipal Board dropped scheme and surrendered allotment. Thereafter, plot No. 9 was allotted to National Test House for setting up a branch test house. Lease deed in respect of plot No. 9A was executed in favour of M/s Prem Engineering Works on 24.1.1974. Plaintiff-appellant on 1.1.1974 unauthorisedly encroached upon land numbered as 9A, allotted to M/s Prem Engineering works. Thereupon, proceedings were initiated against plaintiff-appellant before Prescribed Authority under the provisions of U.P. Act 1972. It passed order for eviction on 21.3.1980. Against this order of eviction, plaintiff-appellant preferred Misc. Appeal No. 8 of 1980 which was allowed, vide Judgment dated 31.10.1984 on the ground that mandatory notice under Section 4(1) of the U.P. Act 1972 was not issued by Prescribed Authority to plaintiff-appellant. Order dated 21.3.1980 passed by Prescribed Authority was set aside, but appellate Court left it open to to U.P.S.I.D.C. for initiating proceeding according to law if it so chooses. 21. This fact is also admitted to plaintiff-appellant that possession of plot No. 9, was with U.P.S.I.D.C. and handed over to person to whom it was allotted. However, it pleaded that possession of plot No. 9A area 24390 sq. yards remained with plaintiff-appellant. It appears that subsequently even M/S Prem Engineering Works withdrawn. Thereafter public notice was issued on 8.11.2006 for allottment of plot No. 9A which was actually allotted to M/s K.G. Plasto Chem (India) Private Ltd. on 5.12.2006 and lease deed was executed on 12.12.2006. In para 30 of written statement filed on behalf of defendants 1 and 2 before Court below, it was pleaded that possession of plot No. 9A was given to M/S K.G. Plastochem (I) Private Ltd. on 13.12.2006. In para 30 of written statement filed on behalf of defendants 1 and 2 before Court below, it was pleaded that possession of plot No. 9A was given to M/S K.G. Plastochem (I) Private Ltd. on 13.12.2006. Further in their written statement filed before Court below, defendants 1 and 2 seriously disputed plaintiff-appellant’s claim of possession over plot No. 9A., in order passed by Prescribed Authority in proceedings initiated by U.P.S.I.D.C., and the order of appellate Court show that U.P.S.I.D.C. itself claimed that plot No. 9A was unauthorisedly taken into possession by plaintiff-appellant on 1.1.1974. 22. Hence, for the purpose of this appeal and the issue under consideration, looking to the record, we have no hesitation in observing that as per own case of U.P.S.I.D.C., which is evident from proceedings initiated under Section 9 of Act, 1972 that plaintiff-appellant had possession over plot No. 9A on 1.1.1974 may be unauthorisedly. This is own admission of U.P. S.I.D.C. Therefore, any pleading in subsequent proceedings on the part of U.P.S.I.D.C., otherwise, cannot be accepted. In this backdrop, we find that in writ petition, plaintiff-appellant sought to plead for restoration of allotment vis-a-vis plot No. 9A relying on U.P.S.I.D.C. resolution dated 30.3.1977 and on that basis, it challenged public notice/advertisement dated 8.11.2006 issued by U.P.S.I.D.C. inviting applications for allotment of plot No. 9A and also sought a restraint order against U.P.S.I.D.C. as well as M/s. K.G. Plastochem (India) Private Ltd. restraining them from interfering with right and possession of plaintiff-appellant over plot No. 9A pursuant to the advertisement dated 8.11.2006. 23. It has been contended on behalf of defendant-respondents that once writ petition has been dismissed, it means that both the reliefs as sought by plaintiff-appellant were denied by this Court. 24. In paras 25, 26, 28 & 29 of writ petition, plaintiff-appellant specifically pleaded that U.P.S.I.D.C. is intending to forcefully dispossess it from plot No. 9A and in that backdrop, it sought relief No. 2 in writ petition for restraining respondents from interfering with plaintiff-appellant’s alleged right and possession over plot No. 9A. In the plaint dated 9.5.2007, plaintiff-appellant has stated that it has not been dispossessed from plot No. 9A, which has been allotted by U.P.S.I.D.C to defendant-3, i.e. M/s. K.G. Plastochem (India) Private Ltd., and defendants are extending threat to plaintiff-appellant to vacate the said plot in question. In the plaint dated 9.5.2007, plaintiff-appellant has stated that it has not been dispossessed from plot No. 9A, which has been allotted by U.P.S.I.D.C to defendant-3, i.e. M/s. K.G. Plastochem (India) Private Ltd., and defendants are extending threat to plaintiff-appellant to vacate the said plot in question. Hence, in the suit it sought relief of prohibitory injunction restraining defendants from evicting plaintiff-appellant from plot No. 9A without adopting due process of law. 25. Thus, in fact pleadings for the aforesaid relief in writ petition as well as in the suit are similar and based on common facts. Relief having been denied by this Court, considering conduct of plaintiff-appellant, whether can be considered in subsequently filed Original Suit No. 400 of 2007 and Judgment passed in writ jurisdiction, whether, will operate res judicata, are now substantial issues which have to be considered by us inasmuch as contention of appellant is that Judgment of writ Court will not operate as res judicata. 26. The principle of res judicata is not a technical plea but a matter of substance, evolved and followed since time immemorial in order to take quietus litigation between the parties, once issue has been decided. It is in public interest. 27. In the historical backdrop, we find existence and applicability of principle of res judicata, in vedic period, as its reference is found in Mitakshara, texts of Parsara etc. We find a historical trace in Full Bench Judgment of Lahore High Court in Mussammat Lachhmi v. Mussammat Bhulli, 1927 ILR (VIII) 384, where Court has observed as under : “In the mitakshra (Book II, Chap. I, Section V, verse 5) one of the four kinds of effective answers to a suit is “a plea by former judgment” and in verse 10, Katyayana is quoted as laying down that “one against whom a judgment had formerly been given, if he bring forward the matter again, must be answered by a plea of Purva Nyaya or former judgment” (Macnaughten and Colebrooke’s translation page 22). The doctrine, however, seems to have been recognized much earlier in Hindu Jurisprudence, judging from the fact that both the Smriti Chandrika (Mysore Edition, pages 97-98) and the Virmitrodaya (Vidya Sagar Edition, page 77) base the defence of Prang Nyaya (=former decision) on the following text of the ancient law-giver Harita, who is believed by some Orientalists to have flourished in the 9th Century B.C. And whose Smriti is now extant only in fragments : “The plaintiff should be non-suited if the defendants avers; ‘In this very affair, there was litigation between him and myself previously,’ and it is found that the plaintiff had lost his case”. There are texts of Parsara (Bengal Asiatic Society Edition, page 56) and of the Mayukha (Kane’s Editiona, page 15) to the same effect. Among Muhammadan law-givers similar effect was given to the plea of “Niza-I-munfasla” or “Amar Mania Taqrir Mukhalif.” Under Roman Law, as administered by the Proetors’ Courts, a defendant could repel the plaintiff’s claim by means of “exceptio rei judicata” or plea of former judgment. The subject received considerable attention at the hands of Roman jurists and as stated in Roby’s Roman Private Law (Vol. II, page 338) the general principle recognized was that “one suit and one decision was enough for any single dispute” and that “a matter once brought to trial should not be tried except, of course, by way of appeal”. The spirit of the doctrine is succinctly expressed in the well known maxim “Nemo debet bis vexari pro eadem causa” (no one shall be twice vexed for the same cause). At times the rule worked harshly on individuals (E.g., when the former decision was obviously erroneous) but its working was justified on the great principle of public policy “Interest rei publicant sit finis litium” (it is for the public good that there be an end of litigation). In some of these ancient systems, however, the operation of the rule was confined to cases in which the plaintiff put forward his claim to “the same subject-matter with regard to which his request had already been determined by a competent Court and had passed into judgment”. In other words, it was what is described as the plea of “estoppel by judgment” or “estoppel by record”, which was recognized and given effect to. In other words, it was what is described as the plea of “estoppel by judgment” or “estoppel by record”, which was recognized and given effect to. In several European continental countries even now the rule is still subject to these qualifications, e.g., in the Civil Code of France, it is said “The authority of the thing adjudged (chose judge) has place only in regard to that which has constituted the object of a judgment. It is necessary that the thing demanded be the same; that the demand be founded upon the same cause; that it be between the same parties and found by and against them in the same capacity.” In other countries, and notably in England, the doctrine has developed and expanded, and the bar is applied in a subsequent action not only to cases where claim is laid to the same property but also to the same matter (or issue) as was directly and substantially in dispute in the former litigation. In other words, it is the identity of the issue, which has already been “necessarily tried” between the parties and on which a finding has been given before, and not the identity of the subject-matter which attracts the operation of the rule. Put briefly the plea is not limited to “estoppel by judgment” (or record), but is also extended to what is described as “estoppel by verdict”. The earliest authoritative exposition of the law on the subject in England is by Chief Justice DeGrey in the Duchess of Kingston Case (1), which has formed the basis of all subsequent judicial pronouncements in England, America and other countries, the jural systems of which are based on or inspired by British Jurisprudence. The earliest authoritative exposition of the law on the subject in England is by Chief Justice DeGrey in the Duchess of Kingston Case (1), which has formed the basis of all subsequent judicial pronouncements in England, America and other countries, the jural systems of which are based on or inspired by British Jurisprudence. In that case a number of propositions on the subject were laid down, the first of them being that “the judgment of a Court of concurrent jurisdiction, directly upon the point, is as a plea a bar, or as evidence conclusive, between the same parties upon the same matter, directly in question in another Court.” In British India the rule of res judicata seems to have been first introduced by Section 16 of the Bengal Regulation III of 1793, which prohibited the Zilla and City Courts “from entertaining any cause, which form the production of a former decree of the record of the Court, shall appear to have been heard and determined by any judge or any superintendent of a Court having competent jurisdiction”. The earliest legislative attempt at codification of the law on the subject was, however, made in 1859, when the first Civil Procedure Code was passed. Section 2 of the Code barred the cognizance by Courts of suits based on the same cause of action, which had been heard and determined before by Courts of competent jurisdiction. It will be seen that this was only a partial recognition of the English rule in so far as it embodied the principles relating to estoppel by judgment (or record) only and did not extend to estoppel by verdict. In 1877 when the Code was revised, the operation of the rule was extended in Section 13 and the bar was no longer confined to the retrial of a dispute relating to the same cause of action but the prohibition equally applied against reagitating an issue, which had been heard and finally decided between the same parties in a former suit by a competent Court. The section has been amended and amplified twice again and has assumed its present form in Section 11 of the Code of 1908, the principal amendments which have a bearing on the question before us, being (a) that the expression “former suit” was defined as meaning a suit which has been first decided and not one which was first instituted, and (b) that the competence of a Court is not regulated by the course of appeal of the former suit but by its capacity to try the subsequent suit as an original Court. But although the Indian Legislature has from 1859 onwards made several attempts to codify the law on the subject and the present Section 11 is a largely modified and improved form of the original Section 2 of Act VIII of 1859, it must be borne in mind that the section as even now enacted, is not exhaustive of the law on the subject, and the general principles of res judicata apply to matters on which the section is silent and also govern proceedings to which the section does not in terms apply.” 28. It is, thus, evident that Res judicata is a principle or doctrine or concept which is well recognized since ancient times. So far as the dispute which has already been adjudicated, it is a rule common to all, well defined in a civilized system of jurisprudence that the solemn and deliberate sentence of law upon a disputed fact, pronounced, after a proper trial, by its appointed organ, should be regarded as final and conclusive determination of the question litigated and should set at rest, forever, the controversy. This rule which treats the final decision of a competent Tribunal as “irrefragable truth” was well known to Hindu and Mohammadan lawyers and jurists since long as the system is recognized in Hindu as well as Muslim laws also. 29. So far as Europe is concerned, it is mainly influenced with the legal system of Roman jurisprudence. This principle is one of the great gains of Roman jurisprudence carried to modern jural system of Europe. 29. So far as Europe is concerned, it is mainly influenced with the legal system of Roman jurisprudence. This principle is one of the great gains of Roman jurisprudence carried to modern jural system of Europe. In the Anglo saxon jurisprudence, this principle is formerly based on an maxim of Roman jurisprudence “interest reipublicae ut sit finis litium” (it concerns the state that there should be an end to law suits) and partly on the maxim “nemo debut bis vexari pro una at eadem cause (no man should be vexed twice over for the same cause). Act 8 of 1859 provided principle of the res judicata in Section 2 and read as under : “The Civil Court shall not take cognizance of any suit brought on or cause of action which shall have been heard and determined by a Court of competent jurisdiction in a former suit between the same parties, or between parties under whom they claim.” 30. The principle of res judicata vide Section 2 of C.P.C., 1859 came to be considered before Privy Council in Soorjomonee Dayee v. Suddanund Mahapatter, (1873) 12 BLR 304, 315 (P.C.). Judicial Committee said “We are of the opinion that Section 2 of the Code of 1859 would by no means prevent operation of the general law relating to res judicata founded on the principle “nemo debet bis vexari pro eadem causa”. 31. In Krishna Behary Ray v. Bunwari Lal Ray, (1875) 1 Cal. 144 (146), Privy Council while construing the expression “cause of action” held that it cannot be interpreted in its literal and restricted sense and if a material issue had been tried and determined between the same parties by a competent Court, the same cannot be re-agitated again by the parties in a later suit who were also partied in the former suit. 32. When this view was expressed in some other judgment also, legislature introduced the words “matter directly and substantially in issue” in Section 13 in Act No. 10 of 1877 and 14 of 1882. 33. In Parthasaradi Ayyangar and others v. Chinnakrishna Ayyangar and others, Vol. V ILR Madras Series (1882) 304, an interesting question with respect to res judicata and estoppel by verdict and/or estoppel by judgment was considered. 33. In Parthasaradi Ayyangar and others v. Chinnakrishna Ayyangar and others, Vol. V ILR Madras Series (1882) 304, an interesting question with respect to res judicata and estoppel by verdict and/or estoppel by judgment was considered. An original suit No. 12 of 1850 was instituted by certain persons of Tenkalai sect in the Court of Sadar Amin against the members of Vadakalai sect. A Vadakalai temple was erected in the village of Mathura Mangalam in the honor of a devotee Embar in which the member of Tenkalai sect were interested in maintaining worship and in defending the privileges of the temple. The other sect, namely, Vadakalai, also erected a Vaishnava temple on a private site in the Sanadi (temple) street in honor of a devotee, Vedhanta Desikar, which was later on thrown open for regular public worship. In 1849 the above mentioned suit was filed praying that the Vadakalais be compelled to remove their idols and be prohibited from celebrating festivals and erecting any temple in the village for the worship of their idols. The Vadakalais, defended the suit contending that the general right of owners of land to erect on their own property, places of public worship and to set up therein such idols as they thought fit. Earlier to that suit, it appears that there was some other suit between the same sects wherein the pundit had delivered an opinion that the public worship of idols of devotees such as the spiritual teachers of the respective sects was not recognized by Hindu law, and that law did not permit persons to assemble together to celebrate to such idols. But where it was customary to do so, such idols might be used in private worship. Relying on the said opinion of the pundit, the Sadar Amin granted the order of injunction prayed for. In the appeal preferred before the Judge, he held that supposing the worship of which the Tenkalais complained was prejudicial to the interests of the institution they supported, the question being one of conscience, no cause of action accrued to the Tenkalais, and that it was competent to the Vadakalais to adopt the worship of what idols they pleased in pagodas erected on their own lands. It reversed the decree in so much it ordered the removal of the idols and prohibited the Vadakalais from erecting pagodas and celebrating public worship therein. It reversed the decree in so much it ordered the removal of the idols and prohibited the Vadakalais from erecting pagodas and celebrating public worship therein. But it found that conduct of procession in honor of Vadakalai idols was an innovation, did not form an essential part of the worship, and might be productive of public disturbance, and, accordingly,passed an order restraining it. Noticing that this part of the order was beyond the relief sought in the plaint, an appeal was preferred before the Sadar Court. The Sadar Court sought for opinion of the pundits of the Court with respect to Hindu law on the subject who opined that it would be contrary to custom to allow a pagoda to be erected by the Vadakalai Vaishnavas even on their own ground if such an erection was against the feelings generally of the people of the village. He referred to a passage in the preamble of the Mitakshara which declared that “no cases prejudicial to the feelings of the inhabitants of a town or village shall be entertained by a King”. The Sadar Court accordingly decreed that the defendants (the Vadakalais) should be prohibited from erecting temple or instituting public worship on the spot of ground objected to by the plaintiffs and which lay within the range of their temple, that is to say, withing the usual range of the processions conducted in connection with the temple worship. In another appeal No. 141 of 1856, Sadar Court declared that the right to pass in procession through the public streets of a town in such a way as the Magistrate might not object to as dangerous to the public safety, was a right inherent in every subject of the state and the Vadakalais’ action which continued was in disobedience as was restrained by the earlier decree and injunction prohibiting decree was again passed in 1862. Thereafter, Vadakalais removed their idols and erected a building for the purpose of worship on another site. No arrangement of celebration of the public worship was made till 1879 except of occasional processions. However, in 1879 again provision was made for continuous conduct of such worship throughout the year. This led to another suit which ultimately reached to the appellate Court. No arrangement of celebration of the public worship was made till 1879 except of occasional processions. However, in 1879 again provision was made for continuous conduct of such worship throughout the year. This led to another suit which ultimately reached to the appellate Court. It was held that the decree in earlier suit cannot preclude the Vadakalais from building a temple or conduct public worship at any other spot and plea of estoppel based on the earlier decisions was held to be inapplicable. The Court held that the matter in issue which was raised and decided in the former suit was not a question of fact but a question of law based on the opinion of pundit which was found opposed to the law declared to be the law of India under British administration. The Court held that the law of India under British administration as declared is that the person of whatever sect are at liberty to erect building and conduct public worship on their own land provided they neither invade the rights of property enjoyed by their neighbours nor cause a public nuisance, and that they are also entitled to conduct religious processions through public streets so that they do not interfere with the ordinary use of such streets by the public and subject to such directions as the Magistrate may lawfully give to prevent obstructions of the thoroughfare or breaches of the public peace. The Court held that the principle of res judicata also would not come in way. The Courts are bound to ascertain and apply the law and not to make law. It observed that what was argued was estoppel by verdict and estoppel by judgment. Explaining the “estoppel by verdict”, it was held that it indicates that such estoppels are confined to questions of facts and no authority was cited before the Court to warrant the application of rule to determination of an issue of law. It observed that what was argued was estoppel by verdict and estoppel by judgment. Explaining the “estoppel by verdict”, it was held that it indicates that such estoppels are confined to questions of facts and no authority was cited before the Court to warrant the application of rule to determination of an issue of law. Explaining the principle of res judicata, the Court observed, “Although considerations of convenience have established the rule that the final decree of a competent Court is decisive of the rights it declares or refuses notwithstanding it may have proceeded on an erroneous view of the law, and although the same considerations have established the rule that the determination by a competent Court of questions of fact directly and substantially in issue are binding on the parties, these considerations do not suggest the expediency of compelling the Courts to refuse to give effect to what they have ascertained to be the law.” However, the Court also said that all earlier decisions were in respect to a different place and would not bar the subsequent suit which was in respect to another spot. 889. In Ram Kirpal v. Rup Kuari, (1883) ILR 6 (Alld.) 269 (P.C.) it was held that Section 13 of 1877 Act would not apply to execution proceedings but upon general principles of law the decision of a matter once decided in those proceedings was a bar to the same matter being re-agitated at a subsequent stage thereof. 34. Act 5 of 1908 contains the provision of res judicata under Section 11 which substantially is same as it was in Act 14 of 1882, but includes certain explanations clarifying some aspects of the matter considered to be necessary in the light of some judgments of different High Courts. It has undergone some amendments in 1976, but has withstood the test of the time more than a decade. Section 11 of Act 5 of 1908, as it stands today, reads as under : “11. It has undergone some amendments in 1976, but has withstood the test of the time more than a decade. Section 11 of Act 5 of 1908, as it stands today, reads as under : “11. Res judicata.—No Court shall try any suit or issue in which the matter directly and substantially in issue has been directly 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 competent 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. Explanation I—The expression “former suit” shall denote a suit which has been decided prior to the suit in question whether or not it was instituted prior thereto. Explanation II.—For the purposes of this section, the competence of a Court shall be determined irrespective of any provisions as to a right of appeal from the decision of such Court. Explanation III.—The matter above referred to must in the former suit have been alleged by one party and either denied or admitted, expressly or impliedly, by the other. Explanation IV.—Any matter which might and ought to have been made ground of defence or attack in such former suit shall be deemed to have been a matter directly and substantially in issue in such suit. Explanation V.—Any relief claimed in the plaint, which is not expressly granted by the decree, shall, for the purposes of this section, be deemed to have been refused. Explanation VI—Where persons litigate bona fide in respect of public right or of a private right claimed in common for themselves and others, all persons interested in such right shall, for the purposes of this section, be deemed to claim under the persons so litigating. Explanation VII.—The provisions of this section shall apply to a proceeding for the execution of a decree and reference in this section to any suit, issue or former suit shall be construed as references, respectively, to proceedings for the execution of the decree, question arising in such proceeding and a former proceeding for the execution of that decree. Explanation VII.—The provisions of this section shall apply to a proceeding for the execution of a decree and reference in this section to any suit, issue or former suit shall be construed as references, respectively, to proceedings for the execution of the decree, question arising in such proceeding and a former proceeding for the execution of that decree. Explanation VIII.—An issue heard and finally decided by a Court of limited jurisdiction, competent to decide such issue, shall operate as res judicata in as subsequent suit, notwithstanding that such Court of limited jurisdiction was not competent to try such subsequent suit or the suit in which such issue has been subsequently raised.” 35. Explanations VII and VIII have been added by Amendment Act of 1976 and admittedly have no application to the dispute in hand. 36. The plea of res judicata is an inhibition against the Court and a finding in favour of a party on the plea of res judicata would oust the jurisdiction of the Court to try the subsequent suit or the suit in which such issue has been raised, which has been heard and finally decided in the former suit (see : Pandurang Dhondi Chougule v. Maruti Hari Jadhav, AIR 1966 SC 153 . Since, it restrains the Court to try the subsequent suit or an issue raised subsequently, we have no manner of doubt that for the purpose of present case, it is the provision contained in Section 11 of Act 5 of 1908, which will govern the matter and not the earlier one. The application of principle of res judicata is based on public policy and in the interest of the State as well. However, we would like to clarify here itself that we may not be understood as observing that the principle of res judicata is confined to Section 11 of the Act 5 of 1908. As we have already held, the principle of res judicata was well recognized in the ancient legal systems also and it has consistently been held as not limited to the specific words of the Code for its application. 37. As we have already held, the principle of res judicata was well recognized in the ancient legal systems also and it has consistently been held as not limited to the specific words of the Code for its application. 37. One of the oldest case which considered the doctrine of res judicata vide Section 11, CPC, 1908 is Sheoparsan Singh and others v. Ramnandan Prasad, 43 IA 91(PC) : 20 C.W.N. 738 (P.C.), wherein their Lordships reminded the dictum in the words of Lord Coke in Priddle v. Napper, 6 Coke IA 1777, which said “Interest reipublicae ut sit finis litium”, otherwise great oppression might be done under colour and pretence of law. (See also Commissioner of Central Excise v. Shree Baidyanath Ayurved Bhawan Ltd., JT 2009 (6) SC 29). 38. The statement of law as propounded in Sheoparsan Singh (supra) has been approved by the Apex Court in Iftikhar Ahmed v. Syed Meharban Ali, 1974 (2) SCC 151 . 39. Then comes Hook v. Administrator General of Bengal, 1921 (ILR) 48 (Cal.) 499 (PC), wherein it was said that Section 11 of the Code is not exhaustive of the circumstances in which an issue is res judicata. Even though the Section may not apply, the plea of res judicata still would remain operative apart from the limited provisions of the Code, and would bar a subsequent suit on the same issue unless is shown to be inapplicable by the defendants referring to pleading, parties and cause of action etc. It was reaffirmed by Lord Buckmaster in T.B. Ramachandra Rao and another v. A.N.S. Ramchandra Rao and others, AIR 1922 PC 80 , wherein the remarks were “that the principle which prevents the same case being twice litigated is of general application, and is not limited by the specific words of the Code in this respect.” 40. In Kalipada De v. Dwijapada Das, AIR 1930 PC 22 , the Privy Council held “the question as to what is considered to be res judicata is dealt with by Section 11 of CPC 1908. In that section many examples and circumstances in which the rule concerning res judicata applies are given; but it has often been explained by this Board that the terms of Section 11 are not to be regarded as exhaustive”. 41. In that section many examples and circumstances in which the rule concerning res judicata applies are given; but it has often been explained by this Board that the terms of Section 11 are not to be regarded as exhaustive”. 41. In Gulam Abbas v. State of U.P., AIR 1981 SC 2199, it was held that Section 11 is not exhaustive of the general doctrine of res judicata. Though the rule of res judicata as enacted in Section 11 has some technical aspects the general doctrine is founded on consideration of high public policy to achieve two objectives namely that there must be a finality to litigation and that individuals should not be harassed twice over the same kind of litigation. 42. It is thus clear that principle of res judicata is based on sound policy and not an arbitrary one. Henry Campell Black in his Treatise “for law of judgments” 2nd Edition Vol. I, para 242 has observed that “Where the Court has jurisdiction of the parties and the subject-matter in the particular case, its judgment unless reversed or annulled or impeachment by parties or privies, in any collateral action or proceeding whatever the Doctrine of this Court, and of all the Courts of this country, is formerly established, that if the Court in which the proceedings took place had jurisdiction to render the judgment which it did no error in its proceedings which did not affect the jurisdiction will render the proceedings void, nor can such errors be considered when the judgment is brought collaterally into question one. This principle is not merely an arbitrary rule or law but it is a doctrine which is founded upon reason and the soundest principle of public policy.” 43. In Jenkins v. Robertson, (1867) LRIHL 117, Lord Romily observed “res judicata by its very words means a matter upon which the Court has exercised its judicial mind and has come to the conclusion that one side is right and has pronounced a decision accordingly. In my opinion res judicata signifies that the Court has after argument and considerations come to a decision on a contested matter.” 44. In Corpus Juris Vol. In my opinion res judicata signifies that the Court has after argument and considerations come to a decision on a contested matter.” 44. In Corpus Juris Vol. 34 it is said that it is a rule of universal law providing every regulated system of jurisprudence and is put upon two grounds embodied in various maxims of common law, the one of public policy and necessity which makes it to the interest of the state that there should be an end of litigation, and, the other, hardship on the individual that he should not be vexed twice for the same cause. 45. The Apex Court in Smt. Raj Lakshmi Dasi and others v. Banamali Sen and others, AIR 1953 SC 33 , remarked “When a plea of res judicata is founded on general principles of law, all that is necessary to establish is that the Court that heard and decided the former case was a Court of competent jurisdiction. It does not seem necessary in such cases to further prove that it has jurisdiction to hear the later suit. A plea of res judicata on general principle can be successfully taken in respect of judgments of Courts of exclusive jurisdiction, like revenue Courts, land acquisition Courts, administration Courts, etc. It is obvious that these Courts are not entitled to try a regular suit and they only exercise special jurisdiction conferred on them by the statute. 46. In Lal Chand v. Radha Krishan (supra) the Apex Court reiterated “the principle of res judicata is conceived in the larger public interest which requires that all the litigation must sooner than later come to an end. The principle is also founded on equity, justice and good conscious which require that a party which has once succeeded on a issue should not be permitted to be harassed by a multiplicity of proceedings involving the same issue”. 47. In K. Ethirajan (sapra) which has also been relied by Sri Siddiqui, learned counsel for plaintiff (Suit-4) the Apex Court refering to para 26 of its earlier judgement in Hope Plantations Ltd. v. Taluk Land Board, Peermade, JT 1998 (7) SC 404, held that rule of res judicata prevents the parties to a judicial determination from litigating the same question over again. Where the proceedings have attained finality, parties are bound by the judgement and cannot litigate again on the same cause of action. 48. Where the proceedings have attained finality, parties are bound by the judgement and cannot litigate again on the same cause of action. 48. In Sulochana Amma (supra) the scope of Section 11 CPC was considered and it was said that Section 11 does not create any right or interest in the property but merely operates as a bar to try the same issue once over. It aims to prevent multiplicity of the proceedings and accords finality to an issue which directly and substantially has arisen in the former suit between the same parties or their privies, decided and became final so that parties are not vexed twice over; vexatious litigation would be put to an end and the valuable time of the Court is saved. The above judgement also clarify Explanation VIII that the decree of a Court of limited jurisdiction would also operates as res judicata in the subsequent suit though the subsequent suit was not triable by that Court. 49. Recently the Apex Court has reiterated the above view in Brij Narain Singh v. Adya Prasad, JT 2008 (3) SC 1. 50. The doctrine of res judicata has been extended to public interest litigation also in State of Karnataka and another v. All India Manufacturers Organization (supra) and the Court has said: “As a matter of fact, in a public interest litigation, the petitioner is not agitating his individual rights but represents the public at large. Hence the litigation is bona fide, a judgement in previous public interest litigation would be a judgement in rem. It binds the public at large and bars any member of the public from coming forward before the Court and raising any connected issue or an issue, which had been raised should have been raised on an earlier occasion by way of public interest litigation.” 51. In Mathura Prasad Sarjoo Jaiswal and others v. Dossibai, AIR 1971 SC 2355 , the Court clarified that the doctrine of res judicata is in the domain of procedure and cannot be exalted to the status of a legislative direction between the parties so as to determine the question relating to interpretation of the enactment affecting the jurisdiction of the Court finally between them even though no question of fact or mixed question of law and fact and relating to the right in issue between the parties once determined thereby. It also said that a decision of a competent Court on a matter in issue may be res judicata in another proceeding between the same parties; the “matter in issue” may be an issue of fact, an issue of law or one of mixed law and fact. However, the Apex Court said that the previous decision on a matter in issue alone is res judicata; the reasons for the decision are not res judicata, and said as under : “The previous decision on a matter in issue alone is res judicata; the reasons for the decision are not res judicata.” 52. Another aspect as to when the rule of res judicata would not be attracted has been dealt with in detail in para 10 of the judgment in Mathura Prasad Serjoo Jaiswal (supra) which reads as under : “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 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 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 the order under the rule of res judicata, for a rule of procedure cannot supersede the law of the land.” 53. In other words, what we discern from the above authorities, is that the res judicata is a fundamental principle in a legal system to set at rest a dispute once settled so as not to trouble the parties again and again on the same matter. In other words, what we discern from the above authorities, is that the res judicata is a fundamental principle in a legal system to set at rest a dispute once settled so as not to trouble the parties again and again on the same matter. It operates on the principle that a question must be once fairly and finally tried by a competent Court and, thereafter, further litigation about it between the same parties must be deemed to have concluded and should not be allowed to be re-agitated. The maxim to be attracted is “no one shall be vexed twice over the same matter”. [See Shree Baidyanath Ayurved Bhawan Ltd. (supra)]. 54. It is not that every matter decided in a former suit can be pleaded as res judicata in a subsequent suit. To attract the plea of res judicata, the conditions precedent, which need to be proved are : 1. The matter directly and substantially in issue in the subsequent suit must be the same matter, which was directly and substantially in issue, either actually or constructively, in the former suit. 2. The former suit must have the same parties or the parties under whom they or any of them claims. 3. The parties must have litigated under the same title in the former suit. 4. The Court, which decided the former suit must have been a Court competent to try the subsequent suit or the suit in which such issue has been subsequently raised. 5. The matter directly and substantially in issue in the subsequent suit must have been heard and finally decided by the Court in the first suit. 55. In Syed Mohd. Salie Labbai v. Mohd. Hanifa, AIR 1976 SC 1569 , the Apex Court said that in attracting the plea of res judicata the following conditions must be proved: 1. that the litigating parties must be the same; 2. that the subject-matter of the suit also must be identical; 3. that the matter must be finally decided between the parties; and 4. that the suit must be decided by a Court of competent jurisdiction. 56. In certain cases, the applicability of res judicata qua the aforementioned conditions precedent came to be considered with certain different angles, which may be useful to be referred hereat. 57. One such aspect came to be considered by the Privy Council in Midnapur Zamindary Co. that the suit must be decided by a Court of competent jurisdiction. 56. In certain cases, the applicability of res judicata qua the aforementioned conditions precedent came to be considered with certain different angles, which may be useful to be referred hereat. 57. One such aspect came to be considered by the Privy Council in Midnapur Zamindary Co. Ltd. (supra) which is also a decision cited by Sri Siddiqui. The plaintiff excluded certain question by the statement of his pleader and, therefore, the trial Court did not decide the issue. In the first appeal the defendant urged that the Trial Judge was wrong in not deciding this question even though his action was based on the plaintiff’s advisor’s statement and the defendant asked the first appellate Court expressly to decide the question. The Court did so. The question was whether it can be argued that the point decided was not raised and, therefore, the Court did not consider it to be a necessary issue. On the contrary when the first appellate Court decided the issue and the same became final, it would operate as res judicata to the subsequent suit involving the same issue. 58. Another angle of the above aspect came to be considered by the Privy Council in Prem Narain v. Ram Charan and others, AIR 1932 PC 51 , where though the point was not properly raised in the plaint but both parties without protest chose to join issue upon that point and it was held that the decision on the point would operate as res judicata between the parties. 59. In Jagdeo Misir v. Mahabir Tewari, AIR 1927 All. 803, a Division Bench of this Court held: “We think that those two cases are authorities for the proposition that if a party raised an issue, however improperly, in a case which is accepted by the other side and if the Court itself accepts the issue to be one relevant to the enquiry and necessary for the determination of the case, and that issue is argued out by both parties and a judicial decision come to, it is not open subsequently for either of the parties or their successors-in-interest or the person claiming through them, to say that the issue does not constitute res judicata.” 60. This has been followed in Lalji Sahib v. Munshi Lal, AIR 1943 All 340 and Dhan Singh (supra). 61. This has been followed in Lalji Sahib v. Munshi Lal, AIR 1943 All 340 and Dhan Singh (supra). 61. In Dhan Singh (supra) this Court also held that res judicata may apply even though the parties against whom it is sought to enforce did not enter appearance and contest question in the previous suit. But in such a case it has to be shown that such a party had notice that the relevant question was in issue and would have to be decided for which the burden lie on the person who pleaded bar of res judicata. For these propositions this Court followed and relied on Chandu Lal v. Khalilur Rahman, AIR 1950 PC 17 . 62. The proposition advanced by Sri Siddiqui that even if a judgement in a previous case is erroneous it would be binding on the parties thereto and would operate as res judicata in subsequent case as held in Gorie Gouri Naidu (supra) is well-settled. 63. In short, we can say that though in order to have the defence of res judicata accepted, it is necessary to show not only that the cause of action was same, but also that the plaintiff had an opportunity of getting the relief in the former proceedings, which he is now seeking. In Jaswant Singh v. Custodian of Evacuee Property, 1985 (3) SCC 648 , it was pointed out that the test is whether the claim in the subsequent suit or proceeding is in fact founded upon the same cause of action, which was the foundation of the former suit or the proceeding. The cause of action for a proceeding has no relation, whatsoever, to the defence, which may be set up, nor does it depend upon the character of the relief prayed for by the plaintiff or the applicant. It refers entirely to the grounds set forth in the plaint or the application, as the case may be, as the cause of action or in other words, to the media upon which the plaintiff or the applicant ask the Court to arrive at a conclusion in his favour. 64. It refers entirely to the grounds set forth in the plaint or the application, as the case may be, as the cause of action or in other words, to the media upon which the plaintiff or the applicant ask the Court to arrive at a conclusion in his favour. 64. Coming to the decision cited by Sri Siddiqui in Talluri Venkata Seshayya (supra) we find that there was a case where five temples, subject-matter of suit, were built in 19th Century by one Thadikonda Seshayya a native of Vellatur and the grandfather of Kotiswara Rao adoptive father who is said to have earn wealth in Hyderabad and return to his native place. The temples were built for the deities of Siddhi Ganapati Swami, Rajeswara Swami, Bhimeswara Swami, Adi Seshachala Swami and Kameswara Maharani. Sri Thadikonda Seshayya conducted the festivals and other affairs of the deities during his life time. He left a will dated 26.8.1826 shortly before his death directing his widow, Adilakshmamma to make a permanent endowment for the temples to the extent of Rs. 70,000/- out of his self acquired properties. The widow purchased two sets of properties in the villages of Kowtharam and Peddapulivarru for the temples, conducted the affairs of temples out of the land so purchased, and afterwards made a formal gift of the lands to the idols. Another set of properties in the village of Vellatur was endowed to the same temples by the Zamindar of Narasaraopet. Seshayya’s two sons, Siddi Ganapati Doss and Nagabhushana Gajanana Doss conducted festivals and other affairs until the death of Ganapati in 1857. The latter’s widow claimed the Dharmakartaship but the Collector decided in favour of Gajanana. In 1859 the Inam Commissioner granted an Inam title deed in respect of the Devadayam Inam situated in the village of Kowtharam. In 1867 Gajanana started borrowing money on the security of Devadayam lands, which culminated in a usufructuary mortgage for Rs. 8000/- dated 15.1.1887 under which the lands of Kowtharam were handed over to the mortgagee. To discharge this mortgage Gajanana and his adopted sons Seshayya granted permanent lease of Kowtharam lands dated 6.12.1888 and on the same date the mortgagee, Gopalkrishnamma executed the counterpart of the lease. 8000/- dated 15.1.1887 under which the lands of Kowtharam were handed over to the mortgagee. To discharge this mortgage Gajanana and his adopted sons Seshayya granted permanent lease of Kowtharam lands dated 6.12.1888 and on the same date the mortgagee, Gopalkrishnamma executed the counterpart of the lease. Two persons interested in the temples and in the performance of the service and worship thereof who had obtained the leave of the Court under Section 18, Religious Endowments Act, 20 of 1863, on 18.1.1891 filed suit O.S. No. 4 of 1891 in the District Court, Kistna against Gajanana, his adopted son Seshayya and Gopalakrishna claiming that the five suit temples at Vellatur were public temples, therefore, the first two defendants be removed from the office of the Dharmakarta. The main defence taken by the defendants in the said suit was that the temples and lands were private property hence Act, 20 of 1863 did not apply. Gajanana died during the pendency of suit. vide judgment dated 5.2.1892 the District Judge Kistna dismissed suit holding that the temples were private, lands were a private foundation and Act, 20 of 1863 did not apply. The judgment was confirmed by Madras High Court in appeal vide judgment dated 3.8.1893. One suit was filed by Venkata Seshayya and others on 21.8.1923 as representing the interested public under Order 1 Rule 8 CPC with the requisite permission of the Subordinate Judge of Masaulipatam seeking a declaration that five temples of the village of Vellatur, Guntur District are public temples and that certain Ina lands situated in Kowthavaram village form the endowment of these temples and, therefore, the plaintiff seeking setting aside of a permanent lease in respect of these lands executed on 6.12.1888 by the then Managers of the temples, the mortgage deed on the security of these lands dated 3.11.1900 and the Court sale effected in execution of the decree obtained on the basis of the said mortgage in O.S. No. 29 of 1911. They further seek restoration of possession of these lands to Kotiswara Rao, defendant No. 1 who is the person hereditary Dharmakartha of the temples. They further seek restoration of possession of these lands to Kotiswara Rao, defendant No. 1 who is the person hereditary Dharmakartha of the temples. Before the Privy Council it was contended on behalf of the appellants conceding that the appellants must be deemed to be claiming under plaintiffs in 1891 suit within the meaning of Explanation VI, Section 11 CPC as they were both claiming as representing the public interest in the temples of Kowthavaram lands and the issue in the two suits was substantially same but it was submitted that 1891 suit was not a bona fide litigation, there was gross negligence in the conduct of the suit by the plaintiff in 1891 suit, and, therefore, the principle of res judicata would not bar the present suit. Rejecting the submission, it was held that the provision of Section 11 CPC is mandatory and the ordinary litigant who claims under one of the parties to the former suit can only avoid its provisions by taking advantage of Section 44, Evidence Act which defines with precision the grounds of such avoidance as fraud or collusion. The exposition of law stated therein need not be discussed further since it is consistent with what was held subsequently also as has been discussed by us above. 65. To apply the doctrine of res judicata we need to understand the meaning of the word “suit” or “issue”, when a matter can be said to be “directly and substantially in issue”, can it be said that the parties are same or parties in the earlier suit were the parties under whom the present one are claiming their rights i.e. litigating under the same title. 66. It is not disputed by the parties that the term “suit” has not been defined in CPC. Section 26 says that every suit shall be instituted by presentation of a plaint or in such other manner as may be prescribed. The term “suit” was considered by the Privy Council in Hansraj Gupta and others v. Dehradun Mussorie Electric Tramway Company Ltd., AIR 1933 PC 63 and it was held that word “suit” ordinarily, apart from some context, must be taken to mean a civil proceeding instituted by presentation of a plaint. The term “suit” was considered by the Privy Council in Hansraj Gupta and others v. Dehradun Mussorie Electric Tramway Company Ltd., AIR 1933 PC 63 and it was held that word “suit” ordinarily, apart from some context, must be taken to mean a civil proceeding instituted by presentation of a plaint. To the same effect is the view expressed by the Madras High Court in Venkata Chandrayya v. Venkata Rama Reddy, (1899) 22 Madras 256, Raja Gopa Chettiar v. Hindu Religion Endowment Board, Madras, AIR 1934 Madras 103 and by Punjab and Haryana High Court in Union Territory of Chandigarh v. Sardara Singh and others, AIR 1981 (Punjab and Haryana) 354. 67. However, if a suit is filed by a pauper under Order XXXIII CPC the same would commence from the moment the application to sue in forma pauperis is presented. (see Matuka Mistry v. Kamakhaya Prasad, AIR 1958 (Patna) 264 (FB), Narayana Dutt and another v. Smt. Molini Devi, AIR 1964 (Rajasthan) 269, Shripati Quer v. Malti Devi, AIR 1967 (Patna) 320). This illustration is only for the purpose to show “any other manner as may be prescribed”, contained in Section 26 CPC. 68. Similarly, the “issue” has also not been defined in CPC. Whartons “Law Lexicon” says that “issue” means “the point in question at the conclusion of the pleading between the contending parties in an action, when one side affirms and the other side denies”. Order XIV of the Code of Civil Procedure deals with the settlement of “issues” and determination of suit on issues of law or on issues agreed upon. Rule 1 deals with the framing of issues as follows: 1. Issues arise when a material proposition of fact or law is affirmed by the one party and deemed by the other. 2. Material propositions are those propositions of law or fact which a plaintiff must allege in order to show a right to sue or a defendant must allege in order to constitute his defence. 3. Every material proposition affirmed by one party and denied by the other, shall form the subject of a distinct issue. 4. Issues are of two kinds. (a) Issues of fact (b) Issues of law Meaning of “a matter directly and substantially in issue” 69. Then comes as to what constitute “a matter directly and substantially in issue”. 3. Every material proposition affirmed by one party and denied by the other, shall form the subject of a distinct issue. 4. Issues are of two kinds. (a) Issues of fact (b) Issues of law Meaning of “a matter directly and substantially in issue” 69. Then comes as to what constitute “a matter directly and substantially in issue”. One of the test recognized is, if the issue was necessary to be decided for adjudicating on the principle issue, and, was decided. 70. A collateral or incidental issue is one i.e. ancillary to a direct and substantive issue; the former is an auxiliary issue and the later the principal issue. The expression collateral or incidental in issue implies that there is another matter which is directly and substantially in issue. (Mulla’s C.P.C. 16th Edition, Vol. I, page 179). 71. Difficulty, however, in distinguishing whether a matter was directly in issue or collaterally in issue confronted various Courts in different Countries and certain test were laid down therein. Halsbury’s Laws of England (Vol. 16, para 1538, 4th Edn.) says “difficulty arises in the application of the rule, in determining in each case what was the point decided and what was the matter incidentally cognizable, and the opinion of Judges seems to have undergone some fluctuations.” 72. In “The Doctrine of Res judicata” (2nd Edn., 1969, p. 181), “Spencer Bower and Turner”, quoted Dixon, J. of the Australian High Court in Blair v. Churran, (1939) 62 CLR 464 at page 553; “The difficulty in the actual application of these conceptions is to distinguish the matters fundamental or cardinal to the prior decision on judgment, or necessarily involved in it as its legal justification or foundation, from matters which, even though actually raised and decided as being in the circumstances of the case the determining considerations, yet are not in point of law the essential foundation of a groundwork of the judgment.” 73. The aforesaid authorities opined in order to understand this essential distinction, one has always to inquire with unrelenting severity- is the determination upon which it is sought to find an estoppel so fundamental to the substantive decision that the latter cannot stand without the former. Nothing less than this will do. It is suggested by Dixon, J. that even where this inquiry is answered satisfactorily, there is still another test to pass: viz. Nothing less than this will do. It is suggested by Dixon, J. that even where this inquiry is answered satisfactorily, there is still another test to pass: viz. whether the determination is the “immediate foundation” of the decision as opposed to merely “a proposition collateral or subsidiary only, i.e. not more than part of the reasoning supporting the conclusion.” It is well-settled, say the above authors, “that a mere step in reasoning is insufficient. What is required is no less than the determination of law, or fact or both, fundamental to the substantive decision.” 74. Corpus Juris Secundum (Vol. 50, para 725) noticed the above aspects and conceded it is sometimes difficult to determine when particular issue determined is of sufficient dignity to be covered by the rule of estoppel. It is said that estoppel by judgment does not extend to any matter which was only incidentally cognizable or which came collaterally in question, although it may have arisen in the case and have been judicially passed on. 75. Further, the Court in Sajjadanashin (supra) quoted the following from the “Corpus Juris Secundum” (Vol. 50, para 735, p. 229) where a similar aspect in regard to findings on possession and incidental findings on title were dealt with and held, “Where title to property is the basis of the right of possession, a decision on the question of possession is res judicata on the question of title to the extent that adjudication of title was essential to the judgment; but where the question of the right to possession was the only issue actually or necessary involved, the judgment is not conclusive on the question of 1206 ownership or title.” The Court observed that in the case before it there were certain changes in the statutory law with respect to definition of “public waqf” and in view thereof since now the “private waqf” was also included within the definition of “public waqf” in the Act, due to change in subject it held that the earlier decision would not operate as res judicata. 76. In Sharadchandra Ganesh Muley v. State of Maharashtra and others, AIR 1996 SC 61 , Explanation IV Section 11A containing doctrine of ‘might and ought’ and application of doctrine of constructive res judicata came to be considered. 76. In Sharadchandra Ganesh Muley v. State of Maharashtra and others, AIR 1996 SC 61 , Explanation IV Section 11A containing doctrine of ‘might and ought’ and application of doctrine of constructive res judicata came to be considered. The Court held that where in respect to land acquisition proceedings an earlier writ petition was filed without raising a plea which was available at that time, in the second writ petition such plea could not have been taken as the doctrine of ‘might and ought’ engrafted in Explanation IV to Section 11 of the C.P.C. would come into play and the incumbent would be precluded from raising the controversy once over. The Court held that the doctrine of constructive res judicata shall put an embargo on his right to raise a plea as barred by limitation under Section 11A. “Explanation IV” 77. However, the concept of “constructive res judicata” is necessary to be dealt with in view of Explanation-IV Section 11 C.P.C. A Matter, which might and ought to have been made a ground of attack or defence is a, matter which is constructively in issue. The principle underlying Explanation-IV is res judicata not confined to issues which the Courts are actually asked to decide but cover issues or facts which are so clearly part of the subject-matter of the litigation and so clearly could have been raised that it would be an abuse of the process of the Court to allow a new proceeding to be started in respect of them. (State of U.P. v. Nawab Hussain, AIR 1977 SC 1680 ). The proposition of law expounded in the authorities cited by Sri Siddiqui, as referred to above, in para 20 is also unexceptional. However,it would apply only where a plea was available at the time of the suit but not availed of. But there is no question of constructive res judicata where there is no adjudication in the earlier proceedings (Kewal Singh v. Smt. Lajwanti, 1980 (1) SCC 290 ). The effect of Explanation-IV is where a matter has been constructively in issue, it could not from the very nature of the case be heard and decided but will be deemed to have been heard and decided against the parties omitting to allege it except when an admission by the defendant obviates a decision (Sri Gopal v. Pirthi Singh, (1902) ILR 24 Alld. 429 (PC); Government of Province of Bombay v. Peston Ji Ardeshir Wadia, AIR 1949 PC 143 ). 78. There is an exception to this plea, i.e., where the evidence in support of one ground is such as might be destructive for the other ground, the two grounds need not be set up in the same suit. In Kanhiya Lal v. Ashraf Khan, AIR 1924 Alld. 355, it was observed that a person claiming property on the allegation that it is wakf property and that he is the Manager thereof is not bound to claim the same property in the same suit alternatively in his own rights in the event of its being held that the property was not wakf property. In Madhavan v. Chathu, AIR (38) 1951 Madras 285, a suit to recover possession of properties on a claim that they belong personally to the plaintiff was held not barred by reason of a decision in a previous suit, in which they were claimed as belonging to a Tarwad of which he was a member. Similarly, where the right claimed in the subsequent suit is different from that in the former suit; it is claimed under a different form that in the former suit; it is claimed under a different title, the subsequent suit would not be barred by res judicata/constructive res judicata. 79. Next is the question about the “same parties” or “between parties under whom they or any of them claim”. In order to find a person by res judicata it must be shown that he was in some way party to the earlier suit as the judgment binds only parties and privies. A person claiming under a party is known as privy. The ground of privity is property and not personal relations. If the plaintiff in subsequent suit claims independent right over the suit property the principle of res judicata would not apply. If the predecessor in interest was party to the suit/proceeding involving the same property then the decision binds his successor in interest. From the record it must be evident that the party sought to be bound was in some way a party to the suit. A person merely interested in the litigation cannot be said to be a party to the suit. From the record it must be evident that the party sought to be bound was in some way a party to the suit. A person merely interested in the litigation cannot be said to be a party to the suit. Such a person is neither to make himself a party nor can be bound by the result of the litigation as held in Jujjuvarapu v. Pappala, AIR 1969 AP 76 . 80. Where a person in the subsequent suit claims independent right over the suit property the principle of res judicata would not apply. (Byathaiah (Kum) and others v. Pentaiah (Kum) and others, 2000 (9) SCC 191 ). 81. Similarly the party must be litigating under the same title. The test is the identity of title in two litigations and not the identity of the actual property involved in two cases as held in Rajalaxmi Dasi v. Banamali Sen (supra); Ram Gobinda Daw v. Smt. H. Bhakta Bala Dassi, AIR 1971 SC 664 . 82. Same title means same capacity; the test being whether the party litigating is in law the same or a different person. If the same person is a party in different character, the decision in the former suit does not operate as res judicata. Similarly, if the rights claimed are different, the subsequent suit will not be res judicata simply because the property is identical. Title refers not to cause of action but to the interest or capacity of the party suing or being sued. 83. In Sri Ramjee and others v. Bishwanath Pd. Sah and others, AIR 1978 Patna 129, former suit was filed by plaintiff alone and in his own rights while the subsequent suit was filed in the name of the deity and it was held not barred as res judicata. “Explanation VI” 84. Lastly, but not the least, is the concern with respect to Explanation-VI, i.e., representative suit. It provides that where persons litigate bona fide in respect of a public right or a private right claimed in common for themselves and other persons interested in such right, shall, for the purpose of the Section, be deemed to have claimed under the persons so litigating. The counsels for the plaintiffs (Suit-4) have heavily relied upon this provision. It provides that where persons litigate bona fide in respect of a public right or a private right claimed in common for themselves and other persons interested in such right, shall, for the purpose of the Section, be deemed to have claimed under the persons so litigating. The counsels for the plaintiffs (Suit-4) have heavily relied upon this provision. Explanation-VI apparently is not confined to the cases covered by Order 1 Rule 8 C.P.C., but would include any litigation in which, apart from the rule altogether, parties are entitled to represent interested persons other then themselves. It is a kind of exception to the ordinary rule of res judicata which provide for the former litigation between the same parties or their privies. Even persons, who are not parties in the earlier proceeding, in certain contingencies, may be debarred from bringing a suit subsequently if the conditions contemplated under Explanation-VI Section 11 are satisfied. The conditions to attract Explanation-VI so as to constitute res judicata, which must exist, are : 1. There must be a right claimed by one or more persons in common for themselves and others not expressly named in the suit, 2. The parties not expressly named in the suit must be interested in such right. 3. The litigation must have been conducted bona fide on behalf of all the parties interested. 4. If the suit is one under Order 1 Rule 8, all the conditions of that Section must have been strictly complied with. 85. The essentials of representative suit vis-a-vis the principle of res judicata with reference to Explanation VI Section 11was considered by Privy Council in Kumaravelu Chettiar and others v. T.P. Ramaswami Ayyar and others, AIR 1933 PC 183 . Prior to the enactment of CPC of 1877 there was no express legislation on the subject of representative suit. In these circumstances, the Courts assumed the task and followed the practice virtually obtained in the Court of Chancery in England. Existence of this practice was demonstrated by referring to a judgment of Madras High Court in Srikanti v. Indupuram, (1866) 3 M.H.C.R. 226. In these circumstances, the Courts assumed the task and followed the practice virtually obtained in the Court of Chancery in England. Existence of this practice was demonstrated by referring to a judgment of Madras High Court in Srikanti v. Indupuram, (1866) 3 M.H.C.R. 226. The Court emphasized that convenience, where community of interest existed, required that a few out of a large number of persons should, under proper conditions, be allowed to represent the whole body, so that in the result all might be bound by the decree, although only some of the persons concerned were parties named in the record. It observed that absence of any statutory provision on the subject, the Courts in India, it would seem, prior to 1877 assumed the task and duty to determine in the particular case whether, without any real injustice to the plaintiffs in the later suit, the decree in the first could properly be regarded as an estoppel against further prosecution by them of the same claim. The first legislation was made vide Section 30 in CPC 1877 which is now found in Order I Rule 8 CPC of 1908. The Privy Council held at page 186: “It is an enabling rule of convenience prescribing the conditions upon which such persons when not made parties to a suit may still be bound by the proceedings therein. For the section to apply the absent persons must be numerous; they must have the same interest in the suit which, so far as it is representative, must be brought or prosecuted with the permission of the Court. On such permission being given it becomes the imperative duty of the Court to direct notice to be given to the absent parties in such of the ways prescribed as the Court in each case may require; while liberty is reserved to any represented person to apply to be made a party to the suit.” 86. The Privy Council also approved a Calcutta High Court decision in Baiju Lal v. Bulak Lal, (1897) 24 Cal 385, where Ameer Ali, J. explaining the position under Section 30 said: “The effect of Section 30 is that unless such permission is obtained by the person suing or defending the suit, his action has no binding effect on the persons he chooses to represent. If the course prescribed by Section 30 is not followed in the first case, the judgment does not bind those whose names are not on the record.” 87. In Waqf Khudawand Taala Banam Masjid Mauza Chaul Shahabudinpur v. Seth Mohan Lal, 1956 ALJ 225, a suit for declaration of the property in dispute as a public mosque was filed. It appears that earlier a suit was filed against some Muslims claiming to be the proprietor and notice under Order 1 Rule 8 C.P.C. was also issued to other residents of that locality. Defence taken by Muslims was that property in dispute was a public mosque. The suit was decreed and the defence was not found proved. Thereafter second suit was filed by Muslim parties of neighbouring village wherein the plea of res judicata was taken. Defending the said objection on behalf of plaintiffs it was contended that in earlier case notice under Order 1 Rule 8 was issued to the residents of Chaul Shahabuddinpur and not of the village to which the plaintiffs belonged which is a neighbouring village. However, the Court upholding the plea of res judicata observed that Explanation VI to Section 11 C.P.C. is attracted in the matter and once in respect of a public right the matter has been adjudicated, the decision is binding on all persons interested in that right and they will be deemed to claim under the persons who litigated in the earlier suit in respect of that public right. 88. The question of issue estoppel and constructive res judicata in regard to a judgment in a representative suit came to be considered by the Apex Court in Shiromani Gurdwara Parbandhak Committee v. Mahant Harnam Singh and others, AIR 2003 SC 3349 . The facts, in brief, are necessary to understand the exposition of law laid down therein. Gurdial Singh and Ishwar Singh of Village Jhandawala obtain permission from the Advocate General under Section 92 CPC to institute a suit against one Harnam Singh for his removal from Mahantship. The facts, in brief, are necessary to understand the exposition of law laid down therein. Gurdial Singh and Ishwar Singh of Village Jhandawala obtain permission from the Advocate General under Section 92 CPC to institute a suit against one Harnam Singh for his removal from Mahantship. It was stated in the plaint that there was one Guru Granth Sahib at Village Jhandawala, Tehsil and District Bhatinda which was managed by Mahant Harnam Singh as a Mahatmim and he was in possession of the Dera, and agricultural land belonging to Guru Granth Sahib which was a public religious place and was established by the residents of village; it was a public trust created by the residents of the village for the service of the public to provide food from lunger, to allow the people to fulfill religious beliefs and for worship etc. The two plaintiffs in their capacity as representatives of owners of land situated in the village and the residents thereof claim that they were entitled to file a suit under Section 92 CPC. Harnam Singh, Mahant in his written statement took the defence that there was no such interest in the public as to entitle the aforesaid plaintiffs to institute the suit. The trial Court and the High Court recorded a concurrent finding that all Mahants of the institution from Bhai Saida Ram to Mahant Harnam Singh have been Nirmalas. However, the trial Court held that such Nirmala Sadhus are not Sikhs and that the institution was not a Sikh institution. High Court disagreed with this conclusion and held that Sadhus Nirmalas are a sect of the Sikhs and consequently the Sikhs had interest in the institution as it was a Sikh Gurdwara and upheld the plaintiffs claim to file a representative suit under Section 92 CPC. In appeal the Apex Court, however, held (i) Nirmala Sadhus are not Sikhs; (ii) the mere fact that at some stage there was a Guru Granth Sahib in the Dera in dispute cannot lead to any conclusion that the institution was meant for or belonged to the followers of the Sikh religion. In appeal the Apex Court, however, held (i) Nirmala Sadhus are not Sikhs; (ii) the mere fact that at some stage there was a Guru Granth Sahib in the Dera in dispute cannot lead to any conclusion that the institution was meant for or belonged to the followers of the Sikh religion. The Dera was maintained for entirely a distinct sect known as Nirmals Sadhus who cannot be regarded as Sikhs; (iii) the institution was held to be not belonging to the followers of the Sikh religion; (iv) the plaintiffs in their mere capacity of followers of Sikh religion could not be held to have such interest as to entitle them to institute a suit under Section 92 CPC. This judgement dated 24.2.1967 of the Apex Court is reported as Mahant Harnam Singh v. Gurdial Singh and another, AIR 1967 SC 1415 . In the meantime it appears that under Section 7(1) of Sikh Gurdwaras Act, 1925, 60 persons claiming to be worshippers made a petition for declaring the institution in question, i.e., Guru Granth Sahib situated in Village Jhandawala, District Bhatinda to be a Sikh Gurdwara. The Punjab Government by notification dated 23.1.1961 made such a declaration under Section 7(3) of the aforesaid Act. It may be pointed out that these 60 persons also included the two plaintiffs of earlier litigation, i.e., Gurdial Singh and Ishwar Singh. Mahant Harnam Singh with others filed counter petition under Section 8 of Sikh Gurdwaras Act, 1925 stating that the institution was not a Sikh Gurdwara but was a Dera Bhai Saida Ram. A similar petition under Section 8 was also moved by 58 persons of the Dera making a similar claim. Both these petitions were forwarded by the State Government to the Tribunal for disposal. The Tribunal formulated the following two questions: (1) what is the effect of the judgment of the Apex Court in Mahant Harnam Singh (supra); and (2) whether the institution in dispute was a Sikh Gurdwara. The Tribunal decided issue No. 1 as a preliminary issue vide order dated 8.3.1977 and held that the decision in Mahant Harnam Singh (supra) would not bar the jurisdiction of the Tribunal to decide claim petition under Section 7 of the Act. The order of the Tribunal attained finality since challenge before the High Court and Apex Court was unsuccessful. The Tribunal decided issue No. 1 as a preliminary issue vide order dated 8.3.1977 and held that the decision in Mahant Harnam Singh (supra) would not bar the jurisdiction of the Tribunal to decide claim petition under Section 7 of the Act. The order of the Tribunal attained finality since challenge before the High Court and Apex Court was unsuccessful. Thereafter, issue No. 2 was taken up and the Tribunal held that the institution was a Sikh Gurdwara, originally established by Sikhs and the object of worship was Guru Granth Sahib because the majority of villagers were Sikhs and Nirmalas are Sikhs. This order of the Tribunal in respect to issue No. 2 was challenged before the High Court. It held that the Tribunal has lost sight of the decision in Mahant Harnam Singh (supra). It is this order of the High Court which was taken in appeal before the Apex Court, which held that once in a suit instituted under Section 92 CPC a categorical finding was recorded that (I) Nirmala Sadhus are not Sikhs; (ii) the Dera was maintained for entirely a distinct sect known as Nirmals Sadhus who cannot be regarded as Sikhs; (iii) the mere fact that at some stage there was a Guru Granth Sahib in the Dera cannot lead to any conclusion that the institution was meant for or belonged to the followers of Sikh religion, these findings were rendered in suit filed under Section 92 CPC, therefore, cannot be reagitated and any challenge thereto is precluded on the principle of issue estoppel. The nature of suit under Section 92 CPC was explained by the Apex Court in para 19 of the judgement referring to its earlier decision in R. Venugopala Naidu and others v. Venkatarayulu Naidu Charities and others, AIR 1990 SC 444 holding that a suit under Section 92 CPC is a suit of special nature for the protection of public rights in the public trust and charities. The suit is fundamentally on behalf of the entire body of persons who are interested in the trust. It is for vindication of public rights. The beneficiaries of the trust, which may consist of public at large, may choose two or more persons amongst themselves, for the purpose of filing a suit under Section 92 CPC and the suit-title in that event would show only their names as plaintiffs. It is for vindication of public rights. The beneficiaries of the trust, which may consist of public at large, may choose two or more persons amongst themselves, for the purpose of filing a suit under Section 92 CPC and the suit-title in that event would show only their names as plaintiffs. In the circumstances, it cannot be said that the parties to the suit are only those persons whose names are mentioned in the suit-title. The named plaintiffs being the representatives of public at large, which is interested in the trust, of such interested persons, would be considered in the eyes of law to be parties to the suit. A suit under Section 92 CPC is thus a representative suit and as such binds not only the parties named in the suit-title but all those who share common interest and are interested in the trust. It is for that reason that Explanation 6 to Section 11 CPC constructively bars by res judicata the entire body of interested persons from reagitating the matter directly and substantially in issue in an earlier suit under Section 92 CPC. 89. It is well-settled law that explanation to a section is not a substantive provision by itself. It is entitled to explain the meaning of the words contained in the Section or to clarify certain ambiguities or clear them up. It becomes a part and parcel of the enactment. Its meaning must depend upon its terms. Sometimes, it is for exclusion of some thing and sometimes exclude something from the ambit of the main provision or condition of some words existing therein. Therefore, an explanation should be read harmoniously so as to clear any ambiguity in the main section. A clash of interest in the parties would oust the applicability of Explanation-VI. 960. In Commissioner of Endowments and others v. Vittal Rao and others, (2005) 4 SCC 120 , it was held that even though an issue was not formerly framed but if it was material and essential for the decision of the case in the earlier proceeding and the issue has been decided, it shall operate as res judicata in the subsequent case. 90. 90. In Vithal Yeshwant Jathar v. Shikandarkhan Makhtumkhan Sardesai, AIR 1963 SC 385 , it was held : “It is well-settled that if the final decision in any matter at issue between the parties is based by a Court on its decisions on more than one point- each of which by itself would be sufficient for the ultimate decision- the decision on each of these points operates as res judicata between the parties.” 91. However, it has been argued before us that principle of res judicata would not bar suit in question for the reason that matter was taken up in writ jurisdiction under Article 226 where Court had not admitted any evidence and, therefore, judgment rendered by this Court by dismissing writ petition filed under Article 226, even if it is on merits, will not operate as res judicata so as to deny remedy of suit to plaintiff-appellant. This submission, in our view, also has not substance. 92. There are catena of authorities on this question that, a party if has failed in a writ petition and relief claimed has been denied, not on the ground of alternative remedy but otherwise, then Judgment of High Court will operate as res judicata and same party cannot claim same relief in any other adjudicatory forum including suit including suit under Section 9 C.P.C. 93. In Premier Cable Co. Ltd. v. Government of India and others, (2002)10 SCC 207, Assistant Collector, Central Excise passed assessment order demanding excise duty from Premier Cable Ltd. (hereinafter referred to as ‘assessee’). His appeal against assessment order filed before Collector was dismissed as barred by limitation. Thereafter, his revision was also dismissed by Central Government. Lastly, his writ petition was dismissed by High Court. Assessee then preferred a suit seeking a declaration that assessment order is without jurisdiction and prayed for an injunction. Trial Court though held that assessment was without jurisdiction and illegal but found suit as barred by time, hence, dismissed. First appeal before High Court also failed and matter was taken in Supreme Court. Court found that suit was not barred by limitation but by principle of res judicata. It said : “Once the writ petition was dismissed and the said Judgment was not challenged before the superior Court, the assessment order passed against the appellant attained finality. First appeal before High Court also failed and matter was taken in Supreme Court. Court found that suit was not barred by limitation but by principle of res judicata. It said : “Once the writ petition was dismissed and the said Judgment was not challenged before the superior Court, the assessment order passed against the appellant attained finality. The assessment order having attained finality, levy could not have been challenged by means of a separate suit in Civil Court.” 94. Supreme Court also non-suited assessee on another ground that assessment order, appellate order and revisional order though were mentioned in the plaint but no relief sought and so long as those orders are allowed to stand, the assessee could not evade recovery or demand of tax. 95. In Government of Andhra Pradesh v. M. Narsimha Murthy, 1990 (Supp) SCC 746, validity of Rule 3(2) of Andhra Pradesh Civil Services (Disciplinary Proceedings Tribunal) Rules, 1961 came up for consideration. An order of dismissal was challenged on the ground that inquiry conducted by Disciplinary Tribunal was bad since it had no jurisdiction as Rule 3 (2) was already declared invalid by a Single Judge vide Judgment dated 30.12.1973. Administrative Tribunal upheld this contention and set aside order for dismissal ignoring the fact that Judgment of Single Judge was already reversed on 19.7.1976 by a Judgment of Division Bench and Rule 3(2) was declared intra vires. It was then held since Judgment of High Court upholding rule became final after dismissal of S.L.P., it was not open to agitate same question in a suit as it was barred by principle of res judicata. 96. In Union of India v. Nank Singh, AIR 1968 SC 1870, employee Nanak Singh was terminated by order dated 10.1.1958 after giving one month’s salary in lieu of notice. He filed departmental appeal but he failed. Then, he filed writ petition under Article 226 before High Court seeking a declaration that termination of his employment was void, illegal and unconstitutional. He succeeded before learned Single Judge but lost in appeal before Division Bench. Termination order was upheld. Special Leave Petition under Article 136 filed against that order was also dismissed. Thereafter, Nanak Singh instituted suit in the Court of Senior Sub- Judge, Delhi for declaration that order of termination was illegal having been passed by an authority lower than authority competent to pass such order. Termination order was upheld. Special Leave Petition under Article 136 filed against that order was also dismissed. Thereafter, Nanak Singh instituted suit in the Court of Senior Sub- Judge, Delhi for declaration that order of termination was illegal having been passed by an authority lower than authority competent to pass such order. Suit was dismissed but Nanak Singh succeeded in appeal before Additional District Judge. Second Appeal filed by Union of India failed in High Court and that is how matter reached Apex Court. First question considered was, whether Judgment of High Court in earlier writ petition upholding order for termination would operate as res judicata so as to bar civil suit filed by Nanak Singh. It was argued on behalf of Nanak Singh that order of termination was challenged on the ground of violation of Article 311 and competence of authority, who terminated his employment. High Court upheld termination order in writ petition holding that it was termination simplicitor but regarding competence of authority, who passed termination order, matter was not examined by High Court in earlier proceedings. Therefore, suit on this ground was maintainable since that issue was not decided by High Court. Rejecting this contention, Court said : “... But what operates as res judicata is the decision and not the reasons given by the Court in support of the decision. We are unable to agree with counsel for Nanak Singh that the High Court reserved to Nanak Singh the right to agitate the question about the authority of Mr. Kane in a separate suit. There is no such express reservation, and it cannot be implied, for such an implication is plainly inconsistent with the final order passed by the High Court. Even assuming that the High Court was in error in holding that the appeal could be decided only on the first point, the order dismissing the petition must still operate as res judicata in respect of the both the points on which the petition was founded.” 97. Thereafter, Supreme Court in Union of India v. Nanak Singh (supra) referring to its earlier decision in Gulabchand Chhotalal v. State of Gujarat, AIR 1965 SC 1153 , further observed : “... Thereafter, Supreme Court in Union of India v. Nanak Singh (supra) referring to its earlier decision in Gulabchand Chhotalal v. State of Gujarat, AIR 1965 SC 1153 , further observed : “... the provisions of Section 11 of Code of Civil Procedure are not exhaustive with respect to an earlier decision operating as res judicata between the same parties on the same matter in controversy in a subsequent regular suit, and on the general principle of res judicata, any previous decision on a matter in controversy, decided after full contest or after affording fair opportunity to the parties to prove their case by a Court competent to decide it, will operate as res judicata in a subsequent regular suit. It is not necessary that the Court deciding the matter formerly be competent to decide the subsequent suit or that the former proceeding and the subsequent suit have the same subject-matter. There is no good reason to preclude such decisions on matters in controversy in writ proceedings under Article 226 or Article 32 of the Constitution from operating as res judicata in subsequent regular suits on the same matters in controversy between the same parties and thus to give limited effect to the principle of the finality of decisions after full contest.” 98. In order to construe an earlier Judgment as res judicata, it has been held that previous adjudication between the parties would operate as res judicata where the question has been heard and decided or that parties had opportunity of raising their contentions thereon. When earlier writ petition has been dismissed for the same cause of action, subsequent writ petition was held barred by principle of constructive res judicata in workmen of Cochin Port Trust v. Board of Trustees of the Conchin Port Trust, AIR 1978 SC 1283 , wherein referring to earlier Judgment in Daryao v. State of U.P., AIR 1961 SC 1457 , Court has observed : “We have thought it proper to elucidate this aspect of the matter a bit further to indicate that dismissal of a writ petition in limine by a non-speaking order could certainly create a bar in the entertainment of another writ petition filed by the same party on the same cause of action.” 99. In the present case, looking from any angle, we are satisfied that suit in question was clearly barred by res judicata after dismissal of writ petition by this Court declining to grant any relief to plaintiff-appellant and for same cause of action, therefore, plaintiff-appellant could not have filed suit. 100. In the result, point for determination 2 is also answered against plaintiff-appellant and in favour of defendants. 101. In view of the above discussion and particularly since no other point has been raised, we find no merit in present appeal. 102. Dismissed with costs.