Basic Law: Israel as the Nation-State of the Jewish People

1 — Basic principles A. The land of Israel is the historical homeland of the Jewish people, in which the State of Israel was established. B. The State of Israel is the national home of the Jewish people, in which it fulfills its natural, cultural, religious and historical right to self-determination. C. The right to exercise… Read More Basic Law: Israel as the Nation-State of the Jewish People

Neither Sec 188 of IPC nor Sec 144 of Cr.P.C allow executive to threaten life of citizen for mere breach of curfew order-Gujrat HC

06-02-1974-Under the Constitution, protection against impairment of the guarantee of fundamental rights is determined by the nature of the right, the interest of the aggrieved party and the degree of harm resulting from the State action. Impairment of the right of the individual and not the object of the State in taking the impugned action,… Read More Neither Sec 188 of IPC nor Sec 144 of Cr.P.C allow executive to threaten life of citizen for mere breach of curfew order-Gujrat HC

Application of mind is sine qua non in an executive action to arrive at subjective satisfaction- J&K High Court

08-04-2010-The grounds of detention ex facie are vague, ambiguous and sketchy and not clear and unambiguous enable a man of common prudence to explain his stand much less make an effective representation. The detenue is not informed with clarity about his alleged “thought process”, “well knit group” at the back of the detenue and the activities that “create law and order problem”. The detenue is not informed who are the people who constitute the “well knit group” at back of the detenue, what changes were expected to be made by the detenue in his “thought process”. What are law and order and “socio-economic” problem that the detenue is likely to create and how are such problems intended to be created. The detenue is not informed about “socio economic problem” that the activities attributed to the detenue result in. The grounds of detention thus are vague, sketchy and lacking in essential details.… Read More Application of mind is sine qua non in an executive action to arrive at subjective satisfaction- J&K High Court

Distinction between a decree passed by a Court having no jurisdiction and a decree of a court which is illegal or not passed in accordance with law.

A decree suffering from illegality or irregularity of procedure, cannot be termed inexecutable by the executing court; the remedy of a person aggrieved by such a decree is to have it set aside in a duly constituted legal proceedings or by a superior court … Read More Distinction between a decree passed by a Court having no jurisdiction and a decree of a court which is illegal or not passed in accordance with law.

Distinction between a suit for cancellation of a deed affecting certain property and a suit for declaration that a particular document is inoperative as against the plaintiff.

There is a clear and well marked distinction between a suit for cancellation of a deed affecting certain property and a suit for declaration that a particular document is inoperative as against the plaintiff. A suit for cancellation must be brought by a person who was a party to the deed or by a person… Read More Distinction between a suit for cancellation of a deed affecting certain property and a suit for declaration that a particular document is inoperative as against the plaintiff.

EXPARTE JUDGMENT AND DECREE – NECESSITY TO RECORD FINDINGS ON MERITS

Suppose a decree in question was passed by the learned Appellate Judge without analyzing the facts of the case or documents relating to title. The learned Trial Judge decreed the suit in a routine manner presumably under the impression that in case the defendants are set exparte, the suit should be decreed as a matter of course without testing the bona fides of the claim made by the plaintiff.… Read More EXPARTE JUDGMENT AND DECREE – NECESSITY TO RECORD FINDINGS ON MERITS

Technical plea of constructive res judicata should not stand in the way to second proceeding

06-11-1995-According to us, it would not be just and proper to deny relief to the appellant, which is otherwise due, on the ground that earlier it had only assailed the question of exigibility to tax. It is correct that the plea now taken could have been advanced earlier as well, but the fact this was not done, should not be a ground to deny the relief which is otherwise due to the appellant. The technical plea of constructive res judicata should not stand in the way of the appellant in a case of the present nature.… Read More Technical plea of constructive res judicata should not stand in the way to second proceeding

If any ground which was argued but not considered aggrieved party can file an application for review or clarification.

04-04-1985-It is not unusual for parties and counsel to raise innumerable grounds in the petitions and memoranda of appeal etc., but, later, confine themselves, in the course of argument to a few only of those grounds, obviously because the rest of the grounds are considered even by them to be unteaable. No party or counsel is thereafter entitled to make a grievance that the grounds not argued were not considered. If indeed any ground which was argued was not considered it should be open to the party aggrieved to draw the attention of the court making the order to it by filing a proper application fur review or clarification. The time of the superior courts is not to be wasted in enquiring into the question whether a certain ground which no reference is found in the judgment of the subordinate court was argued before that court or not ?… Read More If any ground which was argued but not considered aggrieved party can file an application for review or clarification.

If issue of title neither expressly nor substantially involved in former suit then whether the judgment operates as res judicata in a next suit.

12-07-2005-We find sufficient force in the alternative contention advanced on behalf of wife Alagammal and her children that doctrine of constructive res judicata, as contained in explanation IV to Section 11 of the Code certainly, can be invoked against the present appellant, who claims by a purchase from Muthuswami. Explanation IV to Section 11 of… Read More If issue of title neither expressly nor substantially involved in former suit then whether the judgment operates as res judicata in a next suit.

Though in execution proceedings, Sec 11 CPC doesn’t apply but the rule of constructive res judicata applies

19-04-1972-It is true that Section 13(1) of the Delhi Rent Control Act prohibited the court from passing the decree or order for recovery of possession of any premises in favour of a landlord against the tenant unless the court was satisfied that one or more of the grounds given in that provision existed;  In the judgment of the Senior Subordinate Judge dated October 30, 1961 given in the first set of execution proceedings the various circumstances were considered by which the learned judge came to the conclusion that the court which passed the decree for eviction was satisfied that one or more of the grounds mentioned in Section 13 of the Rent Control Act had been made out. The decision given in the first set of execution proceedings was thus not one of law only but of a mixed question of law and fact. Such a decision undoubtedly would operate as res judicata. In execution proceedings Section 11 of the CPC does not apply in terms but the rule of constructive res judicata has always been applied.… Read More Though in execution proceedings, Sec 11 CPC doesn’t apply but the rule of constructive res judicata applies

Whether ommission of pleading in previous suit creates Constructive res judicata in the second suit

26-04-1973-The judgment clearly suggests that it was open to agitate the matter before the High Court hearing the petition on the basis of Section 57. But the point was not pressed and must be deemed to have been given up. That was why this Court did not allow the point to be raised in appeal. In these circumstances it is not open to re-agitate it between the parties in a subsequent proceeding.

Read More Whether ommission of pleading in previous suit creates Constructive res judicata in the second suit

Whether the principle of constructive res judicata is applicable to writ petitions or not-Yes

07-10-1964-There can be no doubt that the fundamental rights guaranteed to the citizens are a significant feature of our Constitution and the High Courts under Art. 226 are bound to protect these fundamental rights. There can also be no doubt that if a case is made out for the exercise of its jurisdiction under Art. 226 in support of a citizen’s fundamental rights, the High Court will not hesitate to exercise that jurisdiction. But the question as to whether a citizen should be allowed to challenge the validity of the same order by successive petitions under Art. 226, cannot be answered merely in the light of the significance and importance of the citizens’ fundamental rights. The general principle underlying the doctrine of res judicata is ultimately based on considerations of public policy. One important consideration of public policy is that the decisions pronounced by courts of competent jurisdiction should be final, unless they are modified or reversed by appellate authorities; and the other principle is that no one should be made to face the same kind of litigation twice over, because such a process would be contrary to considerations of fair play and justice, vide : Daryao and Others Vs. The State of U.P. and Others, .… Read More Whether the principle of constructive res judicata is applicable to writ petitions or not-Yes