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23. Presently we shall address to the issue whether the order which has been construed operating as res judicata by the Division Bench, does really come within the ambit and sweep of the principles of res judicata or not.

24. In Satyadhyan Ghosal and others v. Smt. Deorajin Debi and another[7], a three-Judge Bench adverted to the principle of res judicata and its application as between two stages in the same litigation and opined that when a Court at an earlier stage decided the matter in one way will not allow the parties to re-agitate the matter again at a subsequent stage of the same proceeding. The facts in the said case are that the appellant-landlord who had obtained a decree for ejectment against the tenant had not yet been able to get possession in execution of the decree. The decree was obtained on February 10, 1949 and soon thereafter the Calcutta Thika Tenancy Act, 1949 came on the statute book on March 3, 1949. The tenants made an application under Order IX, Rule 13 of the Code of Civil Procedure for setting aside the decree. The said application was dismissed on July 16, 1949. On 9.9.1949, an application was made by the tenant under Section 28 of the Calcutta Thika Tenancy Act alleging that they were Thika tenants and hence, the decree made against them may be rescinded. After contest, the learned Munsif came to hold that applicants were not Thika tenants within the meaning of Thika Tenancy Act and accordingly declined to rescind the decree. The aforesaid order was challenged in a revision under Section 115 of the Code of Civil Procedure. At the time when the revision application was taken up for hearing, the Calcutta Thika Tenancy Ordinance had come into force on October 21, 1952 and thereafter the Calcutta Thika Tenancy (Amendment) Act, 1953 came into force. The Amendment Act omitted Section 28 of the original Act. In order to decide whether the application under Section 28 was still alive, the High Court had to consider the effect of Section 1(2) of the Amendment Act. The learned Single Judge on interpretation of the provisions came to hold that Section 1(2) of the Amendment Act did not affect the operation of Section 28 of the original Act to the proceeding and on that basis disposed of the application holding that Section 28 was applicable. The High Court had also held that in view of the amended provision of Section 28 of the Thika Act and the Ordinance which was recorded by the learned Munsif, the revisionists before the High Court were Thika tenants. Being of this view, he allowed the revision and set aside the order of the Munsif by which he dismissed the application under Section 28 and remanded the case to the Court of Munsif for disposal in accordance with law. After the remand, the Munsif rescinded the decree. The landlord preferred a revision under Section 115 of the Code of Civil Procedure contending that Section 28 of the Act was not applicable but the said submission was repelled by the learned Single Judge holding that the said issue having been decided earlier was res judicata between the parties. The said order passed in the revision was the subject matter of appeal before this Court by special leave. This Court stated the principle of res judicata which is based on the need of giving finality to judicial decisions. The learned Judges opined once a res is judicata, it shall not be adjudged again and it primarily applies between past litigations and future litigations. Further elucidating it was stated that when in a matter – whether a question of fact or a question of law had been decided between the parities in one suit or proceeding and the decision is final, either because of an appeal was taken to a higher court or an appeal was dismissed, or when no appeal lies, neither party will be allowed in a future suit or proceeding between the same parties to canvass the matter again. In that context, the Court addressed the applicability of the principle of res judicata between two stages in the same litigation and, eventually, ruled thus:-

“It is also difficult to appreciate the view taken by the District Munsif that ex parte decree cannot be considered to be ‘full decree on merits’. A decree which is passed ex parte is as good and effective as a decree passed after contest. Before the ex parte decree is passed, the court has to hold that the averments in the plaint and the claim in the suit have been proved. It is, therefore, difficult to endorse the observation made by the Principal District Munsif that such a decree cannot be considered to be a decree passed on merits. It is undoubtedly a decree which is passed without contest; but it is only after the merits of the claim of the plaintiff have been proved to the satisfaction of the trial court, that an occasion to pass an ex parte decree can arise.”

32. The aforesaid passage was approved by this Court in Saroja v.

Chinnusamy (Dead) by LRs and another[11]. The purpose of citing the said authority is that though an ex parte decree is passed without contest but it is passed only after the merits of the claim of the plaintiff have been proved to the satisfaction of the trial court.

33. In this regard, the pronouncement in Y.B. Patil and others v. Y.L. Patil[12] is worth referring to. In that case the High Court in the writ petition preferred on earlier point of time had recorded a finding and gave directions to the tribunal not to reopen the question of fact in revision and the tribunal complied with those directions of the High Court. This Court opined that the appellants therein were bound by the judgment of the High Court and it was not open to them to go behind the judgment earlier passed by the High Court as they had not preferred any appeal against the said judgment and it had attained finality. The Court observed that it is well settled that principle of res judicata can be invoked not only in separate subsequent proceedings, they also got attracted in subsequent stage of the same proceeding. The aforesaid decision has noted the fact that in the earlier writ petition the High Court has clearly stated that the tribunal shall not reopen the question of fact in revision. It is manifest that, this Court has taken note of the fact that there was an expression of opinion by the High Court that facts need not be adverted to again by the tribunal and that attracted the principle of res judicata.