14. It is observed by this Honourable court in the decision reported in 1992 LW (Cri.) 579 (G.Sethuraman and two others vs. Miss.Meenakshi Ammal and two others) as follows:
137. Learned senior counsel distinguished the judgment of Supreme
Court in case of Gangai Vinayagar Temple and Ors. (supra) on the
ground that the provisions of Order XLI Rule 1 of Code of Civil
Procedure, 1908 does not apply to arbitrations. Even if issues are
framed by the arbitral tribunal, the arbitral tribunal does not decide
every such issues. If a particular issue is incapable of decision, the
arbitral tribunal will not decide such issue.
137. Learned senior counsel distinguished the judgment of Supreme
Court in case of Gangai Vinayagar Temple and Ors. (supra) on the
ground that the provisions of Order XLI Rule 1 of Code of Civil
Procedure, 1908 does not apply to arbitrations. Even if issues are
framed by the arbitral tribunal, the arbitral tribunal does not decide
every such issues. If a particular issue is incapable of decision, the
arbitral tribunal will not decide such issue.
In the same judgment, earlier decision of this court reported in 1992 LW (Cri) 579 (G.Sethurman and two others v. Meenakshi Ammal and two others) was referred to, which makes it abundantly clear that section 145 (4) Cr.P.C enables both the parties to adduce oral and documentary evidence and the Magistrate is bound not only to receive all such evidence as may be produced, but he is also empowered to take such further evidence if any, as may think necessary. After the production of the oral evidence, the Magistrate will have to decide the actual or factual possession, the evidence placed before him, on the date when the preliminary order had been passed, which necessarily implies the discussion of the evidence placed before him. The learned brother Judge, after referring the view expressed in the earlier decision, set aside the impugned order, which in the case decided therein do not at all indicate with reference to any oral or documentary evidence in deciding the question of possession.
Supreme Court in Gangai Vinayagar Temple v. Meenakashi Ammal, (2009) 9 SCC 757, held that res judicata is an ancient doctrine of universal application and permeates every civilised system of jurisprudence. This doctrine encapsulates the basic principles in all judicial systems which provide that an earlier adjudication is conclusive on the same subject-matter between the same parties. The principles of res judicata reflect "a wisdom that is for all time".