RES JUDICATA - WHEN THE LIS IS JUDICATA - HOW IT DIFFERS FROM ESTOPPEL, ACQUIESCENCE AND WAIVER?

DOCTRINE OF RES JUDICATA

INTRODUCTION

ONE LINER :: A matter finally decided on its merits by a court having competent jurisdiction shall not be subject to litigation again between the same parties, unless fraud, jurisdiction, or question of law is directly or substantially in issue before the Court.

Res Judicata is the Latin term for ‘a matter judged.’ It means ‘a thing decided.’ Section 11 of the Civil Procedure Code, 1908, talks about Res Judicata.

 

BASED ON THREE MAXIMS - 1. Nemo debet bis vexari pro una et eadem causa – It means no man shall be punished twice for the same offence; 2. Interest Reipublicae Ut Sit Finis Litium – It means it is in the interest of the state that there should be an end to litigation. Or Litigation must come to an end; AND, 3. Res Judicata Pro Veritate Accipitur – It means that a judicial decision must be accepted as correct.

 

WORKS ON TWO DIMENSIONS - CLAIM PRECLUSION AND ISSUE PRECLUSION – Claim preclusion [works vertically] focuses on baring a suit from being brought again on a legal cause of action that has already been finally decided between the parties. Issue preclusion [works horizontally] bars the re-litigation of factual issues that have already been necessarily determined by a judge as a part of an earlier claim.

 

A three Judges bench of the Hon’ble SUPREME COURT, in the case of Uttar Pradesh State Road Transport Corporation vs. State of Uttar Pradesh, Judgment dated NOVEMBER 29, 2004 (AIR 2005 SC 446 : 2005 (1) SCC 444) , observed as follows –

 

Para 11: The principle of res judicata is based on the need of giving a finality to judicial decisions. The principle which prevents the same case being twice litigated is of general application and is not limited by the specific words of Sec. 11 of the Code of Civil Procedure in this respect. Res judicata applies also as between two stages in the same litigation to this extent that a court, whether the trial court or a higher court having at an earlier stage decided a matter in one way will not allow the parties to reagitate the matter again at a subsequent stage of the same proceedings.

 

Yet again, a three Judges Bench of the Hon’ble SUPREME COURT, in the case of Satyadhyan Ghosal vs. Deorajin Debi, Judgment dated APRIL 20, 1960, (AIR 1960 SC 941; 1960 (3) SCR 590), observed as under –

 

Para 7: The principle of res judicata is based on the need of giving a finality to judicial decisions. What it says is that once a lis is judicata, it shall not be adjudged again. Primarily it applies as between past litigation and future litigation. When a matter - whether on a question of fact or a question of law - has been decided between two parties in one suit or proceeding and the decision is final, either because no appeal was taken to a higher court or because the appeal was dismissed, or no appeal lies, neither party will be allowed in a future suit or proceeding between the same parties to canvass the matter again. This principle of res judicata is embodied in relation to suits in sec. 11 of the Code of Civil Procedure; but even where sec. 11 does not apply, the principle of res judicata has been applied by courts for the purpose of achieving finality in litigation. The result of this is that the original court as well as any higher court must in any future litigation, proceed on the basis that the previous decision was correct.

 

WHETHER RES JUDICATA APPLIES TO ARTICLE 32 PETITION?

OR

WHETHER RES JUDICATA APPLIES TO WRIT PETITION U/A 226?

 

 

A Constitution Bench of the SUPREME COURT, in the case of Daryao vs. State of Uttar Pradesh, Judgment dated MARCH 27, 1961, (AIR 1961 SC 1457 : 1962 (1) SCR 574), observed as –

 

Para 10: In considering the essential elements of res judicata one inevitably harks back to the Judgement of Sir William B. Hale in the leading Duchess of Kingston's case, 2 Smith Lead Case. Said Sir William B. Hale "from the variety of cases relative to judgments being given in evidence in civil suits, these two deductions seem to follow as generally true: First, that the Judgement 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; Secondly, that the Judgement of a court of exclusive jurisdiction, directly upon the point, is in like manner conclusive upon the same matter, between the same parties, coming incidentally in question in another court for a different purpose." As has been observed by Halsbury, "the doctrine of res judicata is not a technical doctrine applicable only to records; it is a fundamental doctrine of all courts that there must be an end of litigation" - Halsbury's Laws of England. Halsbury also adds that the doctrine applies equally in all courts, and it is immaterial in what court the former proceeding was taken, provided only that it was a court of competent jurisdiction, or what from the proceeding took, provided it was really for the same cause" "Res judicata", it is observed in Corpus Juris, "is a rule of universal law pervading every well regulated system of jurisprudence, and is put upon two grounds, embodied in various maxims of the common law; the one, public policy and necessity, which makes it to the interest of the State that there should be an end to litigation- interest republiae ut sit finis litium; the other, the hardship on the individual that he should be vexed twice for the same cause- nemo debet is vexari pro eaden causa", Corpus Juris. In this sense the recognised basis of the rule of res judicata is different from that of technical estoppel. "Estoppel rests on equitable principles and res judicata rests on maxims which are taken from the Roman Law", . Therefore, the argument that res judicata is a technical rule and as such is irrelevant in dealing with petitions under Art. 32 cannot be accepted.

 

Para 19: We must now proceed to state our conclusion on the preliminary objection raised by the respondents. We hold that if a writ petition filed by a party under Art. 226 is considered on the merits as a contested matter and is dismissed the decision thus pronounced would continue to bind the parties unless it is otherwise modified or reversed by appeal or other appropriate proceedings permissible under the Constitution. It would not be open to a party to ignore the said Judgement and move this Court under Art. 32 by an original petition made on the same facts and for obtaining the same or similar orders or writs. If the petition filed in the High Court under Art. 226 is dismissed not on the merits but because of the laches of the party applying for the writ or because it is held that the party had an alternative remedy available to it, then the dismissal of the writ petition would not constitute a bar to a subsequent petition under Art. 32, except in cases where and if the facts thus found by the High Court, may themselves be relevant even under Art. 32. If a writ petition is dismissed in limine and an order is pronounced in that behalf, whether or not the dismissal would constitute a bar would depend up on the nature of the order. If the order is on the merits it would be a bar; if the order shows that the dismissal was for the reason that the petitioner was guilty of laches or that he had an alternative remedy it would not be a bar, except in cases which we have already indicated. If the petition is dismissed in limine without passing a speaking order then such dismissal cannot be treated as creating a bar of res judicata. It is true that, prima facie, dismissal in limine even without passing a speaking order in that behalf may strongly suggest that the Court took the view that there was no substance in the petition at all, but in the absence of a speaking order, it would not be easy to decide what factors weighed in the mind of the Court and that makes it difficult and unsafe to hold that such a summary dismissal is a dismissal on merits and as such constitutes a bar of res judicata against a similar petition filed under Art. 32. If the petition is dismissed as withdrawn it cannot be a bar to a subsequent petition under Art. 32. Because in such a case there has been no decision on the merits by the Court. We wish to make it clear that the conclusion thus reached by us are confined only to the point of res judicata which has been argued as a preliminary issue in these writ petitions and no other. It is in the light of this decision that we will now proceed to examine the position in the six petitions before us.

 

RES JUDICATA NOT TO BE CONFUSED WITH ACQUIESCENCE AND WAIVER

[SUBSEQUENT WRIT WHEN NOT MAINTAINABLE]

 

ORDER 9 RULE 9 - RES JUDICATA - whether applies to writ proceedings when earlier petition dismissed for default-the principles underlying Order IX Rules 8 and 9 are based on sound public policy- litigant who approaches the court should agitate the matter with due diligence and take a decision on merits-these principles equally apply to writ proceedings-petitioner, whose first petition was dismissed for default had a remedy for recalling that order-if petitioner does not choose to avail remedy provided by Legislature he cannot have any grievance-bar of res judicata applies to writ proceedings - no discretion on any court to ignore such principles-writ petition rejected. [D. Sangya Naik vs. DoT ILR 2005 KAR 1874]

When a party engages a Counsel it is his duty to see that his Counsel is present when the case is called for hearing. Order IX Rule 9 provides for a remedy to petitioner to file an application to recall the said order by showing sufficient cause for his absence. When a legislature provides a remedy for getting the said order set-aside, he has to follow the procedure prescribed under law. If he does not choose to follow the said procedure and if chooses to follow the procedure which is not recognized in law, he cannot have any grievance. Under these circumstances, the bar contained in Order IX Rule 9 CPC which is equally applicable to writ rules is absolute and no discretion is conferred on any court to ignore the aforesaid statutory provision and entertain the second writ petition challenging the order which was the subject matter of earlier proceedings which came to be dismissed for non-prosecution.

 

Sarguja Transport Service vs. State Transport Appellate Tribunal, M. P. , Gwalior, 12 Nov 1986

1987 0 AIR(SC) 88; 1987 0 JLJ 142; 1986 1 JT 808; 1986 2 Scale 757; 1987 1 SCC 5; 1987 0 SCC(Cri) 19; 1987 1 SCR 200

 

Para  8. The question for our consideration is whether it would or would not advance the cause of justice if the principle underlying R. 1 of O. XXIII of the Code is adopted in respect of writ petitions filed under Art. 226/227 of the Constitution also. It is common knowledge that very often after a writ petition is heard for some time when the petitioner or his counsel finds that the Court is not likely to pass an order admitting the petition, request is made by the petitioner or by his counsel, to permit the petitioner to withdraw from the writ petition without seeking permission to institute a fresh writ petition. A Court which is unwilling to admit the petition would not ordinarily grant liberty to file a fresh petition while it may just agree to permit the withdrawal of the petition. It is plain that when once a writ petition filed in a High Court is withdrawn by the petitioner himself he is precluded from filing an appeal against the order passed in the writ petition because he cannot be considered as a party aggrieved by the order passed by the High Court. He may as stated in Daryao vs. State of U.P., (1962) SCR 574: (AIR 1961 SC 1457) in a case involving the question of enforcement of fundamental rights file a petition before the Supreme Court under Art. 32 of the Constitution because in. such a case there has been no decision on the merits by the High Court. The relevant observation of this Court in Daryao's case (supra) is to be found at page 593 and it is as follows :

 

       "If the petition is dismissed as withdrawn it cannot be a bar to a subsequent petition under Art. 32, because in such a case there has been no decision on the merits by the Court. We wish to make it clear that the conclusions thus reached by us are confined only to the point of res judicata which has been argued as a preliminary issue in these writ petitions and no other."

 

      Para  9. The point for consideration is whether a petitioner after withdrawing a writ petition filed by him in the High Court under Art. 226 of the Constitution of India without the permission to institute a fresh petition can file a fresh writ petition in the High Court under that Article. On this point the decision in Daryaos’ case (supra) is of no assistance. But we are of the view that the principle underlying R. 1 of O. XXIII of the Code should be extended in the interests of administration of justice to cases of withdrawal of writ petition also, not on the ground of res judicata but on the ground of public policy as explained above. It would also discourage the litigant from indulging in bench-hunting tactics. In any event there is no justifiable reason in such a case to permit a petitioner to invoke the extraordinary jurisdiction of the High Court under Art. 226 of the Constitution once again. While the withdrawal of a writ petition filed in High Court without permission to file a fresh writ petition may not bar other remedies like a suit or a petition under Art. 32 of the Constitution since such withdrawal does not amount to res judicata, the remedy under Art. 226 of the Constitution should be deemed to have been abandoned by the petitioner in respect of the cause of action relied on in the writ petition when he withdraws it without such permission. In the instant case the High Court was right in holding that a fresh writ petition was not maintainable before it in respect of the same subject-matter since the earlier writ petition had been withdrawn without permission to file a fresh petition. We, however, make it clear that whatever we have stated in this order may not be considered as being applicable to a writ petition involving the personal liberty of an individual in which the petitioner prays for the issue of a writ in the nature of habeas corpus or seeks to enforce the fundamental right guaranteed under Art. 21 of the Constitution since such a case stands on a different footing altogether. We, however, leave this question open.

 

 

APPLICABILITY OF RES JUDICATA TO INDUSTRIAL ACT AND LABOR COURTS

 

A three Judges Bench of the Hon’ble SUPREME COURT, in the case of Workmen Of The Straw Board Manufacturing Company Limited vs. Straw Board Manufacturing Company Limited, Judgment dated MARCH 21, (1974 AIR 1974 SC 1132 : 1974 (4) SCC 681), observed as follows –

 

Para 25: It is now well established that, although the entire Civil Procedure Code is not applicable to industrial adjudication, the principles of res judicata laid down under Section 11 of the Code of Civil Procedure, however, are applicable, wherever possible, for very good reasons. This is so since multiplicity of litigation and agitation and re-agitation of the same dispute at issue between the same employer and his employees will not be conducive to industrial peace which is the principal object of all labour legislation bearing on industrial adjudication. But whether a matter in dispute in a subsequent case had earlier been directly and substantially in issue between the same parties and the same had been heard and finally decided by the Tribunal will be of pertinent consideration and will have to be determined before holding in a particular case that the principles of res judicata are attracted.

 

 

The Hon’ble SUPREME COURT OF INDIA, in the case of Ishwar Dutt vs. Land Acquisition Collector, Judgment dated AUGUST 2, 2005, AIR 2005 SC 3165 : 2005 (7) SCC 190), observed–

 

Para 18: In the Reference Court or for that matter the High Court exercising its appellate jurisdiction u/s. 54 of the Act could not have dealt with the said question. The principle of res judicata is species of the principle of estoppel. When a proceeding based on a particular cause of action has attained finality, the principle of res judicata shall fully apply.

 

Para 29: In Y.B. Patil (supra) it was held:

 

"4... It is well settled that principles of res judicata can be invoked not only in separate subsequent proceedings, they also get attracted in subsequent stage of the same proceedings. Once an order made in the course of a proceeding becomes final, it would be binding at the subsequent stage of that proceeding..."

 

Para 30: It was further observed:

 

"In a case of this nature, however, the doctrine of 'issue estoppel' as also 'cause of action estoppel' may arise. In Thoday (supra) Lord Diplock held: "..."cause of action estoppel" is that which prevents a party to an action from asserting or denying, as against the other party, the existence of a particular cause of action, the non-existence or existence of which has been determined by a court of competent jurisdiction in previous litigation between the same parties. If the cause of action was determined to exist, i.e., Judgement was given on it, it is said to be merged in the judgment.... If it was determined not to exist, the unsuccessful plaintiff can no longer assert that it does; he is estopped per rem judicatam."

 

The said dicta was followed in Barber vs. Staffordshire Country Council, 1996 2 AllER 748. A cause of action estoppel arises where in two different proceedings identical issues are raised, in which event, the latter proceedings between the same parties shall be dealt with similarly as was done in the previous proceedings. In such an event the bar is absolute in relation to all points decided save and except allegation of fraud and collusion.

 

EXCEPTIONS TO THE APPLICABILITY OF RES JUDICATA

 

Raju Ramsing Vasave vs. Mahesh Deorao Bhivapurkar & Ors. [(2008) 9 SCC 54]

 

Para 23: Contention of Mr. Savant must be tested on the premise as to whether the principle of res judicata applies in a case of this nature.

 

Principle of res judicata is undoubtedly a salutary principle. Even a wrong decision would attract the principle of res judicata. The said principle, however, amongst others, has some exceptions, e.g., when a judgment is passed without jurisdiction, when the matter involves a pure question of law or when the judgment has been obtained by committing fraud on the court.

 

Para 24: Two legal principles which would govern a case of this nature, are:

(i) A decision rendered without jurisdiction being a nullity, the principle of res judicata shall not apply.

 

ii) If a fraud has been committed on the court, no benefit therefrom can be claimed on the basis of thereof or otherwise.

 

Para 25: In support of the first principle, we may at the outset refer to Chief Justice of Andhra Pradesh and Others vs. L.V.A. Dixitulu, 1979 2 SCC 34 wherein this Court, while discussing the effect of Sec. 11 of the Code of Civil Procedure on a pure question of law or a decision given by a court without jurisdiction, opined:

 

"Moreover, this is a pure question of law depending upon the interpretation of Art. 371D. If the argument holds good, it will make the decision of the Tribunal as having been given by an authority suffering from inherent lack of jurisdiction. Such a decision cannot be sustained merely by the doctrine of res judicata or estoppel as urged in this case."

 

Ashok Leyland Ltd. vs. State of Tamil Nadu and Anr., 2004 1 JT 289

 

The principle of res judicata is a procedural provision. A jurisdictional question if wrongly decided would not attract the principle of res judicata. When an order is passed without jurisdiction, the same becomes a nullity. When an order is a nullity, it cannot be supported by invoking the procedural principles like, estoppel, Waiver or res judicata."(See also, Dwarka Prasad Agarwal (D) By LRs. and Anr. vs. B.D. Agarwal and Ors., 2003 6 JT 398, Union of India vs. Pramod Gupta, 2005 12 SCC 1 and National Institute of Technology and Ors. vs. Niraj Kumar Singh, 2007 2 SCC 481).

 

 

Whether Writ Court order will bar (res judicata to) civil suit ?

Or

Whether civil suit will bar the writ remedy under 226 on the grounds of Res Judicata?

Or

Can an issue conclusively determined in a Civil Suit be re-opened before the writ jurisdiction (parallel proceedings)?

 

It is a settled proposition of law that a decision or order given in a summary proceeding, which by an express enactment is not appealable, and no finality was attached by the Legislature in express terms to the order and that therefore the decision under that Act (by the tribunal or the District Judge acting as a Tribunal) did not operate as res judicata so as to preclude the parties from re-agitating the question in a subsequent suit. (see, Arikapudi Balakotayya vs. Yadlapalli Nagayyaheld, 1946 (0) AIR (Mad) 509).

Parallel proceedings is always discouraged as it amounts to Forum Shopping, but when a substantial issue has not attained finality because it was not decided on merits then subsequent writ or civil suit shall not be res judicata.

Negligence - Res Ipsa Loquitor, Strict Liability and Absolute liability made simple

One Liner :: Res Ipsa Loquitor, Strict Liability and Absolute liability they all spring from the same doctrinal foundation in that they assist Plaintiffs’ in establishing liability when direct proof is beyond their reach, while reducing defences of the tortfeasor IN ASCENDING ORDER.

Act of negligence give rise to Torts.  Res Ipsa Loquitor is when the negligence is Writ Large and speaks for itself, nothing changes, it simply shifts the burden of proving diligence upon the tortfeasor.  All defences are available for the tortfeasor, though. Inference of Negligence may be dispelled in Res Ipsa Loquitor by an affirmative showing of proper care.  In strict liability, only three defences are available [plaintiff’s fault, vis major and act of third party].  In absolute liability, no defences are available and the liability is absolute. Therefore, strict and absolute liability are also “no fault liability”.

Res Ipsa Loquitor  ::  A was passing by the boundary of B’s Factory when a whistle traveling in projectile motion and originating from B’s Factory hit A’s head who died.  A will sue B for negligence and the principle of Res Ipsa Loquitor would apply.  As in, the cause of the accident to the best of the knowledge of B, A shall need to prove only the accident and B needs to rebut negligence.  The burden shifts. B in his defence can plead anything under the sun.

 

Now, we will see how the position of B in the example above changes when the definition of liability changes from Res Ipsa Loquitor to Strict Liability to Absolute Liability.  But then let’s revise the concept of Strict Liability to begin with.

Strict Liability, doctrine of

Strict liability applies to three categories of cases 1) Animal attacks (both person or property; pet or animal farae naturae; 2) Abnormally dangerous activity; and, 3) Product Liability.  The Rule of Strict Liability originated in the case of Rylands vs. Fletcher [1868] UKHL 1; L.R. 3 H.L. 330 (1868) and it is imminent that we understand Reylands.

 

Rylands vs. Fletcher  ::  Fletcher (plaintiff) leased several underground coal mines from land adjacent to that owned by Rylands (defendant).  Rylands owned a mill, and built a reservoir on his land for the purpose of supplying water to that mill.  Rylands employed competent engineers and contractors to build the reservoir.  In the course of building the reservoir, these employees learned that it was being built on top of abandoned underground coal mines the shafts of which joined up with Fletcher’s mine.  

Despite, instead of blocking the shafts, the contractors left it as it were.  This fact was unknown to Rylands.  After the reservoir was completed, it broke and flooded Fletcher’s coal mines.  This caused damage to Fletcher’s property, and Fletcher brought suit against Rylands.  Justices in the lower court differed as to whether Rylands should be liable, and the decision was appealed to the Court of Exchequer Chamber.  There, Rylands was held strictly liable for damage caused to Fletcher’s property by water from the broken reservoir.  Rylands appealed.  The House of Lords upheld strict liability upon Rylands and hold him liable. 

 

Thus there are five ingredients for the Rule of Rylands vs. Fletcher to apply 1) Accumulation. The defendant must bring hazardous material on his land and keep it there. If the thing is already on the land or is their naturally, Rylands vs. Fletcher is not attracted. [Giles vs. Walker 1890 24 QBD 656; ]. However, the thing that escapes may not be the thing accumulated. [Miles vs. Forest Rock Granite 1918 34 TLR 500]. 2) Likely to do mischief. [Hale vs. Jennings Bros 1938 1 All ER 579]. 3) Escapes. 4) Non -natural use. [Rickards vs. Lothian 1913 AC 263] [Transco vs. Stockport MBC 2004 1 All ER 589] [But See, Sochacki vs. Sas 1947 All ER 344 (An open fire in a domestic fire grate is not non-natural use of land)]. 5) Remoteness of damage. Rylands vs. Fletcher is subject to the rules of remoteness of damages. [Cambridge Water vs. Eastern Counties Leather 1994 2 AC 264].

 

Some of the common defences available to the Defendant are 1) Act of Stranger. [Box vs. Jubb LR 4 Ex Div ] [Ribee vs. Norrie 2000 EWCA Civ 275]. 2) Third Party Intervention. [Rickards vs. Lothian 1913 AC 263]. 3) Act of God [Nichols vs. Marsland 1867 2 Ex D 1]. 4) Statutory Authority [Green vs. Chelsea Waterworks Co 1894 70 LT 547]. 5) Consent/Benefit. If the Defendant received benefit from the things accumulated it is a deemed consent. [Peters vs. Prince of Wales Theatre 1943 KB 73].

The Rule of Rylands vs. Fletcher has been recognized by the courts in India. The Hon’ble Supreme Court has held thus:

 

AIR 2002 SC 551

 

Para 8: Even assuming that all such measures have been adopted, a person undertaking an activity involving hazardous or risky exposure to human life, is liable under law of torts to compensate for the injury suffered by any other person, irrespective of any negligence or carelessness on the part of the managers of such undertakings. The basis of such liability is the foreseeable risk inherent in the very nature of such activity. The liability cast on such person is known, in law, as "strict liability". It differs from the liability which arises on account of the negligence or fault in this way i.e. the concept of negligence comprehends that the foreseeable harm could be avoided by taking reasonable precautions. If the defendant did all that which could be done for avoiding the harm he cannot be held liable when the action is based on any negligence attributed. But such consideration is not relevant in cases of strict liability where the defendant is held liable irrespective of whether he could have avoided the particular harm by taking precautions.

 

Para 9: The doctrine of strict liability has its origin in English Common Law when it was propounded in the celebrated case of Rylands V/s. Fletcher (1868 Law Reports (3) HL 330), Blackburn J., the author of the said rule had observed thus in the said decision :

 

"The rule of law is that the person who, for his own purpose, brings on his land and collects and keeps there anything likely to do mischief if it escapes, must keep it at his peril, and if he does so he is prima facie answerable for all the damage which is the natural consequence of its escape."

 

ABSOLUTE LIABILITY

 

By analysing the 19^th Century rule laid in Ryland vs. Fletcher, the Apex Court in M.C. Mehta vs. Union of India 1987 SCR (1) 819 (aftermath of Shriram Food and Fertilizer oleum gas leak) and Union Carbide vs. Union of India AIR 1992 SC 248 (Bhopal Gas leak Case)the Hon’ble Supreme Court through Justice Bhagwati applied the rule of Absolute Liability.  The difference between Strict and Absolute liability rules as laid down by Supreme Court in M.C. Mehta (Supra), has been explained in Ratanlal & Dhirajlal : Law of Tort 26th edition at pg. 520:

Firstly, In Absolute Liability only those enterprises shall be held liable which are involved in hazardous or inherently dangerous activities, this implies that other industries not falling in the above ambit shall be covered under the rule of Strict liability.

Secondly, the escape of a dangerous thing from one’s own land is not necessary; it means that the rule of absolute liability shall be applicable to those injured within the premise and person outside the premise.

Thirdly, the rule of Absolute liability does not have an exception, whereas as some exception were provided in rule of Strict Liability. Also in the case of Union of India vs. Prabhakaran Vijay Kumar [(2008) 9 SCC 527: (2008) 2 KLT 700] the view of constitutional bench was that the rule of MC Mehta is not subject to any type of exception.

Fourthly, the Rule of Ryland vs. Fletcher apply only to the non-natural use of land but the new rule of absolute liability apply to even the natural use of land. If a person uses a dangerous substance which may be natural use of land & if such substance escapes, he shall be held liable even though he have taken proper care.

Further, the extent of damages depends on the magnitude and financial capability of the institute. Supreme Court also contended that the enterprise must be held to be under an obligation to ensure that the hazardous or inherently dangerous activities in which it is engaged must be conducted with the highest standards of safety and security and if any harm results on account of such negligent activity, the enterprise/institute must be held absolutely liable to compensate for any damage caused and no opportunity is to given to answer to the enterprise to say that it had taken all reasonable care and that the harm caused without any negligence on his part.

 

Thus, in the example above when whistle traveling in projectile motion and originating from B’s Factory hit A’s head who dies instantly, the defences that may be taken by B would severally limit in case of Strict Liability.  In case of Absolute Liability B may be restrained to take any defence, at all, even if, everything else be the same.