Mathews J. Nedumpara
11th Feb 2026
A judgment of the Supreme Court, whether rendered in personam or in rem, operates as a binding precedent under Article 141 if the Court has evolved a new principle where none existed or has reaffirmed an existing one—and otherwise not. Justice Pardiwala erred in Eminent Colonizers Ltd. in holding that while judgments in rem operate as precedent under Article 141, judgments in personam do not
The recent judgment of Justice Pardiwala in Eminent Colonizers Ltd — that Supreme Court judgments laying down the law under Article 141 operate as judgments in rem — is contrary to elementary principles of jurisprudence.
Justice Pardiwala is manifestly wrong in holding that a precedent operates ‘in rem’ while, in contrast, res judicata operates ‘in personam’.It is out of the total misconception of the doctrines of res judicata, precedent, judgement in rem and judgment in personam. To cite an example, in a suit between husband and wife, where divorce is granted, the judgment is in rem; where it is denied, it is a judgment in personam. The determinative factor is whether there is a change in the status of the parties or title in the case of things. The judgment — irrespective of whether divorce is granted or not — operates as res judicata between them.
In the recent judgment in the case of Eminent Colonizers Ltd., Justice Pardiwala held that precedent operates in rem. This is wrong. The learned judge has misunderstood the true import of the terms ‘in rem’ and ‘in personam’, which have nothing to do with the concept of precedent.
Precedent, res judicata, judgment in rem and in personam are very important but distinct concepts.Judgments in rem operate as res judicata between the parties just as judgment in personam does, but it does not operates as res judicata as against third parties. It cannot because nobody can be bound by a judgment of which he is not a party. Judgment in rem often is said to mean as judgment against the whole world. But it only actually means that third parties can take advantage of the same; namely the change of status of persons or title of thing.
Res judicata means parties to the lis are bound by the judgment no matter right or wrong. Because it is in the interest of the Republic that there is an end to litigation, so too to prevent to a matter which has been litigated is not allowed to be litigated again.
Precedent only means a principle which a superior court has evolved for the first time for resolution of an issue before it where none existed or one which has been repeatedly followed shall be binding when similar question of law arise in future.What is binding as precedent is not the decision, but the reason for the decision.