CODE OF CIVIL PROCEDURE
RES JUDICATA
GENERAL
Section 11 of the Code of Civil Procedure embodies the doctrine of res judicata or the rule of conclusiveness of a judgment, as to the points decided either of fact, or of law, or of fact and law, in every subsequent suit between the same parties. It enacts that once a matter is finally decided by a competent court, no party can be permitted to reopen it in a subsequent litigation. In the absence of such a rule there will be no end to litigation and the parties would be put to constant trouble, harassment and expenses.This doctrine has been accepted in all civilized legal systems. Under the Roman Law, a defendant could successfully contest a suit filed by a plaintiff on the plea of "ex captio res judicata". It was said, "one suit and one decision is enough for any single dispute". In the words of Spencer Bower, res judicata means "a final judicial decision pronounced by a judicial tribunal having competent jurisdiction over the cause or matter in litigation, and over the parties thereto".
NATURE AND SCOPE
The doctrine of res judicata is conceived in the larger public interest which requires that all litigation must, sooner than later, come to an end." The principle is also founded on justice, equity and good conscience which require that a party who has once succeeded on an issue should not be harassed by multiplicity of proceedings involving the same issue. Section 11 of the Code contains in statutory form, with illuminating explanations very salutary principle of public policy. It embodies the rule of conclusiveness and operates as a bar to try the same issue once again. It thereby avoids vexatious litigation.
OBJECT
The doctrine of res judicata is based on three maxims:
(a) nemo debet bis vexari pro una et eadem causa (no man should be vexed twice for the same cause);
(b) interest reipublicae ut sit finis litium (it is in the interest of the State that there should be an end to a litigation); and
(c) res judicata pro veritate occipitur
(a judicial decision must be accepted as correct).
As observed by Sir Lawrence Jenkins, "the rule of res judicata, while founded on account of precedent, is dictated by a wisdom which is for all times".Thus, the doctrine of res judicata is the combined result of public policy reflected in maxims (b) and (c) and private justice expressed in maxim (a); and they apply to all judicial proceedings whether civil or criminal. But for this rule there would be no end to litigation and no security for any person, the rights of persons would be involved in endless confusion and great injustice done under the cover of law. The principle is founded on justice, equity and good conscience.
HISTORY
The rule of res judicata has a very ancient history. It was well understood by Hindu lawyers and Mohammedan jurists. It was known to ancient Hindu Law as Purva Nyaya (former judgment). Under the Roman Law, it was recognised that "one suit and one decision was enough for any single dispute". The doctrine was accepted in the European continent and in the Commonwealth countries.At times, the rule worked harshly on individuals. For instance, when the former decision was obviously erroneous. But its working was justified on the great principle of public policy, which required that there must be an end to every litigation. The basis of the doctrine of res judi-cata is public interest and not absolute justice. In the event of a wrong decision, "the suffering citizen must appeal to the law-giver and not to the lawyer".
Extent and applicability
The doctrine of res judicata is a fundamental concept based on public policy and private interest. It is conceived in the larger public interest which requires that every litigation must come to an end. It, therefore, applies to civil suits, exécution proceedings, arbitration proceedings, taxation matters, industrial adjudication, writ petitions, administrative orders, interim orders, criminal proceedings, etc.
Section 11 whether mandatory
Section 11 is mandatory. The plea of res judicata is a plea of law which touches the jurisdiction of a court to try the proceedings. A finding on that plea would oust the jurisdiction of a court. If the requirements of Section 11 are fulfilled, the doctrine of res judicata will apply and even a concession made by an advocate will not bind a party.
Directly and substantially in issue Merely because a matter was in issue in a former suit would not suffice to invoke the doctrine of res judicata. It is necessary that the matter be directly and substantially in issue in the previous suit. It should have been alleged by one party and admitted or denied by the other party. The admission or denial may be done expressly or by necessary implication.
The doctrine of res judicata applies where the issues in the two suits are identical in nature. Thus, even if the cause of action, object, and relief claimed in the two suits are distinct, the doctrine of res judicata can be invoked so long as the issues are identical.
A suit may also involve certain subsidiary issues that are secondary to the primary issues. Those issues that are ancillary to the substantial and direct issues are known as collateral or incidental issues. The doctrine of res judicata cannot be invoked with respect to these collateral or incidental issues.
Decision on merits
The decision of a court will operate as res judicata only if it is given on the merits of the case. Thus, if a suit is dismissed due to an absence of jurisdiction or if a compromise decree is passed by the court, then such a dismissal or suit will not operate as res judicata. Similarly, if a suit is dismissed on procedural grounds such as misjoinder of parties or due to failure in furnishing security, then such a decision would not operate as res judicata.
Constructive Res Judicata
The rule of constructive res judicata in Section 11 of the Civil Procedure Code is an artificial form of res judicata. It provides that if a plea has been taken by a party in a proceeding between him and the defendant he will not be permitted to take pleas against the same party in the following proceeding with reference to the same matter. It is opposed to public policies on which the principle of res judicata is based. It would mean harassment and hardship to the defendant. The rule of constructive res judicata helps in raising the bar. Hence this rule is known as the rule of constructive res judicata which in reality is an aspect of augmentation of the general principles of res judicata.
In the case of State of Uttar Pradesh v. Nawab Hussain, M was a sub-inspector and was dismissed from the service of D.I.G. he challenged the order of dismissal by filing a writ petition in the High Court. He said that he did not get a reasonable opportunity of being heard before the passing of the order. However, the argument was negatived and the petition was dismissed. He again filed a petition on the ground that he was appointed by the I.G.P. and had no power to dismiss him. The defendant argued that the suit was barred by constructive res judicata. However, the trial court, the first appellate court as well as the High Court held that the suit was not barred by the doctrine of res judicata. The Supreme Court held that the suit was barred by constructive res judicata as the plea was within the knowledge of the plaintiff, M and he could have taken this argument in his earlier suit.
The doctrine of constructive res judicata has been incorporated in Explanation IV to Section 11 of the Code of Civil Procedure, 1908. Explanation IV provides that all those matters that ought to have been made a ground of defence or attached to a suit but were omitted, will also be deemed to have been directly or substantially in issue in such a suit. If a party fails to raise a reasonable ground of defence or attack during a suit, then such an issue is presumed to have been decided against the defaulting party. Every judicial action has its foundation in a cause of action. When the courts pronounce a final order, the cause of action is deemed extinguished. Thus, the same cause of action cannot be agitated again in order to claim relief that should have been claimed in the initial suit. The cause of action cannot survive the judgement and is deemed to have been merged in the judgement.
Res Judicata and Estoppel
Estoppel means the principle which prevents a person from asserting something that is contrary to what is implied by a previous action. It deals in Section 115 to Section 117 of the Indian Evidence act. The rule of constructive res judicata is the rule of estoppel. In some areas the doctrine of res judicata differs from the doctrine of estoppel –1. Estoppel flows from the act of parties whereas res judicata is the result of the decision of the court.
2. Estoppel proceeds upon the doctrine of equity, a person has induced another to alter his position to his disadvantage can not turn around and take advantage of such alteration. In other words, res judicata bars multiplicity of suits and estoppel precludes multiplicity of representation of cases.
3. Estoppel is a rule of evidence and is enough for the party whereas res judicata expels the jurisdiction of a court to try a case and prevents an enquiry at the threshold (in limine).
4. Res judicata forbidden a person averring the same thing twice in the litigations and estoppel prevents the person from saying two opposite things at a time.
5. According to the principle of res judicata, it presumes the truth of decision in the former suit while the rule of estoppel precludes the party to deny what he or she has once called truth.
The object of res sub judice is to prevent two concurrent courts from entertaining the same suit simultaneously. This ensures that two parallel litigations are not carried on with respect to the same subject matter and the same relief. The doctrine of res judicata, on the other hand, is to prevent a subsequent suit from being filed over a subject matter that has already been decided by a competent court.
The doctrine of res subjudice is contained in Section 10 of the Code of Civil Procedure, 1908. It provides that a court shall not admit a suit whose subject matter is directly and substantially in issue in a previously instituted suit.
Res judicata and Res SubjudiceThe doctrine of res judicata and res subjudice varies in some factors –
1. Res sub judice applies to a matter that is pending trial whereas res judicata applies to a matter adjudicated or arbitrated.
2. Res subjudice prohibits the trial of a suit that is pending decision in a previous suit whereas res judicata prohibits the trial of a suit that has been decided in a former suit.
Res judicata and writ petition The doctrine of res judicata also applies to writ petitions filed under Articles 32 and 226. If this doctrine is not applied to writ petitions, then it would be open to parties to challenge every decided issue through a writ petition, and there would be no end to litigation. Thus, if any issue has been raised before and decided by the Supreme Court under Article 32, then the same issue cannot be raised by the same parties before the High Court under Article 226. Similarly, if any issue has been decided by the High Court under Article 226, then a writ petition under Article 32 concerning the same issue and involving the same parties would be barred by the doctrine of res judicata.
However, if any writ petition is dismissed by the High Court on any procedural grounds due to the laches of the parties, then the same would not be sufficient to invoke res judicata, and such a dismissal order would not bar an alternate remedy under Article 32. Similarly, if a petition is dismissed in limine (at the very outset) and no speaking order is made by the court, then such a dismissal would not involve the bar of res judicata. Lastly, if a writ petition under Article 226 is withdrawn, then there would be no bar of res judicata as there would be no judgment on the merits of the case.
Representative suit
A representative suit can be filed where numerous parties have a common interest and the court permits one or a few of them to collectively represent the interests of all the parties. The purpose of a representative suit is to avoid complex litigation. A representative suit can be filed under Order I Rule 8 of CPC. The decision made in a representative suit is binding on all the parties whose interests were represented in the suit. Explanation VI to Section 11 of the CPC states that where bona fide litigation is initiated in respect of a common private right or a public right, the outcome of such litigation would operate as res judicata on all persons having an interest in that right. It is not necessary that all the interested parties be named in the litigation. The only prerequisite is that the interests of these persons must have been represented in a bona fide manner by the institutor of the litigation.
Exceptions to Res Judicata
However, there are limited exceptions to Res Judicata that allow a party to attack the validity of the original judgment, even outside of appeals. These exceptions - usually called collateral attacks - are typically based on procedural or jurisdictional issues, based not on the wisdom of the earlier court's decision but its authority or competence to issue it. A collateral attack is more likely to be available (and to succeed) in judicial systems with multiple jurisdictions, such as under federal governments, or when a domestic court is asked to enforce or recognise the judgment of a foreign court.
In addition, in cases involving due process, cases that appear to be Res Judicata may be re-litigated. An instance would be the establishment of a right to counsel. People who have had their liberty taken away (that is, imprisoned) may be allowed to be re-tried with a counselor as a matter of fairness.Judicial Pronouncements in relation to Res Judicata.
In the case of Jallur Venkata Seshayya vs. Thadviconda Koteswara Rao, a suit was filed in the Court for the purpose of declaring certain temples public temples and for setting aside alienation of endowed property by the manager thereof. A similar suit was dismissed by the Court two years ago and the plaintiffs here contended that it was the gross negligence on the part of the plaintiffs (of the previous suit) and hence the doctrine of Res Judicata should not be applied. But, the Privy Council said that finding of a gross negligence by the trial court was far from a finding of intentional suppression of the documents, which would amount, to want of bona fide or collusion on the part of the plaintiffs in prior suit. There being no evidence in the suit establishing either want of bona fide of collusion on the part of plaintiffs as res judicata.
In the case of Beliram and Brothers vs. Chaudari Mohammed Afzal it was held that where a minors suit was not brought by the guardian of the minors bona fide but was brought in collusion with the defendants and the suit was a fictitious suit, a decree obtained therein is one obtained by fraud and collusion within the meaning of the Indian Evidence Act, 1872, s. 44 and does not operate Res Judicata. The principle of Res Judicata in Code of Civil Procedure, 1908, s. 11 is modified by the Indian Evidence Act, 1872, s. 44 and the principles will not apply if any of the three grounds mentioned in s. 44 exists. General principles may not be applied in a way making Code of Civil Procedure, 1908, section 11 nugatory.
In the case of Rural Litigation And Entitlement Kendra vs. State of Uttar Pradesh, it was held that the writ petitions filed in the Supreme Court are not inter-party disputes and have been raised by way of public interest litigation and the controversy before the court is as to whether for social safety and for creating a hazardless environment for the people to live in, mining in the area must be permitted or stopped. Even if it is said that there was a final order, in a dispute of this type it would be difficult to entertain the plea of Res Judicata.
The Court was of the view that leaving the question open for examination in future would lead to unnecessary multiplicity of proceedings and would be against the interests of the society. It is mete and proper as also in the interest of the parties that the entire question is taken into account at this stage. Undoubtedly, the Environment (Protection) Act, 1986 has come into force with effect from 19 November 1986. Under this enactment, power became vested in the Central Government to take measures to protect and improve the environment. These writ petitions were filed as early as 1983 more than three years before the enactment came into force. The principle of Res Judicata does not apply strictly to public interest litigations. The procedural laws are not fully applicable to public interest litigation cases. Where the prior public interest relates to illegal mining, subsequent public interest litigation to protect environment is not barred.
In Forward Construction Co. v. Prabhat Mandal, the Supreme Court was directly called upon to decide the question. The apex court held that the principle would apply to public interest litigation provided it was a bona fide litigation.
In another case of Ramdas Nayak v. Union of India, the court observed:It is a repetitive litigation on the very same issue coming up before the courts again and again in the grab of public interest litigation. It is high time to put an end to the same.These were few cases in which the Court pronounced its judgement either in favour or against the doctrine of Res Judicata.
Res Judicata landmark cases in IndiaDaryao v. State of Uttar PradeshIn the historic case of Daryao v. State of Uttar Pradesh, the doctrine of res judicata is of universal application was established. The Supreme Court of India placed the doctrine of res judicata on a still broader foundation. In this case, petitioners filed a writ petition in the High Court of Allahabad under Article 226 of the Constitution. But the suit was dismissed. Then they filed independent petitions in the Supreme Court under the writ jurisdiction of Article 32 of the Constitution. The defendants raised an objection regarding the petition by asserting that the prior decision of the High Court would be operated as res judicata to a petition under Article 32. The Supreme Court dismissed and disagreed with the petitions.The court held that the rule of res judicata applies to a petition under Article 32 of the Constitution. If a petition is filed by the petitioner in the High Court under Article 226 of the Constitution and it is dismissed on the basis of merits, it would be operated as res judicata to bar a similar petition in the Supreme Court under Article 32 of the Constitution.Devilal Modi vs. Sales Tax OfficerIn the leading case of Devilal Modi vs. STO, B challenged the validity of an order of assessment under Article 226. The petition was dismissed on the basis of merits. The Supreme Court also dismissed the appeal that was made against the order on the basis of merits. B again filed another writ petition in the same High Court against the same order of assessment. This time the petition was dismissed by the High Court. The Supreme Court held that the petition was barred by the principle of res judicata.
Avtar Singh v. Jagjit SinghA peculiar problem arose in the case of Avtar Singh v. Jagjit Singh. A filed a civil suit, a contention regarding the arbitration of the Court was taken by B. The objection was sustained and the plaint was returned to the plaintiff for the presentation. The Revenue Court did not have any jurisdiction when A approached the Revenue Court so he returned the petition. Once again A filed a suit in the Civil Court. B contended that the suit was barred by the doctrine of res judicata.
Mathura Prasad v. Dossabai N.B. JeejeebhoyIn the case of Mathura Prasad v. Dossibai N.B. Jeejeebhoy, it was held that res judicata constitutes between the parties to the previous case and cannot move again in collateral proceedings. Generally, a decision by a competent court operates as res judicata even on point of law. However, a question of law which is not related to facts that gives rise to the right, will not operate as res judicata. When the cause of action is different or the law is different, the decision has been already altered by an authority. The decision made will be declared as valid and res judicata will not operate in the subsequent proceeding.
Criticism to Res JudicataRes judicata can also be applied to judgment that may be contrary to law. The doctrine of res judicata has been used for a long time and it encloses the general effect of one judgement upon another trial or proceeding. It includes matters not only those of bar but also those matters which should be litigated. For example, if a case has been dismissed on a specific ground by a court of law or equity and it is not deemed as a final judgment and technically res judicata will apply but it is not justified. If the chancellor has denied equitable relief on a principle but it was held by the court that the plaintiff is barred from proceeding as a legal remedy. Most of the equity cases involve res judicata and do not get beyond collateral estoppel. As it raises the difficulty of overlapping more than the failure to litigate issues.