CHAPTER 4
RES JUDICATA
INTRODUCTION
Indian Legal system adopted the doctrine of Res Judicata from the common law. It is a doctrine applied to give finality to a lis in original or appellate proceedings. The principle of res judicata was included in Section 11 of the Civil Procedure Code which provides that once a matter is finally decided by a competent court, no party can be permitted to reopen it in a subsequent litigation. Thus 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. It is also called the rule of conclusiveness.
SECTION 11- RES JUDICATA-
No Court shall try any suit or issue in which the matter directly and substantially in issue has been directly and substantially in issue in a former suit between the same parties, or between parties under whom they or any of them claim, litigating under the same title, in a court competent to try such subsequent suit or the suit in which such issue has been subsequently raised, and has been heard and finally decided by such Court."
Satyadhyan Ghosal v. Deorjin Debi AIR 1960 SC 941
The doctrine of res judicata has been explained by Das Gupta J. in this case. 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.
The doctrine of res judicata is founded on the principles of equity, justice, and good conscience. The doctrine applies to all civil and criminal proceedings and equally to all quasi-judicial proceedings before tribunals. Section 11 of the Code is applicable to both the parties to a suit and not against the defendant alone.
S.B. Temple v. V.V.B. Charyulu, (1971) 1 SCJ 215)
The doctrine underlines the general principle that no one shall be twice vexed for the same cause.
OBJECT
The doctrine is based on three maxims:-
1. No man should be vexed twice for the same cause.
2. It is in the interest of the state that there should be an end to litigation.
3. A judicial decision must be accepted as correct.
The principle of res judicata is based on the need of giving finality to judicial decisions. What it says is that once a res 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 neither party will be allowed in a future suit or proceeding between the same parties to canvass the matter again.
ESSENTIALS OF RES JUDICATA
As per section 11 of the code, a matter to be termed as res judicata must satisfy the following essential conditions:
1. There must be two suits, one former (previously decided) suit and the other subsequent suit.
2. Parties of the former and subsequent suit or the parties under whom they or any of them claim should be the same.
3. Parties in the former as well as in Subsequent suit must have litigated under the same title
4. The former suit should be decided by the court of competent jurisdictions
5. The case must be finally decided between the parties
1. Former Suit:
Section 11 provides that no the court shall try any suit or issue in which the matter has been directly and substantially in issue in a former suit between the same parties and has been heard and finally decided. It is not the date on which the suit is filed that matters but the date on which the suit is decided so that even if a suit was filed later, it will be a former suit within the meaning of Explanation I if it has been decided earlier.
2. Same parties:
The second condition of res judicata is that the former suit must have been a suit between the same parties or between the parties under whom they or any of them claim. This condition recognises the general principle of law that judgments and decrees bind the parties and privies. Therefore, when the parties in the subsequent suit are different from the former suit, there is no res judicata.
The doctrine of res judicata operates not only against parties but their privies also, i.e., persons claiming under the parties to the decision. The object underlying this doctrine is that if a proceeding originally instituted is proper, the decision given therein is binding on all persons on whom a right or interest may devolve.
Representative Suit: Explanation VI to Section 11 deals with representative suits, i.e. suits instituted by or against a person in his representative, as distinguished from individual capacity. It provides that where persons litigate bonafide in respect of a public right or of a private right claimed in common for themselves and others, and all persons interested in such right shall, for the purposes of Section 11, be deemed to claim under the persons so litigating.
3. SAME TITLE:
The next condition of res judicata is that the parties to the subsequent suit must have litigated under the same title as in the former suit. The same title means the same capacity. It refers to the capacity or interest of a party, i.e., whether he sues or is sued for himself in his own interest or for himself as representing the interest of another or as representing the interest of others along with himself and it has nothing to do with the particular cause of action on which he sues or is sued. Litigating under the same title means that the demand should be of the same quality in the second suit as was in the first suit.
4. COMPETENT COURT:The condition of res judicata is that the court which decided the former suit must have been a court of competent to try the subsequent suit. Thus, the decision in a previous suit by a court, not competent to try the subsequent suit, will not operate as res judicata. The principle behind this condition is that the decision of the Court of limited jurisdiction ought not to be final and binding on a court of unlimited jurisdiction. The expression competent to try means competent to try the subsequent suit if brought at the time the first suit was brought. In other words, the relevant point of time for deciding the question of competence of the Court is the date when the former suit was brought and not the date when the subsequent suit was filed.
5. HEARD & FINALLY DECIDED:The final condition of res judicata is that the matter directly and substantially in issue in the subsequent suit must have been heard and finally decided by a court in the former suit. The expression heard and finally decided means a matter on which Court has exercised its judicial mind and has after argument and consideration come to a decision on a contested matter. A matter can be said to have been heard and finally decided notwithstanding that the former suit was disposed of ex parte or by failure to produce evidence (Order 17 Rule 3).
In order that a matter maybe said to have been heard and finally decided, the decision in the former suit must have been on merits. Thus, if the former suit was dismissed by a court for the want of jurisdiction, or for default of plaintiffs appearance, or on the ground of mis-joinder or non-joinder of parties, or on the ground that the suit was not properly framed, or that it was premature, or that there was a technical defect, the decision not being on merits, would not operate as res judicata in a subsequent suit.
LEADING CASE-Sheodan Singh v. DaryaoKunwar (1966) 3 SCR 300
Held that to constitute a matter as res judicata under Section 11, certain conditions need to be fulfilled, which were laid down:
1. The matter directly and substantially in issue in the subsequent suit or issue must be the same matter which was directly and substantially in issue either actually (Explanation III) or constructively (Explanation IV) in the former suit (Explanation I). (Explanation VII is to be read with this condition).
2. The former suit must have been a suit between the same parties or between parties under whom they or any of them claim. (Explanation VI is to be read with this condition).3. Such parties must have been litigating under the same title in the former suit.
4. The Court which decided the former suit must be a Court competent to try the subsequent suit or the suit in which such issue is subsequently raised. (Explanations II and VIII are to be read with this condition).
5. The matter directly and substantially in issue in the subsequent suit must have been heard and finally decided by the Court in the former suit. (Explanation V is to be read with this condition).
RES JUDICATA BETWEEN CO- PLAINTIFFS AND CO-DEFENDANTS
As a matter may be res judicata between a plaintiff and a defendant, similarly, it may be res judicata between co-defendants and co-plaintiffs also. Adjudication will operate as res judicata between co-defendants if the following conditions are satisfied:
- There must be a conflict of interest between co-defendants;
- It must be necessary to decide that conflict in order to give relief to the plaintiff;
- The question between co-defendants must have been finally decided;
- The co-defendants were necessary or proper parties in the former suit.
EXCEPTIONS TO THE PLEA OF RES JUDICATA
There are certain exception were the courts overcame the Principle of Res Judicata such as:
- Judgment in original suit obtained by the fraud – if a court thinks that the judgment of former suit is obtained by the fraud, then the doctrine of the res judicata is not applied.
- Different cause of action – Section 11 will not be applied when there is a different cause of action in the subsequent suits. The court cannot bar subsequent suit if it contains the different cause of action
- When there is Interlocutory Order – Interlocutory order is the interim order, decree or sentence passed by the court. A principle of the Res Judicata will be not applied when an interlocutory order is passed on the former suit. It is because in Interlocutory order immediate relief is given to the parties and it can be altered by subsequent application and there is no finality of the decision.
- When previous SLP is dismissed – When special leave petition is dismissed without adjudication or decision then res judicata should not be applied. For obtaining the Doctrine of Res Judicata, the formal suit should be decided finally by the competent court.
- Waiver of a decree of Res Judicata– Decree of Res Judicata is a plea in the bar which party must waive. If a party did not raise the plea of res judicata then the matter will be decided against him. It is the duty of an opposite party to make the court aware about the adjudication of matter in former suit. If a party fails to do so, the matter is decided against him.
- Court not competent to decide – When the former suit is decided by the court who has no jurisdiction to decide the matter then the doctrine of res judicata is not applied to the subsequent suit.
- When there is a change in Law – When there is a change in the law and new laws bring new rights to the parties then such rights are not barred by Section 11.
TEST OF APPLICABILITY OF RES JUDICATA
In Jaswant Singh v. Custodian AIR 1985 SC 1096- the Court held that in order to decide the question whether a subsequent proceeding is barred by res judicata it is necessary to examine the question with reference to:-
- forum or competence of the Court
- parties and their representatives
- matters in issue
- matters which ought to have been made the ground for attack or defence in the former suit
- final decision.
RES JUDICATA AND WRIT PETITIONS
It was debatable whether the term ‘suit’ would include writs and whether the principle of res judicata would apply to writ petitions.
But in Daryao v. State of U.P 1953 (4) SCR 154 -Six writ petitions were presented before the Supreme Court entertaining this question. One of the writ petitions was examined in detail by the court.
Facts –
The relevant facts are that the petitioners were tenants in the lands of which the respondents were proprietors. The petitioners had to leave the lands for some period owing to communal disturbances. When the petitioners returned, they found that the respondents were in unlawful possession of the land. The petitioners then filed ejectment suits under S. 180 of the U.P. Tenancy Act, 1939, and obtained a decree in their favour, which was confirmed in appeal, and thereby obtained possession of the said lands through Court.
The respondents preferred a second appeal before the Board of Revenue under S. 267 of the Act of 1939, wherein the Board allowed the appeal and held that the respondents were entitled to the possession of the lands in question.
High Court: The petitioners filed a writ petition under A. 226 before the High Court. However, before the petition was filed, the Allahabad High Court had interpreted a particular section of the U.P. Land Reforms Act, and such an interpretation was against the interests of the petitioners. Hence, in consequence of such interpretation, the petitioners could not press their petition, and it was consequently was dismissed. The same section of the said Act was later amended, in consequence of which the petitioners approached the Supreme Court via writ petition under A. 32.
The question that arose for consideration was that since the grounds were same as those raised before the Allahabad High Court, was the writ petition was hit by res judicata? The petitioners placed reliance on the supremacy of A. 32 and it being above all other rights. They emphasized that a fundamental right cannot be whittled down by a technical rule of the C.P.C. as the Constitution is supreme.
Supreme Court: The Supreme Court was not impressed with the arguments of the petitioners. The court held that the rule of res judicata as embodied in S. 11 of the Code did have some technical aspects, but was by and large based on high public policy that there should be a finality to litigation, and was also based upon the notion that no person should be vexed twice for the same cause. Due to the doctrine being based on these considerations it couldn’t be treated as irrelevant or inadmissible even where writ petitions dealing with fundamental rights were concerned.
The other contention of the petitioners was that High Court and Supreme Court cannot be said to be courts of competent jurisdiction as they are different. This contention was also negated by the court and it held that the jurisdictions of the High Court under A. 226 and the Supreme Court under A. 32 were substantially the same, and even on that count, the application of res judicata couldn’t be barred. Based on these reasons, the Supreme Court dismissed the writ petitions as being barred by res judicata arising from the previous decision of the High Court and laid down the rule that –“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 judgment 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 Article 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.”
However, this view of the Supreme Court has been criticized by some jurists. They have argued that the judiciary has reduced the fundamental fight in Article 32 as one subject to the principle of res judicata and even laches, forgetting that there is no great fundamental principle than the right guaranteed in moving the court under Article 32. Article 32 is silent as to res judicata and limitation but judicial legislation has introduced these needless aspects into writ jurisprudence.However, it may be noted that the doctrine of Res Judicata will not apply to a writ of “Habeas Corpus”.
RES-JUDICATA AND ESTOPPELS
The rule of res judicata is based on public policy, i.e., it is to the interest of the State that there should be an end to litigation and belongs to the province of procedure. Estoppel, on the other hand, is part of the law of evidence and proceeds on the equitable principle of altered situation, viz., that he who, by his conduct, has induced another to alter his position to his disadvantage, cannot turn round and take advantage of such alteration of other’s position. Differences between both are:
1. Res judicata precludes a man from averring the same thing in successive litigations, while estoppel prevents a party from saying two contradictory things at different times.
2. Res judicata is reciprocal and binds both the parties, while estoppel binds the party who made the previous statement or showed the previous conduct.
3. Res judicata prohibits the court from entering into an enquiry as well as to a matter already adjudicated upon. Estoppel prohibits a party, after the inquiry has already been entered upon, from proving anything which would contradict his own previous declaration or acts to the prejudice of another party who, relying upon these declarations or acts, has altered his position.
4. Res judicata prohibits an inquiry in limine, and bars the trial of a suit while estoppel is only a piece of evidence and emphasises that a man should not be allowed to retrace the steps already walked over.
5. Res judicata ousts the jurisdiction of the court, while estoppel shuts the mouth of a party.
6. The doctrine of res judicata results from a decision of the court, while estoppel results from the acts of the parties themselves.
RES-JUDICATA AND FOREIGN JUDGEMENTS
Section 13 provides that foreign judgements may operate as res jusicata except in following six cases:-
- Where the decision is not given by the competent court.
- Where the decision has not been given on the merits of the case
- Where the judgement is found to be incorrect with the view of international law.
- Where the judgement opposed to the doctrine of natural justice.
- Where the decision has been obtained by fraud
- Where the judgement found to be on breach of law enforced in India.
Res Judicata is not violative of Article 14. Hence, reopening of such decision on the ground that it is violative of Article 14 is not permissible.
RES JUDICATA ANS PIL, ARBITRATION AWARDS
Particular the doctrine of Res Judicata cannot be applied to the PIL, Arbitration Awards but the principle and policy is applicable upon both PIL, Arbitration Awards.
K.V. George v. Secretary to Govt. AIR 1990 SC 53(59) - the court held that plea of Res Judicata cannot be raised in the cases of Arbitration and Rewards.
In the case ofB.S.N.L vs. Union of India AIR 2006 SC 1383 (1390) - the court held that the decision given for one assessment year does not operate as res judicata in the Subsequent year.
EX PARTE DECREE AND RES JUDICATA:
A decree passed in ex parte can be considered to be decree passed in a suit heard and finally decided for application of res judicata. Because 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 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.
PLEA OF O. II, R. 2 AND RES JUDICATA:
Res judicata relates to the plaintiffs duty to put forth all the grounds of attack in support of his claim, whereas O. II, R. 2 of the Code requires the plaintiff to claim all reliefs flowing from the same cause of action in a single suit. The two pleas are different and one will not include the other. Unless the defendant pleads the bar under O. II, R. 2 of the Code and an issue is framed focusing the parties on that bar to the suit, obviously the court cannot examine or reject a suit on that ground. The pleadings in the earlier suit should be exhibited or marked by consent or at least admitted by both parties.
WHEN THE COURT FAILS TO APPLY RES JUDICATA
If the court fails to apply for the res judicata and orders a contradictory decision on the same issue and Afterwards matter is listed to the third court then the third court will apply res judicata on the basis of the decision on the previous suit. Thus it is the duty and responsibility of the parties to the suit to bring the earlier case to the attention of the court and Judge will decide on whether a plea of Res judicata should be granted or not.
EXPLANATIONS I TO VII OF SECTION 11
Explanation I: Former Suit- Explanation I to Section 11 provides that the expression "former suit" shall denote a suit which has been decided prior to the suit in question whether or not it was instituted prior thereto.
The only other aspect of the rule of res judicata which must be borne in mind is that it is not enough to constitute a matter res judicata that it was in issue in the former suit. It is further necessary that it must have been in issue directly and substantially.
Explanation III: Matter directly and Substantially in Issue- The matter above referred to must in the former suit have been alleged by one party and either denied or admitted, expressly or impliedly, by the other.
The Matter in Issue is mainly of three types:
(a) Issue of Fact;
(b) Issue of Law; and
(c) Mixed issue of Law and Facts.
Explanation IV: Matter Constructively in Issue —Any matter which might and ought to have been made ground of defence or attack in such former suit shall be deemed to have been a matter directly and substantially in issue in such suit.
A matter directly and substantially in issue may be so either actually or constructively. A matter is actually in issue when it is alleged by one party and denied or admitted by the other as per Explanation III of Section 11. It is constructively in issue when it might and ought to have been made a ground of attack or defence in the former suit.
Explanation IV to Section 11 by a deeming provision lays down that any matter which might and ought to have been made a ground of defence or attack in the former suit, but which has not been made a ground of attack or defence, shall be deemed to have been a matter directly and substantially in issue in such suit.
CONSTRUCTIVE RES JUDICATA:
The principle of res judicata comes into play when by judgment and order a decision of a particular issue is implicit in it, that is, it must be deemed to have been necessarily decided by implications even then the principles of res judicata on that issue is directly applicable.
The rule of direct res judicata is limited to a matter actually in issue alleged by one party and either denied or admitted by the other party expressly or impliedly. But the rule of constructive res judicata as engrafted in Explanation IV to Section 11 of the Code is an “artificial form of res judicata”, and provides that if a plea could have been taken by a party in a proceeding between him and his opponent, he should not be permitted to take that plea against the same party in a subsequent proceeding with reference to the same subject-matter.
When any matter which might and ought to have been made a ground of defence or attack in a former proceeding but was not so made, then such a matter in the eye of law, to avoid multiplicity of litigation and to bring about finality in it, is deemed to have been constructively in issue and, therefore, is taken as decided.
In State of Uttar Pradesh v. NawabHussain (AIR 1977 SC 1680) the Doctrine of Constructive Res Judicata was illustrated:
Facts: A, a sub-inspector of police, was dismissed from service by D.I.G. He challenged the Order of dismissal by filing a writ petition in the High Court on the ground that he was not afforded reasonable opportunity of being heard before passing the Order. The contention was, however, negative and the petition was dismissed. He then filed a suit and raised an additional ground that since he was appointed by I.G.P., D.I.G. had no power to dismiss him. The State contended that the suit was barred by constructive res judicata. The trial court, the first appellate court as well as the High Court held that the suit was not barred by res judicata.Held: The Supreme Court allowed the appeal of the State and held that the suit was barred by constructive res judicata as the plea was within the knowledge of the plaintiff and could well have been taken in earlier writ petition.
Explanation V: Relief claimed but not granted - Any relief claimed in the plaint, which is not expressly granted by the decree, shall for the purposes of this section, be deemed to have been refused.
Explanation V to Section 11 provides that if a relief is claimed in a suit but is not expressly granted in the decree, it will be deemed to have been refused and the matter in respect of which the relief is claimed will operate as res judicata for subsequent suits. But this explanation applies only when the relief claimed if it is:(i) Substantial relief; and(ii) The court is bound to grant it.
Explanation VI: Representative Suits - Where persons litigate bona fide in respect of a public right or of a private right claimed in common for themselves and others, all persons interested in such right shall, for the purposes of this section, be deemed to claim under the persons so litigating.
Explanation VI of section 11 provide where persons litigate bona fide in respect of public right or a private right claimed in common for themselves and others, all persons interested in such right shall, for the purpose this section be deemed to claim under the person so litigating.
Explanation VII: Execution proceedingThe provisions of this section shall apply to a proceeding for the execution of a decree and references in this section to any suit, issue or former suit shall be construed as references, respectively, to a proceeding for the execution of the decree, question arising in such proceeding and a former proceeding for the execution of that decree.
That prior to the addition of Explanation VII to Section 11 by the Amendment Act of 1976 in the Code of Civil Procedure, 1908, the provisions thereof did not, apply to execution proceedings, but the general principles of res judicata were held to be applicable even to execution proceedings.
Explanation VIII: Court of Limited Jurisdiction
An issue heard and finally decided by a Court of limited jurisdiction, competent to decide such issue, shall operate as res judicata in a subsequent suit, notwithstanding that such Court of limited jurisdiction was not competent to try such subsequent suit or the suit in which such issue has been subsequently raised.
The decision on an issue heard and finally decided by court of limited jurisdiction will also operate as res judicata in subsequent suit irrespective of fact that such court of limited jurisdiction was not competent to try subsequent suit.
Explanations VII and VIII have been inserted in section 11 by the C.P.C. (Amendment) Act, 1976-
By Explanation VII the provisions of section 11 have been made applicable to proceeding for execution of a decree. By Explanation VIII limitations that were placed on the principle of res judicata in cases of Courts of limited jurisdiction has been removed.
Section 11 is to be read in combination and harmony with Explanation VIII. The result that would flow is that an order or an issue which had arisen directly and substantially between the parties or their privies and decided finally by a competent Court or tribunal, though of limited or special jurisdiction, which includes pecuniary jurisdiction, will operate as res judicata in a subsequent suit or proceeding, notwithstanding the fact that such Court of limited or special jurisdiction was not a competent Court to try the subsequent suit. Court of Concurrent JurisdictionThere is no ambiguity regarding application of res judicata in case of court of concurrent jurisdiction.
Where the Court which decided the former suit was of a court of concurrent jurisdiction having competence to try subsequent suit, decision given by such would operate as res judicata.
CONCLUSION
The doctrine of Res Judicata has become one of an important part of Indian Legal System. Section 11 of Civil Procedure Court, 1908 states that court can apply Res Judicata when thinks that matter is already decided by the former suit. This doctrine is not only applied to the civil courts but also to the administrative law and other legislation in India. The principle of finality on which plea of res judicata lies is the matter of public policy. The doctrine of Res Judicata is to prevent multiple judgments and protects the rights of the other party by restricting the plaintiff to recover the damages twice from the defendant on the same injury.