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INTRODUCTION
“The principle of res judicata is based on
the need of giving finality to the judicial
decisions.1”2
It is public policy which requires that there should be one
suit and one decision for any single dispute, so as to confine the
plaintiff to one litigation and obviating the possibility of two
contradictory verdicts by one and the same court in respect of
the same relief. The law, also, intends to protect a person from
multiplicity of litigation and avoid conflicts of decisions. It also
aims to avert inconvenience to the parties by preventing the
courts of concurrent jurisdiction from simultaneously
entertaining and adjudicating upon two parallel litigations in
respect of the same cause of action, the same subject matter and
the same relief . It, therefore, gives effect to the rule of res
judicata which is found in the present under Sections 10, 11 and
1 Honb’le Justice DasGupta, in Satyadhan Ghosal v. Deorajan Deb., AIR 1960 SC 941.
2 Sooijomoni v. suddanund, (1873) I.A. Supp. 212 (218) P.C.
12 of the Code of Civil Procedure, 1908, Section 300 of the
Code of Criminal Procedure, 1973, Section 26 of the General
Clauses Act, 1897 and Article 20(2) of the Constitution of India,
1950.
The doctrine of res judicata has a very ancient history. In
India it was known as “Purvnyaya or Prangnyaya”. The previous
judgment. The doctrine which is called by its Latin name of res
judicata, was evolved and developed by the jurists of ancient
India under the title “prangnyaya”, the provious decision. The
concept of res judicata evolved from the English Common law
system, being derived from the overriding concept of judicial
economy, consistency and finality. From the common law, it got
included in the Code of Civil Procedure and which was later as a
whole was adopted by the Indian legal system.
The substance of the rule was imported almost res integra
in this country. The Code of Civil Procedure of 1859 tacitly
recognised the rule in Section 2. The Section was held,
However, not to exclude the operation of the general law
relating to res judicata as settled in England.3
4 The present Code
has adopted the border rule of bar by verdict, a decision of every
3 Krishna Bihari v. Bunwari Lai, 2 LA. 283. Soorajmoniee v. Suddanund, (1873) I.A..315
4 Ibid
issue in a suit being res judicata in every subsequent suit.5 The
doctrine was also accepted in the European Continent and in the
Common Wealth countries and thus, it is universally
acknowledged law.
The principle of res judicata is founded on justice, equity
and good conscience.6 7But in broader sense it is doctrine of
conclusiveness of decision of a Court as Sir William De Grey
made a remarkable observations on the doctrine of res judicata
n
in the leading case of Duchess of Kingstone as follows;
“From the variety of cases relative to
judgments being given in evidence in civil suit,
these two deductions seem to follow as
generally true; firstly, that judgment 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 judgment of a court of
exclusive jurisdiction, directly on the point, is,
5 Sir John Woodraffe & Ameer Ali Code of Civil Procedure, Vol-I, 3rd Edition 1988. revised by Justice
H.M. Beg & Justice Gyamordralar Law Publisher (India) Pvt. Ltd. Allahabad.
6 Supra note-4
7 Smith’s leading cases, 13lh Ed. P. 644
in like manner, conclusive upon the same
matter, between the same parties, coming
incidentally in question in another court, for a
different purpose.”
The cardinal principle of res judicata is, dealt with under
Section 11 of the Code of Civil Procedure, 1908. It is manly
o
based on two grounds, embodied in various maxims of the
common law, the one is public policy and necessity which
makes it to the interest of the State that there should be an end to
litigation, the other is private justice that one should not be
vexed twice for the same cause.*
9 **
The Code of Civil Procedure under Section 10 provides for
res sub judice and makes a bar on the power of the concurrent
court to try a subsequent suit if the previously instituted suit is
pending in the same court, whereas Section 11 embodies the rule
of res judicata which enacts that once the matter is finally
decided by a competent courts, no such court shall try any
subsequent suit or issue which has been directly and
substantially in issue in a former suit between the same parties
s (i) Nemo debet bis vexari pro un aet eadem causa.
(ii) interest republica ut sit finish litium.
(iii) res judicata pro veritate occipiture.
9 Halsbury’s Law of England, 3rd Ed. Vol. 15 P. 185.
and their privies litigating under the same title. Section 10 of the
Code of Civil Procedure, 1908 reads as follows-
“Section 10. Stay of Suit - No Court shall
proceed with the trial of any suit in which the
matter in issue is also directly and substantially in
issue in a previously instituted suit between the
same parties, or between parties under whom they
or any of them claim litigating under the same title
where such suit is pending in the same or any
other Court in India having jurisdiction to grant
the relief claimed, or in any court in India
established or continued by the Central
Government and having like jurisdiction, or before
the Supreme Court.
Explanation- The pendency of a suit in a foreign
Court does not preclude the Courts in India from
trying a suit founded on the same cause of action”.
The Section 11 runs as follows-
“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 the 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.
Explanation I. 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.
Explanation II.- For the purposes of this section,
the competence of a court shall be determined
irrespective of any provisions as to a right of appeal
from the decision of such Court.
Explanation III.- 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.
Explanation IV.-Any matter which might and ought
to have been made ground of defense or attack in
such former usit shall be deemed to have been a
matter directly and substantially in issue in such suit.
Explanation V.- Any relief claimed in the plaint,
which is not expressly granted by the decree, shall
for the purpose of this section, be deemed to have
been refused.
Explanation VI.- Where persons litigate bona fide
0
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 limitative.
10Explanation VII.- The provisions of this section
shall apply to a proceeding for the execution of a
decree and references in this section to any suit,
issue of 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 degree.
Explanation VIII.- An issue heard and finally
decided by a court of limited jurisdiction competent
to decide such issue, shall operate as res judicata in
10
Ins. by C.P.C. Amendment Act. 104 of 1976 Sec. 6
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 principle of res judicata differs from res sub judice as
the former relates to a matter already adjudicated upon while the
latter relates to a matter pending judicial trail. Secondly,
whereas Section 11 bars the trial of a suit or an issue wherein the
matter directly and substantially in issue has already been
decided in a previous suit, the Section 10 bars the trail of a suit
in which the matter directly and substantially in issue is pending
adjudication in a previously instituted suit. The doctrine of res
judicata though it is often treated as a branch of law of estoppel,
also differs in essential particulars from the doctrine of
estoppel.11
The Section 12, which is based upon the principle that the
defendant should not be vexed twice for one and the same
cause, also disentitles the plaintiff who is barred by the
statutory rules to institute a further suit in respect of the same
cause of action. The Section 12 provides,
11 Woodroffe and Amir Ali, Law of Evidence in India, 1981 Ed. Vol.4 P. 2936.
12 Bonoy Bhusan Das Gupta v. Smt. Savitri Baneijee AIR 1977 Cal. 199
“Section 12- Bar to further suit- where a
plaintiff is precluded by rules from instituting a
further suit in respect of any particular cause of
action, he shall not be entitled to institute a suit
in respect of such cause of action in any court to
which this Code applies.”
This rule also extends to Order 2 rule 2, which enjoins on
the plaintiff to include in his suit the whole of his claim and
prohibits him to bring a fresh suit for the portion omitted or
relinquished, or Order 9 rule 9, which provides that a decree
against plaintiff by default bars a fresh suit in respect of the
same cause of action or Order 22 rule 9 which provides that a
abatement or dismissal under that order bars a fresh suit on the
same cause of action, or Order 23 rule 1, which provides that the
abandonment of any suit or part of a claim under sub- rule (1) or
withdrawal of a suit or part of claim without permission of the
Court bars a fresh suit for the same cause of action under the
Code of Civil Procedure, 1908. But the bar created by the
Section 12 does not extend to suits barred under Section 11 or
Section 47.
The Code of Criminal Procedure, 1973 under Section 300
(1) lays down,
“Section 300 (1)- A person who has once been
tried by a court of competent shall while such
conviction or acquittal remains in force, not be
liable to be tried again for the same offence, nor
on the same facts for gny other offence”.
Section 26 of the General Clauses Act, 1897 also
provides.
“Section 26 - The offender shall not be liable to
be punished twice for the same offence”
The Constitution of India under Article 20(2) mandates,
“Article 20(2) -No person shall be prosecuted
and punished for the same offence more than
once.”
What all this says is that once a res is judicata, it shall not
be adjudged again. 13
The principles of res judicata enshrined in Sections 10, 11
and 12 of the Code of Civil Procedure, 1908 have been
discussed in details with relevancy of other legislative
provisions, as the principle of res judicata is conceived in the
13
Satyadhyan v. Deorajin Debi, alR 1960 SC 941.
larger public interest which requires that all litigations must
sooner than later, come to an end.14
It is not every matter decided in a former suit that operates
as res judicata in a subsequent suit. To constitute a matter as res
judicata under Section 11 of the Code of Civil Procedure, 1908
the following conditions must be satisfied.15
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 or
constructively in the former suit.
2. The former suit must have been a suit between the same
parties or between parties under whom they or any of them
claim.
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.
14 Lai Chand v. Radha Kishan, AIR 1977, SC 789.
13 Sheodan Singh v. Daryao Kunvvar, AIR 1966 SC 1331 (1334)
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.
It is well settled that the doctrine of res judicata codified in
Section 11 of the Code of Civil Procedure is not exhaustive.
Section 11 applies to civil suits. But apart from the letter of the
law, the doctrine have been extended and applied since long in
various other kinds of proceedings and situations by court in
England, India and other countries.16
On the scope of the res judicata Somervel, L.J. has
1 n
observed as follows
“I think ... it would be accurate to say that res
judicata for this purpose is not confined to the
issues which the court is actually asked to
decide, but that it covers issues or facts which
are so clearly part of the subject- matter of the
litigation and so clearly could have been raised
that it would be an abuse of the process of the
court to allow a new proceeding to be stated in
respect of them.”
16 Corpus Juris, Vol 34 P. 743, C.P. Trust v. Board of Trustees, AIR 1978 SC 1283. See Supra Note-4
17 Greenhalgh v. Mallard, (1939) 2 KB 426 P. 437.
This is, therefore another and an equally necessary and
efficacious aspect of the same principle. This rule has
sometimes been referred to as constructive res judicata which in
reality is an aspect or amplification of the general principle.
In Daryao v. State of U.P. the Supreme Court has observed:
“Now, the rule of res judicata as indicated in
section 11 of the Code of Civil Procedure has no
doubt some technical suspects, for instance, the
rule of constructive res judicata may be said to
be technical; but the basis on which the said rule
rests in founded on consideration of public
policy. It is in the interest of the public at large
that a finality should attach to the binding
decisions pronounced by courts of competent
jurisdiction, and it is also in the public interest
that individuals should not be vexed twice over
with the same kind of litigation.”
Though the Section 11 is mandatory as the plea of res
judicata is the plea of law which does not affect the jurisdiction
of the court to try the proceedings or trial of the subsequent suit.
18
AIR 1961 SC 1475.
But the doctrine of res judicata belongs to the domain of
procedure and the party may waive the plea of res judicata}9
Similarly, the court may decline to go into the question of
res judicata on the ground that it has not been properly raised in
the proceedings or issues.20 Thus, the plea of res judicata is one
which could be waived.
The doctrine of res judicata comes into play when any
matter in issue has been directly and explicitly decided by a
court of competent jurisdiction and bars the trial of an identical
issue in a subsequent proceeding between the same parties. It
also comes into play when any matter which might and ought to
have been made a ground of defense or attack in a former
proceedings but was not so made, then such a matter is deemed
to have been constructively in issue and, therefore, is taken for
decided. It is true that where a matter has been constructively in
issue it cannot be said to have been actually heard and decided.
It could only be deemed to have been heard and decided. The
rule works harshly on individuals when the former decision is
obviously erroneous. It has no option but to appeal by the
sufferer. Besides, the question whether a matter ‘might’ have
LIC v. India Automobiles, AIR 1991 SC 884.
20
Ibid
been made a ground of attack or defense in the former suit rarely
presents any difficulty. But whether it ‘ought’ to have been
made a ground of attack or defense depends upon the facts of
each case. It would not be right to lay down a rigid rule in this
regard.
So far as the application of res judicata to public interest
litigation is concerned, the Explanation VI has good reason to
apply to a bona fide public interest litigation. But if the previous
litigation was not a bona fide public interest litigation, the
subsequent proceeding would not be barred.
In Forward Construction Co. v. Prabha Mandal21, it
was observed by the Supreme Court,
“The possibility of litigation to foreclose any
further inquiry into a matter in which an inquiry
is necessary in the interest of public cannot be
overlooked.”
From the purpose of insertion of Explanation VII and VIII
to Section 11, by Amendment Act of 1976, it is clear that
nothing has been amended in the main body of Section 11, but
the dimension of the doctrine of res judicata as contained in
21
AIR 1986, SC 391, (1986) 1 SCC 100.
Section 11 has considerably been enlarged to include the matter
of execution proceedings and the matter decided by a court of
limited jurisdiction.
The doctrine of res judicata also prevents a Court of
concurrent jurisdiction from trying the matter simultaneously for
the same cause or the same relief. The Concurrent jurisdiction
means concurrent as regards the pecuniary limit as well as the
subject matter of the suit. ‘Competency’ in Section 11 has no
reference to territorial jurisdiction of the court . The expression
“a court of limited jurisdiction” appeared in Explanation VIII
creats a larger public interest, as it involves the question of
interpretation of law and the public policy. It is thus clear that
technical aspects of Section 11 the Code of Civil Procedure
relating to pecuniary or subject wise competence of the earlier
forum to adjudicate the subject-matter or grant reliefs sought in
the subsequent litigation, would be immaterial when the general
doctrine of res judicata is to be invoked. Thus, the study has
reflected socio-legal problems which has been dealt with a
detailed academic discussion.
22 Maqbul v. Amir Hussain, AIR 1916 PCI 136
23 Gulam Abbas v. State ofU.P. (1982) 1 SCC 71, at PP. 91-92
OBJECTIVES OF THE RESEARCH
The doctrine of res judicata,. is based upon the public
policy and the private justice. The former requires that it is the
interest of the State that there should be an end to a litigation
and a judicial decision must be accepted as correct, and the
private justice demands that no man should be vexed twice for
the same cause. But, for this rule there would be no end to
litigation and no security for any person, the rights of the
persons would be involved in endless, confusion and great
injustice done under cover of law.24 The researcher has made
therefore, humble try to analyze the facts and the law on the
subject from the stand points of the following objectives.
(i) Whether the rule of res judicata worked harshly on
individuals,
(ii) How far the doctrine of res judicata is applicable in
changing dimensions to give effect the finality in
decision in consideration of public policy.
(iii) Whether the constructive res judicata helped to
avoid multiplicity of litigation and to bring about
finality in it.
Daryao v. State of U.P., AIR 1961 SC 1457 (1462), Sulochana Amma v. Narayanan Nair, AIR 1994
SC 152.
(iv) How far a decision on a question of law would
operate as res judicata.
(v) Whether the expression ‘concurrent jurisdiction’
includes a court of ‘limited jurisdiction;
(vi) Whether the rule of res judicata or constructive res
judicata also applies apart from suit to various other
kinds of proceedings and situations, such as,
execution proceedings, arbitration proceedings,
industrial adjudication, taxation proceedings, writ
petitions etc.
(vii) Whether a subsequent litigation is barred by res
judicata how for it is necessary to examine this
question with reference to competence of court,
parties and their privies, matters in issue, or the
matters which might and ought to have been made a
ground of attack or defense in the former suit and the
final decision.
(viii) Whether the rule of res judicata may be misused or
used arbitrarily in favour of avoiding multiplicity of
litigations,
(ix) Whether in absence of the rule of res judicata, the
oppression might be done under colour and pretence
of law.
(x) Whether the rule of res judicata has helped in
enlarging scope of the social justice through public
interest litigation in India.
(xi) Whether the rule of res judicata after the
Amendment of 1976, has made the civil justice
delivery system more comprehensive and more
effective.
Since the study is a comparative critical analysis on the
subject with a view of legislative and judicial trends, its finding
would have immense value for legislative or policy reforms in
the field of civil matters which are pilling up in huge numbers in
subordinate courts even after the sincere efforts of the
governments in this regards. It is with these objectives, the
researcher has undertaken this research work.
RESEARCH DESIGN AND METHODOLOGY
The subject is directly related to the society as well as the
instrumentalities of the State wherein they influence the socio-
legal order. Therefore, the design and methodology for research
work would include analytical approach of study which has
included the development of the principle of res judicata
specifically pointing out the merits and demerits in the same and
study of case law available on the subject. The opinions and
articles published on the subject have also been studied for
better conclusion and suggestion. For this purpose various
libraries in the State and outside of the State have also been
visited for collection of relevant literature. The ancient sources
of Indian literature such as Vedas and smrities have been
discussed. The various legislations concerning the law relating
to the doctrine of res judicata particularly under the Code of
Civil Procedure, 1908, the Limitation Act, 1963, the Indian
Evidence Act, 1872, the Constitution of India, 1950 and other
relevant literature have also been discussed in detail. The cases
decided by House of Lords of England. The Supreme Court of
United States, the Privy Council, the Supreme Court of India
and various High Courts, specially the Rajasthan High Court
have been discussed at length and examined critically. The
result on the basis of the study has come with practical
suggestion for effective implementation of the law relating to
doctrine of res judicata and useful operation of the procedural
machinery for speedy delivery of civil justice.
The study on the subject has been divided into various
chapters which are as follows
CHAPTER-I Introduction
(a) objectives of the Research
(b) Research Design and Methodology
CHAPTER- II Meaning, concept and historical background
of the doctrine of res judicata.
(a) Meaning of res judicata.
(b) Historical background
(c) The Constitution and the doctrine of
res judicata
(d) Justification of the doctrine
(e) Scope of the doctrine.
CHAPTER-III The Doctrine of res sub judice and the Code of
Civil Procedure
(a) Meaning of res sub Judice.
(b) Scope of the Doctrine .
(c) Condition of the doctrine.
CHAPTER-IV The doctrine of res judicata and the provisions
of the Code of Civil Procedure.
(a) Provisions of C.P.C.
(b) Amendments by Amendments Act, 1976.
(c) Scope of the doctrine of constructive
res judicata.
(d) Conditions of res judicata
(i) Matter in issue
(ii) Same parties
(iii) Same title
(iv) Competent Court
(v) Heard and finally decided
CHAPTER-V Synonymous provisions relating to bar further
litigations.
(a) Article 20(2) of the Constitution of India
(b) Section 12 of the C.P.C. 1908 bar to suit.
(c) Section 26 of the General Clauses Act, 1897
(d) Section 300 of the Cr. P.C. 1973
CHAPTER-VI Judicial Trends relating to the doctrine of res
judicata and comparative aspects in different
laws.
CHAPTER-VII Conclusions and Suggestions. „
