There is a lot of misunderstanding regarding the applicability of the
Doctrine of Res Judicata in fresh proceedings, once the same matter has been
Before deliberating on the subject it would be trite to reproduce Section 11
of Civil Procedure Code which reads as under:
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.
Explanation I.-- The expression former suit shall denote a suit which has been
decided prior to a suit in question whether or not it was instituted prior
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
Explanation IV.-- 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.
Explanation V.-- 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
Explanation VI.-- 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 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
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.
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 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
From the bare reading of the aforesaid section, the scope of the Doctrine of Res
Judicata is defined but there remains a controversy whether the Doctrine of Res
Judicata applies only when the previous suit was decided on Merits or otherwise.
In case, the suit has been not been decided on merits, but ex- partie or on
technical grounds the suit has been rejected/dismissed, then would the Doctrine
of Res Judicata be applicable? In this regard, it would be relevant to reproduce
Order 17, Rule 3 of the CPC, which reads as under:
"3. Court may proceed notwithstanding either party fails to produce evidence,
Where any party to a suit to whom time has been granted fails to produce his
evidence, or to cause the attendance of his witnesses, or to perform any other
act necessary to the further progress of the suit, for which time has been
allowed, the Court may, notwithstanding such default:
- if the parties are present, proceed to decide the suit forthwith, or
- if the parties are, or any of them is, absent, proceed under rule 2.
It would be apropos to refer to V. Rajeshwari v. T.C. Saravanabava,
(2004) 1 SCC
551 wherein the Apex Court discussed the plea of Res- Judicata and the
particulars that would be required to prove the plea. The Court held that it is
necessary to refer to the copies of the pleadings, issues and the judgment of
the 'former suit' while adjudicating on the plea of Res Judicata. The Court held
11. The rule of res judicata does not strike at the root of the jurisdiction of
the court trying the subsequent suit. It is a rule of estoppel by judgment based
on the public policy that there should be a finality to litigation and no one
should be vexed twice for the same cause.
13. Not only the plea has to be taken, it has to be substantiated by producing
the copies of the pleadings, issues and judgment in the previous case. May be,
in a given case only copy of judgment in previous suit is filed in proof of plea
of res judicata and the judgment contains exhaustive or in requisite details the
statement of pleadings and the issues which may be taken as enough proof. But as
pointed out in Syed Mohd. Salie Labbai v. Mohd. Hanifa
(1976) 4 SCC 780 the
basic method to decide the question of res judicata is first to determine the
case of the parties as put forward in their respective pleadings of their
previous suit and then to find out as to what had been decided by the judgment
which operates as res judicata. It is risky to speculate about the pleadings
merely by a summary of recitals of the allegations made in the pleadings
mentioned in the judgment.
The Constitution Bench in Gurbux Singh v. Bhooralal
1964 SC 1810 : (1964) 7 SCR 831 placing on a par the plea of res judicata and
the plea of estoppel under Order 2 Rule 2 of the Code of Civil Procedure, held
that proof of the plaint in the previous suit which is set to create the bar,
ought to be brought on record. The plea is basically founded on the identity of
the cause of action in the two suits and, therefore, it is necessary for the
defence which raises the bar to establish the cause of action in the previous
suit. Such pleas cannot be left to be determined by mere speculation or
inferring by a process of deduction what were the facts stated in the previous
pleadings. Their Lordships of the Privy Council in Kali Krishna Tagore v. Secy.
of State for India in Council [(1887-88) 15 IA 186 : ILR 16 Cal 173] pointed out
that the plea of res judicata cannot be determined without ascertaining what
were the matters in issue in the previous suit and what was heard and decided.
Needless to say, these can be found out only by looking into the pleadings, the
issues and the judgment in the previous suit."
The Apex Court judgment in Kamala & others v. K.T. Eshwara Sa
, (2008) 12 SCC 661
particularly dealt with the question whether Res Judicata can be the basis or
ground for rejection of the plaint. The Court examined the ambit of Order 7 Rule
11(d) of the CPC and observed thus:
"21. Order 7 Rule 11(d) of the Code has limited application. It must be shown
that the suit is barred under any law. Such a conclusion must be drawn from the
averments made in the plaint. Different clauses in Order 7 Rule 11, in our
opinion, should not be mixed up. Whereas in a given case, an application for
rejection of the plaint may be filed on more than one ground specified in
various sub-clauses thereof, a clear finding to that effect must be arrived at.
What would be relevant for invoking clause (d) of Order 7 Rule 11 of the Code
are the averments made in the plaint. For that purpose, there cannot be any
addition or subtraction. Absence of jurisdiction on the part of a court can be
invoked at different stages and under different provisions of the Code. Order 7
Rule 11 of the Code is one, Order 14 Rule 2 is another.
22. For the purpose of invoking Order 7 Rule 11(d) of the Code, no amount of
evidence can be looked into. The issues on merit of the matter which may arise
between the parties would not be within the realm of the court at that stage.
All issues shall not be the subject-matter of an order under the said
provision." (Emphasis supplied)
The Court further held:-
"23. The principles of res judicata, when attracted, would bar another suit in
view of Section 12 of the Code. The question involving a mixed question of law
and fact which may require not only examination of the plaint but also other
evidence and the order passed in the earlier suit may be taken up either as a
preliminary issue or at the final hearing, but, the said question cannot be
determined at that stage.
24. It is one thing to say that the averments made in the plaint on their face
discloses no cause of action, but it is another thing to say that although the
same discloses a cause of action, the same is barred by a law.
25. The decisions rendered by this Court as also by various High Courts are not
uniform in this behalf. But, then the broad principle which can be culled out
therefrom is that the court at that stage would not consider any evidence or
enter into a disputed question of fact or law. In the event, the jurisdiction of
the court is found to be barred by any law, meaning thereby, the subject-matter
thereof, the application for rejection of plaint should be entertained."
The Apex Court in Church of Christ Charitable Trust & Educational Charitable
Society v. Ponniamman Educational Trust, (2012) 8 SCC 706; Soumitra Kumar Sen v.
Shyamal Kumar Sen, (2018) 5 SCC 644 & Srihari HanumandasTotala v. Hemant Vithal
Kamat, (2021) 9 SCC 99) reiterated this dictum.
In a recent judgment of the Apex Court in Prem Kishore & Ors.Versus Brahm
Prakash & Ors
. in Civil Appeal no.1948 of 2013 decided on 29 March, 2023,
the Court categorically held thus:
"34. The general principle of res judicata under Section 11 of the CPC contain
rules of conclusiveness of judgment, but for res judicata to apply, the matter
directly and substantially in issue in the subsequent suit must be the same
matter which was directly and substantially in issue in the former suit.
Further, the suit should have been decided on merits and the decision should
have attained finality. Where the former suit is dismissed by the trial court
for want of jurisdiction, or for default of the plaintiff's appearance, or on
the ground of non-joinder or mis-joinder of parties or multifariousness, or on
the ground that the suit was badly framed, or on the ground of a technical
mistake, or for failure on the part of the plaintiff to produce probate or
letter of administration or succession certificate when the same is required by
law to entitle the plaintiff to a decree, or for failure to furnish security for
costs, or on the ground of improper valuation, or for failure to pay additional
court fee on a plaint which was undervalued, or for want of cause of action, or
on the ground that it is premature and the dismissal is confirmed in appeal (if
any), the decision, not being on the merits, would not be res judicata in a
From the deliberations made above, it is the mandate of Law, as declared by the
Apex Court consistently from time to time that the Doctrine of Res Judicata
applies only when the previous suit was decided on Merits. Any judgment of the
High Court, which runs contrary to the said declaration of Law by the Apex
Court, is no longer good law.
Written By: Inder Chand Jain
Ph no: 8279945021, Email: [email protected]