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Res Judicata: Section 11 of Civil Procedure Code, 1908

Introduction and Meaning:
Res Judicata is a phrase which is defined in Section 11 of the Civil Procedure Code has been evolved from a Latin maxim, which stands that the thing has been judged which means if an issue is brought in the court and it has already been decided by another court, between the same parties and which has the same cause of action then the court will dismiss the case before it as being useless. The concept of Res Judicata has high significance both in Civil and Criminal System.

Provision of Section 11 of the enacts that once a matter is finally decided by a competent court, no party can be permitted to reopen it in subsequent litigation. The basic objects and operation of Section 11 was rightly pointed and observed by the Supreme Court in the case of Satyadhan Ghosal vs. Deorajin Debi[1]

The Principle of Res-Judicata is based on the meet of giving finality to judicial decisions, what it says is that once a res judicata, it shall not be adjudicated again. Primarily, it applies as between past litigation and future litigation, on the basis of the question of facts or the question of law- has been decided between the two parties in one suit or proceeding and the decision is final, either because no appeal was taken to a higher court or because the appeal got dismissed, or no appeal lies, neither party will be allowed for the execution of future suit or proceedings between the same parties to canvas the matter again.

If we breakdown the words of Res Judicata, here the word Res means a subject matter or dispute between the parties and the other word Judicata means adjudged or decided or adjudicated, that is the matter is adjudicated or a dispute is decided.

Objectives of Res Judicata:

This doctrine is based on three maxims which are as follows:

  • Nemo debt bis vexari pro una et eadem causa which means no man should be vexed twice for the same cause;
  • Interest reipublicae ut sit finis litium which means it is in the interest of the State there should be an end to a litigation; and
  • Res judicata pro veritate occipitur which means judicial accepted as correct.

Extent and Applicability:
The doctrine of res judicata is a fundamental concept based on public policy and private interest. This doctrine is applicable to civil suits, execution proceedings, arbitration proceedings, taxation matters, industrial adjudication, writ petitions, administrative orders, interim orders, criminal proceedings, etc. Thus, this doctrine is not exhaustive in nature.

Principle and Scope of Section 11:

The rule of Res judicata is intended not only to prevent a new decision but also to prevent a new investigation, so that the same person cannot be harassed again and again in various proceedings upon the same question.

The rule of res judicata is based on two important grounds namely:

  1. The hardship to an individual, who could otherwise be vexed twice for the same cause, and
  2. Public policy, which requires that there should be an end to litigation.

Conditions in Res Judicata:

The Plea of res judicata questions the jurisdiction of the court to try the proceedings. However, the doctrine of res judicata will apply only if the requirements of Section 11 are fulfilled. To avail the plea and constitute a matter as res judicata under Section 11 the following conditions must be satisfied:
  1. The matter directly and substantially is 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 the parties under whom they or any of them claim[2].
  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;
  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 necessary that the matter of res judicata should be raised by the party concerned. Where the issue of res judicata was not raised by the concerned party, nor any such issue was framed by the trial court, but the appellate court suo motto invoked the principle of res judicata, this was held to be not proper.

Unless the issue of res judicata is raised by the parties, the court has no jurisdiction to answer the issue of res judicata[3].
  1. Matter in issue:

The expression matter in issue means the rights litigated between the parties, i.e., the facts on which the right is claimed and the law applicable to the determination of that issue. Such issue may be an issue of fact, issue of law or mixed issue of law and fact.

A matter directly and substantially in issue in a former suit will operate as res judicata in a subsequent suit. The term directly has been used in contradistinction to collaterally or incidentally. A fact cannot be said to be directly in issue if the judgment stands whether that fact exists or does not exist. No hard and fast rule can be laid down as to when a matter can be said to be directly in issue and it depends upon the facts and circumstances of each case.

A matter directly and substantially in issue may be so either actually or constructively. According to Explanation III, a matter is actually in issue when it is alleged by one party and denied or admitted by the other expressly or impliedly. As per Explanation IV, it is constructively in issue when it might or ought to have been made a ground of attack or defence in the former suit. The word might presupposes the party affected had knowledge of the ground of attack or defence at the time of the previous suit. Ought compels the party to take such grounds. The word and is to be read conjunctively. Unless it is proved that the matter might and ought to have been raised in the previous litigation, there is no constructive res judicata.

A party is bound to bring forward his whole case in respect of the matter in issue and cannot abstain from relying upon or giving up any ground which is in controversy and for consideration before a Court and afterwards make it a cause of action for a fresh suit. Constructive res judicata is an artificial form of res judicata. It 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.

In the case of Workmen v. Board of Trustees, Cochin Port Trust[4], the Supreme The court observed that the principle of res judicata comes into play when by the judgment and order a decision of a particular issue is implicit in it, i.e., it must be deemed to have been necessarily decided by implication, then also the principle of res judicata on that issue is directly applicable.

Former Suit: Explanation 1:
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.

Parties under whom they or any of them claim:

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

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.

Explanation VI thus, illustrates one aspect of constructive res judicata. Thus, where a representative suit is brought under Section 92 of the Code and a decree is passed in such a suit, the law assumes that all the persons who have the same interest as plaintiffs in the representative suit were represented by the said plaintiffs and, therefore, are constructively barred by res judicata by reagitating the matters directly and substantially in issue in the former suit.

The following conditions must be satisfied before a decision may operate as res judicata under Explanation VI:

  • There must be a right claimed by one or more persons in common for themselves and others not expressly named in the suit;
  • The parties not expressly named in the suit must be interested in such right;
  • the litigation must have been conducted bonafide and on behalf of all the parties interested;
  • if the suit is under Order 1, Rule 8, all conditions laid down therein must have been strictly complied with.
Also, if the previous litigation was bonafide public interest litigation in respect of a right which was common and was agitated in common with others, the decision in previous litigation would operate as res judicata in subsequent litigation.

3. Same title:

The third 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.

As held in Ram Gobinda v. Bhaktabala[5], the test for res judicata is the identity of title in the two litigations and not the identity of the subject matter involved in the two cases. The crucial test for determining whether the parties are litigating in a suit under the same title as in the previous suit is of the capacity in which they sued or were sued. The term same title has nothing to do either with the cause of action or with the subject matter of 2 suits.

4. Competent court:

The fourth condition of res judicata is that the court which decided the former suit must have been a court 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.

Right of Appeal: Explanation II

Explanation II to Section 11 makes it clear that for the purpose of res judicata the competence of the Court shall be determined irrespective of any provision as to a right of appeal from the decision of such Court. The question of whether there is a bar of res judicata does not depend on the existence of a right of appeal but on the question whether the same issue, under the circumstances mentioned in Section 11, has been heard and finally decided.

5. Heard & finally decided:

The fifth and 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); or by a decree on an award; or by oath tendered under the Indian Oaths Act, 1873.

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 misjoinder 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.

Res Judicata & Estoppel:

The doctrine of res judicata operates as a bar on the jurisdiction of a court to try a suit which has been conclusively decided by the court with the same parties, same subject matter and under the same title. All these provisions are provided under section 11 of the Code of Civil Procedure,1908.

Whereas the doctrine estoppel as defined in Section 115 of the Indian Evidence Act, 1872 provides that When one person has, by his declaration, act or omission, intentionally caused or permitted another person to believe a thing to be true and to act upon such belief, neither he nor his representative shall be allowed, in any suit or proceeding between himself and such person or his representative, to deny the truth of that thing.

Res judicata corresponds to the part of the doctrine of estoppel, which is known as estoppel by record. Estoppel, as enunciated in Section 115 of the Indian Evidence Act, is by conduct or agreement or estoppel in parties. Thus, even though res judicata may be said to be included in the doctrine of estoppel, as understood in the wider sense of the term, it must be distinguished from estoppel as distinctly provided for in the Indian Law of Evidence.

The doctrine of res Judicata can be distinguished from estoppel, as generally understood, on the following grounds:

  1. 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 the procedure.

    Estoppel, on the other hand, is part of the law of evidence and proceeds on the equitable principle of altered the 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 others position.
     
  2. 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.
     
  3. Res judicata is reciprocal and binds both the parties, while estoppel binds the party who made the previous statement or showed the previous conduct.
     
  4. 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.
     
  5. Res judicata prohibits an inquiry in timeline 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.
     
  6. Res judicata ousts the jurisdiction of the court, while estoppel shuts the mouth of a party.

Constructive Res Judicata:

Rule of constructive res judicata is engrafted under Explanation IV of Section 11 of the Code. It 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. That clearly is opposed to considerations of public policy on which the doctrine of res judicata is based and would mean harassment and hardship to the opponent. Besides, if such a course is allowed to be adopted, the doctrine of finality of judgments pronounced by the courts would also be materially affected.

Thus, it helps in raising the bar of res judicata by suitably construing the general principle of subduing a cantankerous litigant. That is why this rule is called constructive res judicata, which, in reality, is an aspect or amplification of the general principle of res judicata.

In the case of State of U.P. V. Nawab Hussain[6]- 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 a reasonable opportunity of being heard before the passing of the order.

The contention was, however, negative and the petition was dismissed. He then filed a suit and raised an additional ground that science he was appointed by the I.G.P., the D.I.G. had no power to dismiss him. The state contended that the suit was barred by constructive res judicata. The trial court, appellate court and the high court held that suit was not barred, but the Supreme Court 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 the earlier writ petition.

Res Judicata and Rule of Law:

The Supreme Court of India has applied the doctrine of res judicata in writ proceedings. The case of Darayo vs. State of U.P[7] may be taken first. The Petitioner had filed a writ petition in the High Court of Allahabad under Article 226 of Indian Constitution and they were dismissed.

Then after he filed for Article 32 in Supreme Court for the same relief and same grounds. The respondents raised the preliminary objections regarding maintainability of the petition by contending that the prior decision of High Court would operate as the res judicata to a petition under Article 32. Thus the Supreme Court upheld and dismissed the Petitions.

Thus the court held that the rule of res judicata is applicable to petitions filed under Article 32 of Indian Constitution and if a petition is filed by a petitioner in High Court under Article 226 of the Constitution is dismissed on the merits, such a decision would be operated as res judicata so as to bar a similar petition in Supreme Court under Article 32.

Res Judicata and withdrawal of Suit:

Order 23, Rule I deals with the withdrawal of Suits. If the Plaintiff withdraws the suit or abandons his claims without the leave of the court, he will be precluded from instituting a fresh suit in respect of the same cause of action.

The difference lies between the fact that while in the former the matter is heard and finally decided between the parties, in the latter the plaintiff himself withdraws or abandons his claims before it is adjudicated on merits.

Exceptions to Res Judicata:

There are certain exception were the courts overcame the Principle of Res Judicata that is the tough previously the courts gave their judgement still the new suits were filed in the other courts with the same facts and the same cause of action, where it allowed a party to attack the validity of the original judgement, even outside the appeals, these exceptions are called as collateral attacks are typically based on procedural or jurisdictional issues, based not on the wisdom of the earlier courts 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 counsellor as a matter of fairness.

Judicial Pronouncements in relation to Res Judicata:

In the case of Talluri Venkata Seshayya vs. Thadvikonda Kotiswara Rao[8], a suit was filed in the Court for the purpose of declaring certain temples public temples and for setting aside alienation of the 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 the prior suit. There is 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 Rural Litigation And Entitlement Kendra vs. State of Uttar Pradesh[9], 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.

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 the environment is not barred.

Conclusion:
One of the first and highest duties of all Courts is to take care that the act of the Court does no injury to the suitors. It has been said that an act of the Court shall harm none (actus curiae neminem gravabit). All courts, therefore, are bound to take care that their acts do not cause harm or injury to suitors. In the case of A.R. Antulay v. R.S. Nayak[10], the Supreme Court-ordered withdrawal of a case against the appellant pending in the Court of a Special Judge and transferred it to the High Court of Bombay. A preliminary objection was raised by the appellant against the jurisdiction of the Bombay High Court. It was, however, negative by the Court.

The appellant then approached the Supreme Court. It was contended that the direction was contrary to law and could not have been issued. The argument of the respondent was of res judicata. Allowing the appeal and recalling the earlier order, the Apex Court observed that the direction was violative of the fundamental rights of the appellant and no rule of res judicata would apply to such a situation.

The doctrine of Res Judicata can be understood as something which restrains the either party to move the clock back during the pendency of the proceedings. The extend of Res Judicata is very-very wide and it includes a lot of things which even includes Public Interest Litigations. This doctrine is applicable even outside the Code of Civil Procedure and covers a lot of areas which are related to the society and people. The scope and the extent have widened with the passage of time and the Supreme Court has elongated the areas with its judgments.

Suggestions:
In the light of above discussion, the following suggestions may be made:
  1. The decision under Article 32 should be held as res judicata if a fresh writ the petition is filed in respect of the same cause or matter which has already been judicialized on merits in previous writ petition between the same parties under the same article.
     
  2. The decision on merits under article 226 should be held as res judicata if subsequently the same matter or cause is raised in a subsequent writ petition under article 226 or an article of similar amplitude between the same parties.
     
  3. The concept of Constructive res judicata should be avoided as far as possible particularly wherever the question of constitutional significance arises.
     
  4. The concept of merits as enunciated by the Supreme Court in Daryaos case is satisfactory. However, the decision of the Calcutta High Court in Metal The corporation should not be followed.
     
  5. A writ decisions should not be held to bar a subsequent regular suit. The principle of constructive res judicata as against the regular suit to be totally avoided.

References:
Books:
  1. Takwani C.K., Civil Procedure Code, Edition 5. Reprint 2007, Eastern Book Publication, Lucknow.
  2. Dr. Myneni S.R., The Law of Evidence. Edition 1. Asia law House, Hyderabad.
  3. Sukumar Ray, The Code of Civil Of Procedure, Universal Law Publishing Co. 2008 Edition
  4. Halsbury Laws of India, Vol. : Code of Civil Procedure

Web References:
  1. http://vlex.in/vid/arjun-singh-vs-mohindra-kumar-ors-29694951
  2. http:// www.legalserviceindia.com/articles/rju.htm
  3. http://www.utcle.org/eLibrary/preview.php?asset_file_id=12359
  4. http://www.absoluteastronomy.com/topics/Res_judicata#encyclopedia

End-Notes:
  1. AIR 1960 SC 941: (1960) 3 SCR 590
  2. Saroja vs. Chinnuswamy, 2007 6 SC 90
  3. Kalawati Kotla vs. Shokilal, AIR 2013 Chh.12
  4. 1978 AIR 1283
  5. 1971 AIR 664
  6. AIR 1977 SC 1680
  7. AIR 1961 SC 1457
  8. Talluri Venkata Seshayya vs. Thadvikonda Kotiswara Rao 1937 BOMLR 317
  9. Rural Litigation And Entitlement Kendra vs. State of Uttar Pradesh 1985 AIR 652
  10. 1988 AIR 1531

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