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 the suit in question whether or not it was instituted prior thereto.
ADVERTISEMENTS:
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.
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ADVERTISEMENTS:
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 defence or attack in such former suit shall be deemed to have been a matter directly and substantially in issue in such suit.
ADVERTISEMENTS:
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 been refused.
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 in which such issue has been subsequently raised.
Section 11, C.P.C. embodies the rule of conclusiveness as evidence or bars as a plea of an issue tried in an earlier suit founded on a plaint in which the matter is directly and substantially in issue and became final. In a later suit between the same parties or their privies in a competent court to try such subsequent suit in which the issue has been directly and substantially reviewed and decided in the judgment and decree in the former suit would operate as res Judicata.
Section 11 does not create any right or interest in the property, but merely operates as a bar to try the same issue once over. In other words, it aims to prevent multiplicity of the proceedings and accords finality to an issue, which directly and substantially had arisen in the former suit between the same parties or their privies, decided and became final so that parties are not vexed twice over; vexatious litigation would be put to an end and the valuable time of the court is saved.
It is based on public policy, as well as private justice. They would apply, therefore, to i all judicial proceedings whether civil or otherwise. It equally applies to all quasi-judicial proceedings of the tribunals other than the civil courts.
Writ Petition:
Decision given in writ petition operates as res Judicata in subsequent judicial proceedings.
The question of res Judicata is a mixed question of law and fact. That question of law when depends upon certain facts and if there is a finding regarding those facts recorded by the courts below, we feel that we have to proceed to consider the decision on the question of res Judicata on the basis that, that finding of fact which formed the foundation of the decision which has been held out for challenging the finding of the tribunal on the ground of res Judicata is not to be interfered with by the court in second appeal.
There is no dispute that if a decision is put forth to canvass a plea of res Judicata, the opposite party has got a right to say that the decision relied on for the purpose of res Judicata is a decision obtained under fraud and if he can establish that fact, the decision cannot be used for the purpose of invoking the doctrine of res Judicata.
The important words are “has been heard and finally decided”. The bar applies only if the matter directly and substantially in issue in the former suit has been heard and finally decided by a court competent to try such suit. That clearly means that on the matter or issue in question there has been an application of the judicial mind and a final adjudication made. If the former suit is dismissed without any adjudication on the matter in issue
Res Judicata and Res Sub-Judice:
The rule of res Judicata in section 11 is clearly distinguishable from the rule of res sub-Judice enshrined in section 10. The former relates to a matter already adjudicated upon, i.e., a matter on which judgment has been pronounced, while the latter relates to a matter which is pending judicial enquiry.
The rule in section 10 bars the trial of a suit in which the matter directly and substantially in issue is pending judicial decision in a previously instituted suit by staying the trial of the latter suit; section 11 bars altogether the trial of a suit or an issue in which the matter directly and substantially in issue has already been adjudicated upon in a previous suit.
Essentials of Res Judicata:
The essentials for the applicability of the doctrine of res Judicata have been well summarised by Sir William De Gray in the leading cause of the Duchess of Kingstone (2 Smith’s Leading Cases, 11th Edition, p. 731) in the following passage:
“From the variety of cases relative to judgment being given in evidence in civil suits these two deductions seem to follow as generally true; first that a judgment of a court of concurrent jurisdiction, directly speaking on the point, is, as 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, in like manner, conclusive upon the same matter, between same parties, coming incidentally in question in another court, for a different purpose. But neither the judgment of a court of concurrent or exclusive jurisdiction is evidence of any matter which came collaterally in question, though within their jurisdiction, nor of any matter incidentally cognizable nor of any matter to be inferred by argument from the judgment.”
Chitaley quoting the above observations with approval remarks that thus it is clear that it is essential that the former judgment must be:
(1) That of a court of competent jurisdiction;
(2) Directly speaking upon the matter in question in the subsequent suit; and
(3) Between the same parties.
Otherwise even the general principle of res Judicata will not apply.
To constitute res Judicata, it is, however, not necessary that the suit need be one which the plaintiff was bound to institute. The usefulness or otherwise of a suit is a question which is entirely beside the point.
It is manifest from the above that the following conditions must be satisfied to constitute a bar of res Judicata, viz., (1) the matter must be directly and substantially in issue in the two suits; (2) the prior suit must have been between the same parties or persons claiming under them; (3) such parties must have litigated under the same title in the former suit; (4) subject to the provisions contained in Explanation VIII, added by the Amendment Act, 1976, the court which determined the earlier suit must be competent to try the later suit or the suit in which such issue is subsequently raised; and (5) the question directly and substantially in issue in the subsequent suit should have been heard and finally decided in the earlier suit.
The above conditions need a detailed discussion and are considered below in seriatim.
1. Directly and substantially in issue:
The matter directly and substantially in issue in the subsequent suit must be the same matter which was directly and substantially in issue, either actually or constructively, in the former suit. The word ‘suit’ has not been defined in the Code but is understood to embrace any proceeding in a court of law by which an individual pursues that remedy which the law allows him.
The rule of res Judicata only requires the identity of the matter in issue. In order that this condition may be fulfilled it must have been alleged by one party and either denied or admitted, expressly or by necessary implication, by the other.
It is enough if the matter was in issue in substance in the former suit as also in the subsequent suit. The substance and not the form of the decision should be looked at. It is essential that the matter must be in issue directly and substantially in the suit under trial and not collaterally or incidentally.
The principle of res Judicata does not depend on whether the cause of action in the two suits are identical. Causes of action in the two suits may be different, but the test is whether the matter directly and substantially in issue is the same in both suits and whether the parties are the same or the suit is between parties claiming under them and litigating under the same title. The expression “cause of action” used in this connection means that the matter in dispute is substantially the same, and the parties are the same or litigating under the same title.
It is the matter in issue directly and substantially, either actually or constructively, and not the subject-matter that forms the test of res Judicata. If the causes of action in the two suits are different, the matter in issue in them will not be the same and hence the decision in the former suit cannot operate as res Judicata.
The words ‘directly and substantially in issue’ in section 11, C.P.C. are not confined to the relief granted in the former suit or to the property which was its subject-matter. The words in section 11 also clearly imply that the decision on a matter not essential for the relief finally granted in the former suit or which did not form one of the decisions cannot be said to have been directly or substantially in issue in the former case.
Thus where certain reliefs were granted in a suit to the plaintiff it is not open to the defendant to raise any plea in a subsequent suit which will interfere with the relief in the prior suit. The principle of res Judicata does not extend to anything more than this.
It is well-established that it is the decision of the matter in the previous suit which operates res Judicata and not the reason or the basis of the decision that operates as res Judicata. Where the title of the plaintiff to the entire property covering the subject-matter of the previous suit and the subject-matter of the subsequent suit is not directly put in issue in the previous suit, the decision in the previous suit in which observations are made with regard to the title of the plaintiff over the entire subject-matter of the two suits are merely reasoning for holding that the plaintiff was entitled to the subject-matter that is the basis of res Judicata. What one has to decide is, whether in words of section 11, C.P.C. the matter in dispute in the subsequent suit was directly and substantially in issue in the previous suit and it was decided.
Collaterally or incidentally in issue:
The expression “collaterally or incidentally in issue” means only ancillary to the direct and substantial issue and refers to a matter in respect of which no relief is claimed but which is put in issue to enable the court to adjudicate upon the matter which is directly and substantially in issue. Collateral and incidental issues are auxiliary issues, while direct and substantial issues are the principal ones.
It is only those matters which are directly and substantially in issue that constitute res Judicata and not the matters which are in issue only collaterally or incidentally. The matter would be directly and substantially in issue if the issue was decided and judgment was, in fact, based upon that decision. Otherwise it would be a matter collaterally or incidentally in issue.
An example or two will make the point clear. A sues B for the rent due for the year 1949. B’s defence is that no rent is due. Here the claim for rent is the matter is respect of which relief is claimed.
This, therefore, is a matter directly and substantially in issue. But in another case when A sues B for rent and B claims abatement of rent on the ground that the area is greater than that shown in the lease, the finding as to the excess area is not res Judicata for this was not the matter directly and substantially in issue but only ancillary to the direct and substantial issue, viz., whether the area is equal to that shown in the lease or less.
In order to operate as res Judicata the finding must be one disposing of a matter directly and substantially in issue in the former suit and the issue should have been heard and finally decided by the court trying such suit. A matter which is collaterally or incidentally in issue for the purpose of deciding the matter which is directly in issue in the case cannot be made the basis of a plea of res Judicata.
A question of title in a small cause suit can be regarded as incidental only to the substantial issue in the suit and, therefore, when a finding as to title to immovable property is rendered by a Court of Small Causes res Judicata cannot be pleaded as a bar in a subsequent regular civil suit for the determination or enforcement of any right or interest in immovable property. Explanation VIII to section 11 of the Code [as inserted by the Code of Civil Procedure (Amendment) Act, 1976] can be of no assistance, because it operates only where an issue has been heard and finally decided in the earlier suit.
Constructively in issue—”Might” and “Ought”:
The matter directly and substantially in issue may either be actually in issue or constructively in issue, and both the matters constitute res Judicata if the same were in issue in the former suit and are also in issue in the subsequent suit. A matter is actually in issue when it is alleged by one party and denied by the other. It is constructively in issue when the matter might or ought to have been made a ground of attack or defence in the former suit.
Explanation IV to section 11 says that 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.
It may, therefore, happen that a matter though not actually in issue directly and substantially may nevertheless be regarded as having been in issue in a suit when the same might and ought to have been made a ground of attack or defence.
The test is whether the parties had an opportunity of controverting it and, if they had, the matter will be treated as actually controverted and decided. When the matter is actually in issue the same is heard and decided, but when it is constructively in issue from its very nature it could not be heard and decided for this was a matter which might and ought to have been made a ground of attack or defence in the suit.
Nevertheless it will be deemed to have been heard and decided against the party omitting to allege it, provided the other conditions of res Judicata are complied with and the plaintiff is precluded from raising in the subsequent suit the grounds of attack he might and ought to have raised in former suit.
It is no answer to a plea of res Judicata that an argument which could be advanced was not advanced in the previous suit. And where an argument was open to the party, the fact that he did not advance it would not remove the bar of res Judicata, if it is otherwise binding. Failure to put forward an alternative ground of the right to inherit operates as res Judicata.
But failure to raise an alternative plea, which is inconsistent with the main plea, would not operate as res Judicata. Where, however, a suit was dismissed on the plea of limitation and was not finally decided on merits, a subsequent suit in which the same pleas are raised is not barred by the rule of res Judicata.
Doctrine of might and ought:
Where plea as to on bar of limitation is not raised in writ petition challenging the land acquisition the doctrine of ‘might and ought’ comes into play and appellant is debarred to raise controversy once over due to doctrine of constructive res Judicata.
Writ petition was filed against cancellation of license to vend liquor. In writ petition allegations of mala fide against Minister were made but not decided by High Court but directions were made for availing alternate remedy of appeal and for decision of appeal on merits. In subsequent writ petition the Minister was not made a party and same question of mala fides could not be raised as is clear by words ‘might and ought’ in S. II.
The words ‘might’ and ‘ought’ have wide amplitude. The word ‘might’ conveys the idea of possibility of joining all grounds of attack or defence; ‘ought’ carries the idea of propriety of so joining. The theory of res Judicata is based on the doctrine that no party should be vexed again over the same cause.
An alternative basis on which a claim can be sustained should be set up in any suit to enforce the claim. When it is not set up, the basis omitted in the prior suit should not be allowed to sustain the second suit.
Though a plea might have been set up by the plaintiff in the former suit the answer to the question whether he ought to have set up such a plea in the alternative in the suit would vary on the facts of each case. No hard and fast rule can be laid down. But at the same time, though no definite rule can be laid down on the point, it is now well settled that where the matters are so dissimilar that their union might lead to confusion, the plea ought not to be set up.
Pleas that would make the suit bad for multifariousness or would embarrass the trial thereof and the pleas, the evidence in support of which is such that it might be destructive of the other pleas, come within the expression ‘where matters are so dissimilar that their union might lead to confusion’.
An illustration or two will make the point clear. The plaintiff, A, sues B on a contract and obtains a decree. B cannot afterwards sue for recission of the contract on the ground that it did not fully represent the agreement between the parties, for this was a matter which might and ought to have been made a ground of defence in the earlier suit.
Similarly, A, a Hindu, dies leaving widow, who makes a gift to her brother B of certain property belonging to her husband A and, after the death of the widow, one C alleging that he and A were members of a joint Hindu family sues B for a declaration of his title to the property by right of survivorship. C cannot subsequently sue B to recover the same property as the nearest reversionary heir of A once the suit is dismissed on the finding that A and C were separate. The suit is barred by res Judicata, for C might and ought to have set up his title by heir-ship as a ground of attack in the former suit in the alternative.
A suit for partition between coparceners should embrace the entire family property. It is incumbent on the parties to bring all the properties into the hotchpot. It is the absence of mistake, fraud or accident or withdrawal with liberty to file a fresh suit, a second suit for partition on the ground that the previous partition was a partial one would be barred by Explanation IV to section 11, C.P.C.
The same thing applies to the defendant. He cannot raise such grounds of defence in the subsequent suit which might and ought to have been raised in the former suit. A files a suit against B to recover money on a promissory note. B contends that the promissory note was obtained from him by undue influence.
The suit is decreed in spite of this objection. The defendant subsequently wants to challenge the promissory note by a fresh suit on the ground of fraud and coercion. This he cannot do as it was his duty to have resisted the former suit on the ground of fraud and coercion as well.
The general rule is that if a matter could have been set up as a ground of attack or defence in the alternative in the former suit, and if its introduction into that suit was necessary for a complete and final decision of the right claimed by the plaintiff therein, it will be deemed to be a matter which ought to have been made a ground of attack or defence in that suit, unless the matters in that and the subsequent suit are so dissimilar that their union might lead to confusion.
Failure to raise an alternative plea, which is inconsistent with the main plea, would not operate as res Judicata. Nor would failure to put forward a claim on the basis of a right acquired during pendency of the suit operate as res Judicata and the party is not bound in law to put forward the claim in the pending suit.
Basic requirement—same cause of action wanting:
In former writ petition against compulsory retirement validity of service Rules was not challenged and writ petition was dismissed. Later on identical Service Rule was quashed by Supreme Court and suit was filed challenging the validity of the service rule and order of compulsory retirement.
The suit is not barred by res Judicata. The constitutionality of the law involved is not a matter directly and substantially in issue, and if not raised it cannot be presumed that a mute decision in favour of its constitutionality taken barring the plea raised in a subsequent suit.
Former suit was filed by the plaintiffs for recovery of sale price and finding was that the defendants were tenants of lands in dispute. In the subsequent suit for recovery of possession between the same parties relating to same land but on different cause of action, the defendants had not taken the plea that they were tenants of land.
The defendants pleaded that they acquired title by adverse possession. Thus the issues and causes of action were different in subsequent suit. The basic requirement of res Judicata is wanting. The defendants cannot invoke the rule of res Judicata on the ground that in earlier suit they were found to be tenants of land.
Former suit was filed by respondents for declaration of title and recovery of possession. The subsequent suit was filed by appellant challenging order of civil court against attachment at the instance of respondent and the validity of gift deed was not directly or substantially in issue. The decision in civil appeal against subsequent suit is not operative as res Judicata.
The rule of constructive res Judicata would not apply to a point which the court may or may not decide in its discretion. In order that the rule of ‘might and ought’ may apply it is not only necessary that the defendant could have raised defence in reply to the former suit, but it must also be shown that he was bound to do so.
The correct principle is that if the decree made in the earlier suit is such that it would be inconsistent with the plea which might and ought to have been raised, but not actually raised, it must be taken that there has been, for the purpose of res Judicata, a final decision by necessary implication.
When no finding was given on an issue in the previous suit judgment therein cannot operate as res Judicata in a subsequent suit, on the ground that the finding must be assumed to have been given as an inference. Explanation IV to section 11, C.P.C., would be of no assistance in such a case.
The doctrine of constructive res Judicata is not applicable in the absence of adjudication between parties.
The State of Uttar Pradesh v. Nawab Hussain:
In this case the petitioner was dismissed from service. He filed a writ petition for quashing the disciplinary proceeding on the ground that he was not afforded a reasonable opportunity to meet the allegations against him and the action taken against him was mala fide.
The petition was dismissed. Thereafter he filed a suit in which he challenged the order of dismissal on the ground, inter alia, that he had been appointed by the Inspector General of Police and that the Deputy Inspector General of Police was not competent to dismiss him by virtue of Article 311(1) of the Constitution.
It was an important plea which was within the knowledge of the respondent and could well have been taken in the writ petition, but he contented himself by raising the other pleas that he was not afforded a reasonable opportunity to meet the case against him in the departmental inquiry and that the action taken against him was mala fide.
It was, therefore, not permissible for him to challenge his dismissal in the subsequent suit on the other ground that he had been dismissed by an authority subordinate to that by which he was appointed. That was clearly barred by the- principle of constructive res Judicata.
On the principle of the constructive res Judicata an objection to the territorial jurisdiction of the court in the previous suit, which might or ought to have been raised therein, must be deemed to have been heard and decided in favour of the existence of jurisdiction and the party which chooses not to raise the issue in defence is precluded from raising it in a subsequent petition between the same parties.
Where a matter has been constructively in issue so as to bring it under Explanation 4 to section 11, it could not, from the very nature of the case, be heard and decided and it will be deemed to be heard and decided against the party who might and ought to have alleged it.
2. Between the same parties:
The second essential condition to constitute the bar of res Judicata is that the former suit must have been a suit between the same parties or between parties under whom they or any of them claim. Res Judicata not only affects the parties to the suit but their privies, i.e., persons claiming under them. A judgment not inter partes or in rem is not res Judicata in a subsequent suit though it may be received in evidence.
Representative Suit:
Explanation VII to section 11 says that where persons litigate bona fide in respect of a public right or a private right claimed in common for themselves and others, all persons interested in such right shall, for the purpose of this section, be deemed to claim under the person so litigating. It thus refers to cases in which a decision in a suit may operate as res Judicata against persons not expressly named as parties to the suit, i.e., in a representative suit.
Explanation VI to section 11 is, however, not limited only to a representative suit governed by Order I, Rule 8, C.P.C. It applied in other suits also. Explanation VI is not controlled by the provisions of Order I, Rule 8, C.P.C., because there must be a suit in which a person claims a right in common to himself and others, though not governed by Order I, Rule 8, C.P.C.
If the parties in the subsequent suit can be said to have been represented by the parties in the former suit, the decision in the former suit will bind the parties in the subsequent suit. A decree passed against a shebait or a trustee will also bind his successor.
Dismissal of a suit brought by the managing member of a joint family is a bar to a subsequent suit by a junior member who had been pro forma defendant in the former suit, in respect of the same property and on the same cause of action. The son is bound by the decision against the father.
Not collusive:
Eviction suit was filed against Rashtriya Swayam Sewak Sangh, unregistered body, represented by Manager, the President and Member. The suit was not collusive. The decree passed in suit is binding on all members of the body and operates as res Judicata.
The decision in a case in respect of a public right is binding on all persons interested in that right for purposes of section 11, C.P.C. They will be deemed to claim under the person who litigated in the earlier suit in respect of that public right.
One D as reversioner filed a suit against a Hindu widow and a donee from her for cancellation of the gift deed on behalf of himself and R, a cousin who was at that time a minor living under his guardianship. The suit was dismissed on the ground that the last owner left a sister (S) and that she was a nearer heir than D and R. R was not a party to the suit.
After the death of the widow, R instituted the suit against the donee from the widow and S, impleading D as pro forma defendant, for possession. It was found that S was not a sister of the last owner and that the plaintiff and D were the next reversioners.
On these facts it was held that Explanation VI to section 11, C.P.C. applied and R must be deemed to be claiming under D, who litigated in the earlier suit, and under section 11 the decision in the previous suit would operate as res Judicata and prevent R from reagitating the same question.
Explanation VI is couched in wide language and applied whenever a person claims a right, private or public, in common to himself and others, provided he does so bona fide. Even when a suit is brought by a person who challenges and alienation made by a Hindu widow on the ground of its being without legal necessity, if the plaintiff claims the right in common to himself and others similarly situated and has filed the suit bona fide, Explanation VI applies, because all its requirements are fulfilled.
For the applicability of the Explanation what one has to consider to the claim naturally made by the plaintiff in the previous suit and not the result or decision of the previous suit. Whether a decision is res Judicata or not does not depend upon its nature.
Explanation VI to section 11, C.P.C., refers to a case in which the person sought to be bound by the decision is deemed to be represented in the previous suit by virtue of proceedings having been taken under Order I, Rule 8, C.P.C., or otherwise.
Where the previous suit was not representative and the persons sought to be bound by the decision arrived at in the case cannot be deemed to have been representated in that litigation, Explanation VI to section 11, C.P.C. can have no application.
The decision of Privy Council of erstwhile State as to nomination of particular person a Pandayya (Matha dipatti) of math is binding to a plaintiff in subsequent suit who was not party before Privy Council. The principle of res judicata is not applicable.
But decision of Privy Council is a definitely relevant circumstance to be taken into consideration under S. 42 of the Evidence Act as the issue has been finally determined at the highest level by Privy Council, the same could not be re-examined.
Where the parties are different in two suits, the findings in the previous suit cannot be res judicata in the subsequent suit unless it is shown that the plaintiffs in the previous suit had claimed the right in common for themselves and for the plaintiffs in the subsequent suit.
Where the plaintiffs in the earlier suit and the later suit are not the same or parties who claim through each other, section 11 in terms cannot apply. Where section 11 is thus inapplicable it would not be permissible to rely upon the general doctrine of res judicata.
Partition:
Previous decree in respect of joint family property wherein plaintiff member was given 5/6th share was not binding as it was a collusive and other member was not party to said proceedings. Later suit is not barred by res judicata. Finding of court in later suit that every member was entitled to l/6th share in coparcenary property was held to be proper.
In order to sustain the plea of res judicata it is not necessary that all the parties to the two litigations must be common. All that is necessary is that the issue should be between the same parties or between parties under whom they or any of them claim.
The submission that the subject-matters of the two suits were different because the present suit was for a declaration and the other suit was for damages is without substance since the issue between the parties was identical in both the suits.
Once the questions at issue in the two suits are found to be the same, the fact that the material which led to the decision in the earlier suit was not again placed before the court in the second suit cannot make the slightest difference. The plea of res judicata may be sustained, without anything more, if the questions at issue and the parties are the same, subject of course to the other conditions prescribed by section 11, C.P.C.
Where the parties in the earlier case and the latter case are not the same and the issue which has been raised directly and substantially in the subsequent case was not so in the earlier case, observations in the earlier case at best would be only obiter dicta and there was no binding force as such for the Judge in the latter case to follow the same especially when the matter was also not argued in depth in the earlier case.
Where in an earlier eviction suit the tenant in his written statement had invoked the power of rent courts under section 11 of the Bombay Act of 1947 for dev. initiation of standard rent however did not press the said issue of standard rent further, in such a case, although section 11, C.P.C. by itself does not directly create a bar to the subsequent proceedings taken out by that tenant in the form of an application for determination of standard rent, the same, however, will, be barred by principle of constructive res judicata and/or principles analogous to res judicata and also on account of principles of estoppel operating against the tenant.
The principles of res judicata also extend to the proceedings under Article 226 of the Constitution of India in High Courts. The principles of constructive res judicata will bar a second petition on the same cause of action or when relief asked for but not granted in previous application.
If the ground, which ought to have been taken in previous petition, but not taken the principles of constructive res judicata as envisaged under Explanation IV to section 11, C.P.C. will apply. Thus, what has been decided will operate as res judicata and if certain other pleas which could not be taken or if taken, but the same were not decided, the same will not operate as res judicata.
Merely because the petitioner had not taken the plea of regularisation in the previous writ petition challenging his earlier termination order, the petitioner was not debarred from taking the said plea in view of the principles of res judicata, in his subsequent petition ‘ challenging subsequent termination order.
In Workmen of Cochin Port Trust v. Board of Trustees of the Cochin Port Trust, it was observed : “the technical rule of res judicata, although a wholesome rule based upon public policy, cannot be stretched too far to bar the trial of identical issues in a separate proceeding merely on an uncertain assumption that the issue must have been decided. It is not safe to extend the principle of res judicata to such an extent so as to found it on mere guess work.”
The view that the principle of res judicata is applicable to an erroneous decision on jurisdiction cannot be regarded as good law. A court which has no jurisdiction in law cannot be conferred with jurisdiction by applying principles of res judicata. It is well settled that there can be no estoppel on a pure question of law and in this case the question of jurisdiction is a pure question of law.
Rule of res judicata based on public policy that there should be finality to litigation and no one should be vexed twice for the same cause:
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 finality to litigation and no one should be vexed twice for the same cause.
Waiver of plea of res Judicata:
That apart the plea, depending on the facts of a given case, is capable of being waived, if not properly raised at an appropriate stage and in an appropriate manner. The party adversely affected by the plea of res judicata may proceed on an assumption that his opponent has waived the plea by his failure to raise the same.
Applicability of constructive res Judicata:
Where the land was allotted to a displaced person who was treated as escheat had allotted to appellant. Allotment was concealed at the behest of daughter of displaced person by Revenue Authorities.
Such cancellation had attained finality by mutation of disputed land in favour of respondent-daughter of displaced person. Held, that subsequent suit by appellant for declaration that respondent was not daughter of displaced person and that appellant was in adverse possession and injunction was barred by res judicata.
The question whether land in dispute could be allotted depended on whether the displaced person had died heirless. Such question could have been raised before the Revenue Authorities and decided by them. As it was not raised before the Revenue Authorities, it would be barred by principle of constructive res judicata. Plea of adverse possession was also not tenable when appellant admitted to be tenant of displaced person.
Provisions of Section 11 of C.P.C. are mandatory in nature:
It has been observed that the provisions of Section 11 of the C.P.C- are mandatory in nature. Provisions of Section 11 could not be avoided by the litigant who claimed under one of the parties to a former suit, except under Section 44~of the Evidence Act, 1872.
Section 11, C.P.C. and Article 226 of the Constitution:
Where the High Court dismisses a writ petition under Article 226 of the Constitution after hearing the matter on the merits, a subsequent petition in the Supreme Court under Article 32 of the Constitution on the same facts and for the same reliefs filed by the same parties will be barred by the general principles of res judicata.
The binding character of judgment of courts of competent jurisdiction is in essence a part of the rule of law on which the administration of justice, so much emphasised by the Constitution, is founded and a judgment of the High Court under Article 226 passed after a hearing on the merits must bind the parties till set aside in appeal as provided by the Constitution and cannot be permitted to be circumvented by a petition under Article 32.
Pro Forma defendant:
A pro forma defendant in a suit would ordinarily be as much bound by the decision therein as any other defendant. But where in the former suit, no relief was claimed against him and the nature of two suits is wholly dissimilar and the cause of action arose only in consequence of the decision in the first suit, the second suit is not barred.
To the same effect are the observations in yet another case that a party unnecessarily impleaded in the previous suit is not bound by a decree therein. A party may be joined as a defendant in a suit merely because his presence is necessary in order to enable the court to effectually and completely adjudicate upon the questions involved in the suit.
In such a case no relief is sought against him and the matter in issue in the suit is not in issue between him and any other party. A decision in such a suit cannot be res judicata against him or his representative-in-interests in subsequent proceedings.
Res judicata between co-defendants; Cottingham v. Earl of Shroswbury:
The principle of res judicata also applies to parties arrayed on the same side as between plaintiff’s themselves or between defendants themselves. It was observed in Cottingham v. Earl of Shroswbury (3 Hare, 627 at 638) as far back as in the year 1843 that “if a plaintiff cannot get at his right without trying and deciding a case between co-defendants, the court will try and decide the case, and the co-defendants will be bound.
But if the relief given to the plaintiffs does not require or involve a decision of any case between co-defendants, the co-defendants will not be bound as between each other by any proceeding which may be necessary only to the decree the plaintiff obtains.”
The above observations were in answer to the question as to when can a matter be res judicata between co-defendants. Three things emerge from the dictum laid down in the case cited above when the doctrine of res judicata can be applied as between co-defendants, viz.,
(a) There must be a conflict of interest between co-defendants;
(b) It must be necessary to decide that conflict in order to give the plaintiff appropriate relief; and
(c) There must be a decision of the question between the co-defendants.
(d) The co-defendants were necessary or proper parties in the former suit.
The doctrine of res judicata as between parties who have been co-defendants in a previous suit may apply even though the party, against whom it is sought to be enforced, did not in the previous suit think fit to enter an appearance and contest the question.
But to this the qualification must be added that, if such a party is to be bound by a previous judgment, it must be proved clearly that he had or must be deemed to have had notice that the relevant question was in issue and would have to be decided.
It is settled by a large number of decisions that for a judgment to operate as res judicata between or among co-defendants, it is necessary to establish: (1) that there was a conflict between co-defendants; (2) that it was necessary to decide the conflict in order to give the relief which the plaintiff claimed in the suit; and (3) that the court actually decided the question.
In Chandu Lai v. Khalilur Rahman, Lord Simonds said:
“It may be added that the doctrine may apply even though the party against whom it is sought to enforce it, did not in the previous suit think fit to enter an appearance and contest the question. But to this the qualification must be added that, if such party is to be bound by a previous judgment, it must be proved clearly that he had or must be deemed to have had notice that the relevant question was in issue and would have to be decided.”
Their lordships of the Supreme Court observed in Iftikhar Ahmad v. Syed Meharban Ali (dead) through Lrs. and others/ that they saw no reason why a previous decision should not operate as res judicata between co-plaintiffs if all these conditions are mutatis mutandis satisfied.
In considering any question of res judicata they have to bear in mind the statement of the Board in Sheoparsan Singh v. Ramanandan Prasad Narayan Singh, that the rule of res judicata “while founded on ancient precedent is dictated by a wisdom which is for all time” and that the application of the rule by the Courts should be influenced by no technical considerations of form, but by matter of substance within the limits allowed by law.
“The raison d’etre of the rule is to confer finality on decisions arrived at by competent courts between interested parties after genuine contest; and to allow persons who had deliberately chosen a position to reprobate it and to blow hot now when they were blowing cold before would be completely to ignore the whole foundation of the rule.”
That a decision operates as res judicata between co-defendants if certain conditions are fulfilled is well settled. These conditions are:
1. That there was a conflict of interest between the defendants;
2. That it must be necessary to decide this conflict in order to give the plaintiff the relief he claims; and
3. That the question between the defendants must have been finally decided and
4. The co-defendants were necessary or proper parties in the former suit: Munnia Bibi v. Triloki Nath, AIR 1931 PC 112, Kishun Prasad v. Durga Prasad, AIR 1931 PC 231, Dhan Singh v. Joint Director of Consolidation, AIR 1973 All. 283, and Iftikhar Ahmad v. Syed Meharban Ali, AIR 1974 SC 749.”
The law which applies to a case of co-defendants equally applies to a case of co-plaintiffs.
The doctrine should, however, be applied to co-defendants with great caution.
Fraud or Collusion:
The reason for care and caution is fraud or collusion. The principle of res judicata is not applicable where signs of fraud or collusion are transparently pregnant or apparent from the facts on record and matter can be reopened.
Under section 11, C.P.C., when the matter has been directly or substantially in issue in a former suit between the same parties or between parties under whom they or any of them claimed, litigating under the same title, the decree in the former suit would be res judicata between the plaintiff and the defendant or as between the co-plaintiffs or co-defendants.
But for application of this doctrine between co-defendants, four conditions must be satisfied, namely, that (1) there must be a conflict of interest between the defendants concerned; (2) it must be necessary to decide the conflict in order to give the reliefs which the plaintiff claims; (3) the question between the defendants must have been finally decided; and (4) the co-defendants were necessary or proper parties in the former suit.
If a plaintiff cannot get at his right without trying and deciding a case between co-defendants, the court will try and decide the case, and the co-defendants will be bound by the decree. But if the relief given to the plaintiff does not require or involve decision of any case between co-defendants, the co-defendants will not be bound as between each other.
Where the above four conditions did not exist the decree does not operate as res judicata. It must, therefore, be that all the persons who have right, title and interest are made parties to the suit and that they should have knowledge that the right, title and interest would be in adjudication and the finding or the decree therein would operate as res judicata to their right, title and interest in the subject-matter of the former suit.
Even in their absence a decree could be passed and it may be used as an evidence of the plaintiff’s title either accepted or negative therein. The doctrine of res judicata would apply even though the party against whom it is sought to be enforced, was not conomine made a party nor entered appearance nor did he contest the question.
The doctrine of res judicata must, however, be applied to co-defendants with great care and caution. The reason is that fraud is an extrinsic collateral act, which vitiates the most solemn proceedings of courts of justice.
If a party obtains a decree from the court by practising fraud or collusion, he cannot be allowed to say that the matter is res judicata and cannot be reopened. There can be no question of res judicata in a case where signs of fraud or collusion are transparently pregnant or apparent from the facts on record.
In the previous suit which was instituted by the plaintiffs for recovery of sale price an issue was framed on the status of the defendants as to whether they were the tenants of the land in suit under the plaintiffs but in the subsequent suit for recovery of possession this issue was not raised as the defendants in the subsequent suit did not plead that they were the tenants under the plaintiffs.
What they pleaded was that they were in possession since a long time and had, therefore, acquired title by adverse possession. Consequently, in the subsequent suit, the issue which was raised and tried in the previous suit was not raised, framed or tried and no finding, therefore, came to be recorded as to whether the defendants were tenants of the land in suit.
It is true that the instant suit, which is the subsequent suit, is between the same parties who had litigated in the previous suit and it is also true that the subject-matter of this suit, namely, the disputed land, is the same as was involved in the previous suit but the issues and causes of action were different.
Consequently, the basic requirement for the applicability of the rule of res judicata is waiting and, therefore, in the absence of pleadings, in the absence of issues and in the absence of any finding, it is not open to the defendants to invoke the rule of res judicata on the ground that in the earlier suit it was found by the trial court that they were the tenants of the land in dispute under the plaintiffs.
Res judicata between co-plaintiffs:
The same conditions as apply to the case of co-defendants for constituting res judicata between themselves also apply to the case of co-plaintiffs.
A finding to become res judicata as between co-plaintiffs must have been essential for giving relief against the defendant. It must be also on points actively contested between the co-plaintiffs. But where in the prior suit it was not necessary to decide the rights of the plaintiff inter se for granting relief as against the defendants and the later suit relates to the individual right of one of the original plaintiffs, the prior decision will not operate as res judicata.
It is well settled that unless there is an active contest between the parties arrayed on the same side in the previous suit, a decision with regard” to which contest is necessary for the final determination of the matter in controversy in the suit, any decision given in the previous suit cannot operate as res judicata between them or between parties claiming through or under them in any suit.
Res judicata and judgment in rem:
A judgment in a suit is binding only upon the parties to the suit and their privies. It is, as a general principle, not binding upon a third party, who had no opportunity to lead evidence, to controvert witnesses or to appeal from the judgment. An exception to this rule is, however, afforded by a class of judgment known as judgment in rem.
It is a judgment which binds the world at large and not only the parties to the proceeding and their privies, and is opposed to a judgment in personam, which is directed against a specific person or specific persons.
A final judgment of a court exercising probate, matrimonial, admiralty or insolvency jurisdiction is a judgment in rem and is dealt with under section 41 of the Indian Evidence Act. Judgements in rem fall outside the scope of section 11 of the Code.
Doctrine of Precedent and Service Tribunals Applicability:
In service matters doctrine of precedent is applicable to Administrative Tribunal. Affected persons, who are not parties to earlier case but are adversely affected by decision, can file fresh application.
The Tribunal has to take into account the judgment rendered in earlier case, as a precedent and decide the application accordingly. If it dissents with earlier view, then the matter can be referred to larger bench/full bench. The larger bench can overrule the earlier view and law declared by it will be binding on all Benches.
Hindu widow and reversioners:
A decree passed against a Hindu widow representing the estate of her husband is binding upon the reversioners unless it could be shown that there had not been a fair trial of the right in that suit.
Minor:
A decree passed against a minor properly represented is binding upon him; but a decree against a minor not properly represented in the suit is a nullity and the rule of res judicata does not apply. Section 11 will, therefore, have no application to an action by a minor to have a decree vacated on the ground of the gross negligence of the guardian.
A decree against a minor can be attacked in a separate suit on the ground of gross negligence of the guardian, even though fraud and collusion on the part of the guardian is not established, or if defence which might and ought to have been raised by the guardian is not raised, or if the minor was an unnecessary party. If, therefore, the prior judgment is vacated on the ground of the guardian’s fraud, negligence or collusion, the decision will not operate as res judicata.
3. Litigating under the same title:
The third essential condition to constitute the bar of res judicata is that the parties must have litigated under the same title in the former suit. The expression “litigating under the same title” means litigating in the same capacity.
Thus a suit brought by a person to recover possession from a stranger of math property claiming it as heir of the deceased Mahunt is no bar to a suit by him as manager of the math, if the first suit is dismissed on his failure to produce the succession certificate for the two suits arise under different capacities.
It does not matter if the transfer attacked in one case is a mortgage and in the other case a gift. All that the phrase “litigating under the same title” connotes is that the demand should have been of the same quality in the second suit as in the first.
Where the right of the temple was first agitated by the trustees and later by worshippers, the later suit is barred by res judicata. A decision, however, against a person in his individual capacity does not bind his successor in the office of trustee on an endowment.
Where the first suit was filed as a reversioner, the later suit filed as a member of a joint family is not barred. The principle of constructive res judicata does not apply if the second suit is instituted by the same person in a different capacity.
The primary test of res judicata depends upon the identity of title in the two litigations and not the identity of the actual property involved in the two cases. Therefore, even if the property involved in the previous suit was different, that cannot be an impediment to invoke the principle of res judicata. The plea of res judicata could also be established on the record of the judgment and decree in the previous suit and not necessarily on the production of the pleadings.
Appeal—res Judicata:
In connected suits in one suit the findings of appellate court become final in absence of appeal. The findings in another suit cannot be challenged by way of appeal as appeal is barred by principles of res judicata.
Partition:
In earlier partition suit joint family status was terminated and partition of joint family properties made. Subsequent claim for partition is not maintainable even though parties continued to be members of joint family by their conduct after partition in absence of proof of reunion of their respective shares in joint family property.
The test of res judicata is the identity of title in the two litigations and not the identity of the actual property involved. Raj Laxmi Dassi v. Banmali Sen, AIR 1953 SC 33 followed. Certain gold ornaments were seized during a search. A writ petition challenging the legality of seizure of some of the ornaments was filed.
Allowing the same these ornaments were allowed to be returned. Subsequently a writ petition challenging seizure of remaining ornaments was filed. It was held that, though all the ornaments were seized during the same search, the property involved in both the writ petitions was not identical. There was no identity of title in the two litigations and the subsequent writ petition was therefore not barred by res Judicata.
Partly on the basis of res judicata and partly on basis of concession made by counsel before trial court, the self-acquired properties of another could not be acquired under the rule of primogeniture.
Decision in Probate Proceedings:
Questions of title are not decided in proceedings for the grant of probate or letters of administration. Whatever therefore might have happened in those proceedings would not establish the title. Where on an application for letters of administration of a will, certain preliminary issues were framed one of which related to estoppel with respect to the opposite party’s right to a property and the application was dismissed under Order XVII, Rule 2, C.P.C. on account of non-appearance of the applicant, no question of res judicata to the title to the property can arise against the applicant by reason of that dismissal.
4. Competency of Court to try the subsequent suit:
The fourth condition is that the court which decided the former suit must have been a court competent to try the subsequent suit or the suit in which such issue is subsequently raised.
The decisions of the courts of limited jurisdiction shall in so far as such decisions are within the competence of the courts of limited jurisdiction, operate as res judicata in a subsequent suit although the court of limited jurisdiction may not be competent to try such subsequent suit in which such question is subsequently raised.
Competent Court—Territorial Jurisdiction:
Territorial jurisdiction is not included in the expression ‘court competent to try subsequent suit.’ Court deciding former suit need not have territorial jurisdiction to try subsequent suit. Any other construction runs against the trend in the development of laws in this field.
A revenue court decision on a question of title will not bar a suit in the ordinary civil courts, unless otherwise provided by law. A finding of a criminal court also does not bind the civil court.
The section initially applied only when the court whose decision is cited as res judicata was competent to try the second case. The expression “competent to try” means competent to try the subsequent suit if brought ‘at the time the first suit was brought. Competency relates both to pecuniary jurisdiction and subject-matter, which must be concurrent. It has no reference to territorial jurisdiction.
Where property in two suits is identical, the mere fact that its value has risen in the interval between the two suits and the subsequent suit is, therefore, beyond the pecuniary jurisdiction of the former court, cannot affect the question of res judicata.
In order to determine whether a court which decided the former suit has jurisdiction to try the subsequent suit, regard must be had to the jurisdiction of that court at the date of the former suit and not to its jurisdiction at the date of the subsequent suit.
If at the time such a court would have been competent to try the subsequent suit, had it been then brought, the decision of such court would operate as res judicata although subsequently by a rise in the value of the property that court has ceased to be a proper court, so far as regards its pecuniary jurisdiction to take cognizance of a suit relating to that very property was concerned.
A judgment in a previous suit was not to operate as res judicata in a subsequent suit in respect of the same subject-matter if the value of the relief in the subsequent suit was above the pecuniary limits of the jurisdiction of the court which decided the previous suit. The competency of the court to try the subsequent suit has to be judged with reference to the time when the earlier suit was brought.
If a decision has been given by a competent court in a previous suit regarding part of the claim in the subsequent suit, then so much of the claim which is common to the two suits should be excluded from the subsequent suit as barred by res judicata. If a decision is not res judicata it will not operate as estoppel.
Lack of Jurisdiction—applicability of res Judicata:
Doctrine of res judicata does not apply to decision of Court/Tribunal which lacked jurisdiction. The findings of Tahsildar with regard to wakf property were erroneous and without jurisdiction. These cannot operate as res judicata in subsequent suit filed by wakf Board for deciding character of wakf property under Wakf Act.
No question of res judicata arises in a case where the determination of status of tenancy of party by tribunal under Kerala Land Reforms Act, (1964) was without jurisdiction and nullity.
No lack of jurisdiction—res judicata applicable:
The employee of a Co-operative Society was dismissed from services for misconduct and findings of misconduct upheld by Registrar. This operates as res Judicata and labour cannot decide dispute regarding the same.
Explanation VIII, added, by the Amendment Act, 1976, has, however, completely changed the concept of the competency of the court to try the subsequent suit by providing expressly that the decision of the court of limited jurisdiction on any issue which is within the competence of the court of limited jurisdiction shall operate as res judicata in a subsequent suit although such court of limited jurisdiction may not have been competent to try such subsequent suit or the suit in which such issue has been subsequently raised.
Meaning of “such subsequent suit”:
The word “suit” has not been defined in the Code; but there can be little doubt that in the context (i.e., competency of court to try the subsequent suit) the plain and grammatical meaning of the word would include the whole of the suit and not a part of the suit, so that giving the word “suit” its ordinary meaning it would be difficult to accept the argument that a part of the suit or an issue in a suit is intended to be covered by the said word in the material clause.
It is the whole of the suit which should be within the competence of the court at earlier time and not a part of it. Having regard to the legislative background of section 11 there can be no hesitation in holding that the word “suit” in the context must be construed literally and it denotes the whole of the suit and not a part of it or a material issue arising in it.
Where the title to properties put in issue in a subsequent suit in the civil court was earlier tried in the revenue court, but that court being not competent to try the subsequent suit in which the same issue was raised, it has been held that in term of section 11 of the Code, the decision on the sand issue in the revenue court could not operate as res judicata, for the necessary condition of competency of that court to try the subsequent suit was lacking.
In order to decide whether a court which decided the former suit had jurisdiction to try the subsequent suit regard must be had to the jurisdiction of the court at the date of the former suit and not to its jurisdiction at the date of the subsequent suit.
If at that time such a court could have been competent to try the subsequent suit, had it been then brought, the decision of such court would operate as res judicata although subsequently by a rise in the value of the property, that court had ceased to be a proper court, so far as regards its pecuniary jurisdiction to take cognizance of a suit relating to that very property.
The expression “the court of limited jurisdiction” in Explanation VIII is wide enough to include a court whose jurisdiction is subject to the pecuniary limitation and other cognate expressions analogous thereto. Therefore, 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. The issue must directly and substantially arise in a later suit between the same parties or their privies.
The object underlying Explanation VIII is that by operation of the non obstante clause, finality is attached to a decree of civil court of limited jurisdiction also to put an end to the vexatious litigation and to accord conclusiveness to the issue tried by a competent court, when the same issue is directly and substantially in issue in a later suit between the same parties or their privies by operation of section 11, C.P.C. The parties are precluded to raise once over the same issue for trial.
Effect of appeal:
The competence of the trial court deciding the former suit is the test and not that of the appellate court. Where, therefore, the plaintiff’s suit was decreed both on the question of title as well as on a plea of adverse possession and the same was confirmed on appeal, but in second appeal the question of adverse possession was not argued or considered, it was held that adjudication as to adverse possession would operate as res judicata in the latter suit.
Appellate decision—res Judicata:
It is the appellate decision and not the decision of trial court that operates as res judicata. Where a suit is decided both on merits and on technical grounds by the trial court, and the appellate court maintains it on technical grounds of limitation or suit being not properly constituted then the decision of the trial court on merits ceases to have finality.
The rationale is that the suit having been found to be for technical reasons, it becomes operative from the date the decision was given by trial court and thus any adjudication on merits impliedly becomes unnecessary.
Effect of Pending Appeal:
A judgment against which an appeal has been filed cannot be res judicata. Where, therefore, the property in dispute was the subject-matter of a previous litigation between the parties and the matter was still pending in appeal, a subsequent suit between the parties in respect of the same property is not barred by res judicata. Where an appeal lay and was taken, the finality of the decree was qualified by the appeal and the decree was not final in the sense that it formed res judicata between the same parties.
Two stages in the same litigation:
The principle of res judicata applies also as between stages in the same litigation to this extent that a court, whether the trial court or a higher court, having at an earlier stage decided a matter in one way, will not allow the parties to reagitate the matter again at a subsequent stage of the same proceedings.
5. Heard and finally decided by the court in the first suit:
The last condition is that the matter directly and substantially in issue in the subsequent suit must have been heard and finally decided by the court in the first suit. The section requires that there should be a final decision on which the court has exercised its judicial mind.
A matter will be said to have been heard and finally decided notwithstanding that the former suit was disposed of ex parte or by dismissal under Order XVII, Rule 3, i.e., for failure to produce evidence when time was allowed to do so, or by a decree on an award or by dismissal owing to plaintiff’s failure to adduce evidence at the hearing.
But it is necessary, that the decision in the former suit must have been on the merits and so the matter cannot be said to have been heard and finally decided when the former suit was dismissed by the trial court for want of jurisdiction, or for default of plaintiff’s appearance, or on the ground of non-joinder or misjoinder of parties, on account of 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 letters 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 a cause of action, or on the ground of limitation, 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 subsequent suit.
In order to ascertain what matter was heard and finally decided, the pleadings and the judgment should be examined. Express decision is not necessary, it being sufficient that an adjudication on the matter is necessarily involved. Nor need it be embodied in the decree.
Dismissal of a suit on the ground that the plaintiff was not entitled to raise the plea on which the suit was founded, without any inquiry into his title, cannot be taken to be a decision that for all time and in all proceedings between the parties it must be taken that the plaintiff had no title. Where a suit is dismissed as being premature, the decision is no bar to the filing of a further suit.
Adjudication in Strict Sense—When not final:
Res judicata is applicable when the matter has been adjudicated stricto sensu in earlier litigation. When Supreme Court restored the decree of trial court, the findings of trial court forming basis for its decree became conclusive.
During the pendency of the civil suit for restraining the employer from terminating the services of an employee, he was dismissed. The application for temporary injunction dismissed. The competent authority under S. 28A of Rajasthan Shops and Commercial Establishment Act, (1958) set aside the dismissal order. The order is not bad due to res judicata as order in civil suit was not final.
The special appeal before Supreme Court against denial of medical expenses dismissed by non-reasoned order does not operate as res judicata. Subsequent appeal before Supreme Court challenging the denial of medical expenses in another case raising new and important points is maintainable. Dismissal of special leave petition without speaking order, does not constitute res Judicata.
Summary disposal of former writ petition is not operative as res Judicata.
For applicability of res judicata there must be an application of judicial mind and a final adjudication made on the matter or issue in question. Where the former suit is dismissed without adjudication on the matter in issue on merits only on a technical ground of non-joinder, it cannot operate as a res judicata and as a bar to subsequent suit.
Adjudication in strict sense—when final:
The order of Administrative Tribunal directing to treat employees of Railways Employees Co-operative Stores as railway servants became final as it was upheld by the Supreme Court and review was also rejected by the Supreme Court.
The Railway cannot challenge the order of tribunal by relying upon other decision of the Supreme Court decision taking different view. On the principles of res judicata the order of the Tribunal is binding on the parties.
Decree for eviction on ground that party was not tenant became final. Execution proceedings cannot be objected on ground that he was a tenant. Former decree in suit for partition was passed in terms of arbitration in respect of particular properties and became final in absence of any challenge.
In second appeal first time plea was raised before High Court that no notice of filing of award was served on parties. The High Court held on the basis of this plea that earlier decree based on award was non est and would not operate as res judicata. The Supreme Court held that order of High Court was not proper and res judicata was applicable.
The appellant has challenged grant of solatium and interest at particular rates and their plea failed. Principle of res judicata was applicable and appellant was barred from reopening the issue of solatium and interest in appeal.
Section 11—Res Judicata:
Under Sections 13-A and 38-B of U.P. Imposition of Ceiling on Land Holdings Act (1 of 1961) the Prescribed Authority has power to re-open the matter of determination of surplus land within two years from the date of notification to rectify any apparent mistake which was there on the face of the record.
That power will certainly not include the power to entertain fresh evidence and re-examine the question as to whether sons of original landholder were major or minor. The power under Section 38-B of that Act merely indicates that if any finding or decision was there by any ancillary forum prior to the commencement of the said section in respect of a matter which is governed by the Ceiling Act then such findings will not operate as res judicata in a proceedings under that Act. That would not cover the case where findings have already been reached its finality in the very case under the Act.
The Prescribed Authority had no jurisdiction to reopen the question of majority of the two sons of original landholder in purported exercise of the power under section 13-A of that Act. If the authority had no jurisdiction, question of waiver of jurisdiction does not arise.
If a point decided by the trial court is left undecided by the appellate court in disposing of the appeal, the finding of the trial court will not be res judicata. Where, therefore, a decree is appealed from, it is the appellate decree that must be looked into to determine the question of res judicata and not the decree of the trial court.
Where a former suit between the same parties in the same court and for the same relief results in a decree of dismissal without deciding the matters affecting the rights of the parties and leaving it open to the plaintiff to bring a fresh suit, the decree does not constitute res judicata as the matters cannot be said to have been heard and finally decided.
Then the determination in the former suit must have been necessary to the determination of that suit. It is the right of appeal that indicates whether a finding was necessary or not. A finding on an issue cannot be said to be necessary to the decision of a suit unless the decision was based upon that finding.
Thus in a suit by A against B for ejectment, B contends that no notice to quit was given and that the land being common land he was not liable to be evicted at all. This suit is dismissed on the finding that no notice to quit was given. The court, however, also finds that the land was not common land.
This second finding was irrelevant to the disposal of the suit and does not operate as res judicata so as to preclude B from raising the same contention in a subsequent suit, the reason being that A’s suit having been dismissed, B could not have appealed from the finding that the land was not common land.
In order that a matter may be said to have been heard and finally decided, the decision in the former suit has to be on merits.
Statutory Amendment—effect on earlier order of court:
An assessment order under Sales Tax Act was set aside by High Court and State was directed to refund the disputed amount. By retrospective Amendment the assessment orders were validated. Earlier order of refund will not operate as res judicata. The suit by State for recovery of tax demand, a statutory debt, is not barred.
After notification mining area was made available for grant or regrant of mining lease. But State Government decided to exploit the area itself. The Central Government in revision ordered that State Government have no power to make such declaration. High Court quashed the order of Central Government in entirety.
The Central Government made subsequent order that State Government could make declaration reserving the area for exploitation by itself under Art. 298 the constitution. It is not barred by res judicata or principle of estoppel.
The writ petition against compulsory retirement was dismissed. In subsequent decisions the rule on which compulsory retirement was based, was quashed and proper age of retirement was prescribed. In subsequent writ petition rule was held invalid and compulsory retirement was quashed being illegal and bad. Former decision in writ petition was not operative as res judicata.
The application of the principles of res judicata cannot be avoided on the ground that the earlier decision was wrong in law or on facts.
Explanation V to section 11 may also be noted in this connection. It says that 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. The legal effect of this explanation is that of treating the omission to grant the relief asked for in the plaint as equivalent to an express refusal and the claim thereto in a fresh suit as res judicata.
One of the ingredients of section 11 is that the decision, which can operate as a bar, should have been given in a former ‘bail’. The decision of the Controller under Delhi Rent Control Act, 1958, holding that the plaintiff was not a tenant would not bar the suit on the principle of res judicata as the Controller did not have exclusive jurisdiction to decide the dispute regarding relationship of tenant and landlord.
The decision of the Controller admittedly was not given in a ‘suit’. It is not correct to say that Explanation VIII of section 11 applies. The contention of counsel for the petitioner that the Controller is a “court of limited jurisdiction”, has no relevance.
It is true that Explanation VIII, which has been inserted by Act No. 104 of 1976, amends section 11 by making the decisions of a “court of limited jurisdiction competent to decide such issues” operate as res judicata in a subsequent suit though the former court had no jurisdiction in a subsequent suit. But then the section does not apply.
It is no doubt true that where section 11, C.P.C., does not in terms apply, general principles of res judicata can be applied. The general principles presuppose that the decision was given by a court competent to decide it and finality attaches to that decision. If the first decision does not become final, the general principles of res judicata cannot be applied.
When a Tribunal has exclusive jurisdiction to try a matter and its decision becomes final, the decision will be a bar to subsequent trial on the principle of res judicata. But it would not be so if the Tribunal does not have the exclusive jurisdiction and its decision does not become final.
The Supreme Court in Smt. Raj Lakshmi Dasi v. Banamali Sen, observed that when a plea of res judicata is founded on general principles of law, all that is necessary to establish is that the court that heard and decided the former case was a court of competent jurisdiction though it might not have jurisdiction to hear the later suit.
It was also held that a plea of res judicata on general principles can be successfully taken in respect of judgments of courts of exclusive jurisdiction, like Revenue Courts, Land Acquisition Courts, Administration Courts, etc. But the Controller did not have the exclusive jurisdiction to decide the question of relationship of landlord and tenant between the parties.
In earlier eviction petition under U.R Public Premises (Eviction of Unauthorised Occupants) Act (22 of 1972) the court found that suit building belonged to government but the retired employee was not unauthorised occupant as his tenancy was not terminated before filing eviction petition. This would not operate as res judicata in subsequent eviction petition. In subsequent eviction petition eviction was ordered.
The applicability of the rule of res judicata prescribed by section 11, C.P.C. does not depend upon the correctness or the incorrectness of the former decision. Whether right or wrong the former decision is binding between the parties.
The subsequent deletion of Rule 26-A of the U.P. Zamindari and Land Reform Rules and the view of the High Court that the rule was ultra vires could not have the effect of wiping out the earlier decision that the trees had been purchased by the plaintiffs and belonged to them as they stood on Banjar Land.
Erroneous judgment by competent court—effect:
Judgment given by the competent court binds parties even if it is erroneous. In former suit gifts made by coparcener held to be invalid under Hindu Law. It applied as res judicata and is binding on parties to subsequent suit for partition. Rule of estoppel is also not applicable on the ground that there was family arrangement between coparceners.
Earlier writ petition challenging the validity of selection and promotion was dismissed on merits and order became final as no appeal was filed against the order of High Court. Civil suit for same relief is barred by principles of res judicata and High Court committed error in not entertaining plea of bar of res judicata in second appeal.
The appellants were given appointment under bona fide mistake by considering them as Scheduled Tribe candidates and so their termination was held to be proper. In unusual circumstances the relief was granted that they would have right of consideration against future vacancy and this was held not to be a precedent.
The Andhra Pradesh High Court after referring to several decisions observed that on a conspectus of the case law, the following principles could be said to emerge :
(1) The principle of res judicata depends upon the identity of title in the two litigations and not the identity of the actual property involved in the two cases;
(2) The principle of res judicata is not affected by a subsequent contrary view taken by a superior Court in any other case. A wrong decision by a Court having jurisdiction is as much binding between the parties as a right one and may be superseded only by appeals to higher tribunals or other procedure like review which the law provides;
(3) “Matter in issue” in section 11, C.P.C. is distinct from the subject-matter and the object of the suit as well as from the relief that may be asked for in it and the cause of action on which it is based, and the rule of res judicata requiring the identity of the matter in issue will apply even when the subject-matter, the object, the relief and the cause of action are different. It is the “matter in issue” and not the subject-matter of the suit that forms the essential test of res judicata;
(4) A remark by a Court in dismissing a suit that the plaintiffs are at liberty to file a fresh suit without there being any formal application under Order XXIII, Rule 1, will not amount to a permission to bring a fresh suit under Order XXIII, Rule 1, of the Civil Procedure Code.
(5) Permission to withdraw suit does not imply recognition of maintainability of a suit nor has the Court power to provide to that effect in the order;
(6) Where in a previous title suit, one of the issues framed is left undecided wrongly holding that the issue could not be gone into because of certain infirmities and the suit is dismissed, the question with regard to the same issue gets barred by constructive res judicata in a subsequent suit, as it is deemed to have been impliedly decided in a previous suit;
(7) The Courts in this country have no power unlike the Courts of Equity of Common Law in England to dismiss a suit with liberty for the plaintiff to bring a fresh suit for the same matter, or to enter a non-suit.
Such power of the Indian Courts is limited to questions of form, as in the case (1) of misjoinder of parties, or of the matters in suit, (2) where the material document has been rejected for not having a proper stamp, and (3) if there has been an improper valuation of the subject-matter of the suit;
(8) The following must be proved for successfully raising a plea of res judicata:
(i) That the litigating parties must be the same or between the parties under whom they or any of them claim;
(ii) That the subject-matter of the suit must also be identical;
(iii) That the matter must be finally decided between the parties; and
(iv) That the suit must be decided by a Court of competent jurisdiction;
(9) The lessee is a privy in estate and, therefore, a judgment against his lessor, will be a bar in a later suit by the lessee in respect of the subject-matter in issue. The principle of res judicata applies also as between two stages in the same litigation to this extent that a Court having at an earlier stage decided a matter in one way will not allow the parties to reagitate the matter again at a subsequent stage of the same proceedings.
However, interlocutory orders which have the force of a decree and terminate the proceeding must be distinguished from those which are a step towards the decision of the dispute between the parties by way of a decree or a final order. The second type of interlocutory order can be challenged in an appeal from the final decree or order.
A finding, however, recorded by a Court in a suit which was without jurisdiction does not operate as res judicata.
Where the court had jurisdiction to deal with certain application but the decision arrived at by exercise of such jurisdiction was not accepted subsequently by a Division Bench in a case having different parties, the former decision would still operate as res judicata inter partes, as regards the subject-matter in that decision. It cannot be said that an erroneous decision was arrived at by former decision by an assumption of jurisdiction which the court did not.
In considering the question of res judicata the court is not concerned with the correctness or otherwise of the judgment rendered earlier. A finding rendered on a fact in issue by a competent court in earlier proceedings should be regarded as having been finally decided in a subsequent litigation raising the same issue between the same parties.
Even if a mixed question of fact and law had been determined between the same parties, that may not also be questioned in the subsequent proceedings. Where the decision is on a question of law, namely, interpretation of a statute, that would also operate as res judicata in subsequent proceedings between the same parties where the cause of action is also the same.
A final binding adjudication inter partes on a mixed question of fact as well as law, will not in any manner be affected by any subsequent decision not accepting the principle laid down in the former decision. The correctness or otherwise of a decision viewed in the light of a subsequent decision has really no bearing upon the question whether it would operate as res judicata or not.
All that is necessary to be established is that the matter was directly and substantially in issue in the former proceeding and that it had also been heard and finally decided. If the binding character of a decision is made to fluctuate with every change in the current of authority, the court machinery would be reduced to one for unsettling the rights rather than giving effect to rights already ascertained.
Identity of issue:
In order to apply the principle of res judicata it is essential requirement that the actual issue in the two suits must be identical. Where the question at issue is not the same or eadem questio in the two proceedings, the principle of res judicata does not apply.
Where in a writ application the validity of the levy and collection of certain tax under a State Act is questioned, the decision in a prior writ proceeding about the validity of the levy and collection of similar tax under a prior and different Act of the State Legislature does not operate as res judicata, since the question at issue in the two proceedings is not the same.
What becomes res judicata is the matter which is decided and not the reason which leads the Court to decide the matter. Neither the reasoning nor the mental process can operate as res judicata. What could not be challenged and what had become conclusive was actual decision given in the former suit.
Adverse finding:
If a decree is wholly in favour of the defendant no issue decided against him can operate as res judicata in a subsequent suit for he cannot appeal from the adverse finding. Conversely, if the plaintiff’s suit is decreed in its entirety no issue decided against him can be res judicata.
To cite an illustration, A alleging that he is the adopted son of X, sues B to recover certain property granted to him by X, under a deed and forming part of the estate of X. The court finds that A is not the adopted son of X, but he is entitled to the property under the deed and a decree is passed for A.
The finding that A is not the adopted son of X will not operate as res judicata in a subsequent suit between A and B in which the question of adoption is again put in issue, for, the decree being in favour of A, A could not have appealed from that finding. The court having found that A was entitled to property under the deed, the finding on the question of adoption was not necessary to the determination of the suit, and the decree was not founded on the finding.
The Calcutta and Nagpur High Courts have gone to the length of holding that where an adverse finding is expressly challenged in appeal by the defendant but the appellate court allows the appeal on another ground and dismisses the suit the finding will not stand or operate as res judicata.
But an adverse finding may be res judicata in certain exceptional cases as where A’s suit against B is dismissed, but B’s costs are disallowed as the finding on the main issue went against B. This finding will be res judicata for it was open to B to have appealed on the question of costs and reagitated the finding in the main question against him.
Unnecessary finding:
Matter which was not necessary for the decree passed in the suit is not matter directly and substantially in issue in the suit which was heard and finally decided. If a finding arrived at on a certain issue is sufficient to completely dispose of the case, findings on other issues not necessary for the disposal of the case are not final decision of the matter covered by them and do not operate as res judicata. A finding on an unnecessary or irrelevant issue does not operate as res judicata. Thus where a suit is held to be not maintainable, decision on other issues is not res judicata.
When decision on each issue operates as res judicata:
Where the final decision in any matter at issue between the parties is based by a court on its decision on more than one point, each of which by itself would be sufficient for the ultimate decision, the decision on each of these points operates as res judicata between the parties.
Dismissal of application as premature:
When the dismissal of the previous application for issue of ex parte temporary injunction restraining the beneficiary from encashment of the bank guarantee proceeded on the ground of the same being premature and even though the applicants did bring a review petition in which they mentioned about the existence of fraud but that petition was dismissed in limine and no adjudication was made in respect of perpetration of fraud or otherwise, obviously because till then the ground of the application being premature existed as no demand of encashment of bank guarantee was made by the beneficiary, the second application would not be barred by the previous judgment.
Two conflicting decrees passed by two competent courts on the same subject-matter:
Where two conflicting decrees are passed by two competent Courts on the same subject-matter, the subsequent decree in conflict of the earlier decree will be hit by the principle of res judicata which makes the finality of the litigation.
The earlier decision having concluded the dispute between the parties relating to the same subject-matter, the subsequent decision was hit by the provisions of section 11, C.P.C. The subsequent decree being a nullity, the executing court could go behind the decree to find out as to whether the decree could be executable or not.
Whether section 11 is exhaustive:
It was well known that the doctrine of res judicata is codified in section 11, C.P.C., but it is not exhaustive. Section 11 generally comes into play in relation to civil suit. But apart from the codified law the doctrine of res judicata has been applied since long in various other kinds of proceedings and situations by courts in England, India and other countries.
The rule of constructive res judicata is engrafted in Explanation IV of section 11 and in many other situations also principles not only of direct res judicata but of constructive res judicata are also applied. If by any judgment or order any matter in issue has been directly and explicitly decided the decision operates as res judicata and bars the trial of an identical issue in a subsequent proceeding between the same parties.
The principle of res judicata also comes into play when by the judgment and order a decision of particular issue is implicit in it, that is, it must be deemed to have been necessarily decided by implication; then also the principle of res judicata on that issue is directly applicable.
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.
It has been held by their lordships of the Judicial Committee in a number of cases that the section is not exhaustive. In Kalipada v. Daijapada, (52 IA 24) it was observed that application of the rule by the courts in India should be influenced by no technical consideration of form, but by matter of substance within the limits allowed by law. The principle which prevents the same case being twice litigated is of general importance and is not limited by the specific words of the Code in this respect.
The following paragraphs are illustrative of the above principles.
Ex parte decree:
An ex parte decree will operate as res judicata if the court has brought to bear its mind on the issue or if the defendant could have put in appearance and raised the same plea which he raised in the subsequent suit. A decision on an unnecessary point will not operate as res judicata.
Unless some portion of the decree had been satisfied it could not be said that an interlocutory ex parte order amounted to res judicata. An order bringing the heirs of the judgment-debtor on the record, cannot be said to be one ‘fructifying’ a decree nor can the mere attachment of property in execution proceedings be said to be such fructification.
For an ex parte decree to operate as res judicata between the parties, it has to be established that the defendants had or must be deemed to have notice of the suit which decided ex parte against them. The burden of proving this fact would be on the person who pleaded the bar of res judicata.
It is no doubt correct to say that the doctrine of res judicata may apply even though the party against whom it is sought to be enforced, did not in the previous suit think fit to enter appearance and contest the suit. But for an ex parte decree to operate as res judicata it must be established that in the suit the defendants were served with the notice and in spite of service they did not appear to contest the case.
It is well settled that for an ex parte decree to operate as res judicata between the parties it is to be established that the defendants in the suit were served, which was decided against them.
The doctrine of res judicata will then apply. Ex parte decree will operate as res judicata if a party, in spite of service of notice on him, did not put in his appearance to contest the suit or appeal, as the case may be.
Consent and compromise decrees:
Section 11 is not strictly applicable to compromise decrees as it applies in terms only to what has been heard and finally decided by the court. Such a consent or compromise decree, is, however, effective with reference to the conclusion arrived at, provided the court on the facts proved must come to a clear conclusion that the parties intended that the consent decree should have the effect of deciding the question finally.
In such circumstances the principle of res judicata has been applied even to consent decrees. Moreover, a judgment by consent also raises an estoppel between the parties as well as their representatives in interest when the question raised in the subsequent suit was present to the minds of the parties and was actually dealt with by the consent decrees. In order to effect an estoppel it is also necessary that it should appear on that the question has been put in issue.
A consent decree does not operate as res judicata, because a consent decree is merely the record of a contract between the parties to a suit, to which is super-added for seal of the court. A matter in contest in a suit may operate as res judicata only if there is adjudication by the court. The terms of section 11 leave no scope for a contrary view.
A compromise decree is not a decision of the Court on an application of its mind and the statutory bar of res judicata is not attracted. But at the same time a judgment by consent or default is as effective an estoppel between the parties as the judgment whereby the Court exercises its mind on a contested case.
Even though the matter may have passed from the stage of representation into an agreement, there are cases where the Courts are entitled to entertain a plea of estoppel in order to prevent fraud or circuity of action.
Dismissal for default:
Where the prior suit has been dismissed for default, there has been no decision on the merits of the case and no matter in issue has been heard and finally decided in the suit within the meaning of section 11, C.P.C., so as to operate as a bar to the same question being raised in a subsequent suit.
An order of dismissal on an execution petition on the ground that it was not being pressed does not operate res judicata. Where an objection petition in an execution proceeding is dismissed for non-prosecution, there is no adjudication on the merits and it cannot be res judicata.
It is well established that a decree in a suit for dismissal in default where the controversy involved in the suit is not decided on merits and no findings are recorded would not operate as res judicata in a subsequent suit raising the same controversy or issues.
A suit dismissed by the trial court for default or for want of jurisdiction does not operate as res judicata in a subsequent suit.
The test of res judicata is the identity of title of the two litigations and not the identity of the actual property involved in the two cases but the previous decision must be one on a title in respect of which a dispute has been raised and which dispute was heard and finally decided by the court.
Once the decision on a question of title becomes final, it operates as res judicata even if the value of the subject-matter on which the former decision was pronounced was comparatively very trifling. When the decision was given on merits by the trial court after contest, it operates as res judicata even if appeal there from might have been dismissed on some preliminary grounds like limitation.
Such dismissal by an appellate court has the effect of confirming the decision of the trial court on merits and it amounts to the appeal being heard and finally decided on the merits whatever may be the ground for dismissal of the appeal.
But there is no difference between an appeal which may have been dismissed on a preliminary ground and an appeal which may have been dismissed in default. If an appeal is dismissed in default then the judgment and decree of the trial court passed on merits shall operate as res judicata because the effect of dismissal of the appeal in default of the appellant is confirmation of the decision of the trial court on merits.
That being so, dismissal of the second appeal by the Board of Revenue in default will be deemed to be decision of the appeal on merits and as it has the effect of confirmation of the judgment and decree of the Additional Commissioner, made on merits, the said judgment and decree of the Board will be deemed to be “heard and finally decided”. Consequently, the principle of res judicata applies.
Res Judicata in case of dismissal of appeal on the ground of limitation:
In Sheodan Singh v. Daryao Kunwar, the Supreme Court was called upon to consider the question of applicability of res judicata to a matter where an appeal is dismissed on the ground of limitation or on account of not printing of a paper book. The Supreme Court held that:
“In such a case the result of the decision of the appeal court is to confirm the decision of the trial court given on merits, and if that is so, the decision of the appeal court will be res judicata.”
In M/s. Bansidhar D. Datta v. L.K. Sethiya, Mr. Justice K.C. Agrawal after referring to the aforesaid decision observed that this decision of the Supreme Court lent support to their view that dismissal of the appeal on not being pressed did not take away the character of the appellate judgment being final on merits and it was that judgment which would be binding on the parties.
Withdrawal of an appeal and its effect:
The question of withdrawal of an appeal and its effect was considered by the Madras High Court in Jujisti Mahapatro v. Korada Mangatapatro. The Madras High Court held that:
“Notwithstanding the fact that the appeal was withdrawn by the appellant the date on which the order finally disposing of the appeal superseding the order of the court appealed against is made would be the date for the purpose of computing limitation”.
M/s. Rolls Print and Company (Pvt.) Ltd. v. B.M. Singh and Son, (AIR 1977 Calcutta, 303):
Where the previous suit for ejectment of a tenant on the ground of personal use and occupation of the plaintiff and for default in payment of rent was dismissed for want of prosecution and not on merits, a subsequent comprehensive suit for eviction on the several grounds including those in the previous suit between the same parties is maintainable and not barred by res judicata or estoppel.
Court deciding question which was res judicata:
Before a decision can operate as res judicata it must be a decision of a court having jurisdiction. Where a question, between the parties was already decided by a competent court a decision inter partes by another court on the matters settled by the former court would be without jurisdiction and cannot operate as res judicata.
Applicability to writ petitions—The State of Uttar Pradesh v. Nawab Hussain:
Section 11 relates to suits and former suits and has, in terms, no direct application to petition for the issue of a high prerogative writ. The general principles of res judicata and constructive res judicata have, however, been acted upon in cases of renewed applications for a writ.
Effect of decision in earlier writ petition on merits and in limine:
In Gulab Chand Chhotalal Parikh v. State of Gujarat, their lordships of the Supreme Court held that on the general principle of res judicata the decision of the High Court on a writ petition under Article 226 of the Constitution on the merits on a matter after contest will operate as res judicata to the same matter.
It is well settled that judgments rendered by competent courts like the High Court in writ petitions are binding on the parties and operate as res judicata so that the same questions cannot be the subject of any other action like the suit.
In Daryao Singh v. State of U.P., Gajendragadkar, J. speaking for the Court observed that if a writ petition filed by a party under Article 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.
If the petition filed in the High Court under Article 226 is dismissed not on 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 Article 32 except in cases where and if the facts thus found by the High Court may themselves be relevant even under Article 32.
If a writ petition is dismissed in limine and an order is pronounced in that behalf, whether or not the dismissal would constitute a bar would depend upon the nature of the order. If the order is on the merits it would be a bar; if the order shows that the dismissal was for the reason that the petitioner was guilty of laches or that he had an alternative remedy it would not be a bar, except in cases which we have indicated above.
If the petition is dismissed in limine without passing a speaking order, then such dismissal cannot be treated as creating a bar of res judicata. It is true that, prima facie, dismissal in limine even without passing a speaking order in that behalf may strongly suggest that the Court took the view that there was no substance in the petition at all; but in the absence of a speaking order it would not be easy to decide what factors weighed in the mind of the Court and that makes it difficult and unsafe to hold that such a summary dismissal is a dismissal on merits and as such constitutes a bar of res judicata against a similar petition filed under Article 32.
Summing up the conclusions the Delhi High Court in Narinder Singh v. Khalik-ur-Rehman/ observed that the Supreme Court specifically pointed out that, if a petition was dismissed in limine without passing a speaking order, then such a dismissal could not be treated as a bar of res judicata and, in the absence of a speaking order, it would not be easy to decide what factors weighed in the mind of the Court.
In subsequent decisions reported in Gulab Chand v. State of Gujarat, referred to above and Union of India v. Nanak Singh, the Supreme Court extended the rule of express as well as constructive res judicata by the orders passed in the writ petitions to civil suits.
The High Court of Punjab in Kirpal Singh v. Union of India* after considering Daryao’s case held that a single word ‘dismissed’ passed in limine by a Division Bench in a writ petition, precluded ‘the petitioner from presenting another petition on the same relief on similar grounds before another bench of concurrent jurisdiction and that it was not necessary to pass a speaking order in order to attract the bar of res judicata.
This decision was approved by a Full Bench decision of the same High Court in Bansi v. Additional Director, Consolidation of Holdings. The High Court of Allahabad in R.S. Sial v. State of U.P., held that a petition must be treated as dismissed on merits in the absence of anything to indicate that it is dismissed on some preliminary ground when the order is a non-speaking order expressed in a single word, viz., ‘dismissed’ and it would operate as res judicata for a subsequent petition on the same facts.
There is therefore a strong authority in support of the proposition that the mere order ‘dismissed’ in limine is sufficient to constitute the bar of res judicata. The learned Judges of Delhi High Court agreed with the proposition of law that ordinarily the word ‘dismissed’, in the absence of any other circumstances to the contrary, would indicate that the Court considered all the contentions of the party and not finding any merit in them dismissed the petition on merits.
To that extent they said decisions are in full accord with Daryao’s case? However, there may be circumstances on the record which may show that even when the word ‘dismissed’ was recorded, the writ petition was not dismissed by the Court on merits but on other grounds like laches or availability of other remedy or was dismissed as withdrawn.
If these facts and circumstances are established fully to the satisfaction of the Court, the dictum of the Supreme Court could be applicable and such a petition cannot be said to have been dismissed on merits and if that be so, it cannot operate as res judicata.
It is incontrovertible that where a petition under Article 226 is dismissed in limine without a speaking order, such a dismissal would not
Dismissal of a petition under Article 226 of the Constitution by a High Court in limine, without a speaking order, does not normally constitute res judicata for a subsequent suit on same facts. A non-speaking order except in certain given circumstances, cannot operate as res judicata.
If a writ petition is dismissed in limine without passing a speaking order then such a dismissal cannot be treated as creating a bar of res judicata. But where in a writ petition seeking to set aside the judgment and decree passed in second appeal in favour of the defendant on ground of non-service of notice in second appeal, suppression of summons and fraud, the final order of dismissal is passed by the High Court in writ petition after hearing counsel on both sides indicating that the contentions of the plaintiff with regard to non-service of notice, suppression of summons and fraud were considered and as there was no merit in them, they were dismissed, in such circumstances, the subsequent suit filed by the plaintiff for a declaration that he was not bound by the decision in second appeal would be barred by res judicata.
Obiter dictum:
A mere opinion of the court on a matter not necessary for the decision of the case and not arising out of the issues before it is an Obiter dictum and cannot be said to be a decision on any issue, and is, therefore, not res judicata.
It is the decision and not the reasons therefore that operate as res judicata.
Section 11, C.P.C., deals with the doctrine of res judicata and provides that any matter which might or ought to have been made a ground for defence or attack in the former suit shall be deemed to have been a matter directly and substantially in issue in such suit.
The important words are “has been heard and finally decided”. The bar applies only if the matter directly and substantially in issue in the former suit has been heard and finally decided by a court competent to try such suit.
That clearly means that on the matter or issue in question there has been an application of the judicial -mind and a final adjudication made. If the former suit is dismissed without any adjudication on the matter in issue merely on a technical ground of non-joinder that cannot operate as res judicata.
“Res Judicata Pro Vertiate Accipitur” is the full maxim which has over the years shrunk to mere “Res Judicata”.
Section 11 contains the rule of conclusiveness of the judgment which is based partly on the maxim of Roman Jurisprudence “Interest republicae ut sit finis litium” (it concerns the State that there be an end to law suits) and partly on the maxim “Nemo debet bis vexari pro una at eadem causa” (no man should be vexed twice over for the same cause).
The section does not affect the jurisdiction of the Court but operates as a bar to the trial of the suit or issue, if the matter in the suit was directly and substantially in issue (and finally decided) in the previous suit between the same parties litigating under the same title in a court, competent to try the subsequent suit in which such issue has been raised.
Constructive Res Judicata:
The appellant was compulsorily retired from service on January 6, 1961, after ten years of service. His writ petition impugning the order of compulsory retirement was also dismissed by the High Court. Subsequently in 1964 in view of the decision of the Supreme Court in Moti Ram Deka and others v. N.E. Frontier Railway and others, holding that the right to retire any Government servant after he had completed 10 years qualifying service without giving any reason and the government servant any right to claim special compensation on that account could not be exercised by the Government except when it was in public interest to dispense with further services of a Government servant, such as on account of inefficiency, dishonesty, corruption or infamous conduct, the appellant filed a suit and challenged the rule of the Punjab Civil Service Rules and pleaded that since it was invalid he be treated to have continued in service.
The Supreme Court held that the decision of the High Court declining to issue a writ of mandamus on the assumption that a statutory rule was valid, operated as res judicata in a subsequent suit instituted after the statutory rule had been declared as unconstitutional by the Supreme Court of India was not valid and was not res judicata.
The Court held that the Supreme Court is a competent authority to alter the law when it declared it to be unconstitutional. Alteration does not limit alone to change therein but is inclusive of the power of striking down.
Thus even if, the Supreme Court observed, we were to decline the belated special leave petition of the appellant against the judgment and order of the High Court dated 5.2.1962 passed in writ application, the appellant would be entitled to succeed in having the impugned order of the High Court upset in civil appeal, for the suit of the appellant could not in any event be held to be barred by the principles of res judicata.
Accordingly their lordships while allowing the appeals set aside the judgments and orders of the High Court holding that the order of compulsory retirement of the appellant under the relevant rule of the Punjab Civil Service Rules was void and inoperative and the appellant was entitled to the meaningful relief of arrears, etc. as claimed by him in the plaint and in accordance with the judgment of the trial court.
Estoppel and Constructive res judicata:
Name of a person as a tenant was deleted by compromise between parties and order became final. Subsequently Tahsildar cannot declare him tenant. In earlier proceeding the question, whether the said person was tenant or not was directly in issue and which was finally adjudicated by the competent authority, holding against the person.
The said order was appealable but no appeal was preferred. The issue became final. The parties are estopped from raising such an issue both on the principle of estoppel and constructive res judicata.
The petitioner, who was reinstated in service, filed writ petition for payment of arrears of salary. Directions were issued in favour of the petitioner for payment of arrears and which became final. Subsequent petition for interest on payment of interest is barred by the principles of constructive res judicata and the provisions of Order 2, Rule 2, C.P.C.
In a suit for ejectment decree for eviction was granted on the basis of a compromise. The executing court rejected the objections about non-executability of compromise decree. This plea cannot be raised in revision before High Court as it is barred by constructive res judicata.
Execution Proceedings:
Section 11, as originally enacted, was in terms not applicable to execution proceedings as it related to matters decided in suits. It was only on principles analogous to the section that res judicata could be applied to execution proceedings.
The doctrine that a decision at one stage of execution proceedings cannot be questioned at a later stage of the proceedings proceeded not on the ground of res judicata under section 11, but under the general principles of law that there should be an end to litigation.
A finding not challenged in appeal cannot be disputed in execution. An order allowing claim to rateable distribution becomes final when not appealed against as the principle of res judicata would apply to it. Explanation VII, added by the Amendment Act, 1976, specially lays down that the principles of res judicata apply to execution proceedings.
The doctrine of constructive res judicata already extended to the execution proceedings, by virtue of a long catena of decisions, including Supreme Court decisions. The insertion of the explanation, therefore, appeared to be superfluous.
It was observed in Ram Kirpal v. Rup Kuari that if a particular construction is put on a decree in proceedings on a former application for execution, it is not competent to the court to treat that construction as erroneous and put another construction on it at a subsequent stage of the execution proceedings.
It is true that the principle of constructive res judicata does not apply to execution proceedings, but it is well established that where a definite point was raised and a definite finding recorded on it by the court, the same question cannot be reagitated in execution department.
The principle of constructive res judicata is applicable to execution proceedings and, apart from lack of inherent jurisdiction of the court, the rule will operate to preclude a party even from relying on a defect of jurisdiction when he has failed to do so earlier.
Res judicata—effect on original party—Impleadment not in revision:
Execution court ordered delivery of possession of property in favour of decree holders and property was divided between decree holders. The judgment-debtor filed revision and not impleaded one decree holder. Thus order became final against him. The revisional court cannot set aside order of execution court which was common, inseparable and has become final against the decree holder who was not impleaded in revision.
Whether res judicata applies to orders—Munshi v. Chiranji Singh:
The conditions laid down in section 11, C.P.C. can be satisfied even in the cases where orders are passed by courts and not decrees. Orders are also passed after hearing the parties and can be final in those proceedings in which they are passed.
The principle of res judicata, however, has been held to be of wider application on the basis of the wider principle of the finality of decisions by courts of law. It would be mockery of a decision if a decision of a court of competent jurisdiction be treated as nothing by another court having the same jurisdiction over the matter and having identically the same points for consideration.
The rule of res judicata is also applicable to ex parte orders in execution proceedings where notice has been duly issued and served.
Other cases:
The rule laid down in section 11 is applicable in probate proceedings, interlocutory orders in the same suit, insolvency proceedings and also to an application for amendment of a decree when the same has been heard and finally decided.
Res judicata against co-judgment-debtors:
A decision of an objection to execution by one of the judgment-debtors of which notice was given only to the decree-holders is not binding on other judgment-debtors.
Issue of law—Tarini Charan Bhattacharya v. Kedar Nath Haider:
Section 11 provides that no court shall try any suit or issue in which the matter directly and substantially in issue in a former suit and so on. Now issues are of three kinds, issues of fact, issues of law and mixed issues of law and fact.
An issue of fact may be res judicata and a mixed issue of law and fact may also be res judicata. Decision on an issue of law although erroneous operates as res judicata if the cause of action’ in the subsequent suit is also the same as in the previous suit.
But there is a conflict of judicial opinions as to whether an erroneous decision on a question of law operates as res judicata when the causes of action are different. It has been held in some cases that it does not and in some that it does.
The latter view was adopted by a Full Bench of the Calcutta High Court in Tarini Charan Bhattacharya v. Kedar Nath Haider. Rankin C.J., who delivered the leading judgment and with whose views the other learned judges agreed, observed that the question whether a decision is correct or erroneous has no bearing upon the question whether it operates or does not operate as res judicata.
The doctrine is that in certain circumstances the court shall not try a suit or issue but shall deal with the matter on the footing that it is a matter no longer open to contest by reason of a previous decision. In these circumstances it must necessarily be wrong for a court to try the suit or issue, come to its own conclusion thereon and consider whether the previous decision is right or wrong.
It was further observed that section 11 says nothing about cause of action, nor does the section say anything about point or points of law, or pure points of law. The parties do not join issue upon academic or abstract questions but upon matters of importance to themselves and the section requires that the doctrine be restricted to matters in issue and of these to matters which are directly as well as substantially in issue, and the principle of res judicata is not to be ignored merely on the ground that the reasoning, whether in law or otherwise, of the previous decision can be attacked on a particular point.
As regards the effect of decisions by change of law it was observed in that case:
“The Legislature, by statute, may alter the rights of parties and, when it does so, it makes such provision as it thinks proper to prevent injustice. Courts of law are in no way authorised to alter the rights of parties.
They profess, at all events, to ascertain the law, and if the binding character of a decision upon a concrete question as to the terms of particular holding is to fluctuate with every alteration in the current of authority the Courts will become an instrument for the unsettlement of rights rather than for the ascertainment thereof.”
In Tarini Charan’s case, therefore, it was, in effect held that the principle of res judicata does not apply when the Legislature alters the law by statute, but courts of law cannot alter the rights of parties. There is no estoppel against statute.
It has definitely been ruled by Courts, apart from Tarini Charan’s case, that a previous decision does not operate as res judicata on the same question when there has been a change of law subsequent to that decision.
If there is a change in law by amendment of the statute by the Legislature, the previous decision between the parties will not operate as res judicata. Similarly, when the Supreme Court interprets a statute in a manner different from the interpretation of the statute by the High Court, it amounts to change in law.
Where there is no change of law by the statute, the trend of decision has lately been to treat the decision on an issue of law as res judicata. A decision in a previous suit is binding on the parties even though it proceeded on an erroneous view of law.
Thus decision as to construction of a deed or decree is res judicata. But the decision on a question of law in one proceeding does not bar later proceeding except that the right established in favour of one party in the former proceeding cannot be questioned in a subsequent proceeding. Where a decision lays down what the law is and it is found to be erroneous, it is not res judicata in a subsequent proceeding to recover a different relief.
What becomes res judicata is the matter which is decided and not the reason which leads the court to decide the matter.
Alteration of law by competent authority, earlier decision not to act as res judicata:
In the case of Mathura Prasad Sarjoo Jaiswal v. Dossibai N.B. Jeejebhoy, their lordships of the Supreme Court observed that “a decision on an issue of law will be res judicata in a subsequent proceeding between the same parties, if the cause of action of the subsequent proceeding be the same as in the previous proceeding, but not when the cause of action is different, not when the law has since the earlier decision been altered by a competent authority, not when the decision relates to the jurisdiction of the court to try the earlier proceeding, not when the earlier decision declares valid a transaction which is prohibited by law…… A question relating to the jurisdiction of a court cannot be deemed to have been finally determined by an erroneous decision of the court.
If by an erroneous interpretation of the statute the court holds that it has no jurisdiction, the question would not operate as res judicata. Similarly, by an erroneous decision if the court assumes jurisdiction which it does not possess under” the statute the question cannot operate as res judicata between the same parties whether the cause of action in the subsequent litigation is the same or otherwise.”
Erroneous decision:
A court empowered by law to try a suit has power to try it rightly or wrongly. A judgment of a court having jurisdiction, however erroneous, cannot be a nullity and will operate as res judicata. A decision, however, which is opposed to the provision of a statute will not operate as res judicata. An erroneous decision on the jurisdiction of another tribunal may be called a decision on a point of law, but unless it is altered in appeal, it is res judicata as far as parties to that suit are concerned.
The principle of res judicata is not affected by a subsequent contrary view taken by a superior court in any other case. A wrong decision by a court having jurisdiction is as much binding between the parties as a right one and may be superseded only by appeals to higher tribunals or other procedure like review which the law provides.
Therefore, even if a decision happens to be wrong in view of the later judgment of the High Court, it is binding between the parties and its legal effect remains the same whether the reason for the decision was sound or not.
Scope of the principle of res judicata:
The scope of the principle of res judicata is not confined to what is contained in section 11 but is of more general application. Again, res judicata could be as much applicable to different stages of the same suit as to findings on issues in different suits.
If the court which rendered the first decision was competent to entertain the suit or other proceedings, and had, therefore, competency to decide the issue or matter, the circumstance that it is a tribunal of exclusive jurisdiction or one from whose decision no appeal lay would not by themselves negative the finding on the issue by it being res judicata in later proceedings.
Where the principle of res judicata is invoked in the case of the different stages of proceedings in the same suit the nature of the proceedings, the scope of the enquiry which the adjectival law provides for the decision being reached, as well as the specific provisions made on merits touching such decision are some of the material and relevant factors to be considered before the principle is held applicable.
The doctrine of res judicata is not confined to the limits prescribed in section 11, C.P.C. The underlying principle of that doctrine is that there should be finality in litigation and that a person should not be vexed twice over in respect of the same matter.
Interlocutory orders are certainly capable of being altered or varied by subsequent applications for the same relief, though normally only on proof of new facts or new situations which subsequently emerge.
As they do not impinge upon the legal rights of parties to the litigation the principle of res judicata does not apply to the findings on which these orders are based, though if applications were made for relief on the same basis after the same has once been disposed of the court would be justified in rejecting the same as an abuse of the process of the Court.
The principle that repeated applications based on the same facts and seeking the same reliefs might be disallowed by the court does not however necessarily rest on the principle of res judicata. Thus if an application for the adjournment of a suit is rejected, a subsequent application for the same purpose even if based on the same facts, is not barred on the application of any rule of res judicata, but would be rejected for the same grounds on which the original application was refused.
The principle underlying the distinction between the rule of res judicata and a rejection on the ground that no new facts have been adduced to justify a different order is vital.
If the principle of res judicata is applicable to the decision on a particular issue of facts, even if fresh facts were placed before the court, the bar would continue to operate and preclude a fresh investigation of the issue, whereas in the other case, on proof of fresh facts, the court would be competent to make an order conformably to the facts freshly brought before the court.
Where the High Court dismisses a writ petition under Article 226 of the Constitution after hearing the matter on the merits, a subsequent petition in the Supreme Court under Article 32 of the Constitution on the same facts and for the same reliefs filed by the same parties will be barred by the general principles of res judicata.
The binding character of judgments of courts of competent jurisdiction is in essence a part of the rule of law on which the administration of justice, so much emphasised by the Constitution, is founded and a judgment of the High Court under Article 226 passed after a hearing on the merits must bind the parties till set aside in appeal as provided by the Constitution and cannot be permitted to be circumvented by a petition under Article 32.
An order or an issue which had arisen directly or substantially between the parties or their privies and decided finally by a competent court or tribunal, though of limited or special 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.
Dismisssal of appeal by the High Court after the judgment of the tribunal even on the ground of non-printing of paper book shall operate as res judicata. Consequences of the decision of those issues become res judicata to bar the hearing of those common issues here and again.
The issue in the suit related to the legality, validity and binding nature of a gift deed executed by B. B was in possession of the property throughout. The High Court opined that the question of possession and the questions of title are two different things.
The issue of res judicata related to the legality, validity and binding nature of a gift deed, dated 2nd May, 1951, executed by the father of the respondents in favour of the respondents. While accepting the decision of the High Court the Supreme Court held in Mohan v. Smt. Anandi and others, that the suit from which the appeal arose was not hit by the principles of res judicata.
Section 11 of the Code envisages the principle of res judicata, i.e., 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 suit in which such issue has been subsequently raised, and has been heard and finally decided by such court….Therefore, the respondents now claim under the same title in the previous suit and thereby they are bound by the decree.
The doctrine of res judicata evolved the public policy to prevent trial of an issue twice over. It clearly applies to the facts of the case. Accordingly their lordships of the Supreme Court felt that they were precluded to raise objections on behalf of the Sangh by filing the objections.
Thus it could be held that the Sangh having been duly represented in the previous proceedings and conducted the litigation on behalf of the Sangh bona fide and were unsuccessful in the suit, no one on behalf of the Sangh could lay any objection in the execution nor plead nullity of the decree.
The doctrine of res judicata prohibited the members of the Sangh to obstruct the execution of the decree. The decree of ejectment bound every member of the Sangh and, therefore, the appellant was entitled to have the decree executed and possession taken.
Effect of Redetermination of compensation—in land acquisition:
The benefit of redetermination of compensation under S. 28A of Land Acquisition Act is available to the claimants who received the compensation without protest and face with statutory bar of reference. It is not available to claimants who had already availed remedy of reference and got no benefit or lesser benefit there under. The bar of res judicata is applicable to such claimants.
Applicability of Res Judicata to an erroneous decision:
The view that the principle of res judicata is applicable to an erroneous decision on jurisdiction, cannot be regarded as good law. A court which has no jurisdiction in law cannot be conferred with jurisdiction by applying principles of res judicata. It is well settled that there can be no estoppel on a pure question of law and in this case the question of jurisdiction is a pure question of law.
Res judicata in regard to question of lack of jurisdiction:
The subordinate judge decided that the civil court had no jurisdiction to try the suit and directed the return of the plaint for presentation to the proper revenue court. When the plaintiffs filed their claim in the revenue court their petition was returned holding that the revenue court had no jurisdiction to try it.
Thereupon the plaintiffs again instituted a suit in the court of the-sub-judge. It was held that either the plaintiffs ought to have followed the matter in the first civil suit and insisted up to the end that the suit was triable by a civil court, or they would have taken the matter further before the higher authorities and court from the order of the revenue court- and persisted that the matter whether civil court had jurisdiction to decide the dispute between the parties or not was res judicata, and the revenue court had no jurisdiction to go behind the decision of the civil court. The plaintiffs did neither. The suit had to fail on the technical ground of res judicata.
It was pointed out by Lord Russel of Killowen in Upendra Nath v. Lall,that there could be res judicata in regard to the question of lack of jurisdiction of the civil court to try a matter but a court which declines jurisdiction cannot bind the parties by the reasons for declining jurisdiction; such reasons are not decision, and are certainly not decision by a court of competent jurisdiction.
If the defendant does not appear and the court on its own returns the plaint on the ground of lack of jurisdiction the order in a subsequent suit may not operate as res judicata but if the defendant appears, and an issue is raised and decided then the decision on the question of jurisdiction will operate as res judicata in a subsequent suit although the reasons for its decision may not be so.
Conflicting decisions and res judicata:
It is well settled that the principle of res judicata is only a mode of estoppel to prevent a party bound by an earlier decision of a competent court from raising the same contentions in subsequent proceedings. There is no want of jurisdiction for the reason only of an earlier decision for a court of competent jurisdiction to decide the question raised before it.
If a plea of res judicata available to the parties is not raised, it is the duty of the court to decide the question properly brought up for decision by it. If a party entitled to successfully raise a plea of res judicata omits to do so, the court or the tribunal will be left with no alternative except to decide the question raised before it.
If a party without raising a plea of res judicata allows the court or tribunal to decide the question afresh, it is not open to the parties to the subsequent decision to challenge the decision in other independent proceedings as passed without jurisdiction for the jurisdiction of the court or tribunal to decide the question will not be ousted for the reason of an earlier decision by a competent court is also one which might and ought to have been taken by the party who relies on the earlier decision, and if the court decides the question without reference to the earlier decisions, the plea of res judicata based on the earlier decision will itself be barred by res judicata in subsequent proceedings between the same parties or their representatives in interest. It is stated in Mulla’s Code of Civil Procedure, 14th Edition, at page 164, Vol. I, as follows:
“23. Waiver of plea of res judicata. – The plea of res judicata is not one which affects the jurisdiction of the court. It is a plea in bar which a party may waive. If a party does not raise the plea of res judicata, it will be deemed to be a matter directly and substantially in issue and decided against him.”
The same principle is stated in the decision in Hari Bhikaji v. Naro Vishvanath.
Avoidance of Res Judicata:
The provisions of section 11 are mandatory, and the ordinary litigant whose claims under one of the parties to the former suit can only avoid its provisions by taking advantage of section 44 of the Evidence Act which defines with precision the ground of such avoidance. They are fraud and collusion. A judgment obtained by fraud or collusion does not operate as res judicata. So is also a judgment of a court not competent to decide it. A void decree cannot operate as res judicata.
It is not competent for the court in the case of the same question arising between the same parties to review a previous decision no longer open to appeal, given by another court having jurisdiction to try the second case. If the decision was wrong it ought to have been appealed from in due time.
The parties interested in the matter cannot be allowed to say that the value or the subject-matter on which the former decision was pronounced was comparatively so trifling that it was not worth their while to appeal from it. The importance of a judicial decision is not to be measured by the pecuniary value of the particular item in dispute.
Res judicata and Estoppel distinguished:
Res judicata corresponds to that part of the doctrine of estoppel which is known in English Law as estoppel by record. Estoppel as enunciated in section 115 of the Indian Evidence Act is by conductor agreement or estoppel in pais. 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:
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 the other’s position.
Res judicata precludes a man from avowing the same thing in successive litigations, while estoppel prevents a party from saying two contradictory things at different times. Res judicata, as observed by Mahmud, J. in Sita Ram v. Amir Begum, 8 Allahabad, 323, prohibits the court from entering into an inquiry at all as to a matter already adjudicated upon; estoppel prohibits a party, after the inquiry had already been entered upon, from proving which would contradict his own previous declaration or acts to the prejudice of another party who, relying upon those declarations or acts has altered his position.
In other words, 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.
Res judicata ousts the jurisdiction of the court to try the case, while estoppel shuts the mouth of a party, being a rule of evidence.
The doctrine of res judicata results from a decision of the court, while estoppel results from the facts of the parties themselves.
Lastly, the theory of res judicata is to presume conclusively the truth of the former decision whiles the rule “of estoppel prevents a person from setting up what he calls the truth.
Res judicata and lis pendens:
Where a conflict arises between the doctrine of res judicata and that of lis pendens (a pending suit, action or matter) in any case the former will prevail over the latter.
Difference between Res judicata and Judicial Precedent:
There is essential difference between res judicata and judicial precedent. By virtue of the former, a final decision of a concrete issue between the parties, by any court having jurisdiction to determine that issue is given and that may preclude either party from raising the same issue against the other party to the decision, before the same court, or before any court exercising a higher or lower jurisdiction.
The doctrine of judicial precedent, on the other hand, is not concerned with concrete issues as between the parties. Its effect is to declare the law, not the facts, and to declare it so as to be binding upon all persons, whether parties to the proceedings are not in all courts of inferior and in cases of same jurisdiction. The doctrine of precedent depends upon desirability and uniformity in the law.
Findings recorded in application for grant of succession certificate cannot operate as res judicata in subsequent suit:
Where subsequent suit filed by same applicant praying for mandatory injunction against defendant for supplying him locker number obtained by defendant, held that the facts issued were raised and evidence was also recorded in succession certificate proceedings will not operate as res judicata.
Wakf property—Suit for declaration—Res judicata:
Once the finding in respect of a wakf property was confirmed by Apex Court then subsequent suit by defendant for declaration is barred by principle of res judicata.
Constructive res judicata:
Where the Seniority List was prepared and finalised for pursuant to judgment of the Tribunal. The decision of the Tribunal was affirmed by the Supreme Court, the subsequent petition filed against the said list on the plea that carry forward of vacancies could not be implied either in recruitment or in seniority rules were not to be issued by any of the party before the Tribunal. Held, the raising of the said plea in appeal before the Supreme Court is barred by constructive res judicata.
In this case the certificate of the Government that declaring promotions of the promotees to be temporary was not produced in the earlier proceedings before the Tribunal. Held, it cannot be agitated in the proceedings before, the Supreme Court, as it is barred under the principle of constructive res judicata.
Non-applicability of res judicata:
Where cause of action pleaded and prayers made in earlier petition were entirely different, the writ petitioner was not party to such earlier proceedings, held that bar of res judicata was not applicable.
Res judicata—Ejectment proceedings:
Where application for impleadment was filed by person claiming to be real tenant was dismissed. Held, that subsequent title suit by applicant was not barred by res judicata because such proceedings were not “suit” within the meaning of Section ll.
Bar of res judicata:
The principle of res judicata applies also as between two stages in the same litigation to this extent that a Court, whether the trial Court or a higher Court having at an earlier stage decided a matter in one way will not allow the parties to re-agitate the matter again at a subsequent stage of the same proceedings.
But an interlocutory order which had not been appealed from either because no appeal lay or even though an appeal lay, an appeal was not taken can be challenged in an appeal from the final decree or order.
Review petition before High Court:
Dismissal of S.L.P. against main judgment of High Court would not constitute res judicata when a S.L.P. is filed against order passed in review petition provided the review petition was filed prior to filing of S.L.P. against main judgment of High Court.
