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The doctrine of res judicata, also known as the rule of conclusiveness of a judgement,
as to the points decided either of fact, or of law, or of fact and law, in every subsequent suit
between the parties, is the crux of the contents of Section 11 of the Code of Civil Procedure
(CPC), 1908. It is embodied that once a court of competent jurisdiction reaches a decision with
respect to a particular subject matter, no party can be permitted to reopen it in a subsequent
litigation. The rationale behind this rule of imposing such a rule is due to the fact that in the
absence of the same, there will be no end to litigation and the parties would be put to constant
trouble, harassment and expenses.1 This doctrine has been accepted in all civilized legal
systems. Dating as far back as the early Roman law, a defendant could successfully contest a
suit filed by the plaintiff on a plea of ‘ex captio res judicata’, which meant that one suit and
one decision is enough for a single dispute. The doctrine has been described by Spencer Bower
as ‘a final judicial decision pronounced by judicial tribunal having competent jurisdiction over
the cause or matter in litigation and over the parties thereto’.2 The object of this rule can be
explained through the combined effect of three maxims:
Nemo debet lis vexari pro una et eadem causa- this means that no man shold be vexed
twice for the same cause;
Interest republicae ut sit finis litium- this means that it is in the interest of the state that
there should be an end to a litigation; and
Res judicata pro veritate occipitur- this means that a judicial decision must be accepted
as correct.
Thus, the doctrine of res judicata is the combined result of the public policy reflected in the
three maxims, and they apply to all judicial proceedings whether civil or criminal. The Supreme
Court in Lal Chand v. Radhakrishnan3 expounded the doctrine by stating that the principle is
founded on justice, equity and good conscience. Once the final judgement has been announced
in a lawsuit, the subsequent judges who are confronted with the suit that is identical to or
substantially the same as the earlier one, they would apply the res judicata doctrine ‘to preserve
the effect of the first judgement’. Therefore, the same case cannot be taken up again either in
the same or in the different Court of India. This is just to prevent them from multiplying
judgements, so a prevailing plaintiff may not recover damages from the defendant twice for
the same injury.
1
Satyadhyan Ghoshal v Deorjin Debi AIR 1960 SC 941
2
Takwani (Thakker), C.K. J., Civil Procedure, 5th Edition, 2004 Reprint, p. 53.
3
(1977) 2 SCC 88
In Pukhraj D. Jain v. G. Gopalakrishna4 it has been stated that, if the court is satisfied
that subsequent suit can be decided purely on the legal point, it is open to the court to decide
such suit. The provisions of Section 11 of the Code of Civil Procedure are not at all exhaustive
even though it has very wide and enlarged amplitude.
The section “does not affect the jurisdiction of the Court” but “operates as a par 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, then they are not competent i.e. they become barred to try the subsequent suit in which
such issue has been raised.
Thus, this doctrine of Res Judicata is a fundamental concept based on public policy and
private interest. It is conceived in the larger public interest, which requires that every litigation
must come to an end. It therefore, applies to civil suits, execution proceedings, arbitration
proceedings, taxation matters, writ petitions, administrative orders, interim orders, criminal
proceedings, etc. An ordinary litigation being a party or claiming under a party of a former suit
cannot avoid the applicability of section 11 of C.P.C. as it is mandatory except on the ground
of fraud or collusion as the case may be. The onus of proof lies on the party relying on the
theory of Res Judicata. The provisions of section 11 of C.P.C. are “not directory but
mandatory”. The judgment in a former suit can be avoided only by taking recourse to section
44 of the Indian Evidence Act on the ground of fraud or collusion.
4
AIR (2004) 7 SCC 251
In the case Satyadhayan v Deorajin Debi5, the Supreme Court observed that the
principle of res judicata is for giving a finality to judicial decisions. What it says is that once a
res is judicate, that is, once a matter is decided, it shall not be adjudged again. Primarily, it
applies as between past and future litigation. When a matter, whether on a question of fact or
question of law, has been decided between two parties in one suit or proceeding and the
decision is final, either because no appeal was taken to a higher court or because the appeal
was dismissed, or no appeal lies, neither party will be allowed in a future suit or proceeding
between the same parties to canvass the matter again.
However, in the case State of Maharashtra v. National Construction Co.6, it was held
that dismissal of a former suit on a technical ground of non-joinder cannot operate as res
judicata. 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 that is competent to try such a suit. In the case
Susheela v. Kuttikrishnan7, it was stated by the court that a decree passed on compromise is
not a decision by the court and therefore, the compromise decree does not operate as res
judicata under section 11 of the Code.
5
AIR 1960 SC 941
6
1996 (1) KLT SN. 16 P. 12
7
1998 (2) KLT 188
The provisions of section 11 of CPC are not directory but mandatory in nature. The
judgment in a former suit can be avoided only by taking recourse to section 44 of the Indian
Evidence Act on the ground of fraud or collusion. Nevertheless, in a suit the collusion of only
one of the several defendants present is alone not enough to avoid the operation of rule of res
judicata. In this context, gross negligence should be differentiated from fraud and collusion. It
is not for the court to treat negligence or gross negligence as fraud or collusion unless fraud or
collusion is the proper inference from facts. Other factors in exception to section 11 being
present is that the plaintiff must be litigating bona fide and the fulfillment of this is necessary
for the applicability of the section. The above ratio decidendi was laid down in Jallur Venkata
Seshayya v. Thadviconda Koteswara Rao and Others8. This representative suit was brought by
some persons on behalf of public interest for declaring certain temples public temples and for
setting aside alienation of endowed property by the manager thereof. A similar suit was brought
some years ago by two persons and the suit was dismissed on the grounds that the temples were
private temples and the property endowed to the temple being private endowment, the
alienation thereof were valid. The plaintiffs admitted that they could be deemed to be persons
claiming under the plaintiffs in prior suit and the issue in both the suits was same. However,
they contended that finding in the prior suit could not be res judicata as against them in as much
as there was gross negligence on the part of the plaintiffs in that suit in not producing the
documents necessary for the decision of the suit in their favour and in not placing their evidence
before the Court. Subsequently Privy Council held that no case of fraud apart from collusion
being suggested, the plaintiffs were bound to establish either that the decree in prior suit was
obtained by collusion between the parties or that the litigation by the plaintiffs in prior suit was
not bona fide. The plaintiffs based their case entirely on inferences to be drawn from alleged
gross negligence on the part of the plaintiffs in the prior suit. The finding of gross negligence
by the Trial Court was, however, far from a finding of intentional suppression of the
documents, something that would have amounted to want of bona fide or collusion on the part
of the plaintiffs in prior suit. The suit was subsequently barred on ground of res judicata.
In Beliram & Brothers and Others v. Chaudari Mohammed Afzal and Others9, it was
held that where it is established that a minor’s suit was not brought by the guardian of the minor
bona fide but was brought in collusion with the defendants and the suit was a fictitious suit, a
decree obtained therein is one obtained by fraud and collusion within the meaning of section
8
AIR 1937 PC 1
9
AIR 1948 PC 168
44 of the Indian Evidence Act, and does not operate res judicata. The principle of res judicata
in section 11 CPC is thus modified by section 44 of the Indian Evidence Act, and the doctrine
won’t apply if any of the grounds mentioned in Section 44 exists.
In Sivathannu v Kalimmal13, property being same in both the suits, the High Court held
that that where the plaintiff in the earlier suit could not establish their title, they cannot, in the
second suit, claim the same property under a different title. He is barred by constructive res
judicata.
10
C.K.Takwani ‘Civil Procedure Code’(Eastern Book Company 6 th ed) p.81
11
Greenhalgh v Mallard (1947) 2 AII ER 255 at p. 257
12
AIR 1965 SC 1150: (1965) 1 SCR 686
13
(1983) 2 Mad LJ 110
TEST FOR CONSTRUCTIVE RES JUDICATA
As a general rule, if the matter rose as a defence would have defeated, varied, or in any way
affected the decree in previous suit, it ought to have been raised14. Conversely, if the decree in
the previous suit is inconsistent with a defence which ought to have been raised, that defence
must be deemed to have been raised and finally decided, and is barred by res judicata. 15
Following rules can be deducted from the discussion for suits:
Where the right claimed in both the suits is the same, the subsequent suit will be barred
by res judicata, though the right in the subsequent suit is sought to be established by a
title different from that in the first suit.16 In Rukmanand Khaitan v Jawala Dutt Lohia17,
In a suit to recover a loan, the borrower’s prayer for granting benefits under a particular
Act was refused. A fresh suit by the borrower under the Act for the same benefits is
barred by res judicata. In Dhanniram v Ruttandas18, A files a suit for declaration that
he is entitled to certain lands as heir to X. The suit is dismissed. He cannot, in a later
suit, claim title to the properties, by adverse possession.
If a matter which forms a ground of attack in the subsequent suit could have been
alleged as a ground of defence in the former suit, but was omitted to be so alleged in
that suit, it will be deemed to have been directly and substantially in issue in that suit
within the meaning of Explanation IV19. In Union of India v Bilas Singh20, A contract
with a firm contained an arbitration clause. The firm made an application for reference
to arbitration. The other party did not take the plea that the firm had been re-constituted.
The plea could not be taken later.
Thus a matter not raised in the principal suit may become res judicata (constructively)
in execution.
Where the right claimed in the subsequent suit is different from that in the former suit,
and it is claimed under a different title, the subsequent suit is not barred by res
judicata.21 In Mohomed Ibrahim v Sheik Hamja22, A, alleging that he mortgaged certain
lands to B with possession, sues B for redemption, the suit being brought by him as
14
Shib Chandra v. Lakhi Priya (1925) 29 CWN 513
15
Mahim v Anil Bnadhu (1909) CWN 253
16
Mulla, ‘Civil Procedure Code’ (Lexis Nexis Butterworths Wadhwa Nagpur 14th ed)
17
AIR 1985 Cal 715
18
AIR 1961 Punj 563
19
Ibid
20
AIR 1985 Punj 58
21
Supra at 18
22
(1911) ILR 35 Bom 507, 21 IC 387
mortgagor. The mortgage is not proved, and the suit is dismissed. A then sues B for
possession of the same lands claiming them as absolute owner thereof.
23
Union of India and Anr v Sharmanand (1972) IILLJ 423 MP
24
Municipal Corp Ahmedabad v Jyotindra 20 Guj LR 90
(1) The former applies to a matter adjudicated upon (res judicatum), while the latter involves a
matter pending trial (sub judice); and
(2) The restrictions imposed by the two also differ from each other in that res judicata restricts
the trial of a suit or an issue which has been decided in a former suit and res sub judice bars the
trial of a suit which is pending decision in a previously instituted suit.
25
(1886) ILR 8 All 324
26
Ibid; vide p. 332
(a) Res judicata arises from a judicial decision, whereas estoppel is caused by the act of the
parties concerned.
(b) Res judicata seeks to prevent multiplicity of suits, where the object of estoppel is to bar
multiplicity of representations.
(c) Estoppel serves to prevent a party from making certain statements, whereas res judicata
precludes an inquiry at the threshold by ousting the court’s jurisdiction to try the case.
(d) Finally, while res judicata binds both the parties concerned to a litigation by making a
conclusive presumption with regard to truth of the decision in the former suit, estoppel only
binds the party who had made the previous statement or committed the previous action.