CODE OF CIVIL PROCEDURE PROJECT

RES JUDICATA

SUBMITTED BY – NAZRIN NAZEER

SEMESTER – VI, ROLL NO: 1584
SUBMITTED BY – NAZRIN NAZEER
Contents

ACKNOWLEDGEMENT...........................................................................................................................2

INTRODUCTION.....................................................................................................................................3

HISTORY OF THE DOCTRINE...................................................................................................................4

RATIONALE BEHIND THE DOCTRINE......................................................................................................4

APPLICATION OF RES JUDICATA............................................................................................................6

CONSTRUCTIVE RES JUDICATA:.............................................................................................................7

NON-APPLICATION OF RES JUDICATA....................................................................................................7

CASE LAWS............................................................................................................................................8

CONCLUSION.......................................................................................................................................10

BIBLIOGRAPGHY..................................................................................................................................10

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ACKNOWLEDGEMENT

On the completion of this project, I find that there are many persons to whom I

would like to express my gratitude since without their help and cooperation the

success of this assignment would not have been possible.

I welcome this opportunity to express my sincere gratitude to my teacher and

guide, Mr. Hari sir, Faculty of Code of Civil Procedure, who has been a

constant source of encouragement and guidance throughout the course of this

work.

I am grateful to the IT Staff for providing all necessary facilities for carrying out

this work. Thanks, are also due to all members of the Library staff for their help

and assistance at all times.

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INTRODUCTION

Laws of every land are based on principles. These principles govern the entire realm of

jurisprudence in a country. These principles guide legislation, give legitimacy to judicial

decisions and protect the citizens of a nation. The judiciary incorporates these principles in

deciding cases and ensures conformity by the legislature and executive to such principles.

Res judicata is one such principle, whose origin cannot be sufficiently traced. It is an all-

pervading concept present in all jurisdictions of the world. Res judicata is based on public

policy and has universal application. India, has adopted the principle of res judicata in S.11 of

the Code of Civil Procedure, 1908 (hereinafter referred to as “C.P.C.”).

Modern day society is filled with disputes and litigations. The courts are flooded with

frivolous, slow and cumbersome cases. The embodiment of a principle like res judicata, is but

one of necessity in our country. In order to bring finality to litigation and prevent a person

from being dragged to court again and again, res judicata is essential in any society.

Res' in Latin means thing 'Judicata' means already decided. This rule operates as a bar to the

trial of a subsequent suit on the same cause of action between the same parties. Its basic

purpose is - "One suit and one decision is enough for any single dispute". The rule of 'res

judicata' does not depend upon the correctness or the incorrectness of the former decision. It

is a principle of law by which a matter which has been litigated cannot be re-litigated between the

same parties. This is known as the rule of "res judicata" (thing decided). The aim of this rule is to

end litigation once a matter has been adjudicated. It aims to save the court time and prevent

harassment to parties.

HISTORY OF THE DOCTRINE

The doctrine of res judicata, in its essence, has an ancient history, although it is difficult to say

definitively whether or not the doctrine as it stands now was formulated before 1776. Understood

in the distant past by both Hindu lawyers and Muslim jurists, it was known to ancient Hindu Law

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as “Purva Nyaya” or “former judgement” . Under Roman Law, it was recognised by the doctrine

of exception rei judicatae which also meant “previous judgment”. Under English law, the

principle is embodied in the maxim interest reipublicae ut sit finis litium, which means the

interest of the State lies in that there should be a limitation to law suits. Now, all the countries of

the Commonwealth and those of the European Continent accept that once a matter has been

brought to trial once, it should not be tried again except by way of appeal.

In order for the bar of res judicata to be applicable, it must be shown that the cause of action in

both the suits is the same as well as that the plaintiff had an opportunity to get the relief that is

now being claimed in the subsequent suit, in the former proceeding itself. Res judicata bars the

opening of final, un-appealed judgments on the merits, even where the judgment may have been

wrong or based on a legal principal subsequently overruled.

RATIONALE BEHIND THE DOCTRINE

The essence of the doctrine of res judicata is the judicially formulated proposition that a matter

which has been adjudicated in a prior action cannot be litigated a second time. The policies which

res judicata is designed to serve include the public interest in decreasing litigation, protection of

the individual from the harassment of having to litigate the same cause of action or issue against

the same adversary or his privy more than once, and facilitation of reliance on judgments.

Essentially, the doctrine of res judicata in general is based on the three following maxims : ‘nemo

debet lis vexari pro una et eadem casua’ meaning that no man should be vexed twice for the same

cause, ‘interest republicae ut sit finis litium’ or that it is in the interest of the State that there

should be an end to litigation, ‘andres judicata pro veritate occipitur’ meaning that a judicial

decision must be accepted as correct.

The principle itself is founded upon the principles of justice equity and good conscience, and

applies to various civil suits, criminal proceedings, writs, execution proceedings etc. The

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underlying purpose for this judicially created doctrine was to instill finality into litigation and to

provide for sound economic use of judicial resources.

ESSENTIALS FOR RES JUDICATA

The general principle of res judicata is embodied in its different forms in three different Indian

major statutes—Section 11 of the Code of Civil Procedure, Section 300 of the Code of Criminal

Procedure, 1973 and Sections 40 to 43 of the Indian Evidence Act, yet it is not exhaustive.

Here, we are concerned only with Section 11 of the Code of Civil Procedure. Following

conditions must be proved for giving effect to the principles of res judicata under Section 113—

● That the parties are same or litigating under same title,

● That the matter directly and substantially in issue in the subsequent suit must be same which

was directly and substantially in issue in the former suit, That the matter in issue has been finally

decided earlier.

● That the matter in issue was decided by a Court of competent jurisdiction

If any one or more conditions are not proved, the principle of res judicata would not apply. Where

all the four conditions are proved, the Court has no jurisdiction to try the suit thereafter as it

becomes not maintainable and liable to be dismissed. For the application of principle of res

judicata, existence of decision finally deciding a right or a claim between parties is necessary

APPLICATION OF RES JUDICATA

The 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, industrial adjudication, writ petitions, administrative orders,

interims orders, criminal proceedings, etc. Following cases illustrates the applicability of res

judicata:

Res Judicata in Execution Proceedings:

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Explanation VII15 added in the section 11 has made it clear that not only general principle of

Res Judicata but also constructive Res Judicata apply to execution proceedings. The

provisions of the section are now applicable to a proceeding for the execution of a decree,

and references in the section to a suit, issue or former suit shall be construed as references

respectively to a proceeding for the execution of a decree, question arising in such proceeding

and a former proceeding for the execution of that decree. However, an application by decree-

holder to transfer certain papers to another Court for further execution is not an

executionapplication and its dismissal does not bar a fresh application. The Law Commission

suggested that the rule of Res Judicata ought to be connected to the circumstances of

processes in execution and autonomous incidents and prescribed insertion of Section 11a. As

opposed to embeddings Section 11a the Joint Committee of Parliamen tprescribed insertion

of Explanation to Section 11 and on the foundation of that report, Explanations VII and VIII

have been embedded by C.P.C. (Revision) Act, 1976. Segment 11of the present Code

rejecting Explanation VIII imagines that judgment in a previous suit might work as Res

Judicata if the Court which chose the suit was skilled to attempt the same by goodness of its

monetary purview and the topic to attempt the consequent suit all things considered it is not

vital that the said Court may as well have had regional ward to choose the resulting suit

CONSTRUCTIVE RES JUDICATA:

Explanation IV to Section 11 says that any matter which might or ought to have been made a

ground of defence or attack in the former suit shall be deemed to have been a matter

constructively in issue in that suit.Thus, if a matter which might and ought to have been

raised by the plaintiff in the former suit is not raised by him there he would be estopped from

raising the same question in a subsequent suit between the same parties.Similarly, where a

defendant did not raise all the objections which he might and ought to have raised in the

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former litigation in controverting the plaintiffs claim, he will be barred from raising them in a

subsequent suit between the same parties.Where a matter has been actually in issue in a

former suit between the same parties, litigating under the same title, in a court competent to

try such subsequent suit, it must have been heard and decided for the purpose of constituting

res judicata but where a matter has been constructively in issue it could not from the very

nature of things be heard and decided.Nevertheless it will be deemed to have been heard and

decided against the party omitting to allege it, provided the conditions of res judicata are

complied with.

NON-APPLICATION OF RES JUDICATA

There are limited exceptions to Res Judicata that allow a party to attack the validity of the

original judgment, even outside of appeals. These exceptions - usually called collateral

attacks - are typically based on procedural or jurisdictional issues, based not on the wisdom

of the earlier court’s decision but its authority or competence to issue it. A collateral attack is

more likely to be available (and to succeed) in judicial systems with multiple jurisdictions,

such as under federal governments, or when a domestic court is asked to enforce or recognise

the judgment of a foreign court.

The principle of res judicata was not applied where the first writ petition was filed and was

dismissed as withdrawn and the second petition was filed on the ground of apprehended bias

and was dismissed as withdrawn and the second petition was filed on the allegation of actual

bias. The subject-matter was also different. Principle of res judicata u/s. 11 is attracted where

issues directly and substantially involved between the same parties in the previous and

subsequent suit, are the same. If it may be that in the previous suit only part of property was

involved whereas in the subsequent suit, the whole property is involved27.If a review petition

is filed before High Court and during its pendency a special leave petition against main

judgment is also filed before Supreme Court. The SLP is dismissed without assigning any

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reason. The main judgment of the High Court would not get merged with this order of the

Supreme Court. Subsequently if the review petition is dismissed by the High Court then

another SLP against this dismissal order rejecting review petition will not be barred by res

judicata

CASE LAWS

In the case of Jallur Venkata Seshayya vs. Thadviconda Koteswara Rao, a suit was filed

in the Court for the purpose of declaring certain temples public temples and for setting aside

alienation of endowed property by the manager thereof. A similar suit was dismissed by the

Court two years ago and the plaintiffs here contended that it was the gross negligence on the

part of the plaintiffs (of the previous suit) and hence the doctrine of Res Judicata should not

be applied. But, the Privy Council said that finding of a gross negligence by the trial court

was far from a finding of intentional suppression of the documents, which would amount, to

want of bona fide or collusion on the part of the plaintiffs in prior suit. There being no

evidence in the suit establishing either want of bona fide of collusion on the part of plaintiffs

as res judicata.

In the case of Beliram and Brothers vs. Chaudari Mohammed Afzal it was held that

where a minors suit was not brought by the guardian of the minors 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 the Indian Evidence Act, 1872, s.

44 and does not operate Res Judicata. The principle of Res Judicata in Code of Civil

Procedure, 1908, s. 11 is modified by the Indian Evidence Act, 1872, s. 44 and the principles

will not apply if any of the three grounds mentioned in s. 44 exists. General principles may

not be applied in a way making Code of Civil Procedure, 1908, s. 11 nugatory.

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In the case of Lowe v. Haggerty, a question was raised considering the effect of former

judgment for defendant when he was sued by the guest. It was held that a suit was bar by the

driver of the car which had been struck by any other person. There was no previous record

that disclosed what was in the first proceeding. It was held that it was not possible to

determine what was the issue involved in the previous suit. A different situation was there the

court disposed of the record made by the parties. Nonsuit was not granted in this case and the

plaintiff’s appeal was refused.

In the historic case of Daryao v. State of Uttar Pradesh, the doctrine of res judicata is of

universal application was established. The Supreme Court of India placed the doctrine of res

judicata on a still broader foundation. In this case, petitioners filed a writ petition in the High

Court of Allahabad under Article 226 of the Constitution. But the suit was dismissed. Then

they filed independent petitions in the Supreme Court under the writ jurisdiction of Article 32

of the Constitution. The defendants raised an objection regarding the petition by asserting that

the prior decision of the High Court would be operated as res judicata to a petition under

Article 32. The Supreme Court dismissed and disagreed with the petitions.

The court held that the rule of res judicata applies to a petition under Article 32 of the

Constitution. If a petition is filed by the petitioner in the High Court under Article 226 of the

Constitution and it is dismissed on the basis of merits, it would be operated as res judicata to

bar a similar petition in the Supreme Court under Article 32 of the Constitution.

CONCLUSION

The Doctrine of Res Judicata can be understood as something which restrains the either party

to move the clock back during the pendency of the proceedings. The extent of Res Judicata is

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very-very wide and it includes a lot of things which even includes Public Interest Litigations.

This doctrine is applicable even outside the Code of Civil Procedure and covers a lot of areas

which are related to the society and people. The scope and the extent have widened with the

passage of time and the Supreme Court has elongated the areas with its judgments. Some

problems still persist but the courts and legislature are trying to deal with these problems.

BIBLIOGRAPGHY

 http://www.jiarm.com/April2014/paper12252 6

 http://www.legalservicesindia.com/article/article/res-judicata-a-brief-study

 http://www.legalservicesindia.com/article/article/res-sub-judice-res-judicata-and-

constructive-res- judicata

 Black’s Law Dictionary, 9th ed. 1

 C.K Takwani, “Code of Civil Procedure”, 7th ed. 1

 Mulla, “Code of Civil Procedure”, 15th ed. 2012

 Amalgamated Coalfields Ltd. V. Janapada Sabha AIR 1964 SC 10137

 Daryao V. State of U.P AIR 1961 SC 1457

 Devilal Modi V. STO AIR 1965 SC 1153.

 G.N.Nayak v. Goa University, AIR 2002 SC 790

 Ghulam Sarwar V. Union of India AIR 1967 SC 1335

 K.Ethirajan v. Lakshmi, AIR 2003 SC 4295.

 Lallubhai V. Union of India AIR 1981 SC 728

 M.S.M sharma V. Dr. Shree Krishna AIR 1960 SC 1186

 Sheodansingh v. Daryao Kunwar, AIR 1966 SC 1332

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