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07 - Chapter 2 PDF
07 - Chapter 2 PDF
judicata means -
“1. The decision of a legal or equitable issue, by
a court of competent jurisdiction.
2. It is a general principle that such decision is
binding and conclusive upon all other courts
of concurrent power. This principle pervades
not only our own, but all other systems of
jurisprudence, and has become a rule of
universal law, founded on the soundest
policy. If, therefore, Paul sue Peter to recover
B. HISTORICAL BACKGROUND
Res judicata Pro Veritate Accipture” is the full maxim
which has, over the years, shrunk to mere res judicata6, which
6 Deva Ram v. Ishwar Chand AIR1996SC378-; Kunjan Nair Shivaraman Nair v. Narayanan Nair, AIR
2004 SC 1761.
This principle was also known to Roman law as 'exceptio
res judicata'. Julian defined the principle thus,
"Generally the plea of former Judgment is a bar
whenever the same question of right is renewed
between the same parties by whatever form of action
— Et generaliter (ut julianus definit) exceptio rel
judicata obstat, quotisns inter easdem personas
esdem quaestio revocator, vel alio genere judicli.)
This doctrine was adopted by the countries on the
European continent which had modelled their civil
law on the Roman pattern. In France, the doctrine is
known as 'Chose jugee' -- thing adjudged. This
principle of preclusion of re-litigation, or the
conclusiveness of Judgment, has struck deep roots in
Anglo-American jurisprudence and is equally well-
known in the Commonwealth countries which have
drawn upon the rules of Common law. The doctrine
of res judicata is recognised as a principle of
universal jurisprudence forming part of the legal
systems of all civilised nations7.”
12 Ibid P.202
13 Brashpati Samriti cited in Tondon’s Code of Civil Procedure and revised by J. Rajesh Tondon 26th
Ed. 2005 p. 43
14 Raj Lakshmi Dasi v. Banamali Sen, AIR 1953 Section C. 33; Sheoparsan Singh v. Ramnandan
Singh (1916) 43 I.A.91.
15 Samriti Chandrika Part-I, p. 77, by Devanand Bhatt cited by Justice M. Ramajois, Legal and
Constitutional History of India, Ed. 1984 reprint 2008 p. .26, Universal Law publishing company Pvt.
Ltd. Delhi.
former victory.16 In the present era it has been incorporated
16 Mishra Vachaspati, vyovhara Chintamani, Edited by Dr. Ludo Rocher ed. 1956 P. 64 University of
Ghent, See also note 7
The pre-requisites which are necessary for res judicata are:
1. There must be a final judgment;
2. The judgment must be on the merits;
3. The claims must be the same in the first and second suits;
4. The parties in the second action must be the same as those
in the first, or have been represented by a party to the prior
action. -
The provisions of Section 11 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.
Hon’ble Mr. Justice Das Gupta in Satyadhan Ghosal v.
Deorajan Deb said that ‘the principle of res judicata is based on
the need of giving finality to the judicial decisions’.
Arguably, res judicata is a general principle of
international law under Article 38 (l)(c) of the International
Court of Justice Statute.
"The Court, whose function is to decide in
accordance with international law such disputes as
are submitted to it, shall apply: ... c. the general
principles of law recognized by civilized nations”.
Even in International Law which is applicable in The
International Court of Justice, there tGO Article 38 (1) (c) is
dedicated towards the doctrine of res judicata.
The Article reads as follows:
“The Court, whose function is to decide in
accordance with international law such disputes as
are submitted to it, shall apply:
a. international conventions, whether general or
particular, establishing rules expressly
recognized by the contesting states;
b. international custom, as evidence of a general
practice accepted as law;
c. the general principles of law recognized by
civilized nations;
d. subject to the provisions of Article 59, judicial
decisions and the teachings of the most highly
qualified publicists of the various nations, as
subsidiary means for the determination of rules
of law.”
Similar provisions are also found in the International
Covenants on Civil and Political Rights, and Article 4 of
Protocol 7 of the European Convention on Human Rights.
However, in the two said conventions, the application of res
judicata is restricted to criminal proceedings only. In the
European Convention, reopening of a concluded criminal
proceedings is possible if -
(a) it is in accordance with the law and penal procedure of the
State concerned;
(b) there is evidence of new or newly discovered facts, or
(c) if there has been a fundamental defect in the previous
proceedings, which could affect the outcome of the case.
The Criminal Law and to be more specific, Evidence Law
also talks about the doctrine of res judicata but in the same
context as that has been used in C.P.C. Therefore, apart from the
Administrative Law and C.P.C., there are some few other laws
which talk about the role of res judicata in the statute.
The legal concept of res judicata arose as a method of
preventing injustice to the parties of a case supposedly finished,
but perhaps mostly to avoid unnecessary waste of resources in
the court system. Res judicata does not merely prevent future
judgments from contradicting earlier ones, but also prevents
litigants from multiplying judgments, so a prevailing plaintiff
could not recover damages from the defendant twice for the
same injury.
C. THE CONSTITUTION AND THE DOCTRINE OF
RES JUDICATA
Although by reason of the Explanation which was inserted
in Section 141 of the Code of Civil Procedure, 1908, by the
Code of Civil Procedure (Amendment) Act, 1976, Section 11 of
the Code does not in terms apply to any proceeding under
Article 226 of the Constitution, the principle of res judicata
17
does not apply to all Writ Petitions under Article 226.
However where Section 11 of the Code is not applicable, the
general principle of res judicata is made applicable to Writ
Petitions.18
20 Ashok Kumar Srivastav v. National Insurance Company Ltd. (1998) 4 SCC 361; Bua Das Kaushal
v. The State Of Punjab AIR 1971 SC 1676.
21 Kirit Kumar Chaman Lai Kundaliya v. State of Gujarat.
22 Sree Narayana Dharamasanghom Trust v. Swami Prakasananda. (1997) 6 SCC 78.
23 Ramnik Vallabhdas Madhvani v. Taraben Pravinlal Madhvani (2004) 1 SCC 497.
24 •
Article 136. The doctrine of res judicata or the principles of
finality of Judgment cannot be allowed to whittle down or
override the express constitutional mandate to the Supreme
Court enshrined in Article 32 of the constitution.25
28 Workmen of Cochin Port Trust v. Board of Trustees of the Cochin Port Trust and Anr. 1978.
00
filing a fresh Writ Petition. Where however, the second
petition was based on an entirely different cause of action, the
dismissal could not stand in the way of the petitioner invoking
the jurisdiction of the High Court under Article 226 of the
Constitution.30
29 Teja Singh v. Union Territory, of Chandigarh (1981) 1 Serv LR 274; Hoshnak Singh v. Union of
India 1978.
30 Hoshnak Singh v. Union of India 1978.
31 AIR 1961 SC 1437, Daryao v. State of U.P.
32
Daryao v. The State of U.P. AIR1961SC1457.
petition under Article 32. The petitioner's only proper remedy in
such a case would be to come in appeal from such a speaking
Order passed on the merits, even though the High Court may not
have issued notice to the other side.
Even successive petitions for habeas corpus under Article
32 would be maintainable in this Court provided the points
raised in the subsequent petitions are additional points not
covered or agitated in the previous petitions.34 This principle of
were not taken in the earlier petition for the same relief. Where
the first petition for writ of habeas corpus was dismissed, the
second petition lies only on fresh ground. However, so far as
petitions for habeas corpus are concerned, the doctrine of
'VI
constructive res judicata could not apply. It is however stated
if the doctrine of res judicata is attracted to an application for a
writ of habeas corpus, there is no reason why the principles of
constructive res judicata cannot also govern the said application,
challenged.
D. JUSTIFICATIO E DOCTRINE
Res judicata is intended to strike a balance between
competing interests. On one hand, it assures an efficient judicial
system. Justice Stewart explained the need for this legal precept
as follows:
“Federal courts have traditionally adhered to the
related doctrines of res judicata (claim preclusion)
45
Ashok Kumar Srivastava v. National Insurance Co. Ltd., AIR 1998 SC 2046.
and collateral estoppel (issue preclusion). Under
Res judicata, a final judgment on the merits of an
action precludes the parties . . . from re-litigating
issues that were or could have been raised in that
action. Under collateral estoppel, once a court has
decided an issue of fact or law necessary to its
judgment, that decision may preclude re-litigation
of the issue in a suit on a different cause of action
involving a party to the first cause. As this court
and other courts have often recognized, res judicata
and collateral estoppel relieve parties of the costs
and vexation of multiple lawsuits, conserve judicial
resources, and by preventing inconsistent
decisions, encourage reliance on a judication.”
The Doctrine of res judicata can be understood as
something which restrains the either party to “move the clock
back” during the pendency of the proceedings. The extend of res
judicata is very-very wide and it includes a lot of things which
even includes Public Interest Litigations. This doctrine is
applicable even outside the Code of Civil Procedure and covers
a lot of areas which are related to the society and people. The
scope and the extend has widened with the passage of time and
the Supreme Court has elongated the areas with its judgments.
Res Judicata does not restrict the appeals process, which is
considered a linear extension of the same lawsuit as the suit
travels up (and back down) the appellate court ladder. Appeals
are considered the appropriate manner by which to challenge a
judgment rather than trying to start a new trial. Once the appeals
process is exhausted or waived, res judicata will apply even to a
judgment that is contrary to law.
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 on the competence of the earlier court to
issue that decision. 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 recognize the judgment of
a foreign court.
In addition, in matters involving due process, cases that
appear to be res judicata may be re-litigated. An example would
be the establishment of a right to counsel. People who have had
liberty taken away (i.e., imprisoned) may be allowed to be re
tried with a counselor as a matter of fairness.
When a subsequent court fails to apply res judicata and
renders a contradictory verdict on the same claim or issue, if a
third court is faced with the same case, it will likely apply a "last
in time" rule, giving effect only to the later judgment, even
though the result came out differently the second time. This
situation is not unheard of, as it is typically the responsibility of
the parties to the suit to bring the earlier case to the judge's
attention, and the judge must decide how broadly to apply it, or
whether to recognize it in the first place.
Res Judicata may not apply in cases involving the England
reservation. If a litigant files suit in federal court, and that court
stays proceedings to allow a state court to consider the questions
of state law, the litigant may inform the state court that he
reserves any federal-law issues in the action for federal court. If
he makes such a reservation, ras judicata would not bar him
from returning the case to federal court at conclusion of action
*
in state court.
Res Judicata may be avoided if claimant was not afforded
a full and fair opportunity to litigate the issue decided by a state
court. He could file suit in a federal court to challenge the
adequacy of the state's procedures. In that case the federal suit
would be against the state and not against the defendant in the
first suit.
Res Judicata may not apply if consent (or tacit agreement)
is justification for splitting a claim. If plaintiff splits a claim in
the course of a suit for special or justifiable reasons for doing so,
a judgment in that action may not have the usual consequence of
extinguishing the entire claim.
In the case of Tallur Venkata Seshayya vs. Thadviconda
Koteswara Rao46, a suit was filed in the Court for the purpose
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.
In the case of Rural Litigation And Entitlement Kendra
vs. State of Uttar Pradesh48, it was held that the writ petitions
filed in the Supreme Court are not inter-party disputes and have
been raised by way of public interest litigation and the
controversy before the court is as to whether for social safety
and for creating a hazardless environment for the people to live
50
AIR, 1960 S.C. 941
dismiss the matter from its jurisdiction and also the jurisdiction
of the other Courts which are at the same level.
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 very- very wide and it includes a lot of things which
even includes Public Interest Litigation. 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 has widened with the passage of time the
Supreme Court has elongated the areas with its judgments.
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