06 - Chapter 1-2 PDF
06 - Chapter 1-2 PDF
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INTRODUCTION
1 Honb’le Justice DasGupta, in Satyadhan Ghosal v. Deorajan Deb., AIR 1960 SC 941.
2 Sooijomoni v. suddanund, (1873) I.A. Supp. 212 (218) P.C.
12 of the Code of Civil Procedure, 1908, Section 300 of the
Code of Criminal Procedure, 1973, Section 26 of the General
Clauses Act, 1897 and Article 20(2) of the Constitution of India,
1950.
The doctrine of res judicata has a very ancient history. In
India it was known as “Purvnyaya or Prangnyaya”. The previous
judgment. The doctrine which is called by its Latin name of res
judicata, was evolved and developed by the jurists of ancient
India under the title “prangnyaya”, the provious decision. The
concept of res judicata evolved from the English Common law
system, being derived from the overriding concept of judicial
economy, consistency and finality. From the common law, it got
included in the Code of Civil Procedure and which was later as a
whole was adopted by the Indian legal system.
The substance of the rule was imported almost res integra
in this country. The Code of Civil Procedure of 1859 tacitly
recognised the rule in Section 2. The Section was held,
However, not to exclude the operation of the general law
relating to res judicata as settled in England.3
4 The present Code
3 Krishna Bihari v. Bunwari Lai, 2 LA. 283. Soorajmoniee v. Suddanund, (1873) I.A..315
4 Ibid
issue in a suit being res judicata in every subsequent suit.5 The
5 Sir John Woodraffe & Ameer Ali Code of Civil Procedure, Vol-I, 3rd Edition 1988. revised by Justice
H.M. Beg & Justice Gyamordralar Law Publisher (India) Pvt. Ltd. Allahabad.
6 Supra note-4
7 Smith’s leading cases, 13lh Ed. P. 644
in like manner, conclusive upon the same
matter, between the same parties, coming
incidentally in question in another court, for a
different purpose.”
The cardinal principle of res judicata is, dealt with under
Section 11 of the Code of Civil Procedure, 1908. It is manly
o
based on two grounds, embodied in various maxims of the
common law, the one is public policy and necessity which
makes it to the interest of the State that there should be an end to
litigation, the other is private justice that one should not be
vexed twice for the same cause.*
9 **
been refused.
Explanation VI.- Where persons litigate bona fide
0
10
Ins. by C.P.C. Amendment Act. 104 of 1976 Sec. 6
a subsequent suit notwithstanding that such court of
limited jurisdiction was not competent to try such
subsequent suit or the suit in which such issue has
been subsequently raised.”
The principle of res judicata differs from res sub judice as
the former relates to a matter already adjudicated upon while the
latter relates to a matter pending judicial trail. Secondly,
whereas Section 11 bars the trial of a suit or an issue wherein the
matter directly and substantially in issue has already been
decided in a previous suit, the Section 10 bars the trail of a suit
in which the matter directly and substantially in issue is pending
adjudication in a previously instituted suit. The doctrine of res
judicata though it is often treated as a branch of law of estoppel,
also differs in essential particulars from the doctrine of
estoppel.11
The Section 12, which is based upon the principle that the
defendant should not be vexed twice for one and the same
cause, also disentitles the plaintiff who is barred by the
statutory rules to institute a further suit in respect of the same
cause of action. The Section 12 provides,
11 Woodroffe and Amir Ali, Law of Evidence in India, 1981 Ed. Vol.4 P. 2936.
12 Bonoy Bhusan Das Gupta v. Smt. Savitri Baneijee AIR 1977 Cal. 199
“Section 12- Bar to further suit- where a
plaintiff is precluded by rules from instituting a
further suit in respect of any particular cause of
action, he shall not be entitled to institute a suit
in respect of such cause of action in any court to
which this Code applies.”
This rule also extends to Order 2 rule 2, which enjoins on
the plaintiff to include in his suit the whole of his claim and
prohibits him to bring a fresh suit for the portion omitted or
relinquished, or Order 9 rule 9, which provides that a decree
against plaintiff by default bars a fresh suit in respect of the
same cause of action or Order 22 rule 9 which provides that a
abatement or dismissal under that order bars a fresh suit on the
same cause of action, or Order 23 rule 1, which provides that the
abandonment of any suit or part of a claim under sub- rule (1) or
withdrawal of a suit or part of claim without permission of the
Court bars a fresh suit for the same cause of action under the
Code of Civil Procedure, 1908. But the bar created by the
Section 12 does not extend to suits barred under Section 11 or
Section 47.
The Code of Criminal Procedure, 1973 under Section 300
(1) lays down,
“Section 300 (1)- A person who has once been
tried by a court of competent shall while such
conviction or acquittal remains in force, not be
liable to be tried again for the same offence, nor
on the same facts for gny other offence”.
Section 26 of the General Clauses Act, 1897 also
provides.
“Section 26 - The offender shall not be liable to
be punished twice for the same offence”
The Constitution of India under Article 20(2) mandates,
“Article 20(2) -No person shall be prosecuted
and punished for the same offence more than
once.”
What all this says is that once a res is judicata, it shall not
be adjudged again. 13
The principles of res judicata enshrined in Sections 10, 11
and 12 of the Code of Civil Procedure, 1908 have been
discussed in details with relevancy of other legislative
provisions, as the principle of res judicata is conceived in the
13
Satyadhyan v. Deorajin Debi, alR 1960 SC 941.
larger public interest which requires that all litigations must
sooner than later, come to an end.14
16 Corpus Juris, Vol 34 P. 743, C.P. Trust v. Board of Trustees, AIR 1978 SC 1283. See Supra Note-4
17 Greenhalgh v. Mallard, (1939) 2 KB 426 P. 437.
This is, therefore another and an equally necessary and
efficacious aspect of the same principle. This rule has
sometimes been referred to as constructive res judicata which in
reality is an aspect or amplification of the general principle.
In Daryao v. State of U.P. the Supreme Court has observed:
“Now, the rule of res judicata as indicated in
section 11 of the Code of Civil Procedure has no
doubt some technical suspects, for instance, the
rule of constructive res judicata may be said to
be technical; but the basis on which the said rule
rests in founded on consideration of public
policy. It is in the interest of the public at large
that a finality should attach to the binding
decisions pronounced by courts of competent
jurisdiction, and it is also in the public interest
that individuals should not be vexed twice over
with the same kind of litigation.”
Though the Section 11 is mandatory as the plea of res
judicata is the plea of law which does not affect the jurisdiction
of the court to try the proceedings or trial of the subsequent suit.
18
AIR 1961 SC 1475.
But the doctrine of res judicata belongs to the domain of
procedure and the party may waive the plea of res judicata}9
21
AIR 1986, SC 391, (1986) 1 SCC 100.
Section 11 has considerably been enlarged to include the matter
of execution proceedings and the matter decided by a court of
limited jurisdiction.
The doctrine of res judicata also prevents a Court of
concurrent jurisdiction from trying the matter simultaneously for
the same cause or the same relief. The Concurrent jurisdiction
means concurrent as regards the pecuniary limit as well as the
subject matter of the suit. ‘Competency’ in Section 11 has no
reference to territorial jurisdiction of the court . The expression
“a court of limited jurisdiction” appeared in Explanation VIII
creats a larger public interest, as it involves the question of
interpretation of law and the public policy. It is thus clear that
technical aspects of Section 11 the Code of Civil Procedure
relating to pecuniary or subject wise competence of the earlier
forum to adjudicate the subject-matter or grant reliefs sought in
the subsequent litigation, would be immaterial when the general
doctrine of res judicata is to be invoked. Thus, the study has
reflected socio-legal problems which has been dealt with a
detailed academic discussion.
therefore, humble try to analyze the facts and the law on the
subject from the stand points of the following objectives.
(i) Whether the rule of res judicata worked harshly on
individuals,
(ii) How far the doctrine of res judicata is applicable in
changing dimensions to give effect the finality in
decision in consideration of public policy.
(iii) Whether the constructive res judicata helped to
avoid multiplicity of litigation and to bring about
finality in it.
Daryao v. State of U.P., AIR 1961 SC 1457 (1462), Sulochana Amma v. Narayanan Nair, AIR 1994
SC 152.
(iv) How far a decision on a question of law would
operate as res judicata.
(v) Whether the expression ‘concurrent jurisdiction’
includes a court of ‘limited jurisdiction;
(vi) Whether the rule of res judicata or constructive res
judicata also applies apart from suit to various other
kinds of proceedings and situations, such as,
execution proceedings, arbitration proceedings,
industrial adjudication, taxation proceedings, writ
petitions etc.
(vii) Whether a subsequent litigation is barred by res
judicata how for it is necessary to examine this
question with reference to competence of court,
parties and their privies, matters in issue, or the
matters which might and ought to have been made a
ground of attack or defense in the former suit and the
final decision.
(viii) Whether the rule of res judicata may be misused or
used arbitrarily in favour of avoiding multiplicity of
litigations,
(ix) Whether in absence of the rule of res judicata, the
oppression might be done under colour and pretence
of law.
(x) Whether the rule of res judicata has helped in
enlarging scope of the social justice through public
interest litigation in India.
(xi) Whether the rule of res judicata after the
Amendment of 1976, has made the civil justice
delivery system more comprehensive and more
effective.
Since the study is a comparative critical analysis on the
subject with a view of legislative and judicial trends, its finding
would have immense value for legislative or policy reforms in
the field of civil matters which are pilling up in huge numbers in
subordinate courts even after the sincere efforts of the
governments in this regards. It is with these objectives, the
researcher has undertaken this research work.
RESEARCH DESIGN AND METHODOLOGY
The subject is directly related to the society as well as the
specifically pointing out the merits and demerits in the same and
libraries in the State and outside of the State have also been
res judicata