Code of Civil Procedure Doctrine of Res Judicata

A PROJECT ON

“Doctrine of Res Judicata”

SUBMITTED TO: Dr. Vivek Kumar

Code of Civil Procedure

SUBMITTED BY
Ayush Kumar Singh
ENROLLMENT NO. 17FLICDDN01034

SUBMISSION DATE: 11 November, 2020

ICFAI LAW SCHOOL,

THE ICFAI UNIVERSITY, DEHRADUN

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Code of Civil Procedure Doctrine of Res Judicata

TABLE OF CONTENT

INTRODUCTION…………………………………………………………………………5

THE ORIGIN OF RES JUDICATA …………………………………………………………6

THE PRINCIPLE OF RES JUDICATA IS ESTABLISHED ON THE BASIS ON GOOD CONSCIENCE,

EQUITY AND JUSTICE……………………………………………………………………………..7

RES JUDICATA AND ESTOPPEL…………………………………………………………...8

APPLICABILITY OF RES JUDICATA TO OTHER PROCEEDINGS……………………………9

EXPANSION OF THIS DOCTRINE…………………………………………………………9

CONCLUSION…………………………………………………………………………10

BIBLOGRAPHY…………………………………………………………………………….11

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Code of Civil Procedure Doctrine of Res Judicata

INDEX OF ABBREVIATION

1. S……………………… SECTION

2. &……………………… AND

3. AIR…………………… ALL INDIA REPOTER

4. vs………………………. VERSUS

5. Hon’BLE……………….. HONORABLE

6. Vol……………………….. VOLUME

7. PG………………………. PAGE

8. Ors……………………. OTHERS

9.. Cl……………………….. CLAUSE

10. Art. ………….ARTICLE

11. Govt. …………………….GOVERNMENT

12. HC ………………HIGH COURT

13. SC………………. SUPREME COURT

14. i.e…………………. THAT IS

15. SCC……………….. SUPREME COURT CASES

16. SCR………………. SUPREME COURT REPORTER

17. W.r.t…………….. WITH RESPECT TO

18. UOI…………… UNION OF INDIA

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Code of Civil Procedure Doctrine of Res Judicata

Object and Methodology (Sample)

The present research work on the topic of “Doctrine of Res Judicata” is both explorative and
analytical. It sought to construct, throughout the analysis of secondary data. The documents of
government policy, financial data, and financial static provided by international authorities are
analyzed and try to find out the changes and loopholes in it. Published works by eminent authors
are also consulted during the research.

Since, the present topic was purely academic it was inevitable and inherently mandatory that
only secondary sources be made use of. Therefore, I have made use of journal articles, leading
books and of course the source of knowledge for students: Internet.

Name of student- Ayush Kumar Singh

Enrollment No.- 17FLICDDN01034

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Code of Civil Procedure Doctrine of Res Judicata

Introduction

The doctrine of res judicata is explained under section 11 of the CPC. It’s a phrase which means
“a thing decided” in Latin. The SC of India in Lal Chand v. Radha Krishan1 stated that once the
last judgement given in a suit, the ensuing judges who are confronted with a suit which
identically same as the previous judgement, they would apply the Res Judicata precept 'to save
the impact of the main judgment. In this way, a similar case can't be taken up again either in the
equivalent or in the distinctive Court of India. This is simply to keep them from multiplying
judgments, so a common offended party may not recuperate harms from the respondent twice for
similar damage

In the case Satyadhyan Ghosal v Deorjin Debi the doctrine of res judicata has been explained by
Das Gupta, J “The principle of res judicata is based on the need of giving finality to judicial
decisions. What it says is that once res is judicata. It shall not be adjudged again. Preliminary it
applies as between past litigation and future litigation. when a matter whether on a question of
fact or a question of a decision is final, either because no appeal was taken on higher court or
because the appeal was dismissed, or no appeals lies, neither party will lie, neither part will be
allowed in future suit bar proceeding between the same parties to canvass the matter again” This
doctrine of law is now applicable to writ procedures also. It has additionally been chosen by
Supreme Court in M S M Sharma v Sinha4, that when once a writ appeal to has been moved in a
High Court or Supreme Court, and has been dismissed there on benefits, at that point a resulting
writ can't be moved in a similar court on a same cause of action. The doctrine of res sub-judice is
explained under section 10 of CPC. Sub-judice means “under judgement” in Latin. Section 10
proclaims that no court ought to continue with the preliminary of any suit in which the matter in
issue is directly and substantially in issue in a formerly founded suit between the same parties
and the court before which the formerly instituted suit is pending is eligible for the relief asked.
The doctrine applies to preliminary of a suit and not the foundation thereof. It additionally does
not stop a court from passing interim orders, for example, giving admonition or stay,
appointment of receiver, and so on it, nonetheless, applies to appeals and revisions.

‘The stay must be of the last suit and not of the prior suit between the same parties. The word
suit incorporates an appeal, yet it does exclude an application for leave to appeal.

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Code of Civil Procedure Doctrine of Res Judicata

The origin of Res Judicata

The Res Judicata has a very ancient history. "Res judicata pro veritateoccipitur" is the full Latin
maxim which has, over the years, shrunk to mere "Res Judicata". The concept of Res Judicata
finds its evolvement 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, 1908 and which was later as a whole was adopted by the Indian
legal system. From the Civil Procedure Code, the Administrative Law witnesses its applicability.
Then, slowly but steadily the other acts and statutes also started to admit the concept of Res
Judicata within its ambit. Under the Roman law, a defendant could successfully contest a suit
filed by a plaintiff on the plea of “ex captio res judicata” which means “one suit and one decision
is enough for any single dispute”. The doctrine of Res Judicata is based on three Roman
Maxims: Nemo debet lis vaxari pro eaderm causa (no man should be vexed twice for the same
cause). Interest republicae ut sit finis litium (it is in the interest of the state that there should be
an end to a litigation). Re judicata pro veritate occipitur (a judicial decision must be accepted as
correct). Res Judicata was known to ancient Hindu Law as Purva Nyaya (former judgement). In
Roman Law it was identified as “one suit and one decision were enough for any single dispute”.
The rule of res judicata further accepted in the Commonwealth countries and in the European
continent. At times, the rule worked harshly on individuals. For instance, when the former
decision was obviously erroneous. But its working was justified on the great principle of public
policy, which requires that there must be an end to every litigation. The basis of the doctrine of
res judicata is public interest and not absolute justice. In the event of a wrong decision At times,
the principle worked cruelly on people. For example, when the previous decision was clearly
wrong. Nevertheless, its working was legitimized on the considerable rule of public policy,
which requires that there must be a conclusion to each suit. The premise of the principle of res
judicata is open intrigue and not absolute justice. In case of a wrong decision, “the suffering
citizen must appeal to the law-giver and not to the lawyers”.

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Code of Civil Procedure Doctrine of Res Judicata

The principle of res judicata is established on the basis on good conscience,

equity and justice

Res judicata is a species of the doctrine of estoppel. Res sub-judice is a part of res judicata. Res
sub-judice is a Latin proverb which is nowhere found to have been characterized in the Code of
Civil Procedure. Res sub-judice alludes to an issue pending preliminary and works as a bar to a
preliminary of a suit which is pending decision in a formerly founded suit. The doctrine of res
sub-judice, hence, bars a preliminary on certain conditions yet not preserve the institution of an
ensuing suit. The similar rule is contained in Section 10 of the CPC, 1908. The heading of
Section 10 is "stay of suit," it doesn't work as a bar to the institution of the ensuing suit. It is just
the preliminary of the suit that isn't to be continued with. The key difference between res judicata
and res sub-judice are. Whereas res judicata applies to matter adjudicated upon (res judicatum),
res subjudice applies to a matter pending trial (sub judice); Res judicata bars the trial of a suit or
an issue which has been decided in a former suit, res subjudice bars trial of a suit which is
pending decision in a previously instituted suit. Conditions for Res Judicata the conditions of res
judicata is not comprehensive and it is regularly developing. Several conditions must be fulfilled
to constitute res judicata. There must be two suits between same parties or their representative.
They should prosecute under a same title. The matter directly and substantially in issue in both
the suits must be related Or, the issue directly and substantially in issue in the ensuing suit should
likewise be directly and substantially in issue in the previous suit. One of such suits more likely
be heard and lastly decided (it is known as a previous suit). The doctrine of res judicata won't
make a difference when the whole issue was still in appeal and had not achieved conclusiveness
was still in debate.

5. the court which chose the previous suit must be capable to concede relief asserted in the
subsequent suit. the rule of res judicata won't have any significant bearing where order was
passed without jurisdiction. 28 “In order to decide the question whether a subsequent proceeding
is barred by res judicata it is necessary to examine the question with reference to the

(i) forum or the competence of the court, (ii) parties and their representatives,

(iii) matters in issue,

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Code of Civil Procedure Doctrine of Res Judicata

(iv) matters which ought to have been made grounds for defence or attack in the former suit and

(v) the final decision.” Principle of Constructive Res Judicata “If by any judgement 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 judgement and order a decision of a
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.”

Res judicata and estoppel

The principle of Res Judicata is generally seen as a part of the doctrine of Estoppel. Res judicata
is estoppel by verdict or estoppel by judgement. The rule of constructive res judicata is nothing
but principle of estoppel. But the doctrine of res judicata separates itself essential circumstances
from the principle of estoppel. Purpose of res judicata The main purpose of res judicata is to
prevent – . Injustice to a party of a decided suit. Multiplicity of suit. Unnecessary misuse of the
resources of the court. recuperation of the damages from the respondent twice for same damage.

Res Judicata between co-defendants General rule for res judicata says that it applies between
defendant and the plaintiff. “But adjudication between co-defendants will operate as res judicata
if there is a conflict of interest between the defendants concerned, it is necessary to decide the
conflict in order to give the relief which the plaintiff claims, the question between the defendants
has been finally decided, and the co-defendants are necessary or proper parties in the former
suit.” “Where there is no conflict of interest between co-defendants or when the conflict between
codefendants is not adjudicated on merits the decision will not operate as res judicata between
them.”

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Code of Civil Procedure Doctrine of Res Judicata

Applicability of Res Judicata to other proceedings

It applies to the procedures for execution of a decree as per Explanation 7 of S. 11 of CPC.41 It

has been held that the general rules underlying the principle of res judicata are relevant to writ
petitions under Art. 32 and 226 of the constitution. They are additionally relevant to the
arbitration made under Industrial Disputes Act, 1947.43 The principle of res judicata additionally
applies to arbitration procedures, PIL44 and criminal procedures,45 however does not make a
difference to interlocutory orders, consent decree and taxation procedures. It likewise held that S.
11 isn't comprehensive and any suit can be held to be banished by principle of res judicata
regardless of whether each of the conditions said in S. 11 are not satisfied, “if it appears to the
court that there is an attempt to re-agitate an issue once settled and decided.”

Expansion of This Doctrine

Courts have slowly broadened the scope of this section to cases like domestic violence, child
witness etc.

Domestic violence and assault cases necessarily involve a startling event; they often include the
issue of excited utterances. In these cases, it is only victims who can identify the alleged culprit.
So, such testimony of the victims must be admitted. In India, women may not react just after the
crime of rape or sexual violence because they are under the influence of such gruesome event
that they do not respond immediately. It is possible that they respond after a day or two but such
statement spoken can still be admitted under res gestae. If it can be proved that victim was still
under the stress of shock then such statement can be admitted.

Usually cases of rape take place in isolation. So, there is no eye witness to such event. Rape and
domestic violence cases are different than any other crime.

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Code of Civil Procedure Doctrine of Res Judicata

The testimony of children is often the subject of excited utterance debate. Usually whenever
there is a time gap, the transaction is said to end and any statement which do not form part of the
transaction is inadmissible. However, in cases of children this rule is relaxed. The rationale for
expanding the exception for children emphasizes how children cope with stress because their
statements are often made well after events occur at the first safe opportunity to speak.

In Uttam Singh vs State of Madhya Pradesh, the child witness was sleeping with the deceased
father at the relevant time of incident and was awakened by the sound of the fatal blow of the axe
on the neck of the deceased. Seeing it, the child shouted to his mother for help by naming the
accused as assailant. On hearing the sounds the mother and sisters of the child and other
witnesses gathered at the spot. This evidence was held to be admissible as a part of the same
transaction as such shout was the natural and probable as per the facts of the case. In this case if
child witness failed to react on the spot but spoke later, it could still be admissible under sec 6.

CONCLUSION

Looking at res judicata over history and across borders, one sees that all systems of justice
deliver a core comprising the substance of bar and defense preclusion. This core does not
represent a universal value but rather responds to a universal institutional need. Such a system
must have adjudicators, and an effective adjudicator must have its judgments mean something
with bindingness. The minimal bindingness is that, except in certain circumstances, the
disgruntled cannot undo the judgment in an effort to change the outcome. Hence the core of bar
and defense preclusion. By some formulation, each justice system must deliver the core.
Context-specific policy will decide how much farther res judicata will go in any particular
country. The United States loves preclusion, and by indulging in nonmutual preclusion it goes to
an extreme well beyond the bare minimum. Thus far, China sticks to the core, even endangering
it by indulging attacks on prior judgments' validity. Perhaps for both countries, the optimum lies
closer to the middle. Where each of the two countries' law of res judicata will end up depends on
local context, which makes it safe to say that they will not and should not end up in the same
spot.

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Code of Civil Procedure Doctrine of Res Judicata

Bibliography:

Websites:

1. http://www.legalserviceindia.com/articles/am_co.htm.

2. http://legalservicesindia.com/articles/pol.htm.

3. http://heinonline.org/HOL/Index?index=journals/indanaandcollection=usjournals.

Books:

1. Civil Procedure by C.K. Takwani

2. The Code of Civil Procedure by M.P. Jain

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