RES JUDICATA AND FOREIGN JUDGEMENT

INTRODUCTION

RES JUDICATA
Res Judicata means "a thing decided" in Latin. It is a common law doctrine meant to bar re-
litigation of cases between the same parties in Court. Once a final judgment has been handed
down in a lawsuit subsequent judges who are confronted with a suit that is identical to or
substantially the same as the earlier one will apply res judicata to preserve the effect of the first
judgment. This is to prevent 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 them from
multiplying judgments, so a prevailing plaintiff could not recover damages from the defendant
twice for the same injury. Section 11 of the Code of Civil Procedure embodies the doctrine of
res judicata or 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 same parties. It enacts that
once a matter is finally decided by a competent court, no party can be permitted to re-open it in a
subsequent litigation. In the absence of such a rule 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. Under the Roman Law, a
defendant could successfully contest a suit filed by a plaintiff on the plea of “ex captio res
judicata”. It was said, “one suit and one decision is enough for any single dispute”. In the words
of Spencer Bower, res judicata means “a final judicial decision pronounced by a judicial tribunal
having competent jurisdiction over the cause or matter in litigation, and over the parties thereto”.

The doctrine of res judicata has been explained in the simplest possible manner by Das Gupta, J.
in the case of Satyadhyan Ghosal v. Deorjin Debi2in the following words:

“The principle of res judicata is based on the need of giving finality to judicial decisions.
What it says is that once a res judicata, it shall not be adjudged again. Primarily it applies as
between past litigation and future litigation. When a matter, whether on a question of fact or a
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”.3

1
Satyadhyan Ghosh v. Deorjin Debi, AIR 1960 SC 941:(1960)3 SCR 590; Daryao v. State of U.P., AIR 1961 SC 1457:
(1962) 1 SCR 574; Pandurang Ramchandra v.Shantibai Ramchandra, 1989 Supp(2) SCC 627: AIR 1989 SC 2240.
2
ibid.
3
ibid, at p. 943 (AIR)

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Res judicata as defined under Civil Procedure Code:
No Court shall try any suit or issue in which the matter directly and substantially in issue has
been directly and substantially in issue in a former suit between the same parties, or between
parties under whom they or any of them claim, litigating under the same title, in a Court
competent to try such subsequent suit or the suit in which such issue has been subsequently
raised, and has been heard and finally decided by such Court.

Explanation I: The expression "former suit" shall denote a suit which has been decided prior to
the suit in question whether or not it was instituted prior thereto.

Explanation II: For the purposes of this section, the competence of a Court shall be determined
irrespective of any provisions as to a right of appeal from the decision of such Court.

Explanation III: The matter above referred to must in the former suit have been alleged by one
party and either denied or admitted, expressly or impliedly, by the other.

Explanation IV: Any matter which might and ought to have been made ground of defence or
attack in such former suit shall be deemed to have been a matter directly and substantially in
issue in such suit.

Explanation V: Any relief claimed in the plaint, which is not expressly granted by the decree,
shall, for the purposes of this section, be deemed to have been refused.

Explanation VI: Where persons litigate bona fide in respect of public right or of a private right
claimed in common for themselves and others, all persons interested in such right shall, for the
purposes of this section, be deemed to claim under the persons so litigating.

Explanation VII: The provisions of this section shall apply to a proceeding for the execution of
a decree and reference in this section to any suit, issue or former suit shall be construed as
references, respectively, to proceedings for the execution of the decree, question arising in such
proceeding and a former proceeding for the execution of that decree.

Explanation VIII: An issue heard and finally decided by a Court of limited jurisdiction,
competent to decide such issue, shall operate as res judicata in as 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.

NATURE AND SCOPE

The doctrine of res judicata is conceived in the larger public interest which requires that all
litigation must, sooner than latter, come to an end. 4 The principle is also founded on justice,
equity and good conscience which require that a party who has once succeeded on an issue

4
Lal Chand v. Radha Krishan, (1977) 2 SCC 88: AIR 1977 SC 789.

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should not be harassed by multiplicity of proceedings involving the same issue. 5 Section 11 of
the Code contains in statutory form, with illuminating explanations very salutary principles of
public policy.6 It embodies the rule of conclusiveness and operates as a bar to try the same issue
once again. It thereby avoids vexatious litigation.7

OBJECT

The doctrine of res judicata is the combined result of public policy reflected in maxims (b) and
(c) and private justice expressed in maxim (a); and they apply to all judicial proceedings whether
civil or criminal. But for this rule there would be no end to litigation and no security for any
person, the rights of person would be involved in endless confusion and great injustice done
under the cover of law.8 The principle is founded on justice, equity and good conscience.9

In Corpus Juris (vol. 34, p. 743), it has been stated: Res Judicata is a rule of universal law
pervading every well regulated system of jurisprudence and is put upon two grounds, embodied
in various maxims of the common law; the one, public policy and necessity, which makes it to
the interest of the state that there should be an end to litigation; the other, the hardship to the
individual that he should not be vexed twice for the same cause. 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.

SECTION 11 OF CPC IS MANDATORY

The provisions of section 11 of CPC 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. Where several defendants are there, in a suit the collusion of one of
them alone is not enough to avoid the operation of rule of res judicata. Gross negligence is
different from fraud and collusion.

The provisions of section 11 of the Code are mandatory and the ordinary litigant who claims
under one of the parties to the former suit can only avoid its provisions by taking advantage of
section 44 of the Indian Evidence Act which defines with precision the grounds of such evidence
as fraud or 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 must be litigating bona fide and the fulfillment of this is necessary for

5
Ibid, see also infra, “object”.
6
Narayan Prabhu Venkateshwara v. Narayan Prabhu Krishna, (1977)2 SCC 181: AIR 1977 SC 1268.
7
Sulochana Amma v. Narayanan Nair, (1994) 2 SCC 14: AIR 1994 SC 152; Workmen v. Board of trustees, Cochin
Port Trust, (1978) 3 SCC 119: AIR 1978 SC 1283.
8
Daryao v.State of U.P,AIR 1961 SC 1457 at pp. 1462.
9
Lal Chand v. Radha Krishan, (1977) 2SCC 88 at pp. 98: AIR 1977 SC 789 at pp. 796.

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the applicability of the section. The above ratio decidendi was laid down in Jallur Venkata
Seshayya v. Thadviconda Koteswara Rao and Others.10

The principle of Res Judicata does not apply strictly to public interest litigations. The procedural
laws are not fully applicable to PIL cases. Where the prior public interest relates to illegal
mining, subsequent public interest litigation to protect environment is not barred. Though, the
provisions of section 11 of the Code are mandatory and the ordinary litigant who claims under
one of the parties to the former suit can only avoid its provisions by taking advantage of section
44 of the Indian Evidence Act which defines with precision the grounds of such evidence as
fraud or 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 must be litigating bona fide and the fulfillment of this is necessary for
the applicability of the section.

FOREIGN JUDGEMNENT
The laws of other countries in the course of their business transactions or in their personal
matters also sometimes govern Indian citizens. For instance, if an Indian holds immovable
property in a foreign country or has business transactions in another country to which the laws of
India are not applicable. Then he comes to be governed by the law in which his immovable
property is situated or by those where he transacted his business, if he has submitted to its
jurisdiction. Thus a case decided by a foreign court may create a right in one party, which may
need to be enforced in India. Similarly Indian case may try cases involving foreigners. All such
judgements would be foreign judgements. The Code of Civil Procedure Code has made
provisions for such cases. Thus an Indian court cannot refuse to entertain a suit founded upon a
foreign judgement just because it has not been decided in India. The word foreign judgement is
defined in Section 2(6) of the Civil Procedure Code and denotes ‘a judgement of a foreign court’

Section 13 and 14 enact a rule of res judicata in case of foreign judgements. These provisions
embody the principle of private international law that a judgement delivered by a foreign court of
competent jurisdiction can be enforced by an Indian court and will operate as res judicata
between the parties thereto except in the cases mentioned in Section 13.

NATURE AND SCOPE OF SEC. 13, C.P.C

A foreign judgment may operate as res judicata except in the six cases specified in the section 13
and subject to the other conditions mentioned in Sec. 11 of C.P.C. The rules laid down in this
section are rules of substantive law and not merely of procedure. The fact that the foreign
judgment may fail to show that every separate issue, such as, the status of the contracting parties,
or the measure of damages, was separately framed and decided, is irrelevant unless it can be
shown that failure brings the case within the purview of one of the exceptions to Section 13.

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JURISDICTION TO FOREIGN COURTS

The following circumstances would give jurisdiction to foreign courts:

1. Where the person is a subject of the foreign country in which the judgment has been obtained;

2. Where he was a resident in the foreign country when the action was commenced and the
summons was served on him;

3. Where the person in the character of plaintiff selects the foreign court as the forum for taking
action in which forum he issued later;

4. Where the party on summons voluntarily appeared; and

5. Where by an agreement, a person has contracted to submit himself to the forum in which the
judgment is obtained.

FOREIGN JUDGMENTS WHEN NOT BINDING: CIRCUMSTANCES: SEC. 13

Under Sec. 13 of the Code, a foreign judgment is conclusive and will operate as res judicata
between the parties there to accept in the cases mentioned therein. In other words, a foreign
judgment is not conclusive as to any matter directly adjudicated upon, if one of the conditions
specified in clauses (a) to (f) of section 13 is satisfied and it will then be open to a collateral
attack. Dicey rightly states:

"A foreign judgment is conclusive as to any matter thereby adjudicated upon and cannot be
impeached for any error either

(1) Of fact; or

(2) Of law"

In the following six cases, a foreign judgment shall not be conclusive:

(3) Foreign not by a competent court;

(4) Foreign judgment not on merits;

(5) Foreign judgment against international or Indian law;

(6) Foreign judgment opposed to natural justice;

(7) Foreign judgment obtained by fraud;

(8) Foreign judgment founded on a breach of Indian law.

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  Foreign Judgment Not By A Competent Court

It is a fundamental principle of law that the judgment or order passed by the court, which has no
jurisdiction, is null and void. Thus, a judgment of a foreign court to be conclusive between the
parties must be a judgment pronounced by a court of competent jurisdiction. Such judgment
must be by a court competent both by the law of state, which has constituted it and in an
international sense and it must have directly adjudicated upon the "matter" which is pleaded as
res judicata. But what is conclusive is the judgment, i.e. the final adjudication and not the reasons
for the judgment given by the foreign court.

Similarly, a court has no jurisdiction to pass a decree in respect of immovable property situated
in a foreign State.

 Foreign Judgment Not On Merits

In order to operate as res judicata, a foreign judgment must have been given on merits of the
case. A judgment is said to have been given on merits when, after taking evidence and after
applying his mind regarding the truth or falsity of the plaintiff's case, the Judge decides the case
one way or the other. Thus, when the suit is dismissed for default of appearance of the plaintiff;
or for non-production of the document by the plaintiff even before the written statement was
filed by the defendant, or where the decree was passed in consequence of default of defendant in
furnishing security, or after refusing leave to defend, such judgments are not on merits.

However, the mere fact of a decree being ex parte will not necessarily justify a finding that it was
not on merits. The real test for deciding whether the judgment has been given on merits or not is
to see whether it was merely formally passed as a matter of course, or by way of penalty for any
conduct of the defendant, or is based upon a consideration of the truth or falsity of the plaintiff's
claim, notwithstanding the fact that the evidence was led by him in the absence of the defendant.

 Foreign Judgment Against International Or Indian Law

A judgment based upon an incorrect view of international law or a refusal to recognize the law of
India where such law is applicable is not conclusive. But the mistake must be apparent on the
face of the proceedings. Thus, where in a suit instituted in England on the basis of a contract
made in India, the English court erroneously applied English law, the judgment of the court is
covered by this clause in as much as it is a general principle of Private International Law that the
rights and liabilities of the parties to a contract are governed by the place where the contract is
made (lex loci contractus).

"When a foreign judgment is founded on a jurisdiction or on a ground not recognized by Indian

law or International Law, it is a judgment which is in defiance of the law. Hence, it is not
conclusive of the matter adjudicated therein and, therefore, unenforceable in this country”.

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  Foreign Judgments Opposed To Natural Justice

It is the essence of a judgment of a court that it must be obtained after due observance on the
judicial process, i.e., the court rendering the judgment must observe the minimum requirements
of natural justice - it must be composed of impartial persons, act fairly, without bias, and in good
faith; it must give reasonable notice to the parties to the dispute and afford each party adequate
opportunity of presenting his case. A judgment, which is the result of bias or want of impartiality
on the part of a judge, will be regarded as a nullity and the trial "corum non judice".

Thus a judgment given without notice of the suit to the defendant or without affording a
reasonable opportunity of representing his case is opposed to natural justice. Similarly, a
judgment against a party not properly represented in the proceedings or where the judge was
biased is contrary to natural justice and, therefore, does not operate as res judicata.

But the expression "natural justice" in clause (d) of Section 13 relates to the irregularities in
procedure rather than to the merits of the case. A foreign judgment of a competent court,
therefore, is conclusive even if it proceeds on an erroneous view of the evidence or the law, if the
minimum requirements of the judicial process are assured; correctness of the judgment in law or
evidence is not predicated as a condition for recognition of its conclusiveness by the municipal
court. Thus, a foreign judgment is not open to attack on the ground that the law of domicile had
not been properly applied in deciding the validity of adoption or that the court disagrees with the
conclusion of the foreign court, if otherwise the principles of natural justice have been complied
with.

 Foreign Judgment Obtained By Fraud

It is a well-established principle of Private International Law that if a foreign judgment is

obtained by fraud, it will not operate as res judicata.

Lord Denning observed: “No judgment of a court, no order of a Minister, can be allowed to
stand, if it has been obtained by fraud." Cheshire rightly states: "It is firmly established that a
foreign judgment is impeachable for fraud in the sense that upon proof of fraud it cannot be
enforced by action in England." All judgments whether pronounced by domestic or foreign
courts are void if obtained by fraud, for fraud vitiates the most solemn proceeding of a court of
justice.

Explaining the nature of fraud, de Grey, C.J. stated that though a judgment would be res judicata
and not impeachable from within, it might be impeachable from without. In other words, though
it is not permissible to show that the court was "mistaken", it might be shown that it was
"misled". There is an essential distinction between mistake and trickery. The clear implication of
the distinction is that an action to set aside a judgment cannot be brought on the ground that it
has been wrongly decided, namely, that on the merits, the decision was one which should not

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have been rendered, but it can be set aside if the court was imposed upon or tricked into giving
the judgment.

The fraud may be either fraud on the part of the party invalidating a foreign judgment in whose
favor the judgment is given or fraud on the court pronouncing the judgment. Such fraud,
however, should not be merely constructive, but must be actual fraud consisting of
representations designed and intended to mislead; a mere concealment of fact is not sufficient to
avoid a foreign judgment.

 Foreign Judgment Founded On Breach Of Indian Law

Where a foreign judgment is founded on a breach of any law in force in India, it would not be
enforced in India. The rules of Private International Law cannot be adopted mechanically and
blindly. Every case, which comes before an Indian Court, must be decided in accordance with
Indian law. It is implicit that the foreign law must not offend our public policy. Thus a foreign
judgment for a gaming debt or on a claim, which is barred under the Law of Limitation in India,
is not conclusive. Similarly, a decree for divorce passed by a foreign court cannot be confirmed
by an Indian court if under the Indian law the marriage is indissoluble. It is implicit that the
foreign law and foreign judgment would not offend against our public policy.

CONCLUSION

A foreign judgement is conclusive as to any matter adjudicated upon by a competent foreign

court. Section 13 of the Code in essence enacts a rule of res judicata in relation to foreign
judgements. Hence, if a foreign judgement is delivered by a court having jurisdiction in the
matter, it would operate as res judicata. As stated above, a foreign judgement is conclusive and
will operate as res judicata between the parties and privies though not strangers. it is firmly
established that a foreign judgement can be examined from the point of view of competence but
not of errors, and such judgement is binding and would create res judicata between the same
parties or between the parties under whom they or any of them claim.