NAME=

MUHAMMAD AFAQ KHAN

ROLL NO=
( 26 )
SEMESTER=
7TH
DEPARTMENT=
LAW
SUBJECT =
CIVIL PROCEDURE CODE-I

ASSIGNMENT=
RES JUDICATA AND CONSTRUCTIVE RES JUDICATA
ASSIGNMENT GIVEN BY =
Dr. Muhammad Zubair
(LAW DEPARTMENT)
RESEARCH METHODOLOGY
Aims & Objectives

To do an in depth analysis of the Concept of Res Judicata and the general rule assigned to
that. The main objective of this project is to ascertain the meaning and importance of
Doctrine of Res Judicata. Also, it is to ascertain that how much it is applicable in legal areas
like Income Tax proceedings, public Interest Litigations, writ proceedings etc. Sources

of Data
The whole project is made with the use of secondary source. The following secondary
sources of data have been used in the project-
1. Books

2. Websites

Mode of Citation

The researcher has followed a uniform mode of citation throughout the course of this
research paper.

Type of Study

For this topic, the researcher has opted for Descriptive and Explanatory type of study as in
this topic, the researcher is providing the descriptions of the existing facts.

1
CONTENTS

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

HISTORY OF RES JUDICATA ......................................................................................... 4

CONCEPT OF RES JUDICATA ........................................................................................ 6

Nature of Res Judicata. .................................................................................................... 6

Scope of Res Judicata. ..................................................................................................... 7
OBJECT & IMPORTANCE OF RES JUDICATA ............................................................ 9

RES JUDICATA AS DEFINED UNDER CODE OF CIVIL PROCEDURE,

1908 11

SECTION 11 OF CPC IS MANDATORY ................................................................... 14

Exceptions to Res Judicata. ........................................................................................... 16
Constructive Res Judicata .............................................................................................. 16
APPLICABILITY OF DOCTRINE OF RES JUDICATA ............................................... 17

Res Judicata in Public Interest Litigation ...................................................................... 17

Res Judicata in Rent Controller ..................................................................................... 18
Res Judicata in Taxation Matters ................................................................................... 18
Ex parte decree as Res Judicata ..................................................................................... 19
Res Judicata in Writ Petition ......................................................................................... 19
Res Judicata in Muslim personal law ............................................................................ 20
CONCLUSION ................................................................................................................. 21

Works Cited ....................................................................................................................... 22

2
CONCEPT OF RES JUDICATA UNDER CIVIL PROCEDURE CODE

INTRODUCTION

‗Res‘ in Latin means thing and ‗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.1 It is a principle of law by which a matter which has been litigated cannot
be relitigated 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.

The term res judicata in common parlance refers to the various ways in a judgment in
which one action will have a binding effect in another. In modern terminology, these
binding effects are called ―claim preclusion2‖. It must be distinguished from the second
effect which is called ―collateral estoppel‖ or ―issue preclusion3‖. Res judicata is a
broadterm ―which encompasses both issue preclusion or claim preclusion‖. The effect of
issue preclusion is that an issue determined in a first action may not be re-agitated when
the same issue arises in a later action based on a different claim or demand.4

This doctrine is well found in the history of any legal society and thus can be taken as one
of the well established doctrine. In India, this Doctrine is being incorporated in Sec 11 of
The Civil Procedure Code. The essentials for application of this doctrine in any legal
proceeding are being discussed in the subsequent chapters. Also, the doctrine of Res
Judicata is applicable in other legal situations apart from general civil cases like Arbitration
proceeding, Income Tax proceeding, Public Interest Litigation, etc. (Takwani, 2013)

This doctrine of Res Judicata is different from doctrine of Res Sub Judice as Res judicata
is applied to bar a further suit on same subject matter between same parties whereas res

1
AIR 1983 NOC 69 (All).
2
Claim preclusion focuses on barring a suit from being brought again on a legal cause of action that has
already been finally decided between the parties.
3
Issue preclusion bars the re-litigation of factual issues that have already been necessarily determined by a
judge or jury as part of an earlier claim.
4
See 94 US 351 352-353, 24 Led. 195, 197-198 (1877) wherein the distinction between issue preclusion
and claim preclusion has been formulated by Mr. Justice Field in Crownwell v. County of Sac.

3
sub-judice is applied only to stay the subsequent suit when there is a former pending suit
on same subject matter.

HISTORY OF RES JUDICATA

"Res judicata pro veritate occipitur" 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. 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, as ‗one suit and one decision is enough for any single dispute‘.

Old Latin maxim "res judicata pro veritate accipitur" is actively enforceable in a case when
a decision has already been rendered by a Court of competent jurisdiction on a matter in
issue between same parties and decided on merit---Such issue should not be allowed to be
agitated again before Courts of law as rule of res judicata prevents any party to such suit/
proceedings which has been agitated upon by competent Court, from disputing or
questioning decision on merit in subsequent litigation.5

The rule of Res Judicata has a very ancient history. It was well understood by
Hindu lawyers and Mohammedan jurists. It was known to ancient Hindu Law as Purva
Nyaya (Former Judgement). The plea has been illustrated in the text of Katyayan thus "If a
person though at law sues again, he should be answered, you were defended formerly".
Under the Roman law, a defendant would repeal the plaintiff's claim by means of execeptio
res judicata or a plea of previous judgment. It was recognized that ―One suit and one
decision was enough for any single dispute‖ and that ―a matter once brought to trial should
not be tried accept, of course, by way of appeal‖. (Dr.T.P.Tripathi`, 2008)6

Julian defined the principle thus ―And 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 the action.‖ The doctrine has been adopted by the countries of the
European continent which had modelled their civil law on the Roman pattern. The principle
of preclusion of re-litigation, or conclusiveness of judgment, has struck deep roots in Anglo

5
P L D 2022 Sindh 378
6
PLD 2014 Sindh 209

4
American Jurisprudence and is equally well known in the Commonwealth country which
have drawn upon the rules of Common Law. (M.P.Jain, 2007)

The spirit of the doctrine of res judicata is succinctly expressed in the well
known common law maxim debet bis vexari pro una et eadem causa (no one ought to be
twice vexed for one and the same cause). The principle has been recognized in all civilized
societies. Lord Coke declared: ―it has well been said interest republicae ut sit finis litium
(interest of the state is that there should be limit of law suits), otherwise great oppression
might be done under colour and pretence of law‖. As observed by the Privy Council in
Soorojomonee v Suddanund7, the rule has been enunciated in England. 8

The doctrine had long been recognized in India even prior to enactment of the
Code of civil procedure 1859. At times, the rule worked harshly on individuals. For instants
when the former decision obviously erroneous. But its working was justified on the great
principle of public policy, which required that there must be an end to every litigation. The
basis of the doctrine of res judicata is public interest and not absolute justice. The argument
ab inconvnienti might be admissible if the meaning of statute is ambiguous or obscure, but
if the language is clear and explicit, its consequences are for the Legislature and not for the
Courts to consider. In that event, as was remarked by Coleridge, J. in Garland v Carlisie6,
"the suffering must appeal to the law-giver and not to the lawyer." (Mulla)

High Court observed that the petitioner would surrender possession to the
respondent either himself or through execution pending against him by order of the court-
-- Petitioner was under obligation to hand over the vacant possession of the suit property
(decreed property in rent petition)---Mere institution of suit was not sufficient to withhold
the execution proceedings---Revision petition was allowed, in circumstances.9

In the celebrated decision in Sheoparsan Singh v. Rammandan Singh7. Sir

Lawrence Jenkins stated, ―Though the rule of the Code may be traced to an English
source, it embodies a doctrine in no way opposed to the spirit of the law as expounded by
the Hindu Commentators‖. Thus, 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,

7
(1873) IA Supp 212 at p. 218 (PC).
8
2021 SCMR 1433
9
P L D 2021 Peshawar 98

5
slowly but steadily the other acts and statutes also started to admit the concept of Res
Judicata within its ambit.

CONCEPT OF 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.

Res judicata includes two related concepts: claim preclusion, and issue
preclusion (also called collateral estoppel), though sometimes res judicata is used more
narrowly to mean only claim preclusion. Claim preclusion focuses on barring a suit from
being brought again on a legal cause of action that has already been finally decided between
the parties. Issue preclusion bars the re-litigation of factual issues that have already been
necessarily determined by a judge or jury as part of an earlier claim. It is often difficult to
determine which, if either, of these apply to later lawsuits that are seemingly related,
because many causes of action can apply to the same factual situation and vice versa. The
scope of an earlier judgment is probably the most difficult question that judges must resolve
in applying res judicata. Sometimes merely part of a subsequent lawsuit will be affected,
such as a single claim being struck from a complaint, or a single factual issue being
removed from reconsideration in the new trial.

Nature of Res Judicata.

The Doctrine of Res Judicata strives to strike a balance between the two
largely separated poles. One pit assures an efficient judicial system that renders final
judgments with certainty and prevents the inequity of a defendant having to defend the
same claim or issue of law repeatedly. On the other hand, it protects the plaintiff's interest
in having issues and claims fully and fairly litigated.

6
 A US Supreme Court Justice explained the need for this legal precept as
follows:

―Federal courts have traditionally adhered to the related doctrines of res

judicata (claim preclusion) 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
adjudication.‖ (williamsmestaz.com, n.d.)

Rejection of plaint also provides an alternate remedy under O.VII, R.13, C.P.C.
but dismissal of suit would operate as res judicata in the same matter, between
the same parties, if cause of action remains one and the same.10

The basic point involved in the Nature of the doctrine of Res Judicata is that
the doctrine tries to bring in natural and fair justice to the parties and that too by barring the
other party to file a multiple number of suits either for justice or for harassing the other
party.

Therefore, the nature of the doctrine of Res Judicata is to enable the Courts
deliver the justice and then to dismiss or freeze the other active suits which are of the very
same nature although is at different stage. Such a role enables the Court to dismiss the
matter from its jurisdiction and also the jurisdiction of the other Courts which are at the
same level.

Scope of Res Judicata.

The Scope of Res Judicata has very well been decided in the case of Gulam
Abbas v. State of U.P.11, where the code embodies the rules of conclusiveness as evidence
or bars as a plea of an issue tried in an earlier suit founded on a plaint in which the matter

10
P L D 2021 Peshawar 98
11
(1982) 1 SCC 71 at p. 90-93.

7
is directly and substantially an issue becomes final. The scope of an earlier judgment is
probably the most difficult question that judges must resolve in applying res judicata.
Sometimes merely part of a subsequent lawsuit will be affected, such as a single claim
being struck from a complaint, or a single factual issue being removed from reconsideration
in the new trial.

The principle of Res Judicata has been held to be of wider application on the
basis of the wider principle of the finality of decision by Courts of law and a decision under
Section 12 of the U.P. Agriculturists Relief Act of 1934 was held to operate as Res Judicata
Section 11 CPC which embodies the principle of Res Judicata has been held to be not
exhaustive and even though a matter may not be directly covered by the provisions of that
section the matter may still be Res Judicata on general principles.12 The scope of the
principle of Res Judicata is not confined to what is contained in Section 11 but is of more
general application. Res Judicata could be as much applicable to different stages of the
same suit as to findings on issues in different suits.13

In Muhammad Shifa Vs Meherban Ali The Appellate Court had disregarded the
principle of res judicata/section 11 of the Code and the High Court corrected this
mistake of law, and having done so it followed that the suit filed in the year 1997 by
the respondents had to be dismissed, because the very same matter had already been
decided almost forty years earlier. Public policy also requires that disputes once finally
decided should not be reopened. 14

The principle of res judicata was considered to be applicable with regard to the Act and
leave was refused by three learned Judges of this Court; this judgment was not referred to
in the case of Muhammad Zubair. This Court had granted leave on the same point as
contended by the appellants' counsel in the case of Fatima Bibi v. Province of Punjab and
the leave granting order passed.15

12
Daryao v. State of U.P., AIR 1961 SC 1457.
13
Narayan Prabhu Venkateswara v. Narayan Prabhu Krishna, (1997) 2 SCC 181.
14
2022 S C M R 647
15
2012 SCMR 72

8
OBJECT & IMPORTANCE OF RES JUDICATA

The doctrine of res judicata is based on three maxims:

• Nemo debet bis vexari pro una et eadem causa ( no man should be punished twice
for the same cause);
• Interest reipublicae ut sit finis litium (it is in the interest of the state that there should
be an end to a litigation);
• Res judicata pro veritate occipitur (a judicial decision must be accepted as correct).

Thus, the doctrine of res judicata is the combined result of the public policy
reflected in maxims (b) and (c) and private justice expressed in the 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 persons would be involved in endless confusion
and great injustice done under the cover of law.16

As observed by Sir Lawrence Jenkins17, the rule of res judicata, while

founded on account of precedent, is dictated by a wisdom is for all times Referring to the
opinion of the Judges expressed in 1776 in the Duches of Kingston's Case14 to which
reference has been invariably made in most of the cases by the Indian courts. It was said in
that case: ―From the variety of cases relative to judgments being given in evidence in civil
suits, these two deductions seem to follow as generally true : first the judgment of a Court
of concurrent jurisdiction, directly upon the points, is as a plea, a bar, or as evidence
conclusive, between the same parties, upon the same matter, directly in question in another
Court; secondly that the judgment of a Court of exclusive jurisdiction, directly upon the
point, is, in like manner, conclusive upon the same matter, between the same parties,
coming incidentally in question in another Court, for a different purpose. But neither the
judgment of a concurrent or exclusive jurisdiction is evidence of any matter which came
collaterally in question, though within their jurisdiction, nor of any matter incidentally
cognizable, nor of any matter to be inferred by argument from the judgment.‖

In Corpus Juris18, it has been stated, ―Res Judicata is a rule of universal law

16
Daryao v. State of UP, AIR 1961 SC 1457 at p. 1462.
17
Sheoparsan Singh v. Ramnandan singh, (1915-16) 43 IA 91.
14
2 Smith's L.C. 13th edn. 644, 645.
18
vol. 34 at p. 743.

9
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.‖19

In the case of Lal Chand v. Radha Krishan17, it was said that the principle is
founded on justice, equity and good conscience. Once a final judgment has been announced
in a lawsuit, the subsequent judges who are confronted with a suit that is identical to or
substantially the same as the earlier one, they would apply the Res Judicata doctrine 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 and time
of the Judicial System.

This shows the importance of the Doctrine of Res Judicata and thus, as per
this, the same case cannot be taken up again either in the same or in the different Court of
India. This is just to prevent them from multiplying judgments, so a prevailing plaintiff
may not recover damages from the defendant twice for the same injury.

For making Res Judicata binding, several factors must be met up with:

• identity in the thing at suit;

• identity of the cause at suit;
• identity of the parties to the action;
• identity in the designation of the parties involved;
• whether the judgment was final;

• whether the parties were given full and fair opportunity to be heard on the issue.

Regarding designation of the parties involved, a person may be involved in an

action while filling a given office and may subsequently initiate the same action in a
differing capacity. In that case Res Judicata would not be available as a defense unless the
defendant could show that the differing designations were not legitimate and sufficient.

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

19
Halsbury‟s Laws of England (3rd ed.), Vol. 15 at p. 185.
17
(1977) 2 SCC 88.

10
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.

RES JUDICATA AS DEFINED UNDER CODE OF

CIVIL PROCEDURE, 1908

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. The
doctrine has been explained in the simplest possible manner by Das Gupta, J. in the case of
Satyadhan Ghosal v. Deorjin Debi20 in the following words:

―the principle of Res Judicata is based on the need of giving a finality to the
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 canvas the matter again.‖

Section 11 of the Code of Civil Procedure, 1908 defines Res Judicata as: 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.

20
AIR 1960 SC 941.

11
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.

Section 11 contains the rule of conclusiveness of the judgment which 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, competent
to try the subsequent suit in which such issue has been raised.

Here, the expression ‗matter in issue‘ means the rights litigated between the
parties, i.e., the facts on which the right is claimed and the law applicable to the
determination of that issue. The term ‗Directly‘ means directly, at once, immediately,
without intervention. The term has been used in contradistinction to ‗collaterally or
incidentally‘, and the term ‗substantially‘ means essentially, materially or in a substantial
manner. It is something short of certainty but indeed more than mere suspicion. it means
‗in effect though not in express terms‘.21 The question whether or not a matter is ‗directly
and substantially in issue‘ would depend upon whether a decision on such an issue would

21
Pandurang ramchandra v. Shantibai Ramchandra, 1989 Supp (2) SCC 627 at p. 639.

12
materially affect the decision of the suit. Also for the term ‗Former suit‘, it is not the date
on which the suit is filed that matters but the date on which the suit is decided; so that even
if the suit was filed later, it will be a former suit if it has been decided earlier.

The term ‗Party‘ means a person whose name appears on the record at the
time of the decision. Also, here, persons other than parties would include privies, persons
represented by parties, and the principle of Res Judicata would bind them too. The term
‗same title‘ means same capacity.22 Title refers to the capacity or interest of a party, that is
to say, whether he sues or is sued for himself in his own interest or for himself as
representing the interest of another or as representing the interest of others along with
himself and it has nothing to do with the particular cause of action on which he sues or is
sued. Litigating under the same title means that the demand should be of the same quality
in the second suit as was in the first suit.

The expression ‗competent to try‘ means ‗competent to try the subsequent

suit if brought at the time the first suit was brought‘.23 In other words, the relevant point of
time for deciding the question of competence of the court is the date when the former suit
was brought and not the date when the subsequent suit was filed. The section 11 requires
that there should be a final decision on which the court must have exercised its judicial
mind. In other words, the expression ‗heard and finally decided‘ means a matter on which
the court has exercised its judicial mind and has after argument and consideration came to
a decision on a contested matter. It is essential that it should have been heard and finally
decided.24

The essential ingredients of Res Judicata are to be considered while deciding

whether a particular judgment operated as res judicata or not be postulated as follows:

• Matter which was directly and substantially in issue in former suit must be directly
and substantially issue in the subsequent suit also.
• Both the former and subsequent suit should have been between the parties or
between the parties litigating under some titles.

22
Per Broomfield, J. in Mahadevappa Somappa v. Dharmappa Sanna, AIR 1942 Bom 322 at p. 326.
23
Devendra kumar v. Pramuda Kanta, AIR 1933 Cal 879.
24
Kushal Pal v. Mohan Lal, (1976) I SCC 449 at p. 456-57.

13
 • The former suit should have been decided by competent court which can try
subsequent suit also.
• Any matter, which might and ought to have been made a ground of defence or attack
in such former suit shall be deemed to have been a matter directly and substantially
in issue in each suit.

The onus of proof lies on the party relying on the theory of res judicata.

SECTION 11 OF CPC IS MANDATORY

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. 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.

In Beliram & Brothers and Others v. Chaudari Mohammed Afzal and Others25
it was held that where it is established that the 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 section 44 of the Indian Evidence Act, and does not operate res judicata. The
principle of res judicata in section 11 CPC is modified by section 44 of the Indian Evidence
Act, and the principles will not apply if any of the three grounds mentioned in Section 44
exists.

General principles cannot be applied in a way making section 11 CPC

nugatory. In Sarla Bala Devi v. Shyam Prasad Chatterjee, the Division Bench of Calcutta
High Court held: It is undoubtedly true that the principles of res judicata apply to
proceedings other than suits including proceedings in execution. It must be taken as held
by the Supreme Court that the principles of constructive res judicata are also applicable to
execution proceedings. But the conditions of applicability of the principles of res judicata
actual or constructive contained in section 11 CPC must be complied within such cases as
far as possible. It is not the law that when a court applies the principles analogous to res

25
AIR 1948 PC 168.

14
judicata that court can override the conditions specified in section 11 CPC. In this case the
majority of their Lordships of the supreme Court held that the provisions of section 11 CPC
are not exhaustive with respect to an earlier decision operating as res judicata, any previous
decision on a matter of controversy decided after full contest or after affording fair
opportunity to the parties to prove their case by a court competent to decide it will operate
as res judicata in a subsequent regular suit.

The general provisions of res judicata are wider than the provisions of section
11 CPC and also apply to cases not coming within the four corners of the section but if the
case fails within the terms of section 11 CPC conditions of the section must be strictly
complied with. The general principles of res judicata are applicable where the previous
decisions has not been given in a civil suit though a plea of res judicata is raised in a
subsequent civil suit but where both the proceedings are civil suits the general principles
of res judicata have no application and the case must be confined to the four corners of
section 11 CPC. The doctrine of res judicata is a doctrine of wide import and Section 11 of
CPC is not exhaustive of it and there is high authority for the view that the principle of res
judicata may apply apart from the limited provisions of CPC. (saurash, 2009)

A decision in order to constitute res judicata need not necessarily have been
given in a prior suit. Section 11 is not exhaustive of the circumstances in which the
principles of res judicata may be applied but when a case falls within the purview of Section
11 CPC all the requirements are to be satisfied. But if the decision is given in a summary
proceeding it does not operate as Res Judicata. Proceedings under section 84(2) Madras
Hindu Religious Endowments Act, cannot be said to be summary proceedings even though
there may be no right of appeal. The question of res judicata does not depend on the
applicability of the decision, which is put forward as constituting res judicata. That question
comes in incidentally to see if proceedings under section 84(2) is of a summary nature. The
decision of the District Judge therefore, operates as Res Judicata in a subsequent
proceedings between the same parties. (Pant, 1964)

Though Section 11 of CPC is largely modified even then it is not exhaustive.

The plea of res judicata still remains apart from the separate provisions of CPC. The
statement of doctrine of res judicata contained in Section 11 of CPC is not exhaustive and
there fore recourse may properly be had to the decisions of the English Courts for the
purpose of ascertaining the general principles governing the application of the doctrine.

15
The terms of section 11 are not to be regarded as exhaustive. The binding force of a
judgement in probate proceedings depends upon the section 11 but upon the general
principles of law. The rule of Res Judicata though may be traced to an English source it
embodies a doctrine in no way opposed commentators. The application of the rule of res
judicata therefore by the Courts in India should be included by no technical consideration
of form but by matter of substance within the limit allowed by law.

Exceptions to Res Judicata.

However, 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.

In addition, in cases involving due process, cases that appear to be Res Judicata
may be re-litigated. An instance would be the establishment of a right to counsel. People
who have had their liberty taken away (that is, imprisoned) may be allowed to be re-tried
with a counselor as a matter of fairness.

Constructive Res Judicata

The rule of direct res judicata is limited to a matter actuallu in issue alleged
by one party and denied by other either expressly or impliedly. But constructive res judicata
means that if a plea could have been taken by a party in a proceeding between him and his
opponent, and if he fails to take that plea, he cannot be allowed to relitigate the same matter
again upon that plea. In affect, the partly impliedly gives up the right to that plea by not
pleading it in the previous suit. This principle is embodied in Explanation IV of Section 11.

In the case of Kesar Das Rajan Singh v. Parma Nand Vishan Dass26, a
peculiar situation arose. In this case the plaintiff had filed a suit on the basis of a promissory
note. However, the plaintiff himself left the country and in subsequent proceedings since
he was unable to provide the promissory note to his advocate in the foreign country the suit
got dismissed. The plaintiff later on filed another suit in the local courts. The defendant

26
AIR 1959 SC 163.

16
took the plea that the present suit was barred by res judicata. The Court held that the
judgment on the previous suit since it did not touch upon the merits of the case, therefore
could not be held to be res judicata for the present suit. (legal service india, 2008)

APPLICABILITY OF DOCTRINE OF RES JUDICATA

Following conditions must be proved for giving effect to the principles of res
judicata under Section 11— (i). that the parties are same or litigating under same title, (ii).
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, (iii). that the matter in issue has
been finally decided earlier, and (iv). that the matter in issue was decided by a Court of
competent jurisdiction. (Takwani, Civil Procedure with Limitation Act, 1963)

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
application of principle of res judicata, existence of decision finally deciding a right or a
claim between parties is necessary. (Karia, 2007)

Res Judicata in Public Interest Litigation

Public Interest Litigation is not defined in any statute or in any act. It has
been interpreted by judges to consider the intent of public at large. Although, the main and
only focus of such litigation is only "Public Interest". Public interest litigation or social
action litigation is fought with the objective to make good the grievances of public at large.
In Forward Construction Co. v. Prabhat Mandal27, the Supreme Court was directly called
upon to decide the question. The apex court held that the principle would apply to public
interest litigation provided it was a bona fide litigation. In another case of Ramdas Nayak
v. Union of India28, the court observed: It is a repetitive litigation on the very same issue
coming up before the courts again and again in the grab of public interest litigation. It is
high time to put an end to the same. Explanation VI29 it cannot be disputed that Sec 11

27
AIR 1986 SC 391.
28
AIR 1995 Bom 235.
29
Explanation VI.--Where persons litigate bona fide in respect of a 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.

17
applies to public interest litigation as well it must be proved that the previous litigation was
the public interest litigation not by way of private grievance.

Res Judicata in Rent Controller

In case titled "Tahir Hussain and others v. Ilyas Ahmad and others, it was held that: -

"Such objection petition was dismissed and the said orders were maintained up to the High
Court. The issue before the Executing Court was to eject respondents Nos.30 and 31 or any
other person claiming through them and or otherwise in possession on the strength of any
transaction. No one has challenged the order of ejectment passed by the Rent Controller
and the Executing Court, in law, was bound to give effect to it and cannot entertain
objection Petitions subsequently on the issues already decided by the Rent Controller nor
could it entertain any claim of respondents to enlarge the scope of Rent proceedings.30

Res Judicata in Taxation Matters

It is said that a finding or an opinion recorded by an authority or even by a
court of law for one assessment year has no binding effect on the issues in subsequent
assessment years. Strictly speaking res judicata does not apply to income-tax proceedings.
But each assessment being a suit, what is decided in one year may not apply in the following
years but where a fundamental aspect permeating through the different assessment year has
been found as a fact one way or the other and parties have allowed that position to be
sustained by not challenging the order, it would not be all appropriate to allow the position
to be changed in a subsequent year31. In Amalgamated Coalfields Ltd. Janapadha sabha29,
the apex Court has said that each assessment year, being an independent unit, a decision
for one year may not operate as res judicata in another year.
But if a pure question of law, e.g. constitutional validity of a statute is decided, ―it may
not be easy to hold that the decision on this basic and material issue would not operate as
res judicata against the assessee for a subsequent year.‖

30
(2014 SCMR 1210)
31
Radhasaomi Satsang Saomi Bagh, Agra Messrs v. Commissioner of Income-tax, AIR 1992 SC 1721.
29
AIR 1968 SC 1013.

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Ex parte decree as Res Judicata

An ex parte decree, unless it is set aside, is a valid and enforceable decree.

However, the real test for res judicata is whether the case was decided 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.
Thus, a decree may not act as res judicata merely because it was passed ex parte.

Res Judicata in Writ Petition

It has been settled since long that the Section 11 of the Code is not applicable,
the general principle of res judicata may be made applicable in the judicial proceedings. It
is settled principle of law that general principle of res judicata applies to writ petitions.
However, a writ petition dismissed under Article 226 of the Constitution of India would
not ordinarily bar filing of writ petition under Article 32 or an special leave petition under
Art. 136.

In the leading case of Tenedos Denizcilik Ve tic. Ltd. Vs Makhambet32 the Subject claim
was a tried and adjudicated issue (within competent jurisdiction) so principle of res
judicata was applied---No legislation was enacted contrary to acceptance of such rule
except as provided in S. 11, C.P.C.---Prima facie case was not made out and suit itself
suffered under doctrine of res judicata---Suit was dismissed, in circumstances.

In the leading case of Darayao v. State of UP33, the Supreme Court has exhaustively dealt
with the question of applicability of the principle of res judicata in writ proceedings and
laid down certain principles which may be summarized thus:

1. If a petition under Article 226 is considered on merits as a contested matter and is

dismissed, the decision would continue to bind the parties unless it is otherwise
modified or reversed in appeal or other appropriate proceedings permissible under
the Constitution.

32
P L D 2022 Sindh 378
33
AIR 1961 SC 1457.

19
 2. It would not be open to a party to ignore the said judgment and move the Supreme
Court under Article 32 by an original petition made on the same facts an for
obtaining the same or similar orders or writs.
3. If the petition under Article 226 in a High Court is dismissed not on merits but
because of laches of the party applying for the writ or because it is held tha the party
had an alternative remedy available to it the dismissal of the writ petition would not
constitute a bar to a subsequent petition under Article 32.
4. Such a dismissal may, however, constitute a bar to a subsequent application under
Article 32 where and if the facts thus found by the High Court be themselves
relevant even under Article 32.

It therefore, applies to civil suits, execution proceedings, arbitration

proceedings, taxation matters, writ petitions, administrative orders, interim orders, criminal
proceedings, etc.

Res Judicata in Muslim personal law

In Muhammad Zubair v. Muhammad Sharif (2005 SCMR 1217) it was held that the
principle of res judicata is not applicable in cases of Muslim Personal Law:

'There is no cavil to the proposition of law that on the enforcement of Muslim Personal
Law (Shariat) Application Act, 1962 as amended by Act XIII of 1983, the property of last
male owner subject matter of limited interest would be deemed to have devolved upon his
legal heirs on his death, and the right of succession would not be defeated by the law of
limitation or the principle of res judicata as no law or judgment can override the law of
Sharia which is superior law.34

34
2005 SCMR 1217 Muhammad Zubair v. Muhammad Sharif

20
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 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.

Thus, the doctrine of Res Judicata enacts that once a matter is finally decided
by a competent court, no party can be permitted to reopen 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. 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 CPC as it is mandatory except on the ground of fraud or collusion as the case
may be.

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.

Therefore, Res Judicata in a nut shell is a judicial concept wherein the Courts
do not allow a petition to be filed in the same or to the other Court for the doctrine of Res
Judicata would apply and the party would not be allowed to file the petition or to continue
the petition (as the case may be).
21
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litigation-blog/what-is-the-difference-between-collateral-estoppel-and-res-
judicata/)

Dr.T.P.Tripathi`. (2008). The Code of Civil Procedure, 2nd Edition. Allahabad: Allahabad
Law Agency.

Karia, L. (2007). “Doctrine of Res-judicata”. thesis PhD.

legal service india. (2008). Retrieved from https://www.legalserviceindia.com/

M.P.Jain. (2007). The Code of Civil Procedure, 2007, 3rd Edition. Wadhwa and Company.

Muhammad Zubair v. Muhammad Shari, 1217 (SCMR 2005).

Mulla, S. D. (n.d.). The Code Of Civil Procedure, 7th Edition, Volume 1. Lexis Nexis
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Pant, T. N. (1964). The Doctrine of 'Res Judicata' ITS IMPORT IN CONSTITUTIONAL

LAW. Jstor, 313-319.

saurash. (2009). etheses. Retrieved from

http://etheses.saurashtrauniversity.edu/id/eprint/736

Takwani, C. ( 1963). Civil Procedure with Limitation Act.

Takwani, C. (2013). Civil Procedure, 7th Edition. Lucknow: Eastern Book Company.

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