CONTENTS

1. Introduction
2. Origin of the doctrine of Res Judicata
3. CPC Section 11-Res judicata
4. What is a Suit?
5. Scope of the doctrine of Res Judicata
6. Essentials of Res Judicata under Section 11 CPC
7. Exceptions to the Plea of Res Judicata
8. Associated Legal Maxims to Doctrine of Res Judicata
9. Difference between Res Sub Judice and Res Judicata

10. Case Laws

11. Conclusion

12. References
Introduction
Res Judicata is a phrase which is defined in Section 11 of the Civil Procedure
Code has been evolved from a Latin maxim, which stands that the thing has
been judged which means if an issue is brought in the court and it has already
been decided by another court, between the same parties and which has the
same cause of action then the court will dismiss the case before it as being
useless. The concept of Res Judicata has high significance both in Civil and
Criminal System.

Provision of Section 11 enacts that once a matter is finally decided by a

competent court; no party can be permitted to reopen it in subsequent
litigation. The basic objects and operation of Section 11 was rightly pointed
and observed by the Supreme Court in the case of Satyadhan Ghosal vs.
Deorajin Debi.

The Principle of Res-Judicata is based on the meet of giving finality to judicial

decisions, what it says is that once a res judicata, it shall not be adjudicated
again. Primarily, it applies as between past litigation and future litigation, on
the basis of the question of facts or the question of law- has been decided
between the 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
got dismissed, or no appeal lies, neither party will be allowed for the execution
of future suit or proceedings between the same parties to canvas the matter
again.
If we breakdown the words of Res Judicata, here the word Res means a subject
matter or dispute between the parties and the other word Judicata means
adjudged or decided or adjudicated, that is the matter is adjudicated or a
dispute is decided.

Origin of the doctrine of Res Judicata

The doctrine of the Res Judicata is one of the oldest doctrines in the history of
the world. Res judicata “is as old as the law itself”. “Res judicata pro veritate
accipitur” is the Latin maxim for the doctrine of the Res Judicata. Roots of the
doctrine of Res Judicata can be found in the various ancient legal systems.
Starting from the issue preclusion in the Germanic estoppel to the latter on the
Roman res judicata which was instigating the truth by looking into the
judgmental effect. Romanic view changes the evolution of res judicata from
issue preclusion to claim preclusion.

In the early days of England, courts were disorganized and underdeveloped

and there was no existence of concept like res judicata. But after this doctrine
of Res Judicata has been emerged in England. At the initial stages, courts in
England were using foreign analogies but after court revised and drafted their
own doctrine of the Res Judicata.

Indian Legal system adopted the doctrine of Res Judicata from the common
law. The principle of res judicata was included in Section 11 of the Civil
Procedure Code. After the Civil Procedure code, Administrative Law accepted
the applicability of the res judicata. Afterward, it was accepted by other
statutes and acts and the doctrine of res judicata started growing in the Indian
Legal System.

CPC Section 11-Res judicata

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 a 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 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 .

[Explanation VII.-- The provisions of this section shall apply to a proceeding for
the execution of a decree and references in this section to any suit, issue or
former suit shall be construed as references, respectively, to a proceeding 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 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.]

What is a Suit?
The term “suit” has not been explicitly defined in the CPC. However, Section 26
of CPC provides that every suit shall be constituted by the presentation of a
plaint or in any other manner prescribed. Order VI provides that pleading
means plaint and written statement. The particulars of the plaint are contained
in Order VII. Further, in the case of Hansraj Gupta and others v. Dehradun
Mussoorie Electric Tramway Company Ltd. the term “suit” was explained by
the Privy Council to mean a civil proceeding instituted by the presentation of a
plaint.

Scope of the doctrine of Res Judicata

The scope of the Res Judicata is not restricted to Section 11. Res Judicata is the
principle which is also applied to Administrative Law, constitutional law &
Criminals matters. It is applicable to other legislation and acts too. In the case
of the Sheoprasad Singh v. Ramnandan Prasad Singh, Sir Lawerence Jenkins
observed the rule of Res Judicata as “the rule. While finding on ancient
precedent is dictated by a wisdom which is for all time.” In the case of Daryao
vs. the State of UP, the court stated that for this rule there would be no end to
litigation and no security for any person; the rights of the person is involved in
the endless confusion and great injustice done under the cover of the law. The
doctrine of the Res Judicata is based on the Public policy and this principle is
intended not only to prevent a new decision but also to prevent a new
investigation so that the same person cannot be harassed again and again in
various suits upon the same question.

Essentials of Res Judicata under Section 11 CPC

Before granting a decree of Red Judicata following conditions should be
satisfied first:

1. There must be two suits one former (previously decided) suit and the other
subsequent suit.

2. Parties of the former and subsequent suit or the parties under whom they or
any of them claim should be the same.

3. The subject matter of the subsequent suit should be identical or related to

the Former suit either actually or constructively.
4. The case must be finally decided between the parties.

5. The former suit should be decided by the court of competent jurisdictions.

6. Parties in the former as well as in Subsequent suit must have litigated under
the same title.

It is necessary that the matter of res judicata should be raised by the party
concerned. Where the issue of res judicata was not raised by the concerned
party, nor any such issue was framed by the trial court, but the appellate court
suo motto invoked the principle of res judicata, this was held to be not proper.

Unless the issue of res judicata is raised by the parties, the court has no
jurisdiction to answer the issue of res judicata.

Matter in issue:

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. Such issue may be an issue of fact, issue of law or
mixed issue of law and fact.

A matter directly and substantially in issue in a former suit will operate as res
judicata in a subsequent suit. The term directly has been used in
contradistinction to collaterally or incidentally. A fact cannot be said to be
directly in issue if the judgment stands whether that fact exists or does not
exist. No hard and fast rule can be laid down as to when a matter can be said
to be directly in issue and it depends upon the facts and circumstances of each
case.

A matter directly and substantially in issue may be so either actually or

constructively. According to Explanation III, a matter is actually in issue when it
is alleged by one party and denied or admitted by the other expressly or
impliedly. As per Explanation IV, it is constructively in issue when it might or
ought to have been made a ground of attack or defence in the former suit. The
word might presuppose the party affected had knowledge of the ground of
attack or defence at the time of the previous suit. Ought to compel the party to
take such grounds. The word and is to be read conjunctively. Unless it is
proved that the matter might and ought to have been raised in the previous
litigation, there is no constructive res judicata.

A party is bound to bring forward his whole case in respect of the matter in
issue and cannot abstain from relying upon or giving up any ground which is in
controversy and for consideration before a Court and afterwards make it a
cause of action for a fresh suit. Constructive res judicata is an artificial form of
res judicata. It provides that if a plea could have been taken by a party in a
proceeding between him and his opponent, he should not be permitted to take
that plea against the same party in a subsequent proceeding with reference to
the same subject matter.

In the case of Workmen v. Board of Trustees, Cochin Port Trust, the Supreme
The court observed that the principle of res judicata comes into play when by
the judgment and order a decision of a particular issue is implicit in it, i.e., it
must be deemed to have been necessarily decided by implication, then also
the principle of res judicata on that issue is directly applicable.

Former Suit: Explanation 1:

Section 11 provides that no the court shall try any suit or issue in which the
matter has been directly and substantially in issue in a former suit between the
same parties and has been heard and finally decided. 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 a suit was filed later, it will be a former suit within the meaning of
Explanation I if it has been decided earlier.

2. Same parties:

The second condition of res judicata is that the former suit must have been a
suit between the same parties or between the parties under whom they or any
of them claim. This condition recognises the general principle of law that
judgments and decrees bind the parties and privies. Therefore, when the
parties in the subsequent suit are different from the former suit, there is no res
judicata.

Parties under whom they or any of them claim:

The doctrine of res judicata operates not only against parties but their privies
also, i.e., persons claiming under the parties to the decision. The object
underlying this doctrine is that if a proceeding originally instituted is proper,
the decision given therein is binding on all persons on whom a right or interest
may devolve.

Representative Suit: Explanation VI

Explanation VI to Section 11 deals with representative suits, i.e. suits instituted

by or against a person in his representative, as distinguished from individual
capacity. It provides that where persons litigate bonafide in respect of a public
right or of a private right claimed in common for themselves and others, and
all persons interested in such right shall, for the purposes of Section 11, be
deemed to claim under the persons so litigating.

3. Same title:

The third condition of res judicata is that the parties to the subsequent suit
must have litigated under the same title as in the former suit. The same title
means the same capacity. It refers to the capacity or interest of a party, i.e.,
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.

As held in Ram Gobinda v. Bhaktabala, the test for res judicata is the identity of
title in the two litigations and not the identity of the subject matter involved in
the two cases. The crucial test for determining whether the parties are
litigating in a suit under the same title as in the previous suit is of the capacity
in which they sued or were sued. The term same title has nothing to do either
with the cause of action or with the subject matter of 2 suits.

4. Competent court:

The fourth condition of res judicata is that the court which decided the former
suit must have been a court competent to try the subsequent suit. Thus, the
decision in a previous suit by a court, not competent to try the subsequent
suit, will not operate as res judicata. The principle behind this condition is that
the decision of the Court of limited jurisdiction ought not to be final and
binding on a court of unlimited jurisdiction.

The expression competent to try means competent to try the subsequent suit
if brought at the time the first suit was brought. 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.

Right of Appeal: Explanation II

Explanation II to Section 11 makes it clear that for the purpose of res judicata
the competence of the Court shall be determined irrespective of any provision
as to a right of appeal from the decision of such Court. The question of
whether there is a bar of res judicata does not depend on the existence of a
right of appeal but on the question whether the same issue, under the
circumstances mentioned in Section 11, has been heard and finally decided.

5. Heard & finally decided:

The fifth and final condition of res judicata is that the matter directly and
substantially in issue in the subsequent suit must have been heard and finally
decided by a court in the former suit. The expression heard and finally decided
means a matter on which Court has exercised its judicial mind and has after
argument and consideration come to a decision on a contested matter. A
matter can be said to have been heard and finally decided notwithstanding
that the former suit was disposed of ex parte; or by failure to produce
evidence (Order 17 Rule 3); or by a decree on an award; or by oath tendered
under the Indian Oaths Act, 1873.

In order that a matter maybe said to have been heard and finally decided, the
decision in the former suit must have been on merits. Thus, if the former suit
was dismissed by a court for the want of jurisdiction, or for default of plaintiffs
appearance, or on the ground of misjoinder or non-joinder of parties, or on the
ground that the suit was not properly framed, or that it was premature, or that
there was a technical defect, the decision not being on merits, would not
operate as res judicata in a subsequent suit
Exceptions to the Plea of Res Judicata
1. Judgment in original suit obtained by the fraud – if a court thinks that the
judgment of former suit is obtained by the fraud, then the doctrine of the res
judicata is not applied.

2. When previous SLP is dismissed – When special leave petition is dismissed

without adjudication or decision then res judicata should not be applied. For
obtaining Doctrine of Res Judicata, the formal suit should be decided finally by
the competent court.

3. A different cause of action – Section 11 will not be applied when there is a

different cause of action in the subsequent suits. The court cannot bar a
subsequent suit if it contains the different cause of action.

4. When there is Interlocutory Order – Interlocutory order is the interim order,

decree or sentence passed by the court. A principle of the Res Judicata will be
not applied when an interlocutory order is passed on the former suit. It is
because in Interlocutory order immediate relief is given to the parties and it
can be altered by subsequent application and there is no finality of the
decision.

5. Waiver of a decree of Res Judicata – Decree of Res Judicata is a plea in the

bar which party must waive. If a party did not raise the plea of res judicata
then the matter will be decided against him. It is the duty of an opposite party
to make the court aware about the adjudication of matter in former suit. If a
party fails to do so, the matter is decided against him.

6. Court not competent to decide – When the former suit is decided by the
court who has no jurisdiction to decide the matter then the doctrine of res
judicata is not applied to the subsequent suit.

7. When there is a change in Law – When there is a change in the law and new
laws bring new rights to the parties then such rights are not barred by Section
11.

Associated Legal Maxims to Doctrine of Res Judicata

It would be right to say that the Doctrine of Res Judicata primarily takes
inspiration from three legal maxims. Nemo Debet Lis Vexari Pro Eadem Causa
is the legal maxim that can be associated with this doctrine. According to this
maxim, a person must not be vexed annoyed, harassed or vexed twice for the
same cause. The second legal maxim is Interest Republicae Ut Sin Finis Litium,
meaning, it is in the interest of the state to put a stop to litigation. Lastly, Re
judicata pro veritate occipital, meaning, the decision of the court of law must
be adjudged as true.

In cases where the former judgement is not sound or erroneous, this doctrine
can work against the injured party to the former suit. Nonetheless, we must
keep in mind that the Doctrine of Res Judicata tries to secure public interest
and upholds the principle of public policy. Hence, leaving very little scope for
absolute justice. Where one of the parties feels like the judgement is not
sound, they have the option to appeal the respective court of appeal.

Difference between Res Sub Judice and Res Judicata

The sections dealing with Res Sub Judice and Res Judicata are section 10 and
section 11 respectively. The former is applicable to the proceedings pending in
the court, while the latter is applicable to matters already adjudicated upon.
The doctrine of Res Sub Judice bars two parallel suits between the same
parties, i.e., it bars the trial of a suit in which the matter is pending for decision
in the previous suit. One the other hand Doctrine of Res Judicata stops the
second trial of the same dispute between the same parties.

Constructive Res Judicata

Constructive Res Judicata is referred to as an artificial form of res judicata. It

can be said that it is reflected in Explanation IV of Section 11 of the Civil
Procedure Code. If a party fails to raise a plea in the previous suit in spite of
having an opportunity to do the same, then they are barred from raising the
same plea in the subsequent suit, as they may still be bound by this doctrine.

Case Laws
Daryao v. State of UP, AIR 1961 SC 1457
In this case, the Apex Court placed this doctrine on a higher footing,
considering and treating the binding character of the judgments pronounced
by competent courts as an essential part of the rule of law.

Amalgamated Coalfields Ltd. & Anr. v. Janapada Sabha Chhindwara & Ors., AIR
1964 SC 1013

The court held that the general principle of doctrine of res judicata applies to
writ petitions filed under Article 32 and 226. Further, the court ensured that
the application of this doctrine to the petitions filed under Article 32, does not
in any way impair the fundamental rights guaranteed to the citizens. It only
seeks to regulate the manner in which the said rights could be successfully
asserted and vindicated in courts of law.

State of Karnataka v. All India Manufacturers Organisation & Ors., AIR 2006 SC
1846

In this case, it was held that the doctrine of Res Judicata would be applicable to
a Public Interest Litigation, provided the earlier case was a genuine and a bona
fide litigation as the judgement in the earlier case would be a judgement in
rem.

Conclusion
Res Judicata is the concept which is prevalent in all the Jurisdictions of the
world. The doctrine of Res Judicata has become one of an important part of
Indian Legal System. Section 11 of Civil Procedure Court, 1908 states that
court can apply Res Judicata when he thinks that matter is already decided by
the former suit. This doctrine is not only applied to the Civil courts but also to
the administrative law and other legislation in India. The principle of finality on
which plea of res judicata lies is the matter of public policy. The doctrine of Res
Judicata is to prevent multiple judgments and protects the rights of the other
party by restricting the plaintiff to recover the damages twice from the
defendant on the same injury.

References
www.blogipleaders.com

www.latestlaws.com

www.legalservicesindia.com

CK TAKWANI 7th Edition CPC