Res Judicata

Sec 11
QUESTIONS
• What is the doctrine of res judicata? When can
this doctrine be applied? Elucidate.

• State the circumstances under which a suit is

barred by ‘res judicata’.

• Explain the doctrine of res-judicata. State its

objects and principles.

• What is Res judicata? Explain the conditions to

constitute Res Judicata.
Sec 11
• 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 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 in which
such issue has been subsequently raised.
Mind Walk
• ‘P’ sues ‘Q’ for breach of contract. The
suit is dismissed.
• A subsequent suit is filed by ‘P’ against
‘Q’ for damages for breach of the same
contract.

• Will the suit be entertained?

• The suit is barred by the doctrine of Res
Judicata.

• P’s right to claims damages from ‘Q’ for

breach of contract having been decided
in the previous suit, it becomes res
judicata, and therefore cannot be tried in
the second/subsequent suit.
RES JUDICATA
• Meaning
• In Latin it means “a matter already judged”. It is a bar on re-
litigation of cases between the same parties on the same matter.

• If A sues B for damage for breach of contract and the suit is dismissed,
a subsequent suit by A against B for damages for breach of contract
is barred.

• This is the rule of res judicata stated in its simplest form. The question
of A’s right to claim damages from B having decided in the previous suit
becomes res judicata, and it cannot, therefore, be tried in another suit.
It would be useless and vexatious to subject B to another suit for the
same cause. Moreover, public policy requires that there should be an
end to litigation. The question whether the decision is correct or
erroneous has no bearing on the question whether it operates or does
not operate as res judicata, otherwise, every decision would be
impugned as erroneous and there would be no finality.
Maxims and legal principles
• Section 11 contains the rule of conclusiveness of the
judgment which is based partly on the maxim of Roman
jurisprudence.

• “interest reipublicae ut sit finis litium” (it is in the interest

of the State that there be an end to law suits) and

• partly on the maxim “nemo debet lis vexari pro una et

eadem causa” (no man should be vexed twice over for
the same cause)

• “res judicata pro veritate occipitur” – (a judicial decision

must be accepted as correct)
Object
• The doctrine brings finality to the litigation and to
prevent a person from being dragged to court
again and again over the same matter.

• The section does not affect the jurisdiction of the

court but operates as a bar 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.
• SCOPE
• The apex Court in Satyadhyan Ghosal & Ors. v. Smt. Deorajin Debi &
Anr., AIR 1960 SC 941 explained the scope of principle of res-
judicata observing as under:

• “The principle of res judicata is based on the need of giving a

finality to judicial decisions. What it says is that once a res is 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.

• This principle of res judicata is embodied in relation to suits in S. 11 of

the Code of Civil Procedure; but even where S. 11 does not apply, the
principle of res judicata has been applied by courts for the
purpose of achieving finality in litigation. The result of this is that
the original court as well as any higher court must in any future litigation
proceed on the basis that the previous decision was correct.”
Applicability of the doctrine
• It applies to civil suits, criminal proceedings,
writs, execution proceedings etc.

• In order for the bar of res judicata to become

applicable, it must be shown that the cause of
action in both the suits is the same as well as that
the plaintiff had an opportunity to get the relief
that is now being claimed in the subsequent suit, in
the former proceeding itself.

• It bars the opening of final un-appealed

judgment on merits.
Explanations to sec 11
• Explanation I – Former suit
• ‘Former suit’ is the suit that is decided prior to the
suit in question, whether or not it was instituted prior.
• For example:
• Suit A is instituted in – 2011,
• Suit B is instituted in – 2012.
• Whichever is decided first is the ‘former suit’.

• Explanation II – Decision final

• The decision/competence of the court is taken as
final regardless of whether the right to appeal exists.
• Explanation III- Matter directly and substantially in
issue
• The ‘matter in issue’ should have been alleged by one
party and denied / admitted by the other party in the
former suit.

• It is essential that the matter must be in issue directly and

substantially in the suit under trial and not collaterally or
incidentally. The expression “collaterally or incidentally
in issue” means only ancillary to the direct and substantial
issue and refers to a matter in respect of which no relief
is claimed but which is put in issue to enable the court
to adjudicate upon the matter which is directly and
substantially in issue.

• It is only those matters which are directly and

substantially in issue that constitute res judicata and
not the matters which are in issue only collaterally or
incidentally.
• An example will make the point clear. A sues B for the rent due
for year 1975. B’s defense is that no rent is due. Here the
claim for rent is the matter in respect of which relief is
claimed. This, therefore, is a matter directly and substantially
in issue.

• But when A sues B for rent and B claims abatement of rent on

the ground that the area is less than than entered in the
lease deed and the finding of the court is that the area is
greater than that shown in the lease deed, the finding as
to the excess area in not res judicata for this was not the
matter directly and substantially in issue but only ancillary to
the direct and substantial issue, viz., whether the area is
equal to than shown in the lease or less.

• The matter directly and substantially in issue may either be

actually in issue or constructively in issue, and both the
matters constitute Res Judicata if the same were in issue in
the former suit and are also in issue in the subsequent suit.
• Explanation IV – Constructive res judicata
• An issue which ought to have been raised earlier cannot be raised by
the party in successive round of litigation. 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.

• State of U.P. vs. Nawab Hussain- a P.S.I. was dismissed from service by
the D.I.G. He challenged the said decision by filing a writ petition in the
High Court on the ground and that he was not afforded a reasonable
opportunity, but the petition was dismissed.
• He then filed a suit and raised an additional plea that he was appointed by
I.G.P. and D.I.G. was not competent to pass an order against him.

• The State contended that the suit was barred by constructive res
judicata.
• All the Courts including the High Court held against the State and the
matter was taken to Supreme Court.

• Allowing the appeal and after considering all the leading cases on the point,
the Supreme Court held that the plea was clearly barred by the
principle of constructive res judicata as such plea was within the
knowledge of the P.S.I, and it could have been taken in the writ
petition but was not taken at that time.
• Same parties
• To constitute the bar of res judicata, is that the former suit must have
been a suit between the same parties or between parties under
whom they or any of them claim. Res judicata not only affects the
parties to the suit, but his privies, i.e., persons claiming under them.

• For eg:- X files a suit against Y for declaration of ownership. Suit

dismissed. X dies

• Later Z, s/o X files a fresh suit against Y in respect of the same

property.

• Res judicata operates.

• Where the parties are different, then res judicata does not
operate.
• For eg:- A files a suit against B for arrears of rent. B contends that C is
the owner and not A. A fails to prove title and suit is dismissed.

• If A later files another suit against B and C for declaration of title, the
suit is not barred as both the suits are not the same.
• Same title (Same capacity)
• To constitute the bar of res judicata is that the parties must have
litigated under the same title in the former suit. The expression “same
title” means in the same capacity. It means that the demand should
be of the same quality in the second suit as was in the first suit.

• If a right claimed is the same in both the suits; subsequent suit is

barred, even if the subsequent suit is tried to be established on
different grounds.

• I. A sued B for possession as owner (suit dismissed)

• II. A again sues B for possession – adverse possession (here the suit is
barred)

PROBLEM QUESTION
• I. A files a suit against B for possession of property as heir of Mahant.
The suit is dismissed as he fails to prove heirship.

• II. A again files a suit against B – but in the capacity of a manager of

the Matt. Here the suit is not barred. As he has filed the second suit in
a different capacity.
• Explanation V
• If multiple reliefs are sought in the plaint, those which are
not granted expressly by the court are deemed to have
been refused. So, if the court does not make reference to
some or any relief which are claimed, the law deems them to
have been refused by the court.

• Explanation VI – Representative suit

• If one or more persons file a suit on behalf of many others, who
also have a right to file such a suit, then the decision in such a
suit will be binding upon those who file the suit, as well as all
those people on whose behalf such a suit is filed/ who are
represented by the persons who actually file the suit.

• The decision is binding on all persons on whom a right/interest

may devolve. It includes a Representative suit/PIL.
• Example: Bhopal Gas leak case – where the Indian
Government filed the case for compensation on behalf of
the victims against UCC/UCIL.
• Explanation VII – Execution
• It indicates that the doctrine of res judicata applies to
execution proceedings as well. However it is important to
note that different petitions may be filed for different reliefs.

• Eg: while a civil arrest may be sought only once, attachment of

property immovable or movable property may be sought
numerous times, since the defendant may acquire new property.
Hence Res Judicata will not apply, as in each case the property
is different.

• Explanation VIII – Court of limited jurisdiction

• It declares that Res Judicata will apply to a subsequent suit even
where the court which decided the former suit is not competent
to try the subsequent one, provided that it was competent to try
the former suit, wherein the decision was given.

• Courts of limited jurisdiction – revenue courts, land acquisition

courts etc.
• Before insertion of Explanation VIII – the position was that the
court which decided the former suit must have been competent to
decide the subsequent suit as well, and if it was not, then Res
Judicata would not apply.

• After the insertion of Explanation VIII – the current position of

law is that even if the court that decided the former suit is not
competent to decide the subsequent one, and yet there are some
common issues which arise in the subsequent suit, which the court
(being competent to do so) decided in the former suit, the doctrine
of Res judicata will operate against such issues, and the court
deciding the subsequent suit will not decide upon these issues.

• EXAMPLE: This may arise in case of pecuniary jurisdiction, the

court which decided the first suit cannot decide the second one, but
the second suit does have certain issues which were decided
in the former suit (and competently so). In such a case, the
second court shall not decide those issues that are decided by the
first court in the former suit. In such a case, res judicata will
apply not to the subsequent suit, but to those issues therein
which were decided in the former suit.
Ingredients of the doctrine/Conditions for
applicability of the doctrine

• The following conditions must be satisfied to constitute a

bar of res judicata:

• 1. The matter directly and substantially in issue in the

subsequent suit must be the same matter which was
directly and substantially in issue, either actually or
constructively, in the former suit.

• 2. The second essential condition to constitute the bar of

res judicata is that the former suit must have been a suit
between the same parties or between parties under
whom they or any of them claim. Res judicata not only
affects the parties to the suit, but his privies, i.e., persons
claiming under them.
• 3. The third essential condition to constitute the bar
of res judicata is that the parties must have litigated
under the same title in the former suit. The
expression “same title” means in the same capacity.

• 4. The fourth condition is that the court which

decided the former suit must have been a court
competent to try the subsequent suit or the suit in
which such issue is subsequently raised.

• 5. The last condition is that the matter directly and

substantially in issue in the subsequent suit must have
been heard and finally decided by the court in the
first suit. The section requires that there should be a
final decision on which the court has exercised its
judicial mind.
EXCEPTIONS
• 1. Where the judgment is obtained by way of fraud, the doctrine
of Res judicata does not apply.

• Sec 44 of the Indian Evidence Act - Fraud or collusion in

obtaining judgment, or incompetency of Court, may be
proved.—Any party to a suit or other proceeding may show that
any judgment, order or decree which is relevant under section
40, 41 or 42 and which has been proved by the adverse party,
was delivered by a Court not competent to deliver it, or was
obtained by fraud or collusion.

• In the case of Beliram and Brothers vs. Chaudari

Mohammed Afzal it was held that where a minor’s suit was
not brought by the guardian for the minor’s benefit, 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 the Indian Evidence
Act, 1872, s. 44 and does not operate as Res Judicata.
• 2. Judgment needs to be on a matter heard and
finally decided, if it is dismissed for default of
plaintiff’s appearance, non-joinder or mis-joinder of
parties etc., decision not being on merits, res
judicata does not operate.

• 3. It is not applicable to appeals – as it is considered

as a continuation of the original suit.

• 4. Res Judicata is not applicable when the litigant

has not been afforded an opportunity of being
heard and has not been afforded a full and fair
opportunity to litigate the issue.

• 5. Where he has sought leave of the court to split

his claim, Res Judicata is not applicable.
Other aspects of Res Judicata
Res Judicata between co-plaintiffs
and co-defendants
• If there is a conflict of interest between co-
plaintiffs and co-defendants which is decided in
order to give relief to the defendant/plaintiff
respectively, the matter in fact, decided, will
operate as res judicata between the co-plaintiffs or
co-defendants in the subsequent suit.

• For eg: Suit 1: A, B v/s C – a conflict between A and

B is also settled in the suit.

• Suit 2: A v/s B – res judicata is applicable as the

conflict is settled in the previous suit.
Compromise decree, withdrawal of suit and res
judicata

• Compromise
• Res judicata does not apply to consent decree as the matter
is not heard and finally decided on merits.
• But it precludes a party from challenging the compromise
decree by rule of estoppel.

• Withdrawal of suit
• Where the suit is withdrawn due to a formal defect in the
suit, for example -
• Lack of notice to government under sec 80 CPC,
• improper valuation,
• confusion about property identification,
• no cause of action in the suit etc.
• Here the suit does not operate as res judicata as it is not
adjudicated on merits. The application is to be filed to withdraw
the suit, reserving your right to file a fresh suit.

• But withdrawal would be a bar to filing of a fresh suit under

Order on IA
• Res judicata applies to various stages of the same suit
or proceeding. Where any interlocutory order decides the
controversy in part between the parties such decision
would bind the parties such decision would bind the
parties and operate as res judicata at all subsequent
stages of the suit and a court will not permit the party to
set the clock back during the pendency of the proceedings.

• Eg; Injunction, Impleading parties, maintainability of suit

etc.

• It can be challenged by way of appeal or appropriate

proceedings.
• Writs and Res judicata
• In the case of Rural Litigation And Entitlement Kendra vs. State of
Uttar Pradesh, it was held that the writ petitions filed in the
Supreme Court are not inter-party disputes and have been raised by
way of public interest litigation and the controversy before the court is
as to whether for social safety and for creating a hazardless environment
for the people to live in, mining in the area must be permitted or stopped.
Even if it is said that there was a final order, in a dispute of this type it
would be difficult to entertain the plea of Res Judicata.

The Court was of the view that leaving the question open for examination
in future would lead to unnecessary multiplicity of proceedings and would
be against the interests of the society. It is mete and proper as also in the
interest of the parties that the entire question is taken into account at this
stage. Undoubtedly, the Environment (Protection) Act, 1986 has come into
force with effect from 19 November 1986. Under this enactment, power
became vested in the Central Government to take measures to protect and
improve the environment. These writ petitions were filed as early as 1983
more than three years before the enactment came into force. The
principle of Res Judicata does not apply strictly to public interest
litigations. The procedural laws are not fully applicable to public
interest litigation cases. Where the prior public interest relates to illegal
mining, subsequent public interest litigation to protect environment is not
barred.
 In Forward Construction Co. v. Prabhat
Mandal, 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 case of Ramdas Nayak v. Union of India, the

court observed: If 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.
Can Res Judicata be waived?

• In the case of P.C. Ray and Company Private

Limited v. Union of India it was held that the
plea of res judicata may be waived by a party to
a proceeding. If a defendant does not raise
the defence of res judicata then it will be
waived. The principle of res judicata belongs to
the procedure and either party can waive the
plea of res judicata. The court can decline the
question of res judicata on the ground that
it has not been raised in the proceedings.
BUT
• A Three - Judge Bench of this Court in Ashok
Leyland Ltd. v. State of Tamil Nadu and
Anr. [(2004) 3 SCC1], held:
• The principle of res judicata is a procedural
provision. A jurisdictional question if wrongly
decided would not attract the principle of res
judicata. When an order is passed without
jurisdiction, the same becomes a nullity. When
an order is a nullity, it cannot be supported by
invoking the procedural principles like,
estoppel, waiver or res judicata."
• A.V. Papayya Sastry and Ors. v. Govt. of A.P. and
Ors. (2007) 4 SCC 221. Considering English and
Indian cases, one of us (C.K. Thakker, J.) stated:
• It is thus settled proposition of law that a
judgment, decree or order obtained by playing
fraud on the Court, Tribunal or Authority is a
nullity and non est in the eye of law. Such a
judgment, decree or order --by the first Court or by
the final Court-- has to be treated as nullity by every
Court, superior or inferior. It can be challenged
in any Court, at any time, in appeal, revision,
writ or even in collateral proceedings.
DIFFERENCE BETWEEN
RES SUBJUDICE and RES JUDICATA

RES SUBJUDICE RES JUDICATA

• SEC 10 • SEC 11
• Previous suit is still • Previous suit/issue is
pending for judicial already finally heard and
enquiry. decided.
• Subsequent suit is stayed. • Subsequent suit is barred.
• It applies to suits and • Its applies to suits and
appeals. applications. It does not
apply to an appeal as it is
considered as a
continuation of the suit.
MCQ
• 1. The term ‘Res judicata’ means–
• (a) Stay of proceeding
• (b) A matter under judgment
• (c) A matter already adjudicated
• (d) None of the above

• 2. The Doctrine of res judicata applies

to–
• (a) Changing circumstances
• (b) Static situations
• (c) Both (a) and (b) above
• (d) None of the above
• 3. Which of the following operate as
res judicata–
• A. a withdrawal of suit
• B. an exparte decree
• C. a compromise decree
• D. none of the above

• 4. The plea of res judicata –

• A. Has to be specifically raised
• B. Need not be raised specifically.
• C. It is for the court to see it on its own.
• D. Either (a) or (b)
• 5. In a suit where Res judicata is
applicable –
• A. the suit may be stayed or dismissed.
• B. the suit is stayed.
• C. the suit is dismissed.
• D. neither (a) nor (b)
Answers
•1 c
•2 b
•3 b
•4 a
•5 c