Res Judicata
Under the Code of Civil Procedure
Civil Procedure Code Series 01
Civil Procedure Code Series 01
Section 11 of The Code of Civil Procedure, 1908 deals with “Res- Judicata”.
The word “Res – Judicata” is derived from two Latin terms ‘res’ and ‘judice’.
Res means subject- matter or dispute, and
Judice means adjudicated or decided.
Thus, Res-judicata means “a matter or dispute adjudicated or decided.”
In Lal Chand Vs Radha Krishnan AIR 1977 SC court
held that: “The doctrine of res- judicata states that in the larger interest of the public all the litigation must sooner than later come to an end.”
The doctrine of res judicata is based on 3 maxims:-
- “Nemo debet bix vexari pro una et edam causa”: which means “no man shall be vexed twice for the same causa”.
- “Interest reipublicae ut sit finish litium”: which means “It is in the interest of the state to end-up litigation.”
- “Res–judicata pro veritate occiputer”: which means“a judicial decision must be respected and accepted.”
The doctrine of Res judicata is a combination of public policy and private justice as being expressed by maxim 2 & 3 maxim 1 respectively.
The bare text of section 11 under the code of civil procedure:
“No court shall try any suit or issue in which the matter directly and substantially in the issue has been directly and substantially in issue in a former suit between the same parties, or between parties whom they or any of them claim, litigating under the same title, in a court competent to try such suit or the suit in which the matter has been substantially raised, has been heard and finally decided by such court.”
Conditions to be satisfied to apply Section 11:
1) There must be 2 suits, in order to apply the principle of res-judicata. i.e., former suit and subsequent suit.
If we go by the meaning of the words the former suit means which is instituted prior and subsequent suit means a suit instituted after the former suit. But under section 11 both the terms have different meanings form the general usage.
Example: one Suit is instituted in 2006 and another suit on the
same subject matter and between the same parties are instituted in
2010. Then, in general, the 2006 suit is a former suit and 2010
the suit is the subsequent suit. But under section 11, former suit means a suit which has been firstly decided irrespective of the date when it was instituted which means if the 2010 suit was decided first then the 2010 suit is the former suit and 2006 suit is the subsequent suit.
Explanation 1 of section 11: 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.
2) The court which decided the former suit must be a court competent to try the subsequent or the suit in which such issue is subsequently raised.
The court where the former and subsequent suit is instituted must be a court competent to try both the suit. Any court which is established within the territory of India or established outside the territory by the central govt. is a competent court.
Explanation 2 of Section 11: The competency of the court must be decided irrespective of any provision as to the right of appeal from the decision of such court.
3) ‘Matter in issue’ in a former suit must be directly and subsequently in issue in a subsequent suit.
To apply this section the subject matter raised in a former suit must be directly and substantially the same (similar in all aspects) to subsequent suit because on any new findings of facts or evidence the proceeding start de novo and res judicata cannot be applied.
Matter Actually In Issue: when the matter in issue is directly and substantially in issue, it is called actual matter in issue.
Matter Constructively in Issue: When it is so clear that the party might and ought to have been made an issue as the cause of action but he had not done so shall not again be provided to make such ground at to attack or defend in a fresh suit is called constructive res- judicata.
Explanation 4 of Section 11: Any matter which it might and ought to have been made a ground for attack or defense in the former suit shall be deemed to have been a matter directly and substantially in issue in such suit.
Leading Case on Constructive Res Judicata :
State of Up Vs Nawab Hussain AIR 1969 All 466
Fact: A sub-inspector of police was dismissed from service by the DIG. He challenged his order of dismissal by filing a writ petition in High Court in the ground that he was not given a reasonable opportunity of being heard.
High Court said that the contention was dismissed which was made by the sub-inspector. Sub-inspector again filled the suit on the ground that he was appointed by the I.G.P. and DIG had no power to dismiss him.
Held: The suit was barred by the principle of constructive res- judicata.
Devilal Modi Vs sale tax Officer, AIR 1965
Fact: Devilal was a bona fide taxpayer, time made infare with him. Department passed an order against him that he didn’t pay his sales tax. Devilal appealed in the same court where he filed suit earlier then the court told that his matter is barred by the concept of res judicata.
Devilal then again filed another writ petition in the same court i.e. High Court. The court again passed the same order of assessment by taking additional ground the court dismissed the petition on the merit of the appeal.
Held: Appeal made in Supreme Court was held that petition was barred by the concept of constructive res- judicata.
4) The matter directly and substantially in issue in the subsequent suit must have been heard and finally decided by the court in the former suit.
5) The former suit must be a suit between the same parties or between parties whom they or any of them claim litigation under the same title.
6) Such parties must have been claiming litigation under the same title in the former suit.
Types of Res Judicata:
- Res Judicata ( matter actually in issue, section 11)
- Constructive Res-Judicata (Explanation 4 of Section 11)
- Deemed Res-judicata
( Explanation 5 of section 11):
- the relief claimed in the plaint which is not expressly granted by the decree, shall for the purpose of this sections, be deemed to have been refused
- Representative Res-Judicata
(Explanation 6 of Section 11):
Where a person litigates 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 purpose of this section, be deemed to claim under the person so litigating. (Public Interest Litigation).
Limitations against the principle of Res- judicata:
- Not Applicable In Criminal Matter :
In the case of Lallu Bhai Jogi Bhai Patel Vs. Union Of India, the court held that constructive res- judicata & res-judicata is only applicable in civil cases not in the criminal matter.
- If The Decree Obtained by Fraud:
In the case of Sukanta Roy Vs. Salida Nand Dask, the court held that “The principle of res – judicata is not applicable to the decree obtained by fraud and misrepresentation”
- Judgment is passed without Jurisdiction:
- Res-judicata is not applicable to Habeas Corpus Petition: American Court has taken the view that “the principle of Res –Judicata is not applicable to the writ of Habeas Corpus.” And the Indian Courts has also accepted the same.
- Res – judicata is applicable to writ petition or not?
- Yes, it is applicable. In Daryo Singh Vs. state Of U.P AIR 1962 SCR (1) 574
- held that “Res – judicata is applicable to the writ petition.”
- Res –Judicata is applicable co-plaintifff & co-defendant?
subject to the following conditions:-
- Conflict of interest between co-plaintiff or co-defendant.
- There should be an adjudication of such conflict in order to give relief claimed by the plaintiff /defendant.
- The question between co-defendant / co-plaintiff was finally decided.
- Co-defendant/ co-plaintiff were necessary party/ properly party.
List of Case related to the topic:
- Lal Chand Vs Radha Krishnan AIR 1977 SC
“ The doctrine of Res- judicata based upon the larger interest of the public all the litigation must sooner than later come to an end.”
- State of U.P. Vs. Nawab Hussain AIR 1969 All 477 the suit was barred by the principle of constructive Res-judicata.
- Devilal Modi Vs Sale Tax Officer AIR 1965
Supreme Court was held that the petition was barred by the principle of constructive Res-judicata.
- Lallu Bhai Jogi Bhai Patel Vs. Union Of India 1981 AIR 728, 1981 SCR (2) 352
- res- judicata & res-judicata is only applicable in the civil matter not in the criminal matter.
- Sukanta Roy Vs. Salida Nand Dask
- principle of res – judicata is not applicable to the decree obtained by fraud and misrepresentation”
- State of Tamil Nadu Vs. State of Kerala 2014 SC
the judgment is passed without jurisdiction then the concept of res –judicata will not be applicable.”
- Daryo Singh Vs. state Of U.P AIR 1962 SCR (1) 574
Res – judicata is applicable to the writ petition.”
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