Cpc Res Judicata

DOCTRINE OF RES JUDICATA The doctrine of res judicata, also known as 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 parties, is the crux of the contents of Section 11 of the Code of Civil Procedure (CPC), 1908. It is embodied that once a court of competent jurisdiction reaches a decision with respect to a particular subject matter, no party can be permitted to reopen it in a subsequent litigation. The rationale behind this rule of imposing such a rule is due to the fact that in the absence of the same, there will be no end to litigation and the parties would be put to constant trouble, harassment and expenses.1 This doctrine has been accepted in all civilized legal systems. Dating as far back as the early Roman law, a defendant could successfully contest a suit filed by the plaintiff on a plea of ‘ex captio res judicata’, which meant that one suit and one decision is enough for a single dispute. The doctrine has been described by Spencer Bower as ‘a final judicial decision pronounced by judicial tribunal having competent jurisdiction over the cause or matter in litigation and over the parties thereto’.2 The object of this rule can be explained through the combined effect of three maxims: 

Nemo debet lis vexari pro una et eadem causa- this means that no man shold be vexed twice for the same cause;

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Interest republicae ut sit finis litium- this means that it is in the interest of the state that there should be an end to a litigation; and

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Res judicata pro veritate occipitur- this means that a judicial decision must be accepted as correct.

Thus, the doctrine of res judicata is the combined result of the public policy reflected in the three maxims, and they apply to all judicial proceedings whether civil or criminal. The Supreme Court in Lal Chand v. Radhakrishnan3 expounded the doctrine by stating that the principle is founded on justice, equity and good conscience. Once the final judgement has been announced in a lawsuit, the subsequent judges who are confronted with the 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 judgement’. Therefore, 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 judgements, so a prevailing plaintiff may not recover damages from the defendant twice for the same injury. 1

Satyadhyan Ghoshal v Deorjin Debi AIR 1960 SC 941 Takwani (Thakker), C.K. J., Civil Procedure, 5th Edition, 2004 Reprint, p. 53. 3 (1977) 2 SCC 88 2

In Pukhraj D. Jain v. G. Gopalakrishna4 it has been stated that, if the court is satisfied that subsequent suit can be decided purely on the legal point, it is open to the court to decide such suit. The provisions of Section 11 of the Code of Civil Procedure are not at all exhaustive even though it has very wide and enlarged amplitude. The section “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, then they are not competent i.e. they become barred to try the subsequent suit in which such issue has been raised. Thus, this doctrine of Res Judicata is a fundamental concept based on public policy and private interest. It is conceived in the larger public interest, which requires that every litigation must come to an end. It therefore, applies to civil suits, execution proceedings, arbitration proceedings, taxation matters, writ petitions, administrative orders, interim orders, criminal proceedings, etc. An ordinary litigation being a party or claiming under a party of a former suit cannot avoid the applicability of section 11 of C.P.C. as it is mandatory except on the ground of fraud or collusion as the case may be. The onus of proof lies on the party relying on the theory of Res Judicata. The provisions of section 11 of C.P.C. are “not directory but mandatory”. The judgment in a former suit can be avoided only by taking recourse to section 44 of the Indian Evidence Act on the ground of fraud or collusion.

CONDITIONS FOR RES JUDICATA An analysis of section 11 of the Code shows that there are certain conditions which are to be fulfilled so that the doctrine of res judicata becomes applicable in a case. Firstly, the matter 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. Second, the matter in issue in the subsequent suit must have been heard and finally decided by the court in the former suit. Third, the court which decided the former suit must be a court which is competent to try the subsequent suit. Fourth, the parties in the subsequent and former suit must be litigating under the same title. Lastly, the former suit and subsequent suit must be between the same parties or between parties under whom they or any of them claim.

4

AIR (2004) 7 SCC 251

In the case Satyadhayan v Deorajin Debi5, the Supreme Court observed that the principle of res judicata is for giving a finality to judicial decisions. What it says is that once a res is judicate, that is, once a matter is decided, it shall not be adjudged again. Primarily, it applies as between past and future litigation. When a matter, whether on a question of fact or 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. However, in the case State of Maharashtra v. National Construction Co.6, it was held that dismissal of a former suit on a technical ground of non-joinder cannot operate as res judicata. The bar applies only if the matter directly and substantially in issue in the former suit has been heard and finally decided by a court that is competent to try such a suit. In the case Susheela v. Kuttikrishnan7, it was stated by the court that a decree passed on compromise is not a decision by the court and therefore, the compromise decree does not operate as res judicata under section 11 of the Code.

EXCEPTIONS TO RES JUDICATA Other than appeals, there are a few limited exceptions to res judicata that allow a party to attack the validity of the original judgment. Popularly known as collateral attacks, these exceptions are typically based on procedural or jurisdictional issues, having as their foundational base not 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 in judicial systems with multiple jurisdictions, such as under federal governments, or when a domestic court is asked to enforce or recognize the judgment of a foreign court. Moreover, it may so happen that under certain circumstances, a subsequent court may fail to apply res judicata and render a contradictory verdict on the same claim or issue. In that situation, if a third court is faced with the same case, it is likely to give effect only to the later judgment, even though the result came out differently the second time. This situation is not unheard of, as it is typically the responsibility of the parties to the suit to bring the earlier case to the judge's attention, and the judge must decide how broadly to apply it, or whether to recognize it in the first place.

5

AIR 1960 SC 941 1996 (1) KLT SN. 16 P. 12 7 1998 (2) KLT 188 6

The provisions of section 11 of CPC are not directory but mandatory in nature. The judgment in a former suit can be avoided only by taking recourse to section 44 of the Indian Evidence Act on the ground of fraud or collusion. Nevertheless, in a suit the collusion of only one of the several defendants present is alone not enough to avoid the operation of rule of res judicata. In this context, gross negligence should be differentiated from fraud and collusion. It is not for the court to treat negligence or gross negligence as fraud or collusion unless fraud or collusion is the proper inference from facts. Other factors in exception to section 11 being present is that the plaintiff must be litigating bona fide and the fulfillment of this is necessary for the applicability of the section. The above ratio decidendi was laid down in Jallur Venkata Seshayya v. Thadviconda Koteswara Rao and Others8. This representative suit was brought by some persons on behalf of public interest for declaring certain temples public temples and for setting aside alienation of endowed property by the manager thereof. A similar suit was brought some years ago by two persons and the suit was dismissed on the grounds that the temples were private temples and the property endowed to the temple being private endowment, the alienation thereof were valid. The plaintiffs admitted that they could be deemed to be persons claiming under the plaintiffs in prior suit and the issue in both the suits was same. However, they contended that finding in the prior suit could not be res judicata as against them in as much as there was gross negligence on the part of the plaintiffs in that suit in not producing the documents necessary for the decision of the suit in their favour and in not placing their evidence before the Court. Subsequently Privy Council held that no case of fraud apart from collusion being suggested, the plaintiffs were bound to establish either that the decree in prior suit was obtained by collusion between the parties or that the litigation by the plaintiffs in prior suit was not bona fide. The plaintiffs based their case entirely on inferences to be drawn from alleged gross negligence on the part of the plaintiffs in the prior suit. The finding of gross negligence by the Trial Court was, however, far from a finding of intentional suppression of the documents, something that would have amounted to want of bona fide or collusion on the part of the plaintiffs in prior suit. The suit was subsequently barred on ground of res judicata. In Beliram & Brothers and Others v. Chaudari Mohammed Afzal and Others9, it was held that where it is established that a minor’s suit was not brought by the guardian of the minor 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

8 9

AIR 1937 PC 1 AIR 1948 PC 168

44 of the Indian Evidence Act, and does not operate res judicata. The principle of res judicata in section 11 CPC is thus modified by section 44 of the Indian Evidence Act, and the doctrine won’t apply if any of the grounds mentioned in Section 44 exists.

CONSTRUCTIVE RES JUDICATA The rule of constructive res judicata is engrafted in Explanation IV which states that 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. Here under this, a matter which might and ought to have been made ground of attack is a matter which is constructively in issue. Thus, there is no distinction between the claim that have actually made in the issue and that might and ought to have been made. It is an artificial form of res judicata and 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 matter10. The very purpose of this doctrine was to subdue cantankerous litigant which could cause harassment and hardship to the opponent by suing him repeatedly with new defences or points11. In Devilal Modi v STO12, A challenged the validity of an order of assessment under Article 226. The petition was dismissed on merits. An appeal against that order was also dismissed by SC on merits. A again filed another writ petition in the same HC against the same order of assessment by taking some additional ground. HC dismissed the petition. On appeal, SC barred the petition by the principle of constructive res judicata. In Sivathannu v Kalimmal13, property being same in both the suits, the High Court held that that where the plaintiff in the earlier suit could not establish their title, they cannot, in the second suit, claim the same property under a different title. He is barred by constructive res judicata.

C.K.Takwani ‘Civil Procedure Code’(Eastern Book Company 6 th ed) p.81 Greenhalgh v Mallard (1947) 2 AII ER 255 at p. 257 12 AIR 1965 SC 1150: (1965) 1 SCR 686 13 (1983) 2 Mad LJ 110 10 11

TEST FOR CONSTRUCTIVE RES JUDICATA As a general rule, if the matter rose as a defence would have defeated, varied, or in any way affected the decree in previous suit, it ought to have been raised14. Conversely, if the decree in the previous suit is inconsistent with a defence which ought to have been raised, that defence must be deemed to have been raised and finally decided, and is barred by res judicata. 15 Following rules can be deducted from the discussion for suits: 

Where the right claimed in both the suits is the same, the subsequent suit will be barred by res judicata, though the right in the subsequent suit is sought to be established by a title different from that in the first suit.16 In Rukmanand Khaitan v Jawala Dutt Lohia17, In a suit to recover a loan, the borrower’s prayer for granting benefits under a particular Act was refused. A fresh suit by the borrower under the Act for the same benefits is barred by res judicata. In Dhanniram v Ruttandas18, A files a suit for declaration that he is entitled to certain lands as heir to X. The suit is dismissed. He cannot, in a later suit, claim title to the properties, by adverse possession.

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If a matter which forms a ground of attack in the subsequent suit could have been alleged as a ground of defence in the former suit, but was omitted to be so alleged in that suit, it will be deemed to have been directly and substantially in issue in that suit within the meaning of Explanation IV19. In Union of India v Bilas Singh20, A contract with a firm contained an arbitration clause. The firm made an application for reference to arbitration. The other party did not take the plea that the firm had been re-constituted. The plea could not be taken later. Thus a matter not raised in the principal suit may become res judicata (constructively) in execution.

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Where the right claimed in the subsequent suit is different from that in the former suit, and it is claimed under a different title, the subsequent suit is not barred by res judicata.21 In Mohomed Ibrahim v Sheik Hamja22, A, alleging that he mortgaged certain lands to B with possession, sues B for redemption, the suit being brought by him as

14

Shib Chandra v. Lakhi Priya (1925) 29 CWN 513 Mahim v Anil Bnadhu (1909) CWN 253 16 Mulla, ‘Civil Procedure Code’ (Lexis Nexis Butterworths Wadhwa Nagpur 14th ed) 17 AIR 1985 Cal 715 18 AIR 1961 Punj 563 19 Ibid 20 AIR 1985 Punj 58 21 Supra at 18 22 (1911) ILR 35 Bom 507, 21 IC 387 15

mortgagor. The mortgage is not proved, and the suit is dismissed. A then sues B for possession of the same lands claiming them as absolute owner thereof.

EXCEPTION TO CONSTRUCTIVE RES JUDICATA: The doctrine of constructive res judicata does not apply to writ proceedings under Article 32 of the constitution. It is only the general principle of res judicata which is applied to writ petitions, but constructive res judicata, which is a special and artificial creation of res judicata, enacted by that section of the Code of Civil Procedure, cannot generally be applied to writ petitions. Therefore, where a question of law was not specifically decided in a writ petition, it cannot operate as constructive res judicata in a subsequent suit on the ground that that point must be deemed to have been raised in the petition and decided against the party who lost in those proceedings.23 Thus this doctrine cannot be applied to whittle down or override the constitutional mandate to the Supreme Court contained in Article 32.24

ANALYSIS OF RES JUDICATA Res Judicata vis-à-vis Res Sub Judice: The Doctrine of res sub judice, as enumerated in Section. 10 of CPC, deals with the stay of civil suits, providing that no court shall proceed with the trial of any suit in which the matter in issue is also directly and substantially in issue in a previously instituted suit between the same parties and that the court in which the previous suit is pending is competent to grant the relief claimed. The rationale behind both the doctrines of res judicata and res sub judice is essentially similar in nature. The former aims to curtail endless litigations and the convenience caused to the parties thereby, whereas the latter is engaged in an effort to protect a person from multiplicity of proceedings and to avoid a conflict of decisions by confining a plaintiff to one litigation and obviating the possibility of two contradictory verdicts by one and the same court in respect of the same relief. However, there are two main grounds on the basis of which, res judicata and res sub judice can be properly distinguished from each other, viz possibility of two contradictory verdicts by one and the same court in respect of the same relief. However, there are two main grounds on the basis of which, res judicata and res sub judice can be properly distinguished from each other, viz.

23 24

Union of India and Anr v Sharmanand (1972) IILLJ 423 MP Municipal Corp Ahmedabad v Jyotindra 20 Guj LR 90

(1) The former applies to a matter adjudicated upon (res judicatum), while the latter involves a matter pending trial (sub judice); and (2) The restrictions imposed by the two also differ from each other in that res judicata restricts the trial of a suit or an issue which has been decided in a former suit and res sub judice bars the trial of a suit which is pending decision in a previously instituted suit.

Res Judicata vis-à-vis Estoppel: The doctrine of estoppel and res judicata are principles that are often placed on the same plane of generality. Nevertheless, there exist certain fundamental differences between them. Estoppel is actually a part of the law of evidence. Simply speaking, it prevents a person from saying something at one time and the opposite thing at another time. Res judicata, on the other hand, precludes a person from avowing the same thing in successive litigations. No estoppel can be applied to a pure question of law and the very focal point of the operative sphere of the doctrine of res judicata is the transformation of a question of fact into a question of law. The distinguishing features of these two doctrines had best been explained in ‘Sita Ram v Amir Begam’25 , where Mahmud J. proceeded to say, “Perhaps the shortest way to describe the difference between the plea of res judicata and estoppel, is to say that while the former prohibits the court from entering into an enquiry at all as to a matter already adjudicated upon, the latter prohibits a party after the inquiry has already been entered upon, from proving anything which would contradict his own previous declaration or acts to the prejudice of another party who relying upon those declaration or acts to the prejudice of another party has altered his position. In other words, res judicata prohibits an inquiry in limine, whilst an estoppel is only a piece of evidence.”26 As far as the points of similarity between the two are concerned, a popular viewpoint exists comparing the doctrine of res judicata as mentioned in S. 11 of CPC favorably with what is known in English Common Law as estoppel by judgment. It is more a rule of convenience than one of absolute justice, the very existence of which rests upon a foundation of public interest. To serve the same interest, sometimes the rule of res judicata has to be overlooked. However, despite such similarities, there are some essential particulars separating the two principles of estoppel and res judicata, viz.

25 26

(1886) ILR 8 All 324 Ibid; vide p. 332

(a) Res judicata arises from a judicial decision, whereas estoppel is caused by the act of the parties concerned. (b) Res judicata seeks to prevent multiplicity of suits, where the object of estoppel is to bar multiplicity of representations. (c) Estoppel serves to prevent a party from making certain statements, whereas res judicata precludes an inquiry at the threshold by ousting the court’s jurisdiction to try the case. (d) Finally, while res judicata binds both the parties concerned to a litigation by making a conclusive presumption with regard to truth of the decision in the former suit, estoppel only binds the party who had made the previous statement or committed the previous action.