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Submitted By:
Submitted To:
Samvid Shetty
Deepankar Sharma
B.P.Sc. LLB.(Hons.)
of Law
Semester III
of Civil Procedure
Mr.
Faculty
Code
TABLE OF CONTENTS
ACKNOWLEDGEMENTS.......................................................................................... 3
HISTORY OF THE DOCTRINE...................................................................................5
RATIONALE BEHIND THE DOCTRINE.......................................................................6
ESSENTIALS FOR RES JUDICATA............................................................................. 7
APPLICATION OF RES JUDICATA..............................................................................8
NON-APPLICATION OF RES JUDICATA....................................................................11
RES JUDICATA: DIFFERENCE FROM OTHER DOCTRINES.......................................12
CONCLUSION....................................................................................................... 15
BIBLIOGRAPHY..................................................................................................... 16
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ACKNOWLEDGEMENTS
Samvid Shetty.
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INTRODUCTION
Laws of every land are based on principles. These principles govern the entire realm of
jurisprudence in a country. These principles guide legislation, give legitimacy to judicial
decisions and protect the citizens of a nation. The judiciary incorporates these principles in
deciding cases and ensures conformity by the legislature and executive to such principles.
Res judicata is one such principle, whose origin cannot be sufficiently traced. It is an all
pervading concept present in all jurisdictions of the world. Res judicata is based on public
policy and has universal application. India, has adopted the principle of res judicata in S.11 of
the Code of Civil Procedure, 1908 (hereinafter referred to as C.P.C.)1.
Modern day society is filled with disputes and litigations. The courts are flooded with
frivolous, slow and cumbersome cases. The embodiment of a principle like res judicata, is but
one of necessity in our country. In order to bring finality to litigation and prevent a person
from being dragged to court again and again, res judicata is essential in any society.
Res' in Latin means thing 'Judicata' means already decided 2. 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 decision3.
It is a principle of law by which a matter which has been litigated cannot be re-litigated
between the same parties. This is known as the rule of "res judicata" (thing decided) 4.
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 parties5.
judicata bars the opening of final, un-appealed judgments on the merits, even where the
judgment may have been wrong or based on a legal principal subsequently overruled. [9]
The general principle of res judicata is embodied in its different forms in three different
Indian major statutesSection 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. Following conditions must be proved for giving effect to the principles of res
judicata under Section 1111
A. That the parties are same or litigating under same title,
B. 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,
C. That the matter in issue has been finally decided earlier.
D. That the matter in issue was decided by a Court of competent jurisdiction12.
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
14 Supra at 1, pg 70.
15 Explanation VII, Code of Civil Procedure, 1908.
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rejecting Explanation VIII imagines that judgment in a previous suit might work as Res
Judicata if the Court which chose the suit was skilled to attempt the same by goodness of its
monetary purview and the topic to attempt the consequent suit all things considered it is not
vital that the said Court may as well have had regional ward to choose the resulting suit16.
Constructive Res Judicata:
Explanation IV to Section 11 says that any matter which might or ought to have been made a
ground of defence or attack in the former suit shall be deemed to have been a matter
constructively in issue in that suit.Thus, if a matter which might and ought to have been
raised by the plaintiff in the former suit is not raised by him there he would be estopped from
raising the same question in a subsequent suit between the same parties.Similarly, where a
defendant did not raise all the objections which he might and ought to have raised in the
former litigation in controverting the plaintiffs claim, he will be barred from raising them in a
subsequent suit between the same parties.Where a matter has been actually in issue in a
former suit between the same parties, litigating under the same title, in a court competent to
try such subsequent suit, it must have been heard and decided for the purpose of constituting
res judicata but where a matter has been constructively in issue it could not from the very
nature of things be heard and decided.Nevertheless it will be deemed to have been heard and
decided against the party omitting to allege it, provided the conditions of res judicata are
complied with.
Writ Petitions and Res Judicata
In M.S.M sharma V. Dr. Shree Krishna17, , for the first time Supreme Court held that the
general principle of res judicata applies even to writ petition filed under Article 32 of the
Constitution of India. Thus, once the petition filed under Article 32 is dismissed by the court,
subsequent petition is barred.
Similarly a writ petition filed by a party under Article 226 is considered on merit as a
contested matter and is dismissed, the decision thus pronounced would continue to bind
unless it is otherwise modified or reversed in appeal or in other appropriate proceedings
permissible under the Constitution.
In the leading case of Daryao V. State of U.P18., the Supreme Court has placed the doctrine of
res Judicata 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.
Applicability of Constructive res Judicata in Writ Petition
The question arose for the first time before the Supreme Court in Amalgamated Coalfields
Ltd. V. Janapada Sabha19, , whether the concept of constructive res judicata can be applied in
writ petition or not. In Devilal Modi V. STO20, Supreme Court clarified the stand and said the
principle of constructive res judicata also applies in writ petition. A direct question, however
arose before the Supreme Court in State of U.P. V. Nawab Hussain 21, , the Court held that
principle of constructive res judicata is applicable.
It should be noted that the principle of res judicata and constructive res judicata are held not
applicable in Habeas Corpus Petition by Supreme Court in Ghulam Sarwar V. Union of
India22, and in Lallubhai V. Union of India23, respectively24.
where issues directly and substantially involved between the same parties in the previous and
subsequent suit, are the same. If it may be that in the previous suit only part of property was
involved whereas in the subsequent suit, the whole property is involved 27.If a review petition
is filed before High Court and during its pendency a special leave petition against main
judgment is also filed before Supreme Court. The SLP is dismissed without assigning any
reason. The main judgment of the High Court would not get merged with this order of the
Supreme Court. Subsequently if the review petition is dismissed by the High Court then
another SLP against this dismissal order rejecting review petition will not be barred by res
judicata.
Res judicata relates to a matter already decided, i.e. a matter on which judgment has
been pronounced, whereas res. Subjudice (laid down in Section 10) relates to matter
which the matter directly and substantially in issue has already been adjudicated upon
in a previous suit.
3. The object of res subjudice is to prevent Courts of a concurrent jurisdiction from
simultaneously entertaining and adjudicating upon two parallel litigations in: elute
causeof action, same subject-matter and same relief whereas the object of Res judicata
is that there should be an end to litigation and that no man should be vexed twice over
for the same cause28.
3. The jurisdiction of the Court is ousted by res judicata, whereas estoppel is only a rule
of evidence;
4. The plea of res judicata presupposes the truth of the decision in the former suit
whereas the rule of estoppel simply prevents a person from denying what he has once
called the truth.
The shortest way to describe the difference between the res judicata and estoppel, is to say
that while the former prohibits the Court from entering into an inquiry as to a matter already
adjudicated upon, the latter prohibits a party, after the inquiry has already been entered
upon,from providing anything which would contradict his own previous declaration or act to
the prejudice of another party, who relying upon those declarations or acts, has altered his
position. In other words, res judicata prohibits an inquiry in limine, whilst an estoppel is only
a piece of evidence.30Res Judicata creates a different kind of estoppel namely, estoppel by
accord31.
Res Judicata and Withdrawal of suits
Order 23, Rule 1 deals with withdrawal of suits. It enacts that where the plaintiff withdraws
the suit or abandons his claim without the leave of the court, he will be precluded from
instituting a fresh suit in respect of the same cause of action.
The distinction between Res Judicata and withdrawal of suits lies in the fact that while in the
former the matter is heard and finally decided between the parties, in the latter the plaintiff
himself withdraws or abandons his claim before it is adjudicated on merits32.
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
33 Supra at 7, pg 79.
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which are related to the society and people. The scope and the extent have widened with the
passage of time and the Supreme Court has elongated the areas with its judgments. Some
problems still persist but the courts and legislature are trying to deal with these problems.
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BIBLIOGRAPHY
Cases
Amalgamated Coalfields Ltd. V. Janapada Sabha AIR 1964 SC 10137
Daryao V. State of U.P AIR 1961 SC 1457.........................................................................7
Devilal Modi V. STO AIR 1965 SC 1153............................................................................7
G.N.Nayak v. Goa University, AIR 2002 SC 790..................................................................8
Ghulam Sarwar V. Union of India AIR 1967 SC 1335...........................................................7
K.Ethirajan v. Lakshmi, AIR 2003 SC 4295........................................................................8
Lallubhai V. Union of India AIR 1981 SC 728.....................................................................7
M.S.M sharma V. Dr. Shree Krishna AIR 1960 SC 1186.......................................................6
Sheodansingh v. Daryao Kunwar, AIR 1966 SC 1332...........................................................4
Sita Ram v. Amir Begum (1886) 8 ALL 324......................................................................11
State of U.P. V. Nawab Hussain AIR 1977 SC 1680..............................................................7
Statutes
Explanation VII, Code of Civil Procedure, 1908..................................................................5
Treatises
Blacks Law Dictionary, 9th ed......................................................................................... 1
C.K Takwani, Code of Civil Procedure, 7th ed. .................................................................1
Mulla, Code of Civil Procedure, 15th ed. 2012..................................................................3
Web Links
http://legalperspectives.blogspot.in/2010/03/constructive-res-judicata-law-revisited......................3
http://studentlawnotes.blogspot.in/2012/12/res-judicata.........................................................2
Articles
http://www.jiarm.com/April2014/paper12252.....................................................................6
http://www.legalservicesindia.com/article/article/res-judicata-a-brief-study................................1
http://www.legalservicesindia.com/article/article/res-sub-judice-res-judicata-and-constructive-resjudicata................................................................................................................. 7
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