A Restatement of the Law of Res

Judicata in India
Brajesh Ranjan1

Table of Contents
1 INTRODUCTION ............................................................................................................................................. 1

2 THE STATUTORY LAW OF RES JUDICATA IN INDIA AS CONTAINED IN SECTION 11 OF THE CPC ...................... 3

2.1 BACKGROUND ..................................................................................................................................................3

2.2 RES JUDICATA IN INDIAN STATUTES FROM 1802 -1908 ...........................................................................................4
2.3 IMPORTANT FEATURES OF THE CURRENT STATUTORY LAW..........................................................................................7
2.3.1 Identity of issues: ..................................................................................................................................... 7
2.3.2 Competence of court ................................................................................................................................9
2.3.3 In a suit ................................................................................................................................................11

3 GENERAL LAW ............................................................................................................................................. 12

3.1 EXISTENCE OF GENERAL LAW INDEPENDENT OF STATUTORY LAW ...............................................................................12

3.1.1 General Law of res-judicata applicable to non-suits ..............................................................................13
3.1.2 General law of res-judicata applicable where former court was incompetent to try the subsequent suit
15
3.1.3 Consent/Compromise Decrees ...............................................................................................................15
3.2 WHAT IS THE GENERAL LAW? ............................................................................................................................17
3.3 WHERE ONLY SECTION 11 APPLIES: EXCLUSIVE APPLICATION OF STATUTORY LAW.........................................................19

4 CONCLUSION: .............................................................................................................................................. 21

1 Brajesh Ranjan teaches procedural laws at the Jindal Global Law School, Sonipat, India. This paper has grown out of

and builds on impressions gathered during courses taught by the author between 2013-2016. The author wishes to
express his gratitude to his colleagues and students at JGLS in conversations with whom this paper took shape. In
particular he would like to thank Prof. Prashant Iyengar for valuable assistance rendered in sharpening the arguments
presented here.

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Brajesh Ranjan DRAFT:Restatement of Res Judicata July 2016

Abstract

The law of res judicata is a universal principle of law which requires that matters judicially
determined must not be re-litigated. In India, this law is embodied in section 11 of the Code of
Civil Procedure, 1908. However, the Indian courts have also resorted to what they call a
general law to affect res judicata when the statutory law is inapplicable. This paper employs
two approaches to study the development of the law of res judicata in India: legislative and
interpretational. It begins with a brief narration of the historical background to the statutory
law. It then picks up three distinctive features of the statutory law to analyze how the content
of the general law of res judicata, created and developed through judicial interpretations,
compares to that of the textual law. Next, the paper maps the terminologies that Indian courts
use for articulating this general law onto those used by the statute for defining the statutory
law. Through a comparison of the vocabularies of the two laws, the paper shows the
operating requirements of the general law. The paper then discusses the scope of application of
general law by looking at the situations in which courts have invoked it. By studying the
general law in contrast to the statutory law, the paper argues thus: (a) the general law neither
answers to the common law of res judicata nor suffers the limitations of the statutory law. (b)
This court-created general law is the law of res judicata reduced to its bare essentials which
makes it applicable in almost all situations even in situation where the statutory law is the
controlling law (c) with its unfettered scope; the general law appears to have taken away the
exclusivity of the statutory law. The paper then concludes by restating the principle clause of
statutory law to bring it in conformity with the law of res judicata, as it stands today in India.

1 Introduction
It is a universal principle of law that a judicial decision given by a competent court must not be
re-litigated once it becomes final.2 In most legal systems, this principle is given effect to by a
doctrine called res judicata, a thing [already] adjudicated. 3 The doctrine bars courts from
admitting suits on causes of action or issues which have already been previously adjudicated
upon. In India, there are in fact not one but two instantiations of the principle of res judicata
operating simultaneously. The statutory law of res judicata is contained in Section 11 the Code of

2 Supreme Court Employees v. Union Of India, AIR 1990 SC 334

3 Blacks Law Dictionary, 8th Edition, p.1337

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Brajesh Ranjan DRAFT:Restatement of Res Judicata July 2016

Civil Procedure,1908.4 However, in situations where Section 11 has no operation, courts have
applied what they have termed the general law of res judicata.5

This paper provides a brief overview of both the statutory law and the general law of res judicata
in India. My interest lies in mapping the ways in which the court-created general law has, over
the span of more than a century, virtually overridden the text of the statutory law. Towards that
end, this paper does not attempt to exhaustively detail the various minutiae of the law of res
judicata merely to highlight areas where courts have applied the general law in situations
where the statute was found unavailing.

Based on my survey of case law on the topic, I advance the following two arguments: (a) that the
statutory law of res judicata has been greatly diminished in its importance with the gradual
expansion of the general law and (b) that in the name of applying the general law of res judicata,
courts have in fact assumed virtually unlimited powers to reshape the law.

This paper is divided into two parts followed by a conclusion.

In Part I of this paper, I discuss the history and the key features of the statutory law of res
judicata contained in Section 11 of the Civil Procedure Code 1908. Although Section 11 is an
extremely complex, multi-faceted section, I focus attention on only three of its key features:
identity of issues, competence of courts and the restrictive application of S.11 to suits. These
topics have been selected both owing to their importance to the operation of Section 11, as well
as their utility in contrasting ways in which court-created General law of res judicata has
overridden them.

In Part II, I shift to a discussion of the general law of res judicata. Beginning with a brief
account of its genesis in Indian courts, I describe several key features of the ways in which it has
been applied and changed over the past 150 years. In particular I focus on ways in which in
crafting this general law of res judicata, courts have both borrowed from Section 11, but also,
importantly, conveniently overridden it where it was found inconvenient. Illustratively, like

4 Kunjan Nair v. Narayanan Nair, (2004) 3 SCC 277

5The rule of res judicata laid down under Section 11 of the Civil Procedure Code is not the fountain head of the
doctrine of res judicata. See, Standard Chartered Bank vs Andhra Bank,(2006) 6 SCC 94. Section 11 merely gives
statutory recognition only to an aspect of the principles of res judicata. See, Vora Gulambhai v. The State Of Gujarat:
(1968) 9 GLR 340. It is an error to regard all questions of res judicata as being governed by Section 11 of the C.P.C.
See, George Henry Hook v. Administrator-General of Bengal, A.I.R. 1921 P.C. 11. The rule of res judicata in s. 11 is not
exhaustive of the principles of res judicata and any previous decision entered after full contest by a competent court
operates as res judicata under the general principles of res judicata. See, Gulabchand Chhotalal v. State of Gujarat,
AIR 1956 SC 1153. Also see, The Commissioner, Hindu Religious and Charitable Endowments v. Vaithinatha
Gurukkal (1974 )1MLJ 406

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Section 11, the general law of res judicata requires identical issues to have arisen, however where
section 11 only applies restrictively to suits, the general law applies even when either or neither
of the judicial proceeding under consideration is a suit.

In the concluding part of this paper, I draw on the material presented in the preceding sections
to make some observations about the career of the general law in India. I end by providing a
draft of what an amended Section 11 might look like if it factored in the general law.

2 The statutory law of res judicata in India as contained in Section 11 of

the CPC

2.1 Background
Various authors agree that the rule of res judicata traces its origins to Roman law.6 However,
one of the earliest articulations within the common law of the rule of res judicata appears to
have been the case of the Duchess of Kingston in 1776.7 In deciding the case Sir William de Grey,
C.J. laid down the following oft-quoted principle:

"the judgment of a court of concurrent jurisdiction, directly upon the point, is, as
a plea, a bar, or as evidence, conclusive between the same parties, upon the same
matter, directly in question in another court.

As is evident, on its own terms, this paragraph is fairly wide in its scope. However, within legal
theory, the law of res judicata came to be divided into two distinct aspects: a) Bar by (former)
judgment and (b) Conclusiveness of judgment or bar by verdict.8

6 The res judicata doctrine bears close resemblance to the exceptio rei judicatae, the Roman law plea of former
judgment . See, (Von Moschzisker, 1929, p. 1). Also see, (Developments in the Law: Res Judicata, 1952, p. 820). Also
see, (Steakley & Howell, 1974, p. 355), Maghraj Calla vs Kajodi Mal : AIR 1994 Raj 11
7 (1776) 20 Howell's State Trials 355. See also, Maghraj Calla vs Kajodi Mal : AIR 1994 Raj 11. The durability of the

principles which makes Duchess of Kingston case, a foundational one on law of res judicata has been succinctly put by
one author thus: for one hundred and nineteen years they have stood the test, and been copied with approval by
every supreme court in the English speaking world, and by every author who has treated upon the subject. See, Res
Judicata: A Treatise on the Former Law of Adjudication, Vol. 1, 1895, John M. Van Fleet, The Bowen-Merrill
Company. One Indian decision of 1875 states that the general law was in fact precisely stated in the case of Gregory v.
Molesworth (1747) 3 Atk. 626 and this ratio was followed in a long line of cases leading up to the case of Duchess of
Kingston. See, Krishna Behari Roy v. Bunwari Lal Roy (1875-76) 1 Cal. 144.
8 Traditionally, the first aspect is known as the rule of merger or bar and the second aspect is known as the rule of

collateral estoppel. See, James and Hazard, Civil Procedure, Little, Brown & Company 2nd ed., p. 532. Also see,
(Steakley & Howell, 1974, p. 356). For a more detailed understanding of the use of the terms merger and bar See
(Austin Wakeman Scott, 1942, p. 2) and (Alex H. McGlinchey, 1965, p. n.2 at p.73)

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As per the rule of bar by judgment, the judgment in any action extinguishes that cause of action
so that no subsequent suit may be founded upon it. The accent here is on the identity of causes
of action.

The rule of bar by verdict states that when an issue has been decided, such decision are
conclusive. The parties are barred by the verdict to re-agitate the same issue subsequent suit.
According to this rule, the identity of issues, not the identity of causes of action would be
determinative.

At the risk of oversimplification, the following scenario illustrates the difference between the
two principles:

A and B are involved in an automobile accident in which both cars are damaged and A suffers
bodily injuries. A sues B for damages based on personal injury and does not succeed because
the court comes to the determination that there was contributory negligence on her part. A
cannot subsequently sue B again for personal injuries due to the res-judicata principle of bar by
judgment. Furthermore, if B ever sued A for compensation for damages to his car, the
determination of contributory negligence in the previous suit would be binding in this
subsequent suit as well due to the principle of bar by verdict. In other words, although the
causes of action in both suits are different, the conclusive determination of any issue between
parties in any suit would be binding in any subsequent suit between the same parties in which
the same issue arose.

2.2 Res Judicata in Indian statutes from 1802 -1908

Due to reasons that are difficult to state with any accuracy, the former rule the rule of bar by
judgment came to be incorporated into Indian law. Madras Regulation II of 1802 simply laid
down the following rule:

When a second suit may be instituted for the same cause of action, such second
suit should be dismissed with costs to be paid by the Plaintiff. (emphasis added)

Despite seemingly referring only to the rule of bar by judgment, by 1850, Indian courts had
begun to apply this provision to incorporate both causes of action and issues. Thus writing in
1850, Macpherson formulated the rule of res judicata in the following terms: 9

9WILLIAM MACPHERSON, THE PROCEDURE OF THE CIVIL COURTS OF THE EAST INDIA COMPANY: IN THE PRESIDENCY OF FORT
WILLIAM, IN REGULAR SUITS 40 (1850).

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A Civil Court cannot entertain any cause which from the production of a former
decree, or of the records of the Court, shall appear to have been heard and
determined by any former Judge, or by any superintendent of a Court having
competent jurisdiction; or even one, which under the rules against the splitting of
claims, ought to have been included in a previous suit.

Macpherson continues to explain that:

A cause may fairly be considered to have been heard and determined before, if
the subject matter of the former suit was the same; the parties, or at least the
parties really and effectively interested, the same; the issue the same; if the
proceedings were taken for the same purpose; the jurisdiction competent; and if
the claim, which is sought to be enforced, has been directly adjudicated upon in a
former suit by a decree or order, declaring or recognizing a right, or negativing it
by the dismissal of a plaint.10

It is clear from this explanation that the conception of res judicata prevalent in the Indian legal
system till 1850 included both bar by judgment and bar by verdict.

This settled position was altered significantly in 1859 by the enactment of the first Civil
Procedure Code. Section 2 of the Code of 1859 stated:

The civil courts shall not take cognizance of any suit brought on a cause of
action which shall have been heard and determined by a court of competent
jurisdiction, in a former suit, between the same parties or between parties under
whom they claim

As is evident, Section 2 of the 1859 Code only enacted into law one element of the rule of res
judicata bar by judgment.11 Very soon after the enactment of the code, the absence of the other
component of res judicata bar by verdict began to be felt by the judiciary.

Several cases arose after 1859 in which although the causes of action were distinct, the issues
had already been heard and determined by a previous court. In such cases, Section 2 would have

10 Id. at 41.
11 A Treatise on the Law of Res Judicata, Hukm Chand, William Clowes & Sons, London, 1894. P. 7

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required them to re-hear the same issues. However, in several cases, courts avoided this
outcome by holding that notwithstanding the restrictive language of Section 2, a general law of
res judicata in India still applied which included bar by verdict.

In 1877, under direction of the Law Commission12, the Code of Civil Procedure was substantially
altered and re-enacted in India. The principle of res judicata was substantially reformulated and
re-numbered as Section 13 of the new Code. A key member of the Law Commission, Whitley
Stokes, describes the language of Section 13 as having been founded on Livingstons famous
Code of Evidence for the State of Louisiana.13 The principal clause of the section read as follows14:

No court shall try any suit or issues in which the matter, directly and
substantially in issue, has been heard and finally decided by a Court of competent
jurisdiction, in a former suit between the same parties, or between parties under
whom they or any of them claim, litigating under the same title

Manifestly, this wording was significantly different from the language of the 1859 Code.
Importantly, the vocabulary of cause of action was dropped and in its place the accent was on
suits or issues which had been previously decided. In other words, the 1879 Code had succeeded
in merging both the bar by judgment and the bar by verdict conceptions of res judicata.15

Another important change made to the law in 1882 was the insertion of an express requirement
that for a judgment to be res judicata it must have concurrent jurisdiction with the subsequent
court.16

In the two decades following its enactment Section 13 of the 1877 Code was modified a few times.
In 1908, the CPC was comprehensively restructured and re-enacted into its present form as the
Code of Civil Procedure Code 1908. The language of Section 13 of the 1879 Code was retained in
toto in Section 11 of the new Code of 1908, the principal section of which reads as follows:

12 LAW COMMISSION OF INDIA, THE CODE OF CIVIL PROCEDURE, 1908 2 (1964), http://lawcommissionofindia.nic.in/1-
50/Report27.pdf (last visited July 12, 2016).
13 A Treatise on the Law of Res Judicata, Hukm Chand, William Clowes & Sons, London, 1894. P. 14.
14 An important feature of the new law under Code of 1877 was the addition of several explanatory paragraphs to

section 13 which dealt with several important accessories to res judicata including the concept of constructive res
judicata (Explanation IV). Since they are not germane to the argument advanced in this paper, I do not discuss them
in detail here.
15 A Treatise on the Law of Res Judicata, Hukm Chand, William Clowes & Sons, London, 1894. P. 14. See also,

Lutfunnissa vs Jamaitunnissa,(1885) ILR 7 All 606

16 The 1882 Code amended Section 13. It replaced the term competent court in Section 13 of the 1877 Code with

court of jurisdiction competent to try such subsequent suit. The amendment was a legislative recognition of the view
expressed by courts that the former court must be competent to try the subsequent suit for res judicata to apply. See,
Mussumat Edun v. Mussumat Bechun, 8 Suth. W.R. 175, Misir Raghobar Dial v. Sheobaksh Singh, I.L.R. 9 Cal. 439,
Run Bahadur Singh v. Luchoo Koer, [1885] 11 Cal. 301

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11. Res judicata No Court shall try any suit or issue17 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.

The highlighted portions of the section above constitute its key features and will be elaborated
upon further in the sections that follow.

2.3 Important features of the current statutory law

As indicated above, there are three important features of S. 11 that I would like to discuss in this
paper viz. identity of issues (including issues not directly, but constructively in issue),
competence of courts and the restriction of the applicability of the section to suits. These
features have been chosen both because of their intrinsic importance, as well for their utility in
comparison with the general law developed by courts, discussed in Part II of this paper. Other
features not discussed here have been treated as non-distinctive or non-relevant under the scope
of this paper.18

2.3.1 Identity of issues:

For res judicata to operate it is essential that the issues in the prior suit and the subsequent suit
must be identical. Identity of issues has been regarded as the essence of the statutory law..19

Two issues are identical if they are directly and substantially in controversy in former and
subsequent suits.20 The Code states that an issue arises when a material proposition of fact or
law is alleged by one party and denied by the other.21

17 In this paper suit refers to suit or an issue in a suit.

18 Other essential features of statutory law: that parties must be litigating in the same capacity; that matter must be
directly and substantially in issue in the controversy; that issues must be between the same parties.
19 Abdul Gani v. Nabendra Kishore Roy : AIR 1930 Cal 47, Pahlwan Singh v. Risal Singh, [1882] 4 All. 55, Courts have

also held that it is the identity of title of parties in previous and subsequent suit which determines the applicability of
principles of res judicata. See: AIR 1971 SC 664, 1959 BLJR 594, AIR 1960 PAT 36, AIR 1961 PUNJ 229
20 AIR 1999 SC 1823. Whether a matter is directly and substantially in issue depends upon whether adjudication of

that issue would have material effect the decision of the suit. See: AIR 1965 SC 948
21 Order XIV Rule 1, Code of Civil Procedure, 1908. In the case of Lonankutty vs Thomman, 1976 AIR 1645 , the

Supreme Court observed that: it is not enough to constitute a matter res judicata that it was in issue in the former
suit. It is further necessary that it must have been in issue directly and substantially. And a matter cannot be said to
have been "directly and substantially" in issue in a suit unless it was alleged by one party and denied or admitted,
either expressly or by necessary implication, by the other

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If the issues are different, then the decision in the previous suit is not given res judicata effect.
Such decision would not be binding on parties in a subsequent suit.

The case of Lonankutty v. Thomman22 illustrates this aspect of the statutory law. In this case, A
filed a suit against B in which an issue arose whether A had a right to use water from Bs land.
The court held that A had no such right. In a subsequent suit filed by B against A, the question
again arose whether A could use water from Bs land. B argued that the question had been
decided in the previous case between A and B. Hence A is bound by the decision and cannot
state that he has a right to use of water from Bs land. The court observed that the issue in the
previous suit and that suit was identical and hence the court was barred by law of res judicata
from trying that issue.

But what if a party does not bring out all the issues in the previous suit? When an issue which a
party could have raised in the previous suit is also at issue in a subsequent suit, would that affect
her case? Can that party take the defense that res judicata would not apply to bar the litigation
on that issue as it was not litigated previously? The answer to these questions is in the
affirmative. What law of res judicata bars actively it also bars constructively.

2.3.1.1 Constructive res judicata

In some cases, the law of res judicata also prohibits litigation on issues that had not been
directly litigated upon in a prior suit. This bar on trial of such issues is effectuated by an
explanation to Section 11 which states as follows:

Explanation IV.Any matter which might 23 and ought 24 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.

Put simply, the explanation states that if a party could and should have brought up an issue in
previous suit, then she must have brought it up. The court will not give any litigant another
chance at hearing on those issues in a subsequent suit. This concept is known as constructive
res judicata.

An illustration of the above concept is as follows:

22 AIR 1976 SC 1645

23 The word might presupposes that that the party affected had knowledge of the ground of attack and defense at the
time of previous suit. See, Fakir v. Ekkari , (1938) 42 C.W.N. 560
24 If raising the issue in subsequent suit would defeat, vary or affect the decree passed in the previous suit such an

issue is deemed to be one which ought to have been raised. See, Sarojini Debya v. Lakhi Priya Guha, AIR 1925 Cal
427

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In this case A filed a suit against B in 1937 in which it was held that B was the proprietor of a
certain business. In 1943, A filed another suit against B for a declaration that A and B were
partners in the business as per a partnership agreement entered by and between A and B in 1935.
B argued that the decision of the previous court holding that B was a proprietor was binding on
A. The court observed that in the previous suit, A ought to have disclosed the existence of
partnership agreement as it was directly and substantially material to the decision in that case.
Hence the court held that A claim that B was not the proprietor of the business was barred by
res judicata.25

As stated previously, for the rule of res judicata to operate, the issues in previous and
subsequent suits must be identical. The question that begs an answer then would be this: how
could an issue in a subsequent suit be identical to one in previous suit if the one in previous suit
was never raised? Answering this question would tell us the how constructive res judicata
operates and what the purpose of this concept is.

Constructive res judicata completes the law of res judicata by plugging gaps in the latter.
Without constructive res judicata, the rule of res judicata could be easily circumvented. In
absence of this concept, all that a litigant would need would be to not disclose to the court, the
entire range of issues arising in that suit. A litigant could store part of issues only to litigate them
at a later point of time. This would defeat the policy goals behind the law.26

2.3.2 Competence of court

For a decision of a court to apply as res judicata it must have been issued by a court that was
competent to decide the case. This means that the court must have the authority (i.e.
jurisdiction) over subject matter of the suit or issue in a suit. Commonly, jurisdiction of courts
could be limited either by a pecuniary limit (some courts can only try suits up to a certain
monetary value), territorially (most courts can try a suit that arises only within a particular
geographic area) or by subject matter (some courts can only try suits pertaining to a particular
subject, e.g. Insolvency Courts, Family Courts). For a judgment to apply as res judicata, firstly,
the decision in the previous suit must have been rendered by a court which had pecuniary27 and

25 Behari Lal vs Ram Swarup, AIR 1949 All 265. For another illustration on this point see, Sardani Vidya Wanti Kaur.
v. Sardar Shahdev Singh, A.I.R. (25) 1938 Lah. 139.
26 Devilal Modi v. Sales Tax Officer, AIR 1965 SC 1150
27 It must be noted here that lack of pecuniary jurisdiction in a former case is no longer regarded as invalidating its

res-judicata effect after Section 21 of the Code was amended in 1976. However, even before 1976, courts had begun to
apply the general law of res judicata to ignore pecuniary incompetence. It is in order to highlight this aspect
(discussed more fully in later sections of this paper) that I have opted to retain a discussion of pecuniary jurisdiction
in this section.

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subject matter jurisdiction to try that suit.28Secondly, the previous court must also have had
the jurisdiction to try and determine the subsequent suit i.e. the two courts must have
concurrent jurisdiction.29

Below are two illustrations of the concurrence of pecuniary and subject matter jurisdiction
respectively.

2.3.2.1 Concurrence of Pecuniary Jurisdiction:

A filed a suit against B in the year 1941 in which it was held that a certain sale deed was invalid.
Subsequently, in 1955, B filed a suit against A where the validity of same sale deed was in issue.
A stated that the decision of the previous court that the sale was invalid, was binding on B. The
court observed that the previous court had a limited pecuniary jurisdiction of Rs. 5000.
However, the subsequent suit was valued at Rs. 11,001. Thus the Court held that since the
previous court had no pecuniary jurisdiction to try the subsequent suit, its decision would not be
binding as res judicata in the subsequent suit. 30

2.3.2.2 Subject matter jurisdiction

A filed a civil suit against B in 1940 in which it was held that B was not an adopted son of J. In
1957 B filed a suit against A claiming possession of the certain property on the basis of being an
adopted son of J. A argued that the decision of the previous court on adoption of B was res
judicata. The court held that in 1940, the civil courts were barred by law from hearing adoption
cases against Inamdars (Bs community). Thus the court held that since previous court lacked
subject matter jurisdiction, its decision would not operate as res judicata and that B was allowed
raise the same issue again. 31

As is clear from the illustrations above, Section 11 places heavy emphasis on this double
competency of courts. In subsequent sections of this paper we will witness how this rule has

28 Onkar Lal v. Rewa Puri: AIR 2000 Raj 228. The pecuniary jurisdiction is no longer regarded as essential to the
validity of the case. The change was effected by insertion of clause 2 to section 21 of the Code
29 The present Section 11 that the former court must be competent to try the subsequent suit. As stated earlier, this

was not a condition for application statutory law of res judicata as contained in the 1877 Code. The condition was
inserted when the Code of 1882 was enacted. See: Shah Premchand v. Shah Danmal, AIR 1954 Raj 4. Also see:
Gulabchand Chhotalal Parikh v. State of Bombay.
30 Pandurang Mahadeo Kavade v. Annaji Balwant Bokil :AIR 1971 SC 2228. The bar of pecuniary jurisdiction is not a

case of inherent lack now. See: (1978) 1 AnWR 440 OR (1978) 1 APLJ 63: "the decision of a Court shall not be
reversed purely on technical grounds like lack of territorial or pecuniary jurisdiction unless it has resulted in failure of
justice and the objection to the lack of jurisdiction was taken at the earliest possible time" as cited in Kohday
Engineering Ltd. v. Bharat Dynamics Ltd, 1993 (2) ALT 432
31 Surajbai W/O Kaluram v. Sadashiv Jugal Kishore :AIR 1958 MP 100

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been significantly relaxed by the general law. For the present we turn to the third element of
Section 11 that I wish to discuss in this paper the requirement that Section 11 only operates
between two suits.

2.3.3 In a suit
Section 11 of the CPC has been held to be applicable only between two suits. Both the prior
decision, and the subsequent proceeding in which the prior decision is sought to be used must
be suits32

For example, in a probate proceeding, A contended that the will of the deceased was forged and
that A was the next reversion to the estate of the deceased. This claim was rejected. A
subsequently filed a suit for a declaration that A was the next reversioner to the estate of the
deceased and that the probate should be revoked. B argued that the decision in the probate
proceedings would operate against A as res judicata. The court observed that Section 11 would
apply to give res judicata effect the decision in probate proceedings as the proceedings could not
be termed as suit. 33

Section 11 is also inapplicable between different stages of the same suit. As for example, a
decision on defendants application to condone non-appearance for good cause would not be
res judicata in an application filed by him at a later stage to set aside ex-parte decree. In the
latter proceeding, the defendant can raise the question of existence of such good cause. Section
11 would not be applicable to such cases, despite the issues being identical as they do not arise in
the successive suits.34

The broad inference that flows from this discussion is that S. 11 is not applicable to non-suit.

What is a non-suit? A swift response would be that a non-suit would be any proceeding which is
not a suit. This begs the question of what a suit is.

The term suit has not been defined in the Code. However, Section 26 of the Code stipulates that
Every suit shall be instituted by the presentation of a plaint.35

Thus a working definition of suit could be a proceeding initiated by a plaint.36 From this it
would follow that all those proceedings that do not require filing of plaint for their initiation are
not suits.37 It is in this sense that this paper uses the somewhat awkward phrase non-suit.

32 L. Janakirama Iyer v. P.M. Nilakanta Iyer : AIR 1962 SC 633

33 Sheoparsan Singh v. Ramnandan :AIR 1916 PC 78
34 Arjun Singh v. Mohindra Kumar : AIR 1964 SC 993
35 Section 26, Code of Civil Procedure, 1908

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Examples of non-suit proceedings would be writ proceedings, election petitions38, proceedings

before industrial tribunals; Bar Council of India; administration courts, land tribunals etc.

So what happens to the decisions in non-suits? Can a party litigate the same matters endlessly if
his action is not a suit? Additionally, what if the previous court lacked the competence to try the
subsequent suit or proceeding? Would this render the doctrine of res judicata inapplicable? In
situations such as these, Indian courts have not been constrained by the language of Section 11.
They have applied what they have called the general law of res judicata to such situations. In
the next Part we look closely at the genesis and key elements of this court-created general law
of res judicata.

3 General Law
From the discussion in the previous Part, it is evident that although Section 11 was framed in
fairly wide terms, it still contained several limitations. It is in the context of these limitations
that courts in India, rather than being constrained by the language of Section 11, nevertheless
applied res judicata by taking recourse to what they termed the general law of res judicata. In
the sections that follow, we briefly examine the context in which the courts began and continue
to apply the general law of res judicata. We then undertake an examination of the key features
of this general law to see how it relates to the language of Section 11.

3.1 Existence of general law independent of statutory law

The case of Soorjomonee Dabee v. Sudddnund Mahapatur39 decided in 1872 seems to have
been the first case to have recognized the existence of general principles of res judicata apart
from that contained in the Code of Civil Procedure. Recall that Section 2 the Code of 1859 had
only codified one aspect of the law of res judicata bar by judgment. In terms of this provision,
res judicata would only apply where the cause of action in two suits was the same. It would not
apply where the causes of action in two suits were different, but the same issue had already been
previously adjudicated upon. In order to get around this defect in the rule, the Judicial

36 Case on suit definition. Also Deemed Suits

37 Mention needs to be made here of proceedings that are treated as suits despite not having been initiated by a plaint.
Certain laws in India contain deeming provisions that declare certain proceedings to be suits even when they have
been initiated by applications Examples of deemed plaints or suits would include an application to sue as indigent
person, probate proceedings initiated by an application under Section 295 of the Indian Succession Act, proceedings
instituted under Section 276 of the Indian Succession Act seeking to assert an alleged will et cetera
38 K. Kamaraja Nadar vs Kunju Thevar, AIR 1958 SC 687
39 (1872) I.A. Supp. 212, (12 B. L. R. 304).

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Committee of the House of Lords took recourse to what it called a general law of res judicata
that, in its view, would serve as a supplement to Section 2. The court held:

"[Section 2]would by no means prevent the operation of the general law relating
to res judicata founded on the principle, nemo debet bis vexari pro eadem causa
[A man shall not be vexed twice for the same cause]."

It is noteworthy that the court does not in this case spell out any elements of this general law of
res judicata. Specifically, it does not tell us if this general law refers to principles of res judicata
that were a part of English common law, or Indian common law prior to 1859. This
indeterminacy proved to be of great utility to courts. This newly discovered (or invented) general
law was applied with enthusiasm by several courts in India between 1872 and 1877 (when, as
noted above, the CPC was re-enacted to specifically include bar by verdict). Although this
widening of the statutory law of res judicata in 1877 ought to have ended the reference by courts
to the general law, in fact this did not happen. Over the span of the next century, at every
instance where the statutory text was found limiting, the courts resurrected the general law as a
way around the problem.

Over the past 150 years, there have been at least three important legal occasions when this
general law was applied by courts to circumvent the rigors of Section 11:

a) To make res judicata applicable to non-suits and to different stages within a suit;
b) To get around the requirement of double competency;
c) To make res judicata applicable to consent decrees;

In the sections that follow, we briefly survey the extension of the general law in these two
situations.

3.1.1 General Law of res-judicata applicable to non-suits

As noted earlier, under section 11, a decision can only be applied as res judicata if it was
rendered in a suit. Also, such a decision has a res judicata effect only if the subsequent
proceeding is a suit as well.

Against this clear statutory position, courts have invoked the general law of res judicata in inter
alia, the following situations:

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1. In situations where both prior and subsequent proceedings are non-suits, general law is
applied to effect res judicata.40
2. Where the former action is a suit, its decision applies as res judicata on a subsequent
action in a non-suit proceeding under the general principles of res judicata. 41
3. Where the former action is a non-suit but subsequent action is a suit. 42

In addition, the general law of res judicata appears even to have done away with the requirement
of two suits a previous and a subsequent suit. The general law has been held applicable to
situations where within the same suit, parties have sought to re-agitate issues that had been
settled at an earlier stage of that same suit. A plain reading of section 11 would not bar such a re-
agitation of issues within the same suit. The existence of two suits is essential to Section 11 since
it requires a former suit and subsequent suit. 43 However, the courts in such cases have
invoked the general law of res judicata. The case of Ram Kirpal Sukul v. Mussumat Rup Kuari
illustrates this point.44

In this case, during the execution of the trial court decree, the executing court decided that the
decree awarded mesne profit. This decision was not appealed. At a later stage of the same
execution proceeding when the party tried to re-agitate the issue whether the decree awarded
mesne profits, the court held that a decision which has become final and hence conclusive
cannot be reopened at a later stage of the same proceeding. The court justified its application of
res judicata to this situation by holding that the purpose of the law would otherwise be
defeated.45

However, the application of Section 11 also turns upon the competence of the court. Even when
both proceedings are suits, section 11 may not apply if the former court was incompetent to try
the later suit. Simply stating that general law applies in non-suit proceedings is not helpful.
Such description may lead us to take a simplistic view of the applicability of the general law that
where the prior and the subsequent proceedings are non-suit, general law applies. This take on
general law would not tell us whether the former decision in a suit loses its res judicata quotient
if the subsequent proceeding is non-suit. It would also not tell us whether decisions in non-suit
proceedings can be pleaded to set up res judicata defense in a suit? And it also does not inform

40 Jodhan v. Board of Revenue: AIR 1967 All 442

41 Manzurul Haq v. Hakim Mohsin Ali: AIR 1970 All 604
42 Gulabchand Chhotalal Parikh v. State of Bombay :AIR 1965 SC 1153
43 A question at issues between parties, one heard and finally decided, does not binds the parties at subsequent stages

of same suit, under section 11. ILR 48 Cal 499; Narhari v. Shankar AIR 1953 SC 419
44 (1883) L.R. 11 I.A. 37 . See also, N. R. Ghose Alias Nikhil Ranjan v. The State Of West Bengal: AIR 1960 SC 239
45 George Henry Hook v. The Administrator-General of Bengal: AIR 1921 PC 11

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us whether a decision in a suit by a court not competent to try the subsequent suit would still
have res judicata application in other proceedings?

3.1.2 General law of res-judicata applicable where former court was incompetent to try the
subsequent suit
As mentioned previously, under section 11, the decision of a court is res judicata in a subsequent
proceeding if two conditions are satisfied:

a) The former court has subject matter jurisdiction to try the subsequent suit
b) The former court had the pecuniary jurisdiction to try the subsequent suit.

This is commonly referred to as the rule of double competence.

Notwithstanding this statutory position, a decision from a court which suffers from the defect on
both the above counts can still operate as res judicata under the general principles of law. All
that is required is that that the former court had the jurisdiction to try that previous case.46

Once, the above criterion of competency is met, the decision of the court acquires the force of res
judicata through the general rule. Such a decision would bar the relitigation of issues in a
subsequent proceeding.47

Thus, even though a prior decision in a suit may not be binding under section 11 because the
previous court was incompetent to try the later suit (for want of pecuniary or subject matter
jurisdiction) , the same decision could be applied to suit under the general law of res judicata. As
a corollary to the above logic, the decision in suits can also bind the parties in subsequent non-
suit proceedings through the general law48. Again, this would not be possible through the rule of
res judicata of section 11 which applies only between two suits.49

3.1.3 Consent/Compromise Decrees

Section 11 of the CPC requires a suit to have been heard and decided by a court in order to
apply as res judicata in a subsequent suit. However, not all cases conclude with a decision
following full blown adjudication. In many cases, a suit may be brought to an end by a
compromise entered into between the parties which may be formalized into a consent decree. A

46 Maghraj Calla vs Kajodi Mal : AIR 1994 Raj 11

47 Lala Jageshwar Prasad vs Shyam Behari Lal, AIR 1967 All 125
48 case
49 case

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question that has arisen frequently in this context is whether such consent decrees can operate
as res judicata in subsequent suits between the same parties.

As the 144th Report of the Law Commission in 1994 notes, courts in India have vacillated over
whether Section 11 would apply in such situations. The High Courts of Bombay, 50 Delhi, 51
Guwahati,52 Rajasthan53 and Sind54 have expressed the view that Section 11 would not apply to
consent decrees. On the other hand, in a few instances the High Courts of Bombay55, Calcutta56
and Punjab57 have held that Section 11 would apply. The Supreme Court had itself wavered
between the two positions between 1954 to 1991. In this context, the Law Commission expressed
the need for legislative intervention in the area and recommended the insertion of a new
Explanation to the section which would clarify that consent decrees would also have a res
judicata effect.58 No such amendment to Section 11 has however been introduced.

In parallel to these developments however, a line of judicial reasoning had already developed
which held that consent decrees would operate as res judicata under Section 11. Perhaps the
clearest articulation of this position is to be found in Chintaharan Ghose v. Gujaraddi Sheik59
where the court held that a compromise decree would be applicable as res judicata in a
subsequent suit though not by virtue of rule of res judicata as introduced by Section 11, Civil P.
C. but on general principles of res judicata.

As recently as in 2008, the Supreme Court in Raghunandan v Ali Hussain Sabir60 was able to
assume, on the strength of a submission by counsel, that consent decree operates as estoppel
by judgment, [upon] the general principles of res judicata.

The general law of res judicata appears therefore to have filled a legislative vacuum and thus
rendered legislative intervention unnecessary.

Despite these various departures from the statutory text of Section 11, to what extent does the
general law mimic Section 11? We take this question up in the next section.

50 Minalal v. Kharsetji, (1906) 8 BomLR 296

51 Manohar v. Naraindass, AIR 1987 Del 226
52 Uphras Lapasam v. Ka Esiboll, AIR 1986 Gau 55
53 Bhanwarlal v. Raja Babu , AIR 1970 Raj 104
54 Ratanchand v. Anandrai. AIR 1933 Sind 53
55 Bhai Shankar v. Morarji, lLR (1912) 36 Bombay 283
56 Krishna v. Dhanpati, AIR I957 Calcutta. 59
57 Naidermal v. Uger Sain , AIR 1966 Punjab 509
58 LAW COMMISSION OF INDIA, CONFLICTING JUDICIAL DECISIONS PERTAINING TO THE CODE OF CIVIL PROCEDURE, 1908 6

(1992), http://lawcommissionofindia.nic.in/101-169/Report144.pdf (last visited Jul 16, 2016).

59 AIR 1951 Cal 456
60 (2008) 13 SCC 102

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3.2 What is the general law?

What are the key elements of the general law of res judicata? Due to its very nature, as judge
made law, the general law of res judicata is incapable of any definitive statement. However, the
main features of this law may be discerned inductively, through a comparative reading of
various cases in which it has been invoked.

Given below are excerpts from five cases in which I have emphasised what I regard as the key
vocabularies through which the general law operates:

What is essential for raising the plea of res judicata, on general principle, is that
there must be a judicial determination of issue in controversy with a final
decision thereon; in an earlier proceedings between the same parties. It is only
such a decision pronounced by a court or tribunal, of competent jurisdiction, is
binding between the parties, on the issues which directly and substantially in
controversy before the court or the tribunal, of competent jurisdiction and is
sought to be raised again in a subsequent proceedings" 61

For the purpose of the application of the general principles of res judicata a
particular matter should have been directly and substantially in issue in former
proceedings so as to bar the reconsideration of the same matter in subsequent
proceedings62

In fact, general principles of res judicata also require that the earlier decision
be between the same parties. A decision not inter parties cannot, even on general
principles of res judicata, operate as res judicata in a subsequent suit 63

When a plea of res judicata is founded on general principles of law, all that is
necessary to establish is that the Court that heard and decided the former case

61 Maghraj Calla vs Kajodi Mal: AIR 1994 Raj 11. The court also stated thus: The another well settled facet of
applicability of general principle of res; judicata, which is not restrictive in the scope I of its operation by the technical
rules circumscribing the applicability of the provisions of Section 11, C.P.C., is that subject matter of grant of reliefs or
the nature of proceedings, in two proceedings need not be same, that is to say, even if the subject matter and the relief
sought are not the same, yet if there is a final decision on an issue, arising in the former proceedings, and the same
issue arises in the subsequent proceedings, may be as an ancilliary of main relief, which was not the subject-matter of
earlier proceedings; still, the findings on issue in the former proceeding will operate as res judicata, so far as the
decision on that particular issue is concerned in the subsequent proceedings. The principle was succinctly expressed
in Duchess of Kingstone case
62 The Commissioner, Hindu Religious and Charitable Endowments v. Vaithinatha Gurukkal and Ors: (1974) 1 MLJ

406
63 Gulabchand Chhotalal Parikh v. State of Bombay: AIR 1965 SC 1153

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was a Court of competent jurisdiction. It does not seem necessary in such cases
to further prove that it has jurisdiction to hear the later suit."64

the decision of such competent court on the concerned issues must operate as a
bar to any subsequent agitation of the same issues between the same parties on
general principles of res judicata.65

As is evident from the excerpts above, the general rule of res judicata is framed through several
technical terms viz. matter in issue, directly and substantially, same parties, same title,
competent and heard and decided. These terms quite manifestly adopt the language contained
in Section 11 and indicate the extent to which, even as they have crafted a parallel law, courts
have been mindful of the vocabulary of S. 11.

This is particularly evident in the way in which courts have had no difficulty in holding
constructive res judicata to be a component of the general law of res judicata.

As mentioned earlier, Section 11 applies res judicata to even issues which ought to have been
raised in a previous suit. This does not flow from the language of the principal clause of Section
11, but was specifically made possible through the insertion of Explanation VI to Section 11.

Interestingly, this rather exceptional concept of constructive res judicata was quite comfortably
stated to always have been an element of the general law of res judicata. The case of K.V.
George v. Secretary To Govt66, illustrates the application of this principle to general law. In this
case A initiated an arbitration against B in 1980 which got decided in As favour. In the same
year, A initiated another arbitration before the same arbitrator for certain other claims. B
argued that A ought to have raised those claims in the first arbitration. Hence A was bound by
the decision of first arbitration. The court held that A was barred from raising those issues in the
second arbitration under the principle of constructive res judicata.

Clearly, from the foregoing discussion, it is evident that the general law of res judicata is a
parallel law which contains all of the features of Section 11 with some extensions. If the general
law is so widely encompassing, why do courts even need to use Section 11? Are there any

64 Raj Lakshmi Dasi v. Banamali Sen : AIR 1953 SC 33, 1953 SCR 154
65 C. Arumughathan vs S. Muthusami Naidu: (1991) 2 MLJ 538
66 AIR 1990 SC 53. Constructive res judicata is also applicable to arbitration proceedings and arbitration awards. See,

Talchar Coalfields Ltd. vs Central Coalfields Ltd, AIR 1978 Cal 449. For application of constructive res judicata to
other non-suit proceedings see, AIR 1986 MP 248, 1985 PatLJ 856, AIR 1975 SC 202

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situations then, where courts would refrain from using the general law? In the final section of
this part, we examine this question.

3.3 Where only section 11 applies: Exclusive application of statutory law

From the discussion in this section so far, it appears clear that courts in India have largely had a
free rein when applying the general law to situations not covered by Section 11. However,
curiously, they have also simultaneously exhibited great restraint in invoking the general law
where the facts are prima facie within the four corners of Section 11.

Thus courts have held that where both previous and the subsequent actions are suits, it is only
section 11 that must be applied, and not the general law.67 In situations that are covered by
section 11, it has been held that the court cannot travel beyond the law and apply general
principles instead as the Code must be treated as exhaustive on the matters with respect to
which it declares the law.68 This type of restrain appears to occur however, primarily in suits
where a prior suit between different parties was sought to be given res judicata effect.

The case of Jujjuvarapu Kotamma v. Pappala Simhachalam69 illustrates this point. In this case,
A filed a suit against B. In the suit it was held that C passed no title of suit property to B as the
will bequeathing the property to C was invalid.. C then filed a suit against A. In the suit she
claimed possession of the same property on the basis of the same will. B argued that the
previous court had already decided that Cs will was invalid and hence it would operate at res
judicata on Cs claim under general law of res judicata. The court held that the decision in the
previous suit would not bar Cs claim. Court stated that though the situation was covered under
section 11, since C was not a party to the previous suit between A and B, she would not be bound
by the decree of the previous suit. The court negatived the contention of the defendants that
since section 11 could not be applied, the case must be decided on the basis of general principles
of law which is wider than section 11. The court observed thus:

It is well settled that where a case does fall within in the terms of Section 11 C.
P. C. the conditions laid down therein must be strictly complied with. If the
conditions prescribed therein under which the decision in a suit can be res
judicata are not satisfied it is not permissible to resort to general principles of res
judicata.

67 Mt. Bachint Kaur v. Karam Chand,A.I.R. 1948 Lahore 195

68Gokul Mandar v. Pudmanund Singh :([1902] 29 Cal. 707
69 AIR 1969 AP 76

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As is evident from this cases, and cases of its kind, where a new party files a suit, courts would
not invoke previous decisions as res judicata even if similar issues had already been determined.
Clearly general principles cannot be extended that far. However, in cases where the parties in a
subsequent suit are not entirely new, but are merely recombination of the litigants in a prior
suit as for example where co-defendants in one suit, subsequently sue each other courts
have been willing to relax the language of Section 11 to give res judicata effect to the prior
decision.

The problem arises since the essence of the term parties in section 11 is essentially
adversarial.70 Hence it would be counterintuitive to imagine that res judicata would apply to
parties arrayed on the same side in a suit.71

However, the courts have expanded the definition of the term between same parties to include
not only parties situated opposite to each other but to also include parties arrayed on same side
in a suit.72

The case of Ahmad Ali v. Najabat Khan73 illustrates this point. In this case A filed a suit against
B & C in which it was held that C had no title over the property. B then filed a suit against C for
declaration of title to the same property. C argued that the question of title had been decided in
the previous case and hence it would operate as res judicata. B argued that the question on title
was not res judicata as in the previous suit B & C were arrayed on the same side. The court held
that res judicata applies even if parties are arrayed on the same side. The court held that a
previous suit in which the parties to the subsequent suit were co-defendants cannot ordinarily
be regarded as a suit between the same parties. However quoting from an 1896 case74, the court
stated thus:

"where an adjudication between the defendants is necessary to give the

appropriate relief to the plaintiff there must be such an adjudication, and in such
a case the adjudication will be res judicata between the defendants as well as
between the plaintiff and defendants. But for this effect to arise there must be a
conflict of interest amongst the defendants and a judgment defining the real rights

70 Mt. Bachint Kaur v. Karam Chand: AIR 1948 Lah 195

71Jujjuvarapu Kotamma v. Pappala Simhachalam: AIR 1969 AP 76
72Magniram vs Mehdi Hossein Khan: (1904) ILR 31 Cal 95
73 (1896) ILR 18 All 65
74Ram Chandra Narayan v. Narayan Mahadev: I.L.R. 11 Bom. 216

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and obligations of the defendants inter se. Without necessity the judgment will not
be res judicata amongst the defendants."

Although this decision does not specifically invoke general principles, it is clear that the court is
expanding the terms of Section 11 keeping in mind the spirit of res judicata which is to prevent
the relitigation of issues that have already been agitated before courts.

4 Conclusion:
In this paper, I have sought to demonstrate how the court-created general law of res judicata in
India has developed through a gradual appropriation and extension of the textual law. It was
crafted against the backdrop of the limitations to the two major Codes of Civil Procedure in
India in 1859 and 1877.

But what is this general law? Early court decisions seem to suggest that they were applying
general principles of res judicata prevalent in English common law. However, the general law
that was developed by courts appears less to have been influenced by common law English or
Indian than as a response to the limitations of the statutory text. Thus general law of res
judicata between 1859-1877 remedied the defects of the 1859 Code, and general law after 1877
has responded to and extended the language of that Code. In other words, in the name of a
timeless general law, what the courts appear in fact to have been doing is to create a parallel law
of res judicata wherever the statutory code was found wanting.

The general law appropriates all the terminologies of the statutory law. It does it to the extent
that it is hard to tell the difference between the two if one were to distinguish them only on the
basis of terms used to describe the law. In addition, general law extends the statutory law. This
extension of general law is achieved in a number of ways, three of which have been outlined in
this paper: the general law applies to non-suits, it does away with the requirement of
competence, and it makes res judicata applicable to consent decrees . In doing so the courts
establish a general law which is liberated from the confines o that statutory law demands.

Public policy behind the law becomes the excuse for its application to all possible situations. 75 It
is in the interest of public that the litigation should end and that no person should be vexed
twice.

75 Daryao v. State of U.P :AIR 1961 SC 1437

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Despite the loftiness of this goal, however, when courts talk about general law we dont know
precisely what is being referred to. Courts appear always ready to create new routes for its
application. Most statutory defects can be made redundant as long as the application of res
judicata would achieve the policy goals. If the previous court lacks pecuniary competence to try
the proceeding, res judicata applies. If the previous court lacks the pecuniary jurisdiction to try
the later proceeding, res judicata applies. It applies even if the previous court lacked the subject
matter jurisdiction to try the later proceeding. It applies even if the previous judicial forum was
not a court and vice versa. If applies between parties who were not even arrayed as adversaries
to each other in the previous proceeding. If the causes of action of proceedings are different, res
judicata applies. If the subject matter of two proceedings are different it applies. It applies when
issues were litigated and even when they were not actually litigated. It does not need a
subsequent proceeding to be applicable, it applies within a proceeding as well. It applies
whether the previous decision could be appealed or it was non-appealable.76

It almost seems as if there is no need of section 11 anymore. The expansion of general law has
made it the plenary law of res judicata to which all decisions are amenable barring a few,
including but not limited to tax laws.77 General law, with its unfettered scope of application has
taken away the exclusivity of the statutory law.

In deciding whether a particular type of judgment should be given res judicata effect, the Indian
courts seem to have leaned toward a pro-res judicata course. Evidence to the contrary is scant.
This is despite the hardship the application of the law causes to the interested litigant. The
efficiency the courts have shown in choosing to apply the law sets a precedent for the treatment
of procedural law at par with mistress of justice if not more. Far from being problematic,
perhaps it is this approach to enforcement of procedural law which seems to be the crying need
of a judicial system which has set a world record in pendency of cases.78

Acknowledging that distinction between statutory law and general law leads to conflicting
outcomes, the Indian court at times have recognized the need for a redefinition of statutory
law79. As a conclusion to this paper, I offer the following restatement of the principle clause of
the statutory law to bring it in conformity with the law of res judicata, as applicable in India.

76 See, Satyadhyan v. Deorajin Debi: AIR 1960 SC 941

77 See, Instalment Supply (Pvt) Ltd, Vs Union of India, AIR 1976 SC 53
78 A 2015 article in the Bloomberg estimated pegged Indias pendency of cases at over 31 million cases. See,

http://www.bloomberg.com/news/articles/2015-01-08/indias-courts-resist-reform-backlog-at-314-million-cases
79 For instance, in the case of Jodhan v. Board of Revenue and Ors, AIR 1967 All 442, the Allahabad High Court

observes: In the conflict between the terms of Section 11 and general principles of res judicata, anomalies of one kind

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No judicial forum shall try any issue in a proceeding which has been directly
and substantially in issue in a former proceeding [or at an earlier stage of the
same proceeding] between the parties [arrayed on the same or opposite side] or
between parties under whom they or any of them claim, litigating under same title,
if such former proceeding [or the earlier stage of that proceeding] was heard and
finally decided by a judicial forum having inherent jurisdiction to try that issue.

or another are inevitable; and the only way to avoid them would seem to be to re-enact Section 11 in some wider and
less restrictive form.

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