Res Judicata:- Section 11 CPC

“Res Judicata means a final judicial decision pronounced by a judicial tribunal having competent jurisdiction over the cause or matter in litigation and over the parties thereto.”

–  Spencer Bower      

Section 11 of the code of Civil Procedure, 1908[1], embodies the rule of res judicata or the rule of conclusiveness of the judgment, as to the points decided either of facts, or of law, or of facts and law, in every subsequent suit between the same parties. It enacts that once a matter is finally decided by a competent Court, no party can be permitted to reopen it in a subsequent litigation. The doctrine of res judicata has been explained by Das Gupta J. in the case of Satyadhyan Ghosal v. Deorjin Debi[2] as:

“The principle of res judicata is based on the need of giving a finality to judicial decisions. What it says is that once a res is judicata, it shall not be adjudged again. Primarily it applies as between past litigation and future litigation. When a matter, whether on a question of fact or a question of law, has been decided between two parties in one suit or proceeding and the decision is final, either because no appeal was taken to a higher Court or because the appeal was dismissed, or no appeal lies, neither party will be allowed in a future suit or proceeding between the same parties to canvass the matter again.”  

‘Res’ means ‘subject matter’ or ‘dispute’ and ‘Judicata’ means ‘adjudged’, ‘decided’ or ‘adjudicated’. ‘Res Judicata’ thus means ‘a matter adjudged’ or ‘a dispute decided’.[3]

Object:

The doctrine of res judicata is conceived in the larger public interest which requires that all the litigation must, sooner than later, come to an end.[4] The principle is also founded on justice, equity and good conscience which require that a party who has once succeeded on an issue should not be harassed by multiplicity of proceedings involving the same issue.[5] The doctrine of res judicata is based on 3 maxims:

1. nemo debet bis vexari pro una et eadem causa (no man should be vexed for the same cause);

2. interest reipublicae ut sit finis litium (it is in the interest of the State that there should be an end to a litigation); and

3. res judicata pro veritate occipitur (a judicial decision must be accepted as correct).

Thus, the doctrine of res judicata is the combined result of public policy reflected in maxims (2) and (3) and private justice expressed in maxim (1); and they apply to all the judicial proceedings whether civil or criminal. But for this rule there would be no end to litigation and no security for any person, the rights of persons would be involved in endless confusion and great injustice done under the cover of law.[6] In Duchess of Kingstone case[7], it was observed that 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 and the judgment of a court of exclusive jurisdiction , directly on the point, is, in like manner, conclusive upon the same matter, between the same parties, coming incidentally in question in another court, for a different purpose.

The principle of res judicata  seeks to promote honesty and fair administration of justice and to prevent abuse of process of law.[8]

Res Judicata is a rule of law

In Daryao v. State of U.P.[9], the Court observed that the binding character of judgments pronounced by Courts of competent jurisdiction is itself an essential part of the rule of law, and the rule of law obviously is the basis of the administration of justice on which the Constitution lays so much emphasis. The Court thus held that the rule of res judicata applies also to a petition filed under Article 32 of the Constitution and if a petition filed by a petitioner in the High Court under Article 226 of the Constitution is dismissed on merits, such decision would operate as res judicata so as to bar a similar petition in the Supreme Court under Article 32 of the Constitution.

Extent and applicability

The doctrine of res judicata is a fundamental concept based on public policy and private interest. It is applicable to civil suits, execution proceedings, arbitration proceedings, taxation matters, industrial adjudication, writ petitions, administrative orders, interim orders, criminal proceedings etc.

Conditions of Res Judicata

To constitute a matter as res judicata under Section 11, certain conditions need to be fulfilled, which were laid down in Sheodan Singh v. Daryao Kunwar[10]:

1. The matter directly and substantially in issue in the subsequent suit or issue must be the same matter which was directly and substantially in issue either actually (Explanation III) or constructively (Explanation IV) in the former suit (Explanation I). (Explanation VII is to be read with this condition).

2. The former suit must have been a suit between the same parties or between parties under whom they or any of them claim. (Explanation VI is to be read with this condition).

3. Such parties must have been litigating under the same title in the former suit.

4. The Court which decided the former suit must be a Court competent to try the subsequent suit or the suit in which such issue is subsequently raised. (Explanations II and VIII are to be read with this condition).

5. The matter directly and substantially in issue in the subsequent suit must have been heard and finally decided by the Court in the former suit. (Explanation V is to be read with this condition).

Matter in issue

The expression “matter in issue” means the rights litigated between the parties, i.e., the facts on which the right is claimed and the law applicable to the determination of that issue.[11] Such issue may be an issue of fact, issue of law or mixed issue of law and fact.

A matter directly and substantially in issue in a former suit will operate as res judicata in a subsequent suit. The term ‘directly’ has been used in contradistinction to ‘collaterally or incidentally’. A fact cannot be said to be directly in issue if the judgment stands whether that fact exists or does not exist. No hard and fast rule can be laid down as to when a matter can be said to be directly in issue and it depends upon the facts and circumstances of each case.[12] A collateral or incidental issue means an issue which is ancillary to the direct and substantive issue. It refers to a matter in respect of which no relief is claimed and yet it is put in issue to enable a Court to adjudicate upon the matter which is directly and substantially in issue. Decisions in matters collateral or incidental to the main issues in a case will not operate as res judicata.

Illustration, A sues B for the rent due. B pleads abatement of rent on the ground that the actual area of the land is less than that mentioned in the lease deed. The Court, however, finds the area greater than that shown in the lease deed. The finding as to the excess area, being ancillary and incidental to the direct and substantial issue, is not res judicata.

‘Substantially’ means essentially or materially. It is something short of certainty but indeed more than mere suspicion. A matter can be said to be substantially in issue if it is of importance for the decision of the case.[13] The question whether or not a matter is ‘directly and substantially in issue’ has to be determined with reference to the plaint, written statement, issues and judgment. No rule of universal application can be laid down and the question should be decided on the facts of each case.

Illustration, A sues B for possession of certain properties on the basis of a sale deed in his favour. B impugns the deed as fictitious. The plea is upheld and the suit is dismissed. A subsequent suit for some other properties on the basis of the same sale deed is barred as the issue about the fictitious nature of the sale deed was actually in issue in the former suit directly and substantially.

In Vithal Yeshwant v. Shikandarkhan[14], the Supreme Court observed that if the final decision in any matter at issue between the parties is based by a court on its decisions on more than one point- each of which by itself will be sufficient for the ultimate decision- the decision on each of these points operates as res judicata between the parties.

A matter directly and substantially in issue may be so either actually or constructively. According to Explanation III, a matter is actually in issue when it is alleged by one party and denied or admitted by the other expressly or impliedly. As per Explanation IV, it is constructively in issue when it might or ought to have been made a ground of attack or defence in the former suit. The word ‘might’ presupposes the party affected had knowledge of the ground of attack or defence at the time of the previous suit. ‘Ought’ compels the party to take such grounds. The word ‘and’ is to be read conjunctively. Unless it is proved that the matter might and ought to have been raised in the previous litigation, there is no constructive res judicata.[15] A party is bound to bring forward his whole case in respect of the matter in issue and cannot abstain from relying or giving up any ground which is in controversy and for consideration before a Court and afterwards make it a cause of action for a fresh suit. Constructive res judicata is an ‘artificial form of res judicata’. It provides that if a plea could have been taken by a party in a proceeding between him and his opponent, he should not be permitted to take that plea against the same party in a subsequent proceeding with reference to the same subject matter. In the case of Workmen v. Board of Trustees, Cochin Port Trust[16], the Supreme Court observed that the principle of res judicata comes into play when by the judgment and order a decision of a particular issue is implicit in it, i.e., it must be deemed to have been necessarily decided by implication, then also the principle of res judicata on that issue is directly applicable.

In the leading case of Devilal Modi v. STO[17], 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 the Supreme Court on merits. A again filed another writ petition in the same High Court against the same order of assessment by taking some additional grounds. The High Court dismissed the petition on merits. On appeal, the Supreme Court held that the petition was barred by the principle of constructive res judicata. The Court held that if constructive res judicata is not applied to such proceedings a party can file as many petitions as he likes and take one or two points every time. That clearly is opposed to the considerations of public policy on which res judicata is based and would mean harassment and hardship to the opponent. Besides, if such a course is allowed to be adopted the doctrine of finality of judgments pronounced by this Court would also be materially affected.

Suit: Meaning

The expression ‘suit’ has not been defined in the Code, but it is a proceeding which is commenced by presentation of a plaint.[18] In Hansraj Gupta v. Official Liquidators of the Dehradun -Mussoorie Electric Tramway Co. Ltd.[19], ‘suit’ was defined as ordinarily meaning and, apart from some context, must be taken to mean a civil proceeding instituted by the presentation of a plaint. In Pandurang Ranchandra v. Shantibai Ramchandra[20], the Supreme Court has stated that in its comprehensive sense the word suit is understood to apply to any proceeding in a Court of justice by which an individual pursues that remedy which the law affords. The modes of proceedings may be various but that if a right is litigated between the parties in a Court of justice the proceeding by which the decision of the court is sought may be a suit. Also, if the proceeding is of a summary nature not falling within the definition of a suit, it may not be so treated for the purpose of Section 11. Again, the word ‘suit’ in Section 11 means proceedings in a court of first instance as distinguished from proceedings in an appellate court, though the general principles of res judicata apply to appellate proceedings also.[21]

Former Suit: Explanation I

Section 11 provides that no court shall try any suit or issue in which the matter has been directly and substantially in issue in a former suit between the same parties and has been heard and finally decided. It is not the date on which the suit is filed that matters but the date on which the suit is decided; so that even if a suit was filed later, it will be a former suit within the meaning of Explanation I if it has been decided earlier.[22]

‘Issue’ – Meaning

Section 11 bars trial of any suit as well as an issue which had been decided in a former suit. Issues are of 3 kinds:

• Issues of fact
• Issues of law
• Mixed issues of law and fact.

In Mathura Prasad v. Dossibai N.B. Jeejeebhoy[23], it was held that a decision on an issue of fact, however erroneous it may be, constitutes res judicata between the parties to the previous suit, and cannot be reagitated in collateral proceedings. A mixed issue of law and fact, for the same reasons, operates as res judiacata. Further, it was held that generally a decision of a competent court even on a point of law operates as res judicata. However, a pure question of law unrelated to facts which gives rise to a right does not operate as res judicata. Thus, when the cause of action is different or when the law has since the earlier decision been altered by a competent authority or when the decision relates to the jurisdiction of a Court to try the earlier proceeding or where the earlier decision declared valid a transaction which is prohibited by law, the decision does not operate as res judicata in a subsequent proceeding.

Same parties

The second condition of res judicata is that the former suit must have been a suit between the same parties or between the parties under whom they or any of them claim. This condition recognises the general principle of law that judgments and decrees bind the parties and privies.[24] Therefore, when the parties in the subsequent suit are different from the former suit, there is no res judicata.

For example, A sues B for rent. B contends that C and not A is the landlord. A fails to prove his title and the suit is dismissed. A then sues B and C for a declaration of his title to the property. The suit is not barred as the parties in both the suits are not the same.

Party: Meaning

A party is a person whose name appears on the record at the time of the decision. Thus, a person who has intervened in the suit is a party, but a party to the suit whose name is struck off, or who is discharged from the suit or who dies pending the suit but whose name continues on record erroneously is not a party. A party may be a plaintiff or a defendant.

Persons other than the parties may be divided in the following categories:[25]

• persons who claim under the parties to the suit, generally known as privies
• persons not claiming under the parties but represented by them
• interveners
• minors

So far as the first two parties are concerned, they really represent the parties and hence, a decision between the parties in an earlier suit would operate as res judicata. Strangers are not bound by a decree passed between the parties to a suit.

Res Judicata between co-defendants and co-plaintiffs

As a matter may be res judicata between  a plaintiff and a defendant, similarly, it may be res judicata between co-defendants and co-plaintiffs also. An adjudication will operate as res judicata between co-defendants if the following conditions are satisfied:

• There must be a conflict of interest between co-defendants;
• It must be necessary to decide that conflict in order to give relief to the plaintiff;
• The question between co-defendants must have been finally decided;
• The co-defendants were necessary or proper parties in the former suit.

The test of res judicata between co-defendants has been laid down in the case of Cottingham v. Earl of Shrewsbury[26] that if a plaintiff cannot get at his right without trying and deciding a case between co-defendants, the Court will try and decide the case, and the co-defendants will be bound. But if the relief given to the plaintiff does not require or involve a decision of any case between the co-defendants, the co-defendants will not be bound as between each other by any proceeding which may be necessary only to the decree the plaintiff obtains.

In Iftikhar Ahmed v. Syed Meherban Ali[27], it was held that if there is a conflict of interest between plaintiffs and it is necessary to resolve the same by a court in order to give relief to a defendant, and the matter is in fact decided, it will operate as res judicata between co-plaintiffs in the subsequent suit.

Pro forma defendant

A defendant to a suit against whom no relief is claimed is called a pro forma defendant. A person may be added as proforma defendant in a suit merely because his presence is necessary for a complete and final decision of the questions involved in the suit. In such a case, since no relief is sought against him, a finding does not operate as res judicata in a subsequent suit against him.

Illustration, A sues B for possession of property contending that he is a tenant of C. C is joined as pro forma defendant and no relief is claimed against him. The suit is dismissed as the Court finds B to be the owner. C then sues B for possession on the basis of title. B’s contention that the issue regarding ownership of property is res judicata must fail as the issue was decided in the former suit between A and B and not between C and B as C was only a proforma defendant.

Interveners

An intervener is one who intervenes in a suit in which he was not originally a party. He is an affected party who, with the Court’s permission, participates in a law suit after its inception by either joining with the plaintiff or uniting with the defendant. A person may intervene in a suit either on his own behalf or on behalf of the parties with the leave of the court. Such intervener is considered to be a party to the suit once he is permitted to intervene no matter at what stage of the suit he intervenes. The decision in the suit then will operate as res judicata in a subsequent suit by or against such person (intervener) on the point already decided.[28]

Minors

When a suit is filed against a minor who is duly represented by a guardian or next friend and a decree is passed in such suit, the decree binds the minor. But if the decree is obtained against a minor not represented by a guardian or there is fraud, collusion or gross negligence of the guardian, a decree passed in the suit will not operate as res judicata against him in a subsequent suit.[29]

Parties under whom they or any of them claim

The doctrine of res judicata operates not only against parties but their privies also, i.e., persons claiming under the parties to the decision. The object underlying this doctrine is that if a proceeding originally instituted is proper, the decision given therein is binding on all persons on whom a right or interest may devolve. ‘Parties under whom they or any of them claim’ comprise:

• Parties actually present in the former suit
• Parties claiming under the parties to the suit (privies)
• Persons represented by a party in the former suit (Explanation VI).

Representative Suit: Explanation VI

Explanation VI to Section 11 deals with representative suits, i.e. suits instituted by or against a person in his representative, as distinguished from individual capacity. It provides that where persons litigate bonafide in respect of a public right or of a private right claimed in common for themselves and others, and all persons interested in such right shall, for the purposes of Section 11, be deemed to claim under the persons so litigating. Explanation VI thus, illustrates one aspect of constructive res judicata. Thus, where a representative suit is brought under Section 92 of the Code and a decree is passed in such a suit, law assumes that all the persons who have the same interest as plaintiffs in the representative suit were represented by the said plaintiffs and, therefore, are constructively barred by res judicata by reagitating the matters directly and substantially in issue in the former suit.

The following conditions must be satisfied before a decision may operate as res judicata under Explanation VI:[30]

• There must be a right claimed by one or more persons in common for themselves and others not expressly named in the suit;
• The parties not expressly named in the suit must be interested in such right;
• the litigation must have been conducted bonafide and on behalf of all the parties interested;
• if the suit is under Order 1, Rule 8, all conditions laid down therein must have been strictly complied with.

Also, if the previous litigation was a bonafide public interest litigation in respect of a right which was common and was agitated in common with others, the decision in previous litigation would operate as res judicata in subsequent litigation.

Same title

The third condition of res judicata is that the parties to the subsequent suit must have litigated under the same title as in the former suit.

Same title means same capacity. It refers to the capacity or interest of a party, i.e., whether he sues or is sued for himself in his own interest or for himself as representing the interest of another or as representing the interest of others along with himself and it has nothing to do with the particular cause of action on which he sues or is sued. Litigating under the same title means that the demand should be of the same quality in the second suit as was in the first suit.

For example, A sues B for the possession of property as an owner basing his claim on title. The suit is dismissed. A subsequent suit by A against B for possession of the same property as mortgagor is not barred.

As held in Ram Gobinda v. Bhaktabala[31], the test for res judicata is the identity of title in the two litigations and not the identity of the subject matter involved in the two cases. The crucial test for determining whether the parties are litigating in a suit under the same title as in the previous suit is of the capacity in which they sued or were sued. The term ‘same title’ has nothing to do either with the cause of action or with the subject matter of 2 suits.

Competent court

The fourth condition of res judicata is that the court which decided the former suit must have been a court competent to try the subsequent suit. Thus, the decision in a previous suit by a court, not competent to try the subsequent suit, will not operate as res judicata. The principle behind this condition is that the decision of the Court of limited jurisdiction ought not to be final and binding on a court of unlimited jurisdiction.

‘Competent Court’-Meaning: Explanation VIII

The expression ‘competent to try’ means competent to try the subsequent suit if brought at the time the first suit was brought. In other words, the relevant point of time for deciding the question of competence of the Court is the date when the former suit was brought and not the date when the subsequent suit was filed.

Types of Courts

In order that a decision in a former suit may operate as res judicata, the Court which decided that suit must have been either:

• a court of exclusive jurisdiction or
• a court of limited jurisdiction or
• a court of concurrent jurisdiction.

Court of Exclusive Jurisdiction

If a matter directly and substantially in issue in a former suit has been adjudicated upon by a court of exclusive jurisdiction, like Revenue Courts, Land Acquisition Courts, Administration Courts, etc., such adjudication will bar the trial of the same matter in a subsequent suit in an ordinary Civil Court.

Court of Limited Jurisdiction

A decision on an issue heard and finally decided by a court of limited jurisdiction will also operate as res judicata in a subsequent suit irrespective of the fact that such court of limited jurisdiction was not competent to try the subsequent suit. In Sulochana Amma v. Narayanan Nair[32] Supreme Court stated that the expression ‘the Court of limited jurisdiction’ in Explanation VIII is wide enough to include a court whose jurisdiction is subject to pecuniary limitation and other cognate expressions analogous thereto. Therefore, Section 11 is to be read in combination and in harmony with Explanation VIII. The result that would follow is that an order or an issue which had arisen directly and substantially between the parties or their privies and decided finally by a competent court or tribunal, though of limited special jurisdiction, which includes pecuniary jurisdiction, will operate as res judicata in a subsequent suit or proceeding, notwithstanding the fact that such court of limited or special jurisdiction was not a competent court to try the subsequent suit. The technical aspect, for example, pecuniary or subject wise competence of the earlier forum to adjudicate the subject matter or to grant reliefs in the subsequent litigation, should be immaterial when the doctrine of res judicata is to be invoked.

Court of Concurrent Jurisdiction

Where the Court which decided the former suit was a court of concurrent jurisdiction having competence to try the subsequent suit, the decision given by it would operate as res judicata in a subsequent suit. Concurrent jurisdiction means concurrent as regards the pecuniary limit as well as the subject matter of the suit. ‘Competency’ in Section 11 has no reference to territorial jurisdiction of the Court.[33] In Church of South India Trust Assn. v. Telugu Church Council[34], the Supreme Court stated that Section 11 of the present code envisages that the judgment in a former suit would operate as a res judicata if the Court which decided the said suit was competent to try the same by virtue of its pecuniary jurisdiction and the subject matter to try the subsequent suit and that it is not necessary that the said court should have had the territorial jurisdiction to decide the subsequent suit.

Right of Appeal: Explanation II

Explanation II to Section 11 makes it clear that for the purpose of res judicata the competence of the Court shall be determined irrespective of any provision as to a right of appeal from the decision of such Court. The question whether there is a bar of res judicata does not depend on the existence of a right of appeal but on the question whether the same issue, under the circumstances mentioned in Section 11, has been heard and finally decided.[35]

Heard & finally decided

The fifth and final condition of res judicata is that the matter directly and substantially in issue in the subsequent suit must have been heard and finally decided by a court in the former suit. The expression ‘heard and finally decided’ means a matter on which Court has exercised its judicial mind and has after argument and consideration come to a decision on a contested matter.[36] A matter can be said to have been heard and finally decided notwithstanding that the former suit was disposed of

• ex parte; or
• by failure to produce evidence (Order 17 Rule 3); or
• by a decree on an award; or
• by oath tendered under the Indian Oaths Act, 1873.

In order that a matter may be said to have been heard and finally decided, the decision in the former suit must have been on merits. Thus, if the former suit was dismissed by a court for the want of jurisdiction, or for default of plaintiff’s appearance, or on the ground of misjoinder or non-joinder of parties, or on the ground that the suit was not properly framed, or that it was premature, or that there was a technical defect, the decision not being on merits, would not operate as res judicata in a subsequent suit.[37]

Necessity of Decision

In order to operate as res judicata the finding of the Court must have been necessary for the determination of the suit. If a finding is not necessary, it will not operate as res judicata. What operates as res judicata is the ratio of what is fundamental to the decision. It cannot be ramified or expanded by logical extension. A finding on an issue cannot be said to be necessary to the decision of a suit unless the decision was based on such finding. A decision cannot be said to have been based upon a finding unless an appeal can lie against such finding.

Finding on more than one issue

When a finding is recorded by a Court on more than one issue, the legal position is as under:

When suit is dismissed

If the plaintiff’s suit is wholly dismissed, no issue decided against the defendant can operate as res judicata against him in a subsequent suit, for he cannot appeal from a finding on any such issue, the decree being wholly in his favour. But every issue decided against the plaintiff may operate as res judicata against him in a subsequent suit, for he can appeal from a finding on such issue, the decree being against him.

When suit is decreed

If the plaintiff’s suit is wholly decreed, no issue decided against him can operate as res judicata for he cannot appeal from a finding on any such issue, the decree being wholly in his favour. But every issue decided against the defendant is res judicata for he can appeal from a  finding on such issue, the decree being against him.

Appeal against the finding

No appeal lies against a mere finding, for the simple reason that the Code does not provide for filing of any such appeal.

Relief claimed but not granted: Explanation V

Explanation V to Section 11 provides that if a relief is claimed in a suit, but it is not expressly granted in the decree, it will be deemed to have been refused and the matter in respect of which relief is claimed will be res judicata.  But this explanation applies only when the relief claimed is

• substantial relief; and
• the Court is bound to grant it.

Execution proceedings: Explanation VII

Prior to the addition of Explanation VII to Section 11, the provisions did not in terms apply to execution proceedings, but the general principles of res judicata were held to be applicable even to execution proceedings.[38] After the amendment Act 104 of 1976, Explanation VII provides that provisions of Section 11 will directly apply to execution proceedings also.

Other proceedings where the principle of res judicata applies are:

• Industrial Adjudication
• Public Interest Litigation
• Criminal Proceedings
• Writ Petitions under Articles 32 and 226
• Ex parte decree
• Interim order or interlocutory order deciding a controversy in part between the parties

Proceedings where res judicata is not applicable are:

• Taxation matters
• Res Judicata is not applicable to cases of habeas corpus petitions.
• Dismissal of suit in default
• Dismissal in limine
• Dismissal of Special Leave Petition in limine by a non speaking order
• Compromise decree, though party is precluded from challenging it by rule of estoppel[39]
• Fraudulent decree
• Withdrawal of suit
• In case of change in circumstances
• Change in law subsequent to a decision rendered by the Court.

Test of applicability

In Jaswant Singh v. Custodian[40] the Court held that in order to decide the question whether a subsequent proceeding is barred by res judicata it is necessary to examine the question with reference to

• forum or competence of the Court
• parties and their representatives
• matters in issue
• matters which ought to have been made the ground for attack or defence in the former suit
• final decision.

Res Judicata & Estoppel

The doctrine of res judicata operates as a bar on the jurisdiction of a court to try a suit which has been conclusively decided by the court with same parties, same subject matter and under same title. All these provisions are provided under section 11 of the Code of Civil Procedure,1908.

Whereas the doctrine estoppel as defined in Section 115 of the Indian Evidence Act, 1872 provides that “When one person has, by his declaration, act or omission, intentionally caused or permitted another person to believe a thing to be true and to act upon such belief, neither he nor his representative shall be allowed, in any suit or proceeding between himself and such person or his representative, to deny the truth of that thing.”

Res judicata corresponds to the part of the doctrine of estoppel, which is known as estoppel by record.Estoppel as enunciated in Section 115 of the Indian Evidence Act is by conduct or agreement or estoppel in pais. Thus, even though res judicata may be said to be included in the doctrine of estoppel, as understood in the wider sense of the term, it must be distinguished from estoppel as distinctly provided for in the Indian Law of Evidence.The doctrine of res Judicata can be distinguished from estoppel, as generally understood, on the following grounds:

1. The rule of res judicata is based on public policy, i.e., it is to the interest of the State that there should be an end to litigation and belongs to the province of procedure.

Estoppel, on the other hand, is part of the law of evidence and proceeds on the equitable principle of altered situation, viz., that he who, by his conduct, has induced another to alter his position to his disadvantage, cannot turn round and take advantage of such alteration of other’s position.

2. Res judicata precludes a man from averring the same thing in successive litigations, while estoppel prevents a party from saying two contradictory things at different times.

3. Res judicata is reciprocal and binds both the parties, while estoppel binds the party who made the previous statement or showed the previous conduct.

4. Res judicata prohibits the court from entering into an enquiry as well as to a matter already adjudicated upon; estoppel 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 these declarations or acts, has altered his position.

5. Res judicata prohibits an inquiry in limine, and bars the trial of a suit while estoppel is only a piece of evidence and emphasises that a man should not be allowed to retrace the steps already walked over.

6. Res judicata ousts the jurisdiction of the court, while estoppel shuts the mouth of a party.

7. The doctrine of res judicata results from a decision of the court, while estoppel results from the acts of the parties themselves.

Conclusion

One of the first and highest duties of all Courts is to take care that the act of the Court does no injury to the suitors. It has been said that “an act of the Court shall harm none” (actus curiae neminem gravabit). All courts, therefore, are bound to take care that their acts do not cause harm or injury to suitors.

In the case of A.R. Antulay v. R.S. Nayak[41], the Supreme Court ordered withdrawal of a case against the appellant pending in the Court of a Special Judge and transferred it to the High Court of Bombay. A preliminary objection was raised by the appellant against the jurisdiction of the Bombay High Court. It was, however, negatived by the Court. The appellant then approached the Supreme Court. It was contended that the direction was contrary to law and could not have been issued. The argument of respondent was of res judicata. Allowing the appeal and recalling the earlier order, the Apex Court observed that the direction was violative of the fundamental rights of the appellant and no rule of res judicata would apply to such a situation.

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 extend 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 which are related to the society and people. The scope and the extend has widened with the passage of time and the Supreme Court has elongated the areas with its judgments.

Frequently Asked Questions:

1. What do you mean by term Res-judicata?

Section 11 of the code of Civil Procedure, 1908, embodies the rule of res judicata or the rule of conclusiveness of the judgment, as to the points decided either of facts, or of law, or of facts and law, in every subsequent suit between the same parties. It enacts that once a matter is finally decided by a competent Court; no party can be permitted to reopen it in a subsequent litigation.

2. What are the conditions for its applicability?

To constitute a matter as res judicata under Section 11, certain conditions need to be fulfilled, which were laid down in Sheodan Singh v. Daryao Kunwar:

1. The matter directly and substantially in issue in the subsequent suit or issue must be the same matter which was directly and substantially in issue either actually (Explanation III) or constructively (Explanation IV) in the former suit (Explanation I). (Explanation VII is to be read with this condition).

2. The former suit must have been a suit between the same parties or between parties under whom they or any of them claim. (Explanation VI is to be read with this condition).

3. Such parties must have been litigating under the same title in the former suit.

4. The Court which decided the former suit must be a Court competent to try the subsequent suit or the suit in which such issue is subsequently raised. (Explanations II and VIII are to be read with this condition).

5. The matter directly and substantially in issue in the subsequent suit must have been heard and finally decided by the Court in the former suit. (Explanation V is to be read with this condition).

3. What is the difference between Res-judicata and estoppels?

The rule of res judicata is based on public policy, i.e., it is to the interest of the State that there should be an end to litigation and belongs to the province of procedure. Estoppel, on the other hand, is part of the law of evidence and proceeds on the equitable principle of altered situation, viz., that he who, by his conduct, has induced another to alter his position to his disadvantage, cannot turn round and take advantage of such alteration of other’s position.

1. Res judicata precludes a man from averring the same thing in successive litigations, while estoppel prevents a party from saying two contradictory things at different times.

2. Res judicata is reciprocal and binds both the parties, while estoppel binds the party who made the previous statement or showed the previous conduct.

3. Res judicata prohibits the court from entering into an enquiry as well as to a matter already adjudicated upon; estoppel 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 these declarations or acts, has altered his position.

4. Res judicata prohibits an inquiry in limine, and bars the trial of a suit while estoppel is only a piece of evidence and emphasises that a man should not be allowed to retrace the steps already walked over.

5. Res judicata ousts the jurisdiction of the court, while estoppel shuts the mouth of a party.

6. The doctrine of res judicata results from a decision of the court, while estoppel results from the acts of the parties themselves.

4. Define constructive Res-judicata?

Constructive res judicata is an ‘artificial form of res judicata’. It provides that if a plea could have been taken by a party in a proceeding between him and his opponent, he should not be permitted to take that plea against the same party in a subsequent proceeding with reference to the same subject matter. In the case of Workmen v. Board of Trustees, Cochin Port Trust, the Supreme Court observed that the principle of res judicata comes into play when by the judgment and order a decision of a particular issue is implicit in it, i.e., it must be deemed to have been necessarily decided by implication, then also the principle of res judicata on that issue is directly applicable.

5. Discuss the concept of Res-judicata between co-defendants?

As a matter may be res judicata between a plaintiff and a defendant, similarly, it may be res judicata between co-defendants and co-plaintiffs also. An adjudication will operate as res judicata between co-defendants if the following conditions are satisfied:

• There must be a conflict of interest between co-defendants;
• It must be necessary to decide that conflict in order to give relief to the plaintiff;
• The question between co-defendants must have been finally decided;
• The co-defendants were necessary or proper parties in the former suit.

6. Differentiate between Res-subjudice and Res-judicata?

Res- Subjudice (Section 10) means where the case is pending for hearing, the same cannot be filed again arising out of same cause of action and between parties bearing the same title. Whereas, Res- Judicata (Section 11) operates after the case has been finally heard, and whereby the same parties cannot approach the court for the same cause of action and relief.

 Edited by – Sakshi Agarwal

Quality Check – Ankita Jha

Approved & Published by –  Sakshi Raje

Reference:

[1] Section 11- No Court shall try any suit or issue in which the matter directly and substantially in issue has been directly and substantially in issue in a former suit between the same parties, or between parties under whom they or any of them claim, litigating under the same title, in a Court competent to try such subsequent suit or the suit in which such issue has been subsequently raised, and has been heard and finally decided by such Court.

[2] AIR 1960 SC 941.

[3] Subramanian Swany v. State of T.N., (2014) 5 SCC 75.

[4] Lal Chand v. Radha Krishan, (1977) 2 SCC 88.

[5] Ibid.

[6] Daryao v. State of U.P., AIR 1961 SC 1457 at pp. 1462

[7] Smith’s leading cases (13th Edn.) at p. 644

[8] M. Nagabhushana v. State of Karnataka, (2011) 3 SCC 408

[9] AIR 1961 SC 1457

[10] AIR 1966 SC 1332 at p. 1334

[11] Mathura Prasad v. Dossibai N.B. Jeejeebhoy, (1970) 1 SCC 613 at p. 619.

[12] Amalgamated Coalfields Ltd. v. Janapada Sabha, AIR 1964 SC 1013 at p. 1019.

[13] Pandurang Ramchandra v. Shantibai Ramchandra, AIR 1989 SC 2240 at p. 2248.

[14] AIR 1963 SC 385.

[15] Nirmal Enem v. Jahan Ara, (1973) 2 SCC 189.

[16] (1978) 3 SCC 119.

[17] AIR 1965 SC 1150.

[18] Section 26.

[19] AIR 1933 PC 63.

[20] AIR 1989 SC 2240 at p. 2248.

[21] Lachhmi v. Bhulli, AIR 1927 Lah 289.

[22] Sheodan Singh v. Daryao Kunwar, AIR 1966 SC 1332 at p. 1334.

[23] (1970) 1 SCC 613.

[24] ‘Res inter alios acta alteri nocere non debet’ (Things done between strangers ought not to injure anyone).

[25] Ahmedbhoy Hubibhoy v. Vuleebhoy Cassumbhoy, ILR (1882) 6 Bom 703.

[26] (1843) 3 Hare 627.

[27] AIR 1974 SC 749 at p. 751.

[28] Raj Laxmi v. Banamali Sen, AIR 1953 SC 33.

[29] Gunjeshwar Kunwar v. Durga Prashad, AIR 1917 PC 146.

[30] Forward Construction Co. v. Prabhat Mandal (Regd.), AIR 1986 SC 391.

[31] AIR 1971 SC 664 at p. 670.

[32] (1994) 2 SCC 14.

[33] Maqbul v. Amir Hasan, AIR 1916 PC 136.

[34] (1996) 2 SCC 520.

[35] Ramesh Chandra v. Shiv Charan Dass, AIR 1991 SC 264 at p. 265.

[36] Kushal Pal v. Mohan Lal, (1976) 1 SCC 449 at p. 456.

[37] Shivashankar Prasad v. Baikunth Nath, (1996)1 SCC 718 at p. 721.

[38] Mohanlal Goenka v. Binoy Krishna, AIR 1953 SC 65 at p. 72.

[39] Sunderabai v. Devaji Shankar Deshpande, AIR 1954 SC 82.

[40] AIR 1985 SC 1096.

[41] AIR 1988 SC 1531.