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CHAPTER 1

INTRODUCTION: NATURE AND SCOPE OF RES JUDICATA

1.1.

Res Judicata

RES JUDICATA means "a thing decided" in Latin. It is a common law doctrine meant to bar relitigation of cases between the same parties in Court. Once a final judgment has been handed
down in a lawsuit subsequent judges who are confronted with a suit that is identical to or
substantially the same as the earlier one will apply res judicata to preserve the effect of the first
judgment. This is to prevent injustice to the parties of a case supposedly finished, but perhaps
mostly to avoid unnecessary waste of resources in the court system. Res judicata does not merely
prevent future judgments from contradicting earlier ones, but also prevents them from
multiplying judgments, so a prevailing plaintiff could not recover damages from the defendant
twice for the same injury.

Res judicata includes two related concepts: claim preclusion, and issue preclusion (also called
collateral estoppel), though sometimes res judicata is used more narrowly to mean only claim
preclusion. Claim preclusion focuses on barring a suit from being brought again on a legal cause
of action that has already been finally decided between the parties. Issue preclusion bars the relitigation of factual issues that have already been necessarily determined by a judge or jury as
part of an earlier claim. It is often difficult to determine which, if either, of these apply to later
lawsuits that are seemingly related, because many causes of action can apply to the same factual
situation and vice versa. The scope of an earlier judgment is probably the most difficult question
that judges must resolve in applying res judicata. Sometimes merely part of a subsequent lawsuit
will be affected, such as a single claim being struck from a complaint, or a single factual issue
being removed from reconsideration in the new trial.

Res judicata does not restrict the appeals process, which is considered a linear extension of the
same lawsuit as it travels up (and back down) the appellate court ladder. Appeals are considered

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the appropriate manner by which to challenge a judgment rather than trying to start a new trial,
and once the appeals process is exhausted or waived, res judicata will apply even to a judgment
that is contrary to law.
However, there are limited exceptions to res judicata that allow a party to attack the validity of
the original judgment, even outside of appeals. These exceptions--usually called collateral
attacks--are typically based on procedural or jurisdictional issues, based not on the wisdom of the
earlier court's decision but its authority or competence to issue it. A collateral attack is more
likely to be available (and to succeed) in judicial systems with multiple jurisdictions, such as
under federal governments, or when a domestic court is asked to enforce or recognize the
judgment of a foreign court.

When a subsequent court fails to apply res judicata and renders a contradictory verdict on the
same claim or issue, if a third court is faced with the same case, it will likely apply a "last in
time" rule, giving effect only to the later judgment, even though the result came out differently
the second time. This situation is not unheard of, as it is typically the responsibility of the parties
to the suit to bring the earlier case to the judge's attention, and the judge must decide how
broadly to apply it, or whether to recognize it in the first place. Public Interest Litigation, in
simple words, means, litigation filed in a court of law, for the protection of "Public Interest",
such as pollution, Terrorism, Road safety, constructional hazards etc.Public Interest Litigation is
not defined in any statute or in any act. It has been interpreted by judges to consider the intent of
public at large. Although, the main and only focus of such litigation is only "Public Interest"
there are various areas where a Public Interest Litigation can be filed. For e.g.
# Violation of basic human rights of the poor
# Content or conduct of government policy
# Compel municipal authorities to perform a public duty.
# Violation of religious rights or other basic fundamental rights.

Res Judicata As Defined Under Code Of Civil Procedure, 1908

Section 11 of the Code of Civil Procedure embodies the doctrine of res judicata or the rule of
conclusiveness of a judgement,

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as to the points decided either of fact, or of law, or of fact 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. In the absence of such a rule there
will be no end to litigation and the parties would be put to constant trouble, harassment and
expenses. The doctrine has been explained in the simplest possible manner by Das Gupta, J., ?
the principle of Res Judicata is based on the need of giving a finality to the judicial decisions.
What it says is that once a res 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 canvas the matter again.

Section 11 of the Code of Civil Procedure, 1908 defines Res Judicata as:
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.

Explanation I: The expression "former suit" shall denote a suit which has been decided prior to
the suit in question whether or not it was instituted prior thereto.
Explanation II. For the purposes of this section, the competence of a Court shall be determined
irrespective of any provisions as to a right of appeal from the decision of such Court.
Explanation III. The matter above referred to must in the former suit have been alleged by one
party and either denied or admitted, expressly or impliedly, by the other.
Explanation IV. Any matter which might and ought to have been made ground of defence or
attack in such former suit shall be deemed to have been a matter directly and substantially in
issue in such suit.
Explanation V. Any relief claimed in the plaint, which is not expressly granted by the decree,
shall, for the purposes of this section, be deemed to have been refused.

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Explanation VI. Where persons litigate bona fide in respect of public right or of a private right
claimed in common for themselves and others, all persons interested in such right shall, for the
purposes of this section, be deemed to claim under the persons so litigating.
Explanation VII. The provisions of this section shall apply to a proceeding for the execution of a
decree and reference in this section to any suit, issue or former suit shall be construed as
references, respectively, to proceedings for the execution of the decree, question arising in such
proceeding and a former proceeding for the execution of that decree.
Explanation VIII. An issue heard and finally decided by a Court of limited jurisdiction,
competent to decide such issue, shall operate as res judicata in as subsequent suit,
notwithstanding that such Court of limited jurisdiction was not competent to try such subsequent
suit or the suit in which such issue has been subsequently raised. The doctrine of res judicata is
based on three maxims

(a) Nemo debet lis vaxari pro eadem causa (no man should be vexed twice for the same cause)
(b) Interest republicae ut sit finis litium ( it is in the interest of the state that there should be an
end to a litigation); and
(c) Re judicata pro veritate occipitur (a judicial decision must be accepted as correct)

As observed by Sir Lawrence Jenkins, the rule of res judicata, while founded on account of
precedent, is dictated by a wisdom is for all times
Referring to the opinion of the Judges expressed in 1776 in the Duches of Kingston's Case (2
Smith's L.C. 13th edn. 644, 645.) to which reference has been invariably made in most of the
cases by the Indian courts. It was said in that case:

"From the variety of cases relative to judgments being given in evidence in civil suits, these two
deductions seem to follow as generally true : first the judgment of a Court of concurrent
jurisdiction, directly upon the points, is as a plea, a bar, or as evidence conclusive, between the
same parties, upon the same matter, directly in question in another Court; secondly that the
judgment of a Court of exclusive jurisdiction, directly upon 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. But neither the judgment of a concurrent or exclusive

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jurisdiction is evidence of any matter which came collaterally in question, though within their
jurisdiction, nor of any matter incidentally cognizable, nor of any matter to be inferred by
argument from the judgment."
Section 11 contains the rule of conclusiveness of the judgment which is based partly on the
maxim of Roman Jurisprudence "Interest reipublicaeut sit finish litium" (it concerns the State
that there be an end to law suits) and partly on the maxim "Nemo debet lis vexari pro una at
eadem causa" (no man should be vexed twice over for the same cause). The section does not
affect the jurisdiction of the Court but operates as a par to the trial of the suit or issue, if the
matter in the suit was directly and substantially in issue (and finally decided) in the previous suit
between the same parties litigating under the same title in a Court, competent to try the
subsequent suit in which such issue has been raised.

In CORPUS JURIS (vol. 34, p. 743), it has been stated: Res Judicata is a rule of universal law
pervading every well regulated system of jurisprudence and is put upon two grounds, embodied
in various maxims of the common law; the one, public policy and necessity, which makes it to
the interest of the state that there should be an end to litigation; the other, the hardship to the
individual that he should not be vexed twice for the same cause.

Thus, this doctrine of res judicata is a fundamental concept based on public policy and private
interest. It is conceived in the larger public interest, which requires that every litigation must
come to an end. It therefor, applies to civil suits, execution proceedings, arbitration proceedings,
taxation matters, writ petitions, administrative orders, interim orders, criminal proceedings, etc.

An ordinary litigation being a party or claiming under a party of a former suit cannot avoid the
applicability of section 11 of CPC as it is mandatory except on the ground of fraud or collusion
as the case may be. Res Judicata in fact means Thing which had been adjudged the essential
ingredients of which are to be considered while deciding whether a particular judgment operated
as res judicata or not be postulated as follows:

# Matter which was directly and substantially in issue in former suit must be directly and
substantially issue in the subsequent suit also.

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# Both the former and subsequent suit should have been between the parties or between the
parties litigating under some titles.
# The former suit should have been decided by competent court which can try subsequent suit
also.
# Any matter, which might and ought to have been made a ground of defence or attack in such
former suit shall be deemed to have been a matter directly and substantially in issue in each suit.
The onus of proof lies on the party relying on the theory of res judicata.

SECTION 11 OF CPC IS MANDATORY

The provisions of section 11 of CPC are not directory but mandatory. The judgment in a former
suit can be avoided only by taking recourse to section 44 of the Indian Evidence Act on the
ground of fraud or collusion. Where several defendants are there, in a suit the collusion of one of
them alone is not enough to avoid the operation of rule of res judicata. Gross negligence is
different from fraud and collusion.

The provisions of section 11 of the Code are mandatory and the ordinary litigant who claims
under one of the parties to the former suit can only avoid its provisions by taking advantage of
section 44 of the Indian Evidence Act which defines with precision the grounds of such evidence
as fraud or collusion. It is not for the court to treat negligence or gross negligence as fraud or
collusion unless fraud or collusion is the proper inference from facts. Other factors in exception
to section 11 being present must be litigating bona fide and the fulfillment of this is necessary for
the applicability of the section. The above ratio decidendi was laid down in Jallur Venkata
Seshayya v. Thadviconda Koteswara Rao and Others . This representative suit was brought by
some persons on behalf of public interest for declaring certain temples public temples and for
setting aside alienation of endowed property by the manager thereof. A similar suit was brought
some years ago by two persons and the suit was dismissed on the grounds that the temples were
private temples and the property endowed to the temple being private endowment, the alienation
thereof were valid. The plaintiffs admitted that they could be deemed to be persons claiming
under the plaintiffs in prior suit and the issue in both the suits was same.

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It was contended however by them that finding in the prior suit could not be res judicata as
against them in as much as there was gross negligence on the part of the plaintiffs in that suit in
not producing the documents necessary for the decision of the suit in their favour and in not
placing their evidence before the Court and Privy Council held that no case of fraud apart from
collusion being suggested, the plaintiffs, were bound to establish either that the decree in prior
suit was obtained by collusion between the parties or that the litigation by the plaintiffs in prior
suit was not bona fide. The plaintiffs based their case entirely on inferences to be drawn from
alleged gross negligence on the part of the plaintiffs in the prior suit. The finding of gross
negligence by the Trial Court was far from a finding of intentional suppression of the documents
which would amount to want of bona fide or collusion on the part of the plaintiffs in prior suit.
There being no evidence in the suit establishing either want of bona fide of collusion on the part
of plaintiffs as res judicata.

In Beliram & Brothers and Others v. Chaudari Mohammed Afzal and Others it was held that
where it is established that the minors suit was not brought by the guardian of the minors bona
fide but was brought in collusion with the defendants and the suit was a fictitious suit, a decree
obtained therein is one obtained by fraud and collusion within the meaning of section 44 of the
Indian Evidence Act, and does not operate res judicata. The principle of res judicata in section 11
CPC is modified by section 44 of the Indian Evidence Act, and the principles will not apply if
any of the three grounds mentioned in Section 44 exists.

General principles cannot be applied in a way making section 11 CPC nugatory.

In Sarla Bala Devi v. Shyam Prasad Chatterjee, thee Division Bench of Calcutta High Court
held:
It is undoubtedly true that the principles of res judicata apply to proceedings other than suits
including proceedings in execution. It must be taken as held by the Supreme Court that the
principles of constructive res judicata are also applicable to execution proceedings. But the
conditions of applicability of the principles of res judicata actual or constructive contained in
section 11 CPC must be complied within such cases as far as possible. It is not the law that when
a court applies the principles analogous to res judicata that court can override the conditions
specified in section 11 CPC.

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The Calcutta High Court in fact followed an earlier decision of the same court in Abinash
Chandra v. Madhusudan Majumdar and another1, section 11 does not codify or crystallize the
entire law regarding the doctrine res judicata. It deals with some of the circumstances under
which a previous decision will operate as res judicata but not with all. Where circumstances
other than provided for in section 11 exists the general principle underlying the rule of res
judicata may be invoked in proper cases without recourse to the provision to the provisions of
that section. But obviously it does not follow that the provision of section 11 may be flouted or
overridden or that the prohibitions or reservation express or implied in that section may be
ignored by reference to general principles of res judicata in a case to which section 11 applies.

The general principles of res judicata cannot be invoked in a case when the court which tried the
first suit had no jurisdiction to try the subsequent suit in as much as section 11 is explicit on this
point and hence a former decision by court of small causes will not operate res juducata. The
decision on an issue by a court of inferior jurisdiction does not operate as a bar to the trial of the
issue by a court of superior jurisdiction in a subsequent suit but the correctness of this view is
doubtful now in view of the Amending Act of 1976.

In this case the majority of their Lordships of the supreme Court held that the provisions of
section 11 CPC are not exhaustive with respect to an earlier decision operating as res judicata
between the same parties on the same matter in controversy in a subsequent suit and on general
principles of res judicata, any previous decision on a matter of controversy decided after full
contest or after affording fair opportunity to the parties to prove their case by a court competent
to decide it will operate as res judicata in a subsequent regular suit. The general provisions of res
judicata are wider than the provisions of section 11 CPC and also apply to cases not coming
within the four corners of the section but if the case fails within the terms of section

11 CPC conditions of the section must be strictly complied with. The general principles of res
judicata are applicable where the previous decisions has not been given in a civil suit though a
plea of res judicata is raised in a subsequent civil suit but where both the proceedings are civil

AIR 1952 Cal 673

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suits the general principles of res judicata have no application and the case must be confined to
the four corners of section 11 CPC.
Where the court is dealing with a suit the only ground on which res judicata can be urged against
such a suit would be the provisions of Section 11 CPC and no other. Scope of the principle of res
judicata is not confined to what is contained in Section 11 but of more general application. The
rule of res judicata as contained in Section 11 of the CPC has no doubt some technical aspects
for instance the rule of constructive res judicata may be said to be technical but the basis on
which the said rule rests is founded on consideration of public policy. The doctrine of res
judicata is a doctrine of wide import and Section 11 of CPC is not exhaustive of it and there is
high authority for the view that the principle of res judicata may apply apart from the limited
provisions of CPC. Section 11 is not exhaustive of the general principles of res judicata. It is
however exhaustive in respect of the cases which directly come within its ambit in those cases if
Section 11 does not strictly apply the court cannot invoke the general principles of res judicata.

The principle of conclusiveness of judgment is much wider and is a part of the general principles
of res judicata and those principles have been held by authorities to be good principles apart from
the provisions of CPC. Section 11 is not exhaustive of the circumstances in which an issue may
be res judicata. A decision in order to constitute res judicata need not necessarily have been
given in a prior suit. The principle which prevents the same cause being twice litigated is of
general application and is not limited by the specific words of Section 11 CPC in this respect
though a proceeding for scaling down a debt under the Madras Agriculturists Relief Act is an
original proceeding and not a suit the decision of the Court scaling down the decree as regards
the amount payable under it would be res judicata between the parties in subsequent proceedings.
Section 11 is not exhaustive of the circumstances in which the principles of res judicata may be
applied but when a case falls within the purview of Section 11 CPC all the requirements are to be
satisfied.

The principle of Res judicata has been held to be of wider application on the basis of the wider
principle of the finality of decision by Courts of law and a decision under Section 12 of the U.P.
Agriculturists Relief Act of 1934 was held to operate as Res judicata Section 11 CPC which
embodies the principle of Res judicata has been held to be not exhaustive and even though a

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matter may not be directly covered by the provisions of that section the matter may still be Res
Judicata on general principles. Section 11 is not exhaustive statement of doctrine of Res Judicata
and the principle has a wider application than in warranted by strict language of the section. The
Division Bench of the Madras High Court in Arikapudi Balakotayya v. Yadlapalli Nagayyaheld
as follows :

# It is undoubtedly the law that the Doctrine of Res Judicata is not confined to decisions in a suit
and that the doctrine applies even to decisions rendered in proceedings which are not suits but
how far the decision which is rendered in an original proceedings will bind the parties depends
upon the considerations. A decision given in a proceedings other than a suit may still operate as
Res Judicata substantial rights of the parties are determined. But if the decision is given in a
summary proceeding it does not operate as Res Judicata. Proceedings under section 84(2)
Madras Hindu Religious Endowments Act, cannot be said to be summary proceedings even
though there may be no right of appeal. The question of res judicata does not depend on the
applicability of the decision, which is put forward as constituting res judicata. That question
comes in incidentally to see if proceedings under section 84(2) is of a summary nature.

The decision of the District Judge therefore, operates as Res Judicata in a subsequent
proceedings between the same parties.
Though Section 11 of CPC is largely modified even then it is not exhaustive. The plea of res
judicata still remains apart from the separate provisions of CPC. The statement of doctrine of res
judicata contained in Section 11 of CPC is not exhaustive and there fore recourse may properly
be had to the decisions of the English Courts for the purpose of ascertaining the general
principles governing the application of the doctrine. The terms of section 11 are not to be
regarded as exhaustive. The binding force of a judgement in probate proceedings depends upon
the section 11 but upon the general principles of law. The rule of Res Judicata though may be
traced to an English source it embodies a doctrine in no way opposed commentators. The
application of the rule of res judicata therefore by the Courts in India should be included by no
technical consideration of form but by matter of substance within the limit allowed by law.
'Res' in Latin means thing a 'Judicata' means already decided. This rule operates as a bar
to the trial of a subsequent suit on the same cause of action between the same parties. Its

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basic purpose is - "One suit and one decision is enough for any single dispute". The rule
of 'res judicata' does not depend upon the correctness or the incorrectness of the former
decision.2 It is a principle of law by which a matter which has been litigated cannot be relitigated between the same parties. This is known as the rule of "res judicata" (thing
decided). The aim of this rule is to end litigation once a matter has been adjudicated. It
aims to save the court time and prevent harassment to parties.

"Res judicata pro veritate accipitur" is the full maxim which has, over the years, shrunk
to mere "res judicata". Section 11 contains the rule of conclusiveness of the judgment,
which is based partly on the maxim of Roman Jurisprudence interest reipublicae ut sit
finis litium" (it concerns the State that there be an end to law suits) and partly on the
maxim "Nemo debet bis vexari pro una at eadem causa" (no man should be vexed twice
over for the same cause). The section does not affect the jurisdiction of the court but
operates as a bar to the trial of the suit or issue, if the matter in the suit was directly and
substantially in issue (and finally decided) in the previous suit between the same parties
litigating under the same title in a court, competent to try the subsequent suit in which
such issue has been raised.3 The principle of res judicata is based on the need to give
finality and certainty to judicial decisions. The principle of res judicata includes
constructive res judicata4 also.

The term res judicata in common parlance refers to the various ways in a judgment in
which one action will have a binding effect in another.

In modern terminology, these

binding effects are called claim preclusion5. It must be distinguished from the second
effect which is called collateral estoppel or issue preclusion6 . Res judicata is a broad
2

AIR 1983 NOC 69 (All).

Kunjan Nair Sivaraman Nair v. Narayanan Nair and others 2004 AIR (SC) 1761, 2004 (3) SCC 277.

Explanation IV to s. 11 of CPC.

Claim preclusion focuses on barring a suit from being brought again on a legal cause of action that has already
been finally decided between the parties.
6

Issue preclusion bars the re-litigation of factual issues that have already been necessarily determined by a judge or
jury as part of an earlier claim.

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term which encompasses both issue preclusion or claim preclusion. The effect of issue
preclusion is that an issue determined in a first action may not be re-agitated when the
same issue arises in a later action based on a different claim or demand.7

Essentials for res judicata.The general principle of res judicata is embodied in its
different forms in three different Indian major statutesSection 11 of the Code of Civil
Procedure, Section 300 of the Code of Criminal Procedure, 1973 and Sections 40 to 43 of
the Indian Evidence Act, yet it is not exhaustive. Here, we are concerned only with
Section 11 of the Code of Civil Procedure. Following conditions must be proved for
giving effect to the principles of res judicata under Section 11

i. That the parties are same or litigating under same title,

ii. That the matter directly and substantially in issue in the subsequent suit must be same
which was directly and substantially in issue in the former suit,
iii. That the matter in issue has been finally decided earlier, and
iv. That the matter in issue was decided by a Court of competent jurisdiction.

If any one or more conditions are not proved, the principle of res judicata would not
apply. Where all the four conditions are proved, the Court has no jurisdiction to try the
suit thereafter as it becomes not maintainable and liable to be dismissed. For application
of principle of res judicata, existence of decision finally deciding a right or a claim
between parties is necessary.

See 94 US 351 352-353, 24 Led. 195, 197-198 (1877) wherein the distinction between issue preclusion and claim
preclusion has been formulated by Mr. Justice Field in Crownwell v. County of Sac.

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CHAPTER 2

RES JUDICATA IN PUBLIC INTEREST LITIGATION

Public Interest Litigation is not defined in any statute or in any act. It has been interpreted
by judges to consider the intent of public at large. Although, the main and only focus of
such litigation is only "Public Interest". Public interest litigation or social action litigation
is fought with the objective to make good the grievances of public at large.
In Forward Construction Co. v. Prabhat Mandal8 , the Supreme Court was directly
called upon to decide the question. The apex court held that the principle would apply to
public interest litigation provided it was a bona fide litigation.
In another case of Ramdas Nayak v. Union of India9 , the court observed:
It is a repetitive litigation on the very same issue coming up before the courts again and
again in the grab of public interest litigation. It is high time to put an end to the same.
In State of Karnataka & Anr v. All India Organizations & Ors10, the Court has stated
that in a public interest litigation the petitioner is not agitating his individual rights but
represents the public at large. As long as the litigation is bonafide the judgment in
previous public interest litigation would be a judgment in rem. It binds the public at large
and bars any member of the public from coming to the Court and raising any connected
issue which has been raised or should have been raised on an earlier occasion by way of
public interest litigation, if the issue were directly and substantially in issue in the
previous proceedings. Hence principle of res judicata and constructive re judicata are
applicable to public interest litigation also.

AIR 1986 SC 391

AIR 1995 Bom 235

10

AIR 2006 SC 1846

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Explanation VI11 it cannot be disputed that Sec 11 applies to public interest litigation as
well it must be proved that the previous litigation was the public interest litigation not by
way of private grievance.

11

Explanation VI.--Where persons litigate bona fide in respect of a public right or of a private right claimed in
common for themselves and others, all persons interested in such right shall, for the purposes of this
section, be deemed to claim under the persons so litigating

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CHAPTER 3

RES JUDICATA IN TAXATION MATTERS

When does the principle of res judicata apply in tax matters? The common understanding
is that, notwithstanding the public policy behind the rule, it has no relevance to tax
disputes. It is said that a finding or an opinion recorded by an authority or even by a court
of law for one assessment year has no binding effect on the issues in subsequent
assessment years.

Strictly speaking res judicata does not apply to income-tax proceedings. But each assessment
being a suit, what is decided in one year may not apply in the following years but where
a fundamental aspect permeating through the different assessment year has been found as a
fact one way or

the other and parties have allowed that position to be sustained by not

challenging the order, it would not be all appropriate to allow the position to be changed in a
subsequent year12.
In Amalgamated Coalfields Ltd. Janapadha sabha13, the apex Court has said that each
assessment year, being an independent unit, a decision for one year may not operate as
res judicata in another year. But if a pure question of law, e.g. constitutional validity of a
statute is decided, it may not be easy to hold that the decision on this basic and material
issue would not operate as res judicata against the assessee for a subsequent year.
In Bharat Sanchar Nigam Ltd. V. Union of India14, the apex Court has held that in a
12

Radhasaomi satsang saomi bagh, Agra messrs v. Commissioner of Income-tax, AIR 1992 SC 1721

13

AIR 1968 SC 1013

14

AIR 2006 SC 1383

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tax matter decision given for one assessment year does not operate as res judicata for the
subsequent years on the premise that res judicata applies to debar Courts from
entertaining issues on the same cause of action whereas the cause of action for each
assessment year is distinct. The Court made it clear that a Court of superior jurisdiction
overruling a decision of a lower authority cited before it, would not operate to upset the
binding nature of that decision on the parties to the case and to whom the principle of res
judicata would continue to operate.

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CHAPTER 4

RES JUDICATA IN EXECUTION PROCEEDINGS

Explanation VII15 added in the section 11 has made it clear that not only general principle
of res judicata but also constructive res judicata apply to execution proceedings. The
provisions of the section are now applicable to a proceeding for the execution of a decree,
and references in the section to a suit, issue or former suit shall be construed as references
respectively to a proceeding for the execution of a decree, question arising in such
proceeding and a former proceeding for the execution of that decree. However, an
application by decree-holder to transfer certain papers to another Court for further
execution is not an execution application and its dismissal does not bar a fresh
application.
The Law Commission recommended that the principle of res judicata should be applied
to the situations of proceedings in execution and independent proceedings and suggested
insertion of Section 11A. Instead of inserting Section 11A the Joint Committee of
Parliament suggested insertion of Explanation to Section 11 and on the basis of that
report, Explanations VII16and VIII17 have been inserted by C.P.C. (Amendment) Act,
1976. Section 11 of the present Code excluding Explanation VIII envisages that judgment
in a former suit would operate as res judicata if the Court which decided the suit was
competent to try the same by virtue of its pecuniary jurisdiction and the subject-matter to
try the subsequent suit as such it is not necessary that the said Court should have had
territorial jurisdiction to decide the subsequent suit.

15

Explanation VII.--The provisions of this section shall apply to a proceeding for the execution of a decree and
references in this section to any suit, issue or former suit shall be construed as references, respectively, to a
proceeding for the execution of the decree, question arising in such proceeding and a former proceeding for
the execution of that decree.
16
Inserted by Act 104 of 1976, section 6 (w.e.f. 1-2-1977).
17
Explanation VIII.--An issue heard and finally decided by a Court of limited jurisdiction, competent to decide
such issue, shall operate as res judicata in a subsequent suit, notwithstanding that such Court of limited
jurisdiction was not competent to try such subsequent suit or the suit in which such issue has been subsequently
raised.

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The provisions of this Section were not expressly made applicable to execution
proceedings. But the principle of res judicata has been extended to execution
proceedings18 because the doctrine is based on the general principle of law, for it were
not binding, there would be no end to litigation.19
In Mahijibhai v. Manibhai20, the Supreme Court by a majority held that an application
for restitution under Section 144 of the Code of Civil procedure is an application for
restitution under Section 144 of the Code of Civil procedure is an application for
execution of a decree. The principle of res judicata applies to execution proceedings.21

In Harnath Rai v. Hirdai Narain22and Venkappa v. Lakshmikant Rao23, It is held that the
principle of Constructive res judicata applies not only to different execution applications
but also to different stages of the same execution petition.

18

Dwarka das v. Ashfaq Ullah, ILR 5 37 All.

Ram Golam v. barsati singh, ILR 36 Cal 336.
20
AIR 1965 SC 1477.
21
Maqbool Alam khan v. Mst. Khodaiji, AIR 1966 SC 1194.
22
AIR 1953 Pat 242.
23
AIR 1956 Hyd. 7.
19

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CHAPTER 5

RES JUDICATA IN WRIT PETITION

It has been settled since long that the Section 11 of the Code is not applicable, the general
principle of res judicata may be made applicable in the judicial proceedings. It is settled
principle of law that general principle of res judicata applies to writ petitions. However, a
writ petition dismissed under Article 226 of the Constitution of India would not
ordinarily bar filing of writ petition under Article 32 or an special leave petition under
Art. 136.
In the leading case of Darayao v. State of UP24, the Supreme Court has exhaustively
dealt with the question of applicability of the principle of res judicata in writ proceedings
and laid down certain principles which may be summarized thus:

1. If a petition under Article 226 is considered on merits as a contested matter and is dismissed,
the decision would continue to bind the parties unless it is otherwise modified or reversed in
appeal or other appropriate proceedings permissible under the Constitution.

2. It would not be open to a party to ignore the said judgment and move the Supreme Court
under Article 32 by an original petition made on the same facts an for obtaining the same
or similar orders or writs.

3. If the petition under Article 226 in a High Court is dismissed not on merits but because of
laches of the party applying for the writ or because it is held tha the party had an alternative
remedy available to it the dismissal of the writ petition would not constitute a bar to a
subsequent petition under Article 32.

24

AIR 1961 SC 1457

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4. Such a dismissal may, however, constitute a bar to a subsequent application under Article 32
where and if the facts thus found by the High Court be themselves relevant even under
Article 32.

5. If a writ petition is dismissed in limine and an order is pronounced in that behalf, whether or
not the dismissal would constitute a bar would depend on the nature of the order. If the order is
on merits, it would be a bar.

6. If a petition is dismissed in limine without a speaking order, such dismissal cannot be treated
as creating a bar of res judicata.

7. If a petition is dismissed as withdrawn, it cannot be a bar to a subsequent petition under

Article 32 because in such a case, there had been no decision on merits by the court.25

8. The doctrine of constructive res judicata applies to writ proceedings and when any point
which might and ought to have been taken but was not taken in earlier proceedings cannot be
taken in a subsequent proceeding.

9.

The rule of constructive res judicata however does not apply to a writ of habeas corpus.

Therefore, even after the dismissal of one petition of habeas corpus, a second petition is
maintainable if fresh, new or additional grounds are available.

10. The general principles of res judicata apply to different stages of the same suit or
proceedings.26

11. If a petitioner withdraws the petition without the leave of court to institute a fresh petition on
the same subject-matter, the fresh petition is not maintainable.27

25

AIR 1961 SC 1465-66.

Arjun Singh v. Mohindra Kumar, AIR 1964 SC 993.
27
Sarguja Transport Services v. State Transport Appellate Tribunal, (1987) 1 SCC 5.
26

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CONSTRUCTIVE RES JUDICATA :

A question some times arises as to whether the rue of constructive can be applied to writ
petitions. This question arose for the first time before the Supreme Court in the case of
Amalgamated Coalfields Ltd v. Janapada Sabha28. In that case, the earlier notices
issued by the respondent against the companies calling upon them to pay tax were
challenged on certain grounds. At the time of hearing of the petitions, an additional
ground was also taken and the authority of the Sabha to increase the rate of tax was
challenged. However, since there was no pleading, the said point was not allowed to be
argued and the petitions were dismissed. The said decision was upheld even by the
Supreme Court. Thereafter, once again when the notices were issued in respect of the
different period, they were challenged on that additional ground, which was not permitted to be
argued in the previous litigation. The High Court dismissed the petitions holding that they
were barred by res judicata.

HABEAS CORPUS PETITION:

English29 as well as American2930 Courts have taken the view that the principle of res
judicata is not applicable to a writ of habeas corpus. In India also, the doctrine of res
judicata is not made applicable to cases of habeas corpus petitions. In Ghulam Sarwar v. Union
of India31, rejecting the plea of application of constructive res judicata, the Supreme Court
observed:
If the doctrine of constructive res judicata be applied, this Court, though is enjoined by the
Constitution to protect the right of a person illegally detained, will become powerless to
do so. That would be whittling down the wide sweep of the constitutional protection.32
In Lallubhai Jogibhai patel v. Union of india33, the petitioner was detained and the
petition filed against the said order was dismissed by the Supreme Court by an order

28

AIR 1964 SC 1013.

Cox v. Hakes, (1890) 15 AC 506.
30
Edward v. Charles, (1835) 9 Law Edn. 859.
31
AIR 1967 SC 1335.
32
Niranjan Singh v. State of M.P. AIR 1972 SC 2215.
33
AIR 1981 SC 728.
29

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dated May 9, 1980, but the reasons were given on the August 4, 1980, he was informed that he
may, if so advised, file a fresh petition on those additional grounds, which he did.

The question which arose before the Supreme Court was whether the principle of
constructive res judicata could apply to a writ of habeas corpus. Sarkaria J. made the
following remarkable observations, which, it is submitted lay down correct law:
The application of constructive res judicata is confined to civil actions and civil proceedings.
This principle of public policy is entirely inapplicable to illegal detention and does not bar a
subsequent petition for a writ of habeas corpus under Article 32 of the Constitution on fresh
grounds, which were not taken in the earlier petition for the same relief.

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CHAPTER 6

CONSTRUCTIVE RES JUDICATA

Constructive Res judicata: The law revisited

In a recently reported decision [Ramchandra Dagdu Sonavane (Dead) by L.Rs. v. Vithu Hira
Mahar (Dead) by LRs. & Ors34.,], the Supreme Court has explained the doctrine of constructive
res judicata as applicable in Indian law. A sub-set of the doctrine of res judicata, emanating from
Section 11 of the Code of Civil Procedure, the doctrine of constructive res judicata sets to naught
any claims being raised in a subsequent proceeding where in an earlier proceeding such claim
should / ought to have been raised and decided. A rule of prudence, thus, the doctrine seeks to
bar determination and enforcement of claims which have not been raised at an appropriate
juncture in judicial proceedings.

The Supreme Court explained the meaning and ambit of the doctrine of constructive res judicata
as under;

Res-judicata and Code of Civil Procedure :- It is well known that the doctrine of res- judicata is
codified in Section 11 of the Code of Civil Procedure. Section 11 generally comes into play in
relation to civil suits. But apart from the codified law, the doctrine of res-judicata or the principle
of the res-judicata has been applied since long in various other kinds of proceedings and
situations by courts in England, India and other countries. The rule of constructive res-judicata is
engrafted in Explanation IV of Section 11 of the Code of Civil Procedure and in many other
situations also Principles not only of direct res-judicata but of constructive res-judicata are also
applied, if by any judgment or order any matter in issue has been directly and explicitly decided,
the decision operates as res-judicata and bars the trial of an identical issue in a subsequent
proceedings between the same parties. The Principle of res judicata comes into play when by
judgment and order a decision of a particular issue is implicit in it, that is, it must be deemed to
34

AIR 2010 SC 818

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have been necessarily decided by implications even then the Principle of res judicata on that
issue is directly applicable. When any matter which might and ought to have been made a ground
of defence or attack in a former proceeding but was not so made, then such a matter in the eye of
law, to avoid multiplicity of litigation and to bring about finality in it, is deemed to have been
constructively in issue and, therefore, is taken as decided 35.
In Swamy Atmandanda v. Sri Ramakrishna, Tapovanam36, it was held by this court :
The object and purport of the principle of res judicata as contended in Section 11 of the Code
of Civil Procedure is to uphold the rule of conclusiveness of judgment, as to the points decided
earlier of fact, or of law, or of fact and law, in every subsequent suit between the same parties.
Once the matter which was the subject-matter of lis stood determined by a competent court, no
party thereafter can be permitted to reopen it in a subsequent litigation. Such a rule was brought
into the statute-book with a view to bring the litigation to an end so that the other side may not be
put to harassment.

The principle of res judicata envisages that a judgment of a court of concurrent jurisdiction
directly upon a point would create a bar as regards a plea, between the same parties in some
other matter in another court, where the said plea seeks to raise afresh the very point that was
determined in the earlier judgment.

When the material issue has been tried and determined between the same parties in a proper suit
by a competent court as to the status of one of them in relation to the other, it cannot be again
tried in another suit between them as laid down in Krishna Behari Roy v. Bunwari Lal Roy37,
which is followed by this Court in the case of Ishwar Dutt v. Land Acquisition Collector &
Anr38., wherein the doctrine of `cause of action estoppel and `issue estoppel has been discussed.
It is laid down by this Court, that if there is an issue between the parties that is decided, the same

35

AIR 1978 SC 1283

(2005) 10 SCC 51
37
1875 ILR (IC-144)
38
(2005) 7 SCC 190
36

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would operate as a res-judicata between the same parties in the subsequent proceedings. This
court in the case of Isher Singh v. Sarwan Singh39, has observed :
We thus reach the position that in the former suit the heirship of the respondents to Jati
deceased (a) was in terms raised by the pleadings, (b) that an issue was framed in regard to it by
the trial Judge, (c) that evidence was led by the parties on that point directed towards this issue,
(d) a finding was recorded on it by the appellate court, and (e) that on the proper construction of
the pleadings it would have been necessary to decide the issue in order to properly and
completely decide all the points arising in the case to grant relief to the plaintiff. We thus find
that every one of the conditions necessary to satisfy the test as to the applicability of Section 11
of the Civil Procedure Code is satisfied.

So far as the finding drawn in the suit for injunction in O.S. No.104 of 1953, regarding adoption
would also operate as a res-judicata in view of the judgment of this Court in the case of
Sulochana Amma v. Narayanan Nair40. It is observed: The decision in earlier case on the issue
between the same parties or persons under whom they claim title or litigating under the same
title, it operates as a res-judicata. A plea decided even in a suit for injunction touching title
between the same parties, would operate as res-judicata. It is a settled law that in a Suit for
injunction when title is in issue, for the purpose of granting injunction, the issue directly and
substantially arises in that suit between the parties when the same is put in issue in a later suit
based on title between the same parties or their privies in a subsequent suit, the decree in
injunction suit equally operates as a res-judicata.

Reference may be made to the decision of this court in the case of Sulochana Amma v.
Narayanan Nair41, on the issue between the same parties or persons under whom they claim title
or litigating under the same title, it operates as a res-judicata. A plea decided even in suit for
injunction touching the title between the same parties, would operate as res judicata : It is a
settled law that in a suit for injunction when title is in issue, for the purpose of granting
injunction the issue directly and substantially arises in that suit between the parties. When the
39

AIR 1965 SC 948

(1994) 2 SCC 14
41
Ibid
40

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same is put in issue in a later suit based on title between the same parties or their privies in a
subsequent suit, the decree in injunction suit equally operates as a res judicata.
To the same effect, the judgment of this court in the case of Sulochana Amma v. Narayanan
Nair42, in which it has been held that the issue between the same parties or persons under whom
they claim title or litigating under the same title, it operates as a res-judicata. A plea decided
even in suit for injunction touching the title between the same parties, would operate as res
judicata.

42

Ibid

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CHAPTER 7

RES JUDICATA : DIFFERENCE FROM OTHER DOCTRINES

Distinction between Res judicata and Estoppel :

Res judicata is sometimes treated as part of the doctrine of estoppel, but the two are
essentially different.43 The following are the points of distinction between the two
doctrines-:
1. Res judicata is the result of a decision of a Court of law, whereas estoppel is the result
of the act of parties;
2. The object of the rule of res judicata is to bring an end to the litigation whereas the
object of the rule of estoppel is to prevent a person who by his conduct induced another
to alter his position to his disadvantage;
3. The jurisdiction of the Court is ousted by res judicala, whereas estoppel is only a rule
of evidence;
4. The plea of res judicata presupposes the truth of the decision in the former suit
whereas the rule of estoppel simply prevents a person from denying what. he has once
called the truth.
The shortest way to describe the difference between the res judicata and estoppel, is to
say that while the former prohibits the Court from entering into an inquiry as to a matter
already adjudicated upon, the latter prohibits a party, after the inquiry has already been
entered upon, from providing anything which would contradict his own previous
declaration or act to the prejudice of another party, who, relying upon those declarations or
acts, has altered his position.
In other words, res judicata prohibits an inquiry in liniine, whilst an estoppel is only a
piece of evidence.44
43

MULLAS Code of Civil Procedure (1972) Students Edition, Page 23, See Also Section 115 of Indian Evidence
Act.
44
Sita Ram v. Amir Begum (1886) 8 ALL 324

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A decision of a tribunal is challenged on a pure question of law depending upon the

interpretation of a constitutional provision. On being upheld it would make the decision
of the tribunal as having been given by an authority suffering from inherent lack of
jurisdiction. The decision cannot be sustained by invoking the doctrine either of res
judicata or of estoppel.45
Res Judicata creates a different kind of estoppel namely, estoppel by accord.46
Distinction between Res judicata and Lis pendens
In case where there is a conflict between res judicata and lis pendens (which means that a
transferee during the pendency of the suit is bound by the result of litigation) /is pendens gives
way and the principle of res judicata will prevail.
Res judicala means a matter adjudicated upon or a matter on which decision has been made,
whereas lis pendens is an action pending litigation.

Distinction between Res judicata and Subjudice

1. Res judicata relates to a matter already decided, i.e. a matter on which judgment has
been pronounced, whereas res. subjudice (laid down in Section 10) relates to matter
which is pending for judicial enquiry.
2. Res subjudice bars the trial of a suit in which the matter directly and substantially in
issue is pending judicial decision, in a previously instituted suit by staying the trial of
the latter suit, whereas res judicata bars altogether the trial of a suit or an issue in
which the matter directly and substantially in issue has already been adjudicated upon
in a previous suit.
3. The object of res subjudice is to prevent Courts of a concurrent jurisdiction
from simultaneously entertaining and adjudicating upon two parallel litigations in
:elute cause of action, same subject-matter and same relief whereas the object
of Res judicata is that there should be an end to litigation and that no man should be
taxed twice over for the same cause.

45
46

Chief Justice of A.P v. L.V.A. Dikshitulu, AIR 1979 SC 193

B.K.Jain v. A.Kumar, AIR 2005 SC 626 (631)

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CHAPTER 8

CONCLUSION
In the light of the above discussion we have come to the conclusion that the doctrine of res
judicata will not apply unless all four conditions have been proved. The provisions of
section 11 of CPC are not directory but mandatory. The Section does not affect the
jurisdiction of the court but operates as a bar to the trial of the suit or issue. The doctrine
of res judicata is ultimately based on considerations of public policy. One important
public consideration of public policy is that the decisions pronounced by Courts of
competent jurisdiction should be final unless they are modified or reversed by appellate
authorities and the other principle is that no one should be made to face the same kind of
litigation twice over because such a process would be contrary to considerations of fair
play and justice.

The Doctrine of res Judicata is not only confined to decisions in a suit

and that the doctrine applies even to decisions rendered in proceedings which are not
suits but how far the decision which is rendered in a original proceedings will bind the
parties depends upon the considerations. A decision given in a proceedings other than a
suit may still operate as res Judicata if substantial rights of the parties are determined.
But if the decision is given in a summary proceeding it does not operate as res Judicata.

The principle of res Judicata does not apply strictly to public interest
litigations. The primary object of res Judicata is to bring an end to litigation, so there is
no reason not to extend the doctrine of res judicata.

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BIBLIOGRAPHY

1. Aiyers, V. Vishwanath, Code of Civil Procedure, Gogia Law Publishing, Hyderabad,

2004.
2. Banerjee, A.K., Code of Civil Procedure, 1908-2007, Dwivedi Law House, Allahabad,
2007.
3. Chary's, V.K., Code of Civil Procedure, Gogia Law Publishing, Hyderabad, 2006.
4. Jain, M.P., Code of Civil Procedure, Wadhawa and Company, Nagpur, 2007.
5. Majumdar, P.K and R.P., Kataria, Commentary on the Code of Civil Procedure,
Universal Publishing Company, Delhi, 1998.
6. Majumdar, P.K., Code of Civil Procedure 1908, Orient Publication, New Delhi, 2006.
7. Malik, B., Commentaries on Code of Civil Procedure, Central Law Agency, Allahabad,
2005.
8. Mulla, Code of Civil Procedure, Universal Publishing Company, Delhi, 1999.
9. Myeni, S.R., Code of Civil Procedure and Limitation Act, Asia Law House, Hyderabad,
2004.
10. Sarkar's, Law of Civil Procedure, Universal Law Publishing Company, Delhi, 2000.
11. Thacker, C.K., Code of Civil Procedure, Eastern Book Company, Lucknow, 2000.