Res Judicata

[Latin, A thing adjudged.] A rule that a final judgment on the merits by a court having
jurisdiction is conclusive between the parties to a suit as to all matters that were litigated or that
could have been litigated in that suit.The U.S. legal system places a high value on allowing a
party to litigate a civil lawsuit for money damages only once. U.S. courts employ the rule of res
judicata to prevent a dissatisfied party from trying to litigate the issue a second time.
Res judicata will be applied to a pending lawsuit if several facts can be established by the party
asserting the res judicata defense. First, the party must show that a final judgment on the merits
of the case had been entered by a court having jurisdiction over the matter. This means that a
final decision in the first lawsuit was based on the factual and legal disputes between the parties
rather than a procedural defect, such as the failure to serve the defendant with legal process.
Once a court makes a final decision, it enters a final judgment in the case. The judgment recites
pertinent data about the case, such as the names of the parties, the fact that a jury verdict was
rendered, and the disposition made. The judgment is filed with the court administrator for that
judicial jurisdiction.
The party asserting res judicata, having introduced a final judgment on the merits, must then
show that the decision in the first lawsuit was conclusive as to the matters in the second suit. For
example, assume that the plaintiff in the first lawsuit asserted that she was injured in an auto
accident. She sues the driver of the other auto under a theory of Negligence. A jury returns a
verdict that finds that the defendant was not negligent. The injured driver then files a second
lawsuit alleging additional facts that would help her prove that the other driver was negligent. A
court would dismiss the second lawsuit under res judicata because the second lawsuit is based on
the same Cause of Action (negligence) and the same injury claim.
Under the companion rule of Collateral Estoppel, the plaintiff will not be allowed to file a second
lawsuit for money damages using a different cause of action or claim. Under collateral estoppel,
the parties are precluded from litigating a second lawsuit using a different cause of action based
on any issue of fact common to both suits that had been litigated and determined in the first suit.
For example, the plaintiff who lost her auto accident case based on a theory of negligence cannot

proceed with a second lawsuit based on an allegation that the driver intentionally struck her auto,
thus making it an intentional tort cause of action. A court would assert collateral estoppel because
the plaintiff could have alleged an intentional tort cause of action in the original complaint.
The application of res judicata and collateral estoppel produces finality for the parties and
promotes judicial economy. Parties know that when final judgment is entered and all appeals are
exhausted, the case is over and the decision will be binding on all issues determined in the
lawsuit.

RES JUDICATA, practice. The decision of a legal or equitable issue, by a court of competent
jurisdiction.
2. It is a general principle that such decision is binding and conclusive upon all other courts of
concurrent power. This principle pervades not only our own, but all other systems of
jurisprudence, and has become a rule of universal law, founded on the soundest policy. If,
therefore, Paul sue Peter to recover the amount due to him upon a bond and on the trial the
plaintiff fails to prove the due execution of the bond by Peter, in consequence of which a verdict
is rendered for the defendant, and judgment is entered thereupon, this judgment, till reversed on
error, is conclusive upon the parties, and Paul cannot recover in a subsequent suit, although he
may then be able to prove the due execution of the bond by Peter, and that the money is due to
him, for, to use the language of the civilians, res judicata facit ex albo nigrum, ex nigro album, ex
curvo redum, ex recto curvum.

4. But in order to make a matter res judicata there must be a concurrence of the four conditions
following, namely: 1. Identity in the thing sued for. 2. Identity of the cause of action; if, for
example, I have claimed a right of way over Blackacre, and a final judgment has been rendered
against me, and afterwards I purchase Blackacre, this first decision shall not be a bar to my
recovery, when I sue as owner of the land, and not for an easement over it, which I claimed as a
right appurtenant to My land Whiteacre. 3. Identity of persons and of parties to the action; this
rule is a necessary consequence of the rule of natural justice: ne inauditus condemnetur. 4.

Identity of the quality in the persons for or against whom the claim is made; for example, an
action by Peter to recover a horse, and a final judgment against him, is no bar to an action by
Peter, administrator of Paul, to recover the same horse. Vide, Things adjudged.

Literally "a matter judged", res judicata is the principle that a matter may not, generally, be
relitigated once it has been judged on the merits.

Res judicata encompasses limits on both the claims and the issues that may be raised in
subsequent proceedings:

Claim preclusion is the principle once a cause of action has been litigated, it may not be
relitigated.
Bar: A losing plaintiff is barred from re-suing a winning defendant on the same cause of action.
(Scenario: Plaintiff P unsuccessfully sues Defendant D on Cause of action C. P may not try for
better luck by initiating a new lawsuit against D on C.)
Merger: A winning plaintiff may not re-sue a losing defendant. (Scenario: P successfully sues D
on C. P may not again sue D on C to try to recover more damages.)
Issue preclusion (Collateral estoppel): Once an issue of fact has been determined in a proceeding
between two parties, the parties may not relitigate that issue even in a proceeding on a different
cause of action. (Scenario: P sues D on C. P sues D on C1. Element E, which was determined in
the first trial, is common to C and C1. At the second trial, P and D cannot attempt to get a
different disposition of E.)

ES 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
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,

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.

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
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.
# 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. 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.

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.

The Calcutta High Court in fact followed an earlier decision of the same court in Abinash
Chandra v. Madhusudan Majumdar and another, 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 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
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 Judicata And Public Interest Litigation

Even in a public interest litigation procedural law is applicable though not strictly. Hence, the
principle of res judicata is also applicable. Where the prior public interest litigation relates tom
illegal mining, subsequent public interest litigation to protect environment is not barred.

In Rural Litigation And Entitlement Kendra v. State of U.P. it was held on this aspect:
The writ petitions before us are not inter-party disputes and have been raised by way of public
interest litigation and the controversy before the court is as to whether for social safety and for
creating a hazardless environment for the people to live in, mining in the area should be
permitted or stopped. We may not be taken to have said that for public interest litigations,
procedural laws do not apply. At the same time it has to be remembered that every technicality in
the procedural law is not available as a defense when a matter of grave public importance is for
consideration before the court. Even if it is said that there was a final order, in a dispute of this
type it would be difficult to entertain the plea of res judicata. As we have already pointed out
when the order of 12th march, 1985 (reported in AIR 1985 SC 652), was made, no reference to
the Forest (Conservation) Act of 1980 had been done. We are of the view that leaving the
question open for examination in future would lead to unnecessary multiplicity of proceedings
and would be against the interests of the society. It is mete and proper as also in the interest of
the parties that the entire question is taken into account at this stage.

Undoubtedly, the Environment (Protection) Act, 1986 has come into force with effect from 19tyh
November, 1986. Under this Act power is vested in the Central Government to take measures to
protect and improve the environment. These writ petitions were filed as early as 1983 more than
three years before the Act came into force. This Court appointed several expert committees,
received there their reports and on the basis of materials placed before it, made directions, partly
final and partly interlocutory, in regard to certain mines in the area. Several directions from time
to time have been made by this court. As many as four reportable orders have been given. The
several parties and their counsel have been heard for days together on different issues during the
three and a quarter years of the pendency of the proceedings. This Act does not purport to and
perhaps could not take away the jurisdiction of this court to deal with a case of this type. In
consideration of these facts, we do not think there is any justification to decline the exercise of
jurisdiction at this stage. Ordinarily the court would not entertain a dispute for the adjudication of
which a special provision has been made by law but that rule is not attracted in the present in the
present situation in these cases.

The concept of Public Interest Litigation, an innovation of the judicial activism of India during
that has indeed proved to be a boon to the downtrodden, oppressed and exploited sections of
society for providing them with easy access to justice.

Conclusion
The principle of Res Judicata does not apply strictly to public interest litigations. The procedural
laws are not fully applicable to PIL cases. Where the prior public interest relates to illegal
mining, subsequent public interest litigation to protect environment is not barred. Though, 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.

Since the primary object of Res Judicata is to bring an end to litigation, there is no reason not to
extend the doctrine to public interest litigation.

In Forward Construction Co. v. Prabhat Mandal, 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 India, 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.

End Notes:1. Satyadhyan Ghosal v. Deorajin Debi, AIR 1960 SC 941

2. Satyadhyan Ghosal v. Deorajin Debi, AIR 1960 SC 941 at p. 943
3. Sheoparsan Singh v. Ramnandan Singh, AIR 1916 PC 78
4. Gulabchand Chhotalal Parikh v. State of Bombay (now Gujrat), AIR 1965 SC 1153
5. Manzurul Haq v. Hakim Mohsin Ali AIR 1970 All. 604 at 605; Sheodan Singh v. Daryao
Kunwar AIR 1966 SC 1332

6. Laxmi Gauda v. DAndari Gaura AIR 1992 Ori. 5

7. Venkata Seshayya v. Koteswara Rao 1937 Mad. 263
8. Baboo v. Mt. Kirpa 1950 A.A 488
9. 1937 P.C. 1
10. Venkata Seshayya v. Koteswara Rao 1937 Mad. 263
11. AIR 1948 P.C. 168 at 171
12. Kunheema Amma v. Bala Krishna Nair AIR 1967 Ker. 97
13. Anantamoi DAsi v. Bhola Nath AIR 1941 Calcutta 104
14. Kottama v. Simachalam AIR 1969 AP 76
15. Radha Shyam v. Mool Chand AIR 1967 All. 28
16. AIR 1981 SC 2199
17. AIR 1965 SC 1153
18. AIR 1961 SC 1457, Daryao v. State
19. AIR 1959 SC 276, Narayana Chettiar v. Annamalai Chettiar
20. AIR 1957 Patna 319, Bansidhar Estate Collieries and Induatries Ltd. Vs. The State.
21. AIR 1957 A.P. 842, Seshamma vs. Gangaraju.
22. AIR 1954 Rajasthan 4, Shah Premchand vs. Dhanmal. AIR 19054 Bombay 140, Kelavadappa
vs. Vasun
23. Gauda.
24. AIR 1956 All. 238. Munshi vs. Chiranji Singh.
25. Air 1959 Patna 319, Bensidhar Estate Collieries and Induatries Ltd. Vs. The State. AIR 1948
Lah. 196,

26. Bachint Kaur vs. Kram Chand.

27. AIR 1952 Mad 384, Sarangapani Ayyangar vs. Venkata Narsimha Acharyulu.
28. AIR 1946 Mad. 509
29. AIR 1947 Nagpur 247, Manohar Vinayak vs. Laxman Anand Rao. AIR 1926 Cal 563
30. AIR 121 PC 11, Hok vs. A.G. of Bengal
31. AIR 1932 PC 161, Maung Sein Done vs. Mapan Nyun.
32. AIR 1930 PC 22, Kalipada De vs. Durjapada Das.
33. AIR 1988 SC 2187
34. AIR 1986 SC 391
35. AIR 1995 Bom 235

Res Judicata (Claim Preclusion)

Rule: If judgment is rendered in favor of a plaintiff in a particular suit, the plaintiff is precluded
from raising claims (in any future litigation) which were raised in (or could have been raised) in
that lawsuit.
Elements: Before a court will apply the doctrine of res judicata to a claim, three elements must
be satisfied:
There must have been prior litigation in which identical claims were raised (or could have been
raised). In general, claims are sufficiently identical if they are found to share a common nucleus
of operative fact.

The parties in the second litigation must be identical in some manner to the parties in the original
litigation, or be in privity with the parties in the first action.
Note: A party is considered to be in privity with a party in the original litigation if:
The nonparty succeeded to the interest of a party;
The nonparty, though it did not technically participate in the first suit, controlled one partys
litigation in that suit;
The nonparty shares a property interest with the party;
The party and the nonparty have an agency relationship (agent/principal); or
The party otherwise adequately represented the interest of the nonparty in the previous litigation.
There must have been a final judgment on the merits in the original litigation. Note: Not all final
judgments are based on the merits of the case (i.e., cases dismissed on jurisdictional grounds,
etc.).
Scope: Res judicata bars relitigation of claims that were previously litigated as well as claims
that could have been litigated in the first lawsuit.
Counterclaims:Res judicata is generally not applied to potential counterclaims by defendants, so
defendants are not necessarily barred from raising a counterclaim in future litigation. However,
remember that all counterclaims must conform to FRCP Rule 13(a), and that some counterclaims
are compulsory (must be raised in original litigation or they are waived).

Res Judicata

Res Judicata in Latin means a matter (already) judged. It is also called as Claim
Preclusion. It is a common law practice meant to bar re-litigation of cases between the same
parties in the court.
A case in which there has been a final judgement and is no longer subject to appeal, the
doctrine of Res Judicata bars (precludes) continued litigation of such matter between the same
parties. Thus in case of Res Judicata, the matter cannot be raised again, either in the same court
or in a different court.
Res Judicata aims to prevent

Injustice to the parties of a case that has been supposedly concluded.

Unnecessary waste of Court resources.

Prevent Multiplying of judgements.

Recovery of damages from the defendant twice for the same injury.

Res Judicata can also be related to

Claim Preclusion

Issue Preclusion

Claim Preclusion: It 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 re-litigation of factual issues that have already been necessarily
determined by a judge as part of earlier claim.
NB: This doesnt include the process of Appeal , as it is considered to the appropriate way to
challenge a judgement. Once the appeal process is exhausted or barred by limitation, the Res
Judicata will apply to the decision.
The Three Maxims

Doctrine of Res Judicata or Rule of Conclusive Judgement is based on the following

three maxims:

1)

NEMO DEBET LIS VEXARI PRO EADEM CAUSA- No Man to Be Vexed Twice For

The Same Cause.

2)

INTEREST REPUBLICAE UT SIT FINIS LITIUM- It is in the Interest of the State That

There Should Be End To Litigation.

3)

RE JUDICATA PRO VERITATE OCCIPITUR- A Judicial Decision Should Be Accepted

As Correct.

Ashok Kumar V National Insurance Co 1998

S.C observed that the first legal maxim takes care of the private interest and the next
two of the larger interest of the society.

Ingredients of S.11 CPC Rule of Conclusive Judgement:

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 claiming under them, litigating under the same title

In a court competent to try such suit

Or a suit in which the matter has been subsequently raised

And has been heard and finally decided by such court

The following are also to be taken into account:

1)

Former suit denotes a suit which has been decided prior to the suit in question, and not if it

was prior to this suit. i.e. the cut-off is date of judgement and not the date of institution of the
suit.
2)

Competency of a Court is to be decided, irrespective of the right to appeal from a former

suit.
3)

The matter referred to in this suit must have been alleged by one party and either accepted

or refused by the other party (expressly/impliedly).

4)

Any matter which might or ought to have been made ground of attack/defence in such

former suit, shall be deemed to have been a matter directly and substantially in issue in such suit
(Constructive Res Judicata).
5)

If any relief was claimed in plaint and was not granted expressly, it would be deemed to

have been refused in such former suit.

6)

When persons litigate bonafide in respect of a public / private right claimed in common for

themselves and others, all persons interested for the purpose of S.11 , will be deemed as claiming
under persons litigating.
7)

It is also to be remembered that, a Court of limited jurisdiction where the former suit was

instituted and decided upon, shall operate as Res Judicata, even if the Court of limited
jurisdiction is not competent to try the subsequent suit.
8)

This S.11 applies to execution proceedings also.

In Slochana Amma V Narayana Nair 1994:

Held, the doctrine of Res Judicata applies to quasi

judicial proceedings before tribunals also.

In Govndaswamy V Kasturi Ammal 1998:

Held, the Doctrine of Res Judicata applies to the

plaintiff as well as the defendant.

In Umayal Achi V MPM Ramanathan Chettiar:

Held, the correctness or otherwise

of a judicial decision has no bearing upon whether or not it operates as Res Judicata.

S.11 Mandatory Provision:

S.11 is mandatory and not directory in nature. The judgement in a former suit can be
avoided only by taking recourse to s.44 Indian Evidence Act on grounds of fraud or collusion.
Beli Ram Brothers V Chaudari Mhd Afzal
It was held, that, when it was established that the guardian of the minor had acted in
collusion with the defendant, it doesnt operate as Res Judicata and can be set aside invoking
S.44 Indian Evidence Act.
Jallur Venkata Seshayya V Tahdaviconda Koteswara Rao 1937
Held, that, gross negligence in former suit doesnt amount to fraud or collusion and thus
acts as bar to subsequent suit.

Public Interest Litigation:

The concept of PIL was an innovation of Judicial Activism of Indian Supreme Court, and
it is general rule f PIL that procedural laws are not fully applicable to them. In case of Res
Judicata , it is applicable only when the former suit was bonafide in nature, further more it will
not act as a shield in cases where public good is threatened or questioned.
Rural Litigation and Entitlement Kendra V State of Uttar Pardesh:
S.C observed that the writ petition before them was not a inter part y dispute and the
controversy in it was whether mining was to be allowed or not. Thus it was a matter that decided
the social safety and providing hazardous free environment. It observed that in matter s of grave
public importance Res Judicata can not be used as ashield.

Ramdas Nayak V Union of India

Court observed that, in cases of repitative litigations coming under the grab of PIl, it was
high time to put an end to it, invoking Res Judicta.

Applications of Rs Judicata:
1)

Y.B.Patil V Y.L.Patil:

Can be invoked in subsequent stage of same proceedings.

held once an order made in course of proceedings

becomes final, it would be binding upon the parties at subsequent stage of the same proceedings.

2)Can apply against Co-Defendants.

Mahaboob Sahab V Syed Ismail: held if the following four conditions are
satisfied Res
a)

Judicata will apply

There must be a conflict of interest between the defendants concerned.

b)

It must be necessary to decided such conflicts, in order to give relief to the plaintiff.

c)

The questions between the defendants to be finally decided.

d)

Co-defendants to be necessary and proper parties to the suit

3) Can apply between Co-Plaintiffs

Ahamed V Syed Meharban:

held if the following four conditions are satisfied Res

Judicata will apply

a)

There must be a conflict of interest between the co-plaintiffs.

b)

It must be necessary to decided such conflicts, in order to give relief to the plaintiff.

c)

The questions between the plaintiffs to be finally decided.

Non Application of Res Judicata

1)

Habeas Corpus Petitions

Sunil Dutt V Union of India : Held that habeas corpus, filed under fresh grounds and changed
circumstances will not be barred by a previous such petition.
2)

Dismissal of Writ Petition In Limine

Pujaril Bal V Madan Gopal : Held Res Judicata not applicable when dismissed in limine
( without speaking orders) or on grounds of laches or availability of alternate remedies.

3)

Matter collaterally and incidentally in issue doesnt operate as Res Judicata Sayed Mhd V

Musa Ummer
4)

Res Judicata not applicable to IT Proceedings or fixing of fair rent proceedings

Res judicata pro veritate occipitur" is the full latin maxim which has, over the years, shrunk to
mere "Res Judicata" .

The concept of Res Judicata finds its evolvement from the English Common Law system, being
derived from the overriding concept of judicial economy, consistency, and finality. From the
common law, it got included in the Code of Civil Procedure,1908 and which was later as a whole
was adopted by the Indian legal system.

From the Civil Procedure Code, the Administrative Law witnesses its applicability. Then, slowly
but steadily the other acts and statutes also started to admit the concept of Res Judicata within its
ambit.

Under the Roman Law, a defendant could successfully contest a suit filed by a plaintiff on the
plea of ex captio res judicata. It was said as one suit and one decision is enough for any single
dispute.

It essentially meant to-

1. Once a matter is finally decided by a competent court, no party can be permitted to reopen it in
subsequent litigation.

2. A final judicial decision pronounced by a judicial tribunal having competent jurisdiction over
the cause or matter in litigation, and over the parties thereto.
3. As explained by J. Das Gupta in the case of

Satyadhyan Ghosal v. Deorjin Debi [AIR 1960 SC 941]

When a matter, whether on a question of fact or law, has been decided between two parties in
one suit and the decision is final, either because no appeal was taken to the higher court, or no
appeal lies in such case, neither party will be allowed in the future suit between the same parties
to canvass the matter again.

Objective of res judicata

The doctrine of res judicata is based on three maxims:
a) Nemo debet bis vexari pro una et eadem causa ( no man should be punished twice for the
same cause)

b) Interest reipublicae ut sit finis litium (it is in the interest of the state that there should be an
end to a litigation)

c) Res judicata pro veritate occipitur (a judicial decision must be accepted as correct)

Thus, the doctrine of res judicata is the combined result of the public policy reflected in maxims
(b) and (c) and private justice expressed in the maxim (a), and they apply to all judicial
proceedings whether civil or criminal.

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

The principle is founded on justice, equity and good conscience.

Once a final judgment has been announced in a lawsuit, the subsequent judges who are
confronted with a suit that is identical to or substantially the same as the earlier one, they would
apply the Res Judicata doctrine to preserve the effect of the first judgment. This is to prevent
injustice to the parties of a case supposedly finished, but perhaps mostly to avoid unnecessary
waste of resources and time of the Judicial System.

Therefore, the same case cannot be taken up again either in the same or in the different Court of
India. This is just to prevent them from multiplying judgments, so a prevailing plaintiff may not
recover damages from the defendant twice for the same injury.

For making Res Judicata binding, several factors must be met up with:
identity in the thing at suit;
identity of the cause at suit;
identity of the parties to the action;
identity in the designation of the parties involved;
whether the judgment was final;

 whether the parties were given full and fair opportunity to be heard on the issue.

Regarding designation of the parties involved, a person may be involved in an action while
filling a given office and may subsequently initiate the same action in a differing capacity. In that
case Res Judicata would not be available as a defense unless the defendant could show that the
differing designations were not legitimate and sufficient .

Therefore, Res Judicata in a nut shell is a judicial concept wherein the Courts do not allow a
petition to be filed in the same or to the other Court for the doctrine of Res Judicata would apply
and the party would not be allowed to file the petition or to continue the petition (as the case may
be).

ESSENTIALS TO RES JUDICATA

For the application of this section, the following conditions must be satisfied:

1. There must be two suits, one previously instituted and the other subsequently instituted.

2. The matter in issue in the subsequent suit must be directly in the issue in the previous suit.

3. Both the suits must be between the same parties or their representatives.

4. The previously instituted suit must be pending in the same court in which subsequent suit is
brought in any other court or in court beyond the limits of India continued by Central
Government or SC.

5. The court in which the previous suit is instituted must have jurisdiction to grant the relief
claimed in the subsequent suit.

6. Such parties must be litigating under the same title in both the suits.

Manohar Lal v. Seth Hiralal [ AIR (1962) SC 527]

A court cannot proceed with the subsequently instituted suit since the provisions contained in
Sec. 10 of CPC are mandatory, and no discretion is left with the court.

Pukhraj D. Jain v. G. Gopalakrishna [(2004) 7 SCC 251]

If the court is satisfied that subsequent suit can be decided purely on the legal point, it is open to
the court to decide such suit.

The provisions of Section 11 of the Code of Civil Procedure are not at all exhaustive even though
it has very wide and enlarged amplitude.

The section does not affect the jurisdiction of the Court but operates as a par to the trial of
the suit or issue, if the matter in the suit was directly and substantially in issue (and finally
decided) in the previous suit between the same parties litigating under the same title in a Court,
then they are not competent i.e. they become barred to try the subsequent suit in which such
issue has been raised .

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

An ordinary litigation being a party or claiming under a party of a former suit cannot avoid the
applicability of section 11 of C.P.C. as it is mandatory except on the ground of fraud or collusion
as the case may be. The onus of proof lies on the party relying on the theory of Res Judicata. The
provisions of section 11 of C.P.C. are not directory but mandatory. The judgment in a former
suit can be avoided only by taking recourse to section 44 of the Indian Evidence Act on the
ground of fraud or collusion.

The basic point involved in the Nature of the doctrine of Res Judicata is that the doctrine tries to
bring in natural and fair justice to the parties and that too by barring the other party to file a
multiple number of suits either for justice or for harassing the other party.

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.

Exceptions to Res Judicata

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 courts 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 recognise the
judgment of a foreign court.

In addition, in cases involving due process, cases that appear to be Res Judicata may be relitigated. An instance would be the establishment of a right to counsel. People who have had their
liberty taken away (that is, imprisoned) may be allowed to be re-tried with a counselor as a
matter of fairness.

In the case of Jallur Venkata Seshayya v. Thadviconda Koteswara Rao , a suit was filed in the
Court for the purpose of declaring certain temples public temples and for setting aside alienation
of endowed property by the manager thereof. A similar suit was dismissed by the Court two
years ago and the plaintiffs here contended that it was the gross negligence on the part of the
plaintiffs (of the previous suit) and hence the doctrine of Res Judicata should not be applied. But,
the Privy Council said that finding of a 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 the case of Beliram and Brothers v. Chaudari Mohammed Afzal it was held that where a
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 the Indian Evidence Act, 1872, s. 44 and does not
operate Res Judicata. The principle of Res Judicata in Code of Civil Procedure, 1908, s. 11 is
modified by the Indian Evidence Act, 1872, s. 44 and the principles will not apply if any of the
three grounds mentioned in s. 44 exists. General principles may not be applied in a way making
Code of Civil Procedure, 1908, s. 11 nugatory.

In the case of
Rural Litigation And Entitlement Kendra v. State of Uttar Pradesh, it was held that the writ
petitions filed in the Supreme Court are not inter-party disputes and have been raised by way of
public interest litigation and the controversy before the court is as to whether for social safety
and for creating a hazardless environment for the people to live in, mining in the area must be
permitted or stopped. Even if it is said that there was a final order, in a dispute of this type it
would be difficult to entertain the plea of Res Judicata. The Court was of the view that leaving
the question open for examination in future would lead to unnecessary multiplicity of
proceedings and would be against the interests of the society. It is mete and proper as also in the
interest of the parties that the entire question is taken into account at this stage. Undoubtedly, the
Environment (Protection) Act, 1986 has come into force with effect from 19 November 1986.
Under this enactment, power became vested in the Central Government to take measures to
protect and improve the environment. These writ petitions were filed as early as 1983 more than
three years before the enactment came into force. The principle of Res Judicata does not apply
strictly to public interest litigations. The procedural laws are not fully applicable to public
interest litigation cases. Where the prior public interest relates to illegal mining, subsequent
public interest litigation to protect environment is not barred.

In Forward Construction Co. v. Prabhat Mandal, 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.

Criticisms
Res Judicata does not restrict the appeals process, which is considered a linear extension of the
same lawsuit as the suit travels up (and back down) the appellate court ladder. Appeals are
considered the appropriate manner by which to challenge a judgment rather than trying to start a
new trial. Once the appeals process is exhausted or waived, Res Judicata will apply even to a
judgment that is contrary to law.

There are limited exceptions to Res Judicata that allow a party to attack the validity of the
original judgment, even outside of appeals. These exceptionsusually 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 on the competence of the earlier court to issue that decision.
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.

In addition, in matters involving due process, cases that appear to be Res Judicata may be relitigated. An example would be the establishment of a right to counsel. People who have had
liberty taken away (i.e., imprisoned) may be allowed to be re-tried with a counselor as a matter
of fairness.

Conclusion
The Doctrine of Res Judicata can be understood as something which restrains the either party to
move the clock back during the pendency of the proceedings. The 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.

We have often seen lawyers arguing in courts that the suit is struck by the principle of 'res
judicata'. If this plea is accepted by the Bench, in principle, the case in question is rejected right
at the stage of admission itself.

According to the dictionary meaning, 'res judicata' means a case or suit involving a particular
issue between two or more parties already decided by a court. Thereafter, if either of the parties
approaches the same court for the adjudication of the same issue, the suit will be struck by the
law of 'res judicata'. The rule of 'res judicata' is based on the conditions of public policy. It
envisages that finality should attach to the binding decisions of the court so that the individuals
should not be made to face the same litigation twice.

In cases involving income tax or sales tax, the general trend is not to apply the doctrine of 'res
judicata'. As explained by the Supreme Court in Instalment Supply (Pvt) Ltd, Vs Union of India
(AIR 1976 SC 53), 'each year's assessment is final only for that year and does not govern later
years, because it determines only the tax for a particular period. However, it doesn't mean that
tax authorities can reopen arbitrarily a question previously settled.

The principle of 'res judicata' has been held to apply to industrial adjudication when a matter in
dispute in a subsequent case had earlier been directly and substantially in issue between the same
parties and it had been heard and finally decided by the tribunal. The reason for this view is that
multiplication of litigation, agitation and re-agitation of the same dispute between the same
parties is not conducive to industrial pace. However, in applying this principle, extreme technical
considerations, usually invoked in civil proceedings, may not be allowed to outweigh substantial
justice to the parties in industrial adjudication (AIR 1974 SC 1132).

This rule of law has been made applicable even to writ proceedings as well. The position,
therefore, is that when once a writ petition has been moved in a high court or Supreme Court

(SC), and has been rejected there on merits, then a subsequent writ cannot be moved in the same
court on the same cause of action (M S M Sharma Vs Sinha, AIR 1960 SC 1186).

If the petitioner seeks to urge some new grounds which he has failed to do before in the earlier
petition, the matter cannot be agitated in a subsequent petition because of 'constructive res
judicata'. In case, this rule is not applied to such proceedings, a party can go on filing one writ
petition after another urging one or two new grounds each time, thus causing hardship to the
opponent. What operates as 'res judicata' is the decision and not the reasons advanced by the
court in support of its decision. (AIR 1968 SC 1370).

It, however, needs mention that 'constructive res judicata' applies to civil proceedings and not to
habeas corpus petitions.

A subsequent petition under this writ jurisdiction can be filed on fresh grounds not pleaded
earlier for the same relief (AIR 1982 S C 53). Even the Supreme Court can still entertain a
petition under Article 32, whether or not new grounds are raised, in view of the importance of
personal freedom. But, when a writ petition is withdrawn by the petitioner conceding the futility
of the case as a ground for withdrawal and court allows it on the plea, a second petition will be
barred by 'res judicata' (AIR 1975 Guj 183). A fresh petition is possible onlyif the court gives
liberty for doing so.

There is some confusion on the point whether 'res judicata' applies when a writ petition is
dismissed without the court making a speaking order. The apex court has held in a case that this
doctrine should not operate in such a case. In Hoshnak Singh Vs India, the SC has ruled clearly
that 'where a petition under Article 226 is dismissed in limine without a speaking order', such a
dismissal would not constitute a bar to a subsequent petition. A high court can only review a

decision where some mistake or error apparent on the face of the record is found. But, this power
of review may not be exercised on the ground that the earlier decision was erroneous on merits.

If a person goes first to a high court under Article 226 and his petition is dismissed on merits, he
cannot approach the SC under Article 32 because of 'res judicata'. He can reach the SC only by
way of appeal. If, however, high court dismisses his or her writ petition not on merits, then 'res
judicata' does not apply and petitioner can move the SC.