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) Can be invoked in subsequent stage of same proceedings.

Y.B.Patil V Y.L.Patil: 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 Judicata will apply
a) 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 Sub Judice S.10 CPC

Res Sub Judice

Sub Judice in Latin means Under Judgement. It denotes that a matter or case is being
considered by Court or Judge. When two or more cases are filed between the same parties on the
same subject matter, in two or more different Courts, the competent court has power to Stay
 Proceedings of another Court. In India, this concept is encapsulated in S.10 of Civil Procedure
Code.

S.10: Stay of Suit

No Court to proceed with trail of any suit in which the matter in issue, is also directly
and substantially in issue. In previously instituted suit between the same parties, or between
parties under whom they or any of them claim, litigating under the same title, where such suit is
pending in same or any other Court, in India, Having jurisdiction to grant relief claimed.

Explanation: The pendency of a suit in a Foreign Court doesnt preclude the Courts in India
from, trying a suit founded on same cause of action.

Scope: S.10 deals with the concept of Res Sub Judice.

Object: The object of S.10 is to prevent Courts of concurrent jurisdiction from simultaneously,
trying two parallel cases, in respect of same matter in issue. The two fold objects are:

1) Avoid wasting Court Resources.

2) Avoid Conflicting decisions.

Conditions: The conditions that are needed for Res Sub Judice to apply are

The matter in issue in both the cases are to be substantially the same

Previously instituted suit must be pending in the same or any other court competent to grant:

A) Relief claimed in the suit.

B) Relief claimed in subsequent the suit.

Suits to the parties are to be the same or between parties under whom they or any of them
claim, litigating under the same title.
 Pendency of suit in Foreign Court doesnt activate S.10 CPC.

If suit is pending before a Court and subsequently an application is filed before a Thasildhar, it
doesnt invoke S.10 as Thasildhar is not a Court

For purpose of institution, the date of presentation of plaint and not the date of admission is
considered. The term suit includes appeal.

Any decree passed in violation of S.10 is null and void.

Ex: A an agent of B at Delhi agreed to sell Bs goods in Chennai. A the agent files
suit for balance of accounts in Chennai. B sues the agent A for accounts and his negligence in
Delhi; while case is pending in Chennai. In this case, Delhi Court is precluded from conducting
trail and A can petition Chennai Court to direct stay of proceedings against Delhi Court.

Case Laws:

Dees Piston Ltd V State Bank of India 1991

Held, when a matter is before a competent Civil Court, the National

Commission will not entertain a petition in respect of identical subject matter under Consumer
Protection Act.

Escorts Const. Equipments Ltd V Action Const Equipments Ltd 1998

Facts: The defendant had filed for stay of present suit, an application u/s 10 CPC, on ground that
the matter in controversy is pending in Jamshedpur Court also. This was opposed by plaintiff on
ground that, the defendants had raised issue of jurisdiction of Jamshedpur Court to entertain
same suit; and that application u/s 10 CPC can be filed in the present suit, only if objection with
respect to lack of jurisdiction was withdrawn in Jamshedpur Court.

Judgment: Court held that the conditions requisite to invoke S.10 CPC are:
 Matter in issue in both the suits to be substantially the same.

Suit to be between the same parties or parties litigating under them

Previously instituted suit to be in the same Court or a different Court, which has jurisdiction to
grant the relief asked.

There is nothing to the effect that defendant should not question the competency of previously
Court in the previously instituted suit, and there remains the fact that the plaintiff in their defence
against S.10 CPC, had not stated the Jamshedpur Court is competent. Thus relief was granted to
the defendant.'

Indian Bank V Maharashtra State Co-Operative Marketing Federation 1998

Held, that the object of prohibition in S.10 CPC, is to,

Prevent Courts of concurrent Jurisdiction from simultaneously trying two parallel cases

Avoid inconsistent findings on the matter in issue.

Conclusion:

Res Sub Judice, operates as a stay from the same subject matter in issue
being parallel instituted in two different Courts. S.10 CPC has the twin objects of

Avoiding conflicting decisions and findings.

Avoiding wastage of Court resources and time.

Source 2

Res Judicata And Code Of Civil Procedure

Laws of every land are based on principles. These principles govern the entire realm of
jurisprudence in a country. These principles guide legislation, give legitimacy to judicial
decisions and protect the citizens of a nation. The judiciary incorporates these principles in
deciding cases and ensures conformity by the legislature and executive to such principles.

Res judicata is one such principle, whose origin cannot be sufficiently traced. It is an all
pervading concept present in all jurisdictions of the world. Res judicata is based on public policy
and has universal application. India, has adopted the principle of res judicata in S.11 of the Code
of Civil Procedure, 1908 (hereinafter referred to as C.P.C.").

Modern day society is filled with disputes and litigations. The courts are flooded with frivolous,
slow and cumbersome cases. The embodiment of a principle like res judicata, is but one of
necessity in our country. In order to bring finality to litigation and prevent a person from being
dragged to court again and again, res judicata is essential in any society.

This paper essentially focuses on S.11 of the C.P.C. The scope of this project covers an overview
of the doctrine of res judicata in general providing a background to this paper. This paper seeks
to analyze theory of the doctrine and its application in the form of case laws. Chapter One deals
with res judicata in general, seeking to provide the reader with a background of the doctrine in
general. Chapter Two deals with the essentials for application of res judicata.

CHAPTER 1: WHAT IS RES JUDICATA?

The principle of res judicata while founded on ancient precedent, is dictated by a wisdom which
is for all time" [1]

Sir Lawrence Jenkins

Res judicata is a judicial creation with roots in the Latin phrase Res judicata pro veritate
accipitur," a matter adjudged is taken for truth". [2] Res judicata is, in both civil law and
common law systems, a case in which there has been a final judgment and is no longer subject to
appeal. The term is also used to refer to the doctrine meant to bar re-litigation of such cases
between the same parties, which is different between the two legal systems. 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 the res judicata doctrine
to preserve the effect of the first judgment. [3] The principle of res judicata is not the creature of
any statute or the handiwork of any code of law. It is the gift of public policy. [4]
1.1 History Of The Doctrine

The doctrine of res judicata, in its essence, has an ancient history, although it is difficult to say
definitively whether or not the doctrine as it stands now was formulated before
1776. [5] Understood in the distant past by both Hindu lawyers and Muslim jurists, it was known
to ancient Hindu Law as Purva Nyaya" or former judgement" [6] . Under Roman Law, it was
recognised by the doctrine of exception rei judicatae which also meant previous judgment".
Under English law, the principle is embodied in the maxim interest reipublicae ut sit finis litium,
which means the interest of the State lies in that there should be a limitation to law suits. Now,
all the countries of the Commonwealth and those of the European Continent accept that once a
matter has been brought to trial once, it should not be tried again except by way of appeal. [7]

In order for the bar of res judicata to be applicable, it must be shown that the cause of action in
both the suits is the same as well as that the plaintiff had an opportunity to get the relief that is
now being claimed in the subsequent suit, in the former proceeding itself. [8] Res judicata bars
the opening of final, un-appealed judgments on the merits, even where the judgment may have
been wrong or based on a legal principal subsequently overruled. [9]

1.2 Rationale Behind The Doctrine

The essence of the doctrine of res judicata is the judicially formulated proposition that a matter
which has been adjudicated in a prior action cannot be litigated a second time. The policies
which res judicata is designed to serve include the public interest in decreasing litigation,
protection of the individual from the harassment of having to litigate the same cause of action or
issue against the same adversary or his privy more than once, and facilitation of reliance on
judgments. [10]

Essentially, the doctrine of res judicata in general is based on the three following maxims [11] :

nemo debet lis vexari pro una et eadem casua meaning that no man should be vexed twice for the
same cause,

interest republicae ut sit finis litium or that it is in the interest of the State that there should be an
end to litigation, and

res judicata pro veritate occipitur meaning that a judicial decision must be accepted as correct.
The principle itself is founded upon the principles of justice equity and good conscience, and
applies to various civil suits, criminal proceedings, writs, execution proceedings etc. [12] The
underlying purpose for this judicially created doctrine was to instill finality into litigation and to
provide for sound economic use of judicial resources. [13]

1.3 Explanations I VIII To Section 11, Code Of Civil Procedure, 1908

Explanation I to S.11 states that res judicata depends upon the decision unlike S. 10, wherein res
sub judice hinges upon the institution of a suit.

Explanation II to S. 11 lays down that the finality of such a decision does not depend upon the
existence of a right to appeal. The decision is taken as final regardless of whether the right to
appeal exists.

Explanation III deals with matters that are actually in issue, vis--vis constructively in issue (as
in Explanation IV), inasmuch as there is a dispute, where one party alleges something and the
other party either denies it or admits it.

Explanation IV embodies the doctrine of constructive res judicata.

Explanation V declares that if multiple reliefs are sought in the plaint, those which are not
granted expressly by the Court are deemed to have been refused. So, if the Court does not make
reference to some or any reliefs which are claimed, the law deems them to have been refused by
the Court.

Explanation VI provides that if one or more persons file a suit on behalf of many others, who
also have a right to file such a suit, then the decision in such a suit will be binding upon those
who file the suit, as well as all those people on whose behalf such a suit is filed/who are
represented by the persons who actually file the suit.

Explanation VII, as explained earlier, indicates that the doctrine of res judicata as provided for
by S. 11 applies to execution proceedings as well. However, it is important to note that different
petitions may be filed asking for different reliefs. E.g. While a civil arrest may be sought only
once, attachment of property, immovable or movable, may be sought numerous times, since the
defendant may acquire new property. Hence, res judicata will not apply, as in each case the
property is different.
Explanation VIII declares that res judicata will apply to a subsequent suit even where the Court
which decided the former suit is not competent to try the subsequent one, provided that it was
competent to try the former suit, wherein the decision was given.

1.4 Applicability Of Res Judicata

Res judicata is a principle of universal application. It applies to civil suits, criminal proceedings,
writ petitions, execution suits etc. This doctrine is however, neither applicable to summary
dismissal nor to compromise and consent decrees. [14] The doctrine of res judicata is not
confined to the limits prescribed in Section 11, Civil Procedure Code. The underlying principle
of that doctrine is that there should be finality in litigation and that a person should not be vexed
twice over in respect of the same matter. [15] The essential condition for the applicability is that
the subsequent suit or proceeding is founded on the same cause of action on which the former
suit was founded. [16] It is a debatable point whether the doctrine of res judicata should be
interpreted liberally or strictly. However, keeping in view its basis and objective, which is based
on public policy, it can be reasonably asserted that the doctrine of res judicata should be
interpreted liberally. [17]

CHAPTER 2: ESSENTIALS OF RES JUDICATA

Res judicata has universal application. In jurisdictions world over the essentials of res judicata
are that: once a court with competent personal and subject matter jurisdiction over the parties
renders a final judgment, that judgment should conclude the matter between the parties. These
principles provide the foundation for the doctrine of res judicata. As a general rule, in order for
the doctrine of res judicata to apply to future litigation, four elements must be present. First, the
court must have competent jurisdiction over both the subject matter in dispute and the parties
involved in the litigation. Second, the judgment must have been on the merits." If the plaintiff
received judgment in her favour, there is no question that the judgment was on the merits. If the
defendant received judgment in her favour, then the judgment may or may not be upon the
merits." As a general rule, when a plaintiff's claim is dismissed based on procedure, the
judgment is not on the merits. However, if a court's ruling in favour of a defendant was not
based on procedural grounds, then the judgment will generally be on the merits. Third, the
second case must be based on the same cause of action as the first action. Finally, the parties in
the second action must have been involved in the initial litigation. Moreover, when the doctrine
of res judicata applies to a second suit involving the same parties and the same cause of action,
the first judgment is conclusive not only on the matters that were actually litigated, but on all
matters which could have been litigated." Res judicata bars the opening of final, unappealed
judgments on the merits, even where the judgment may have been wrong or based on a legal
principal subsequently overruled. The underlying purpose for this judicially created doctrine
was to instill finality into litigation and to provide for sound economic use of judicial
resources. [18]

Under the Code of Civil Procedure, 1908 the conditions for res judicata to apply are [19] :

The matter which is directly and substantially in issue in the subsequent suit or issue must be the
same matter which was directly and substantially in issue, either actually or constructively in the
former suit. This applies to execution proceedings as well.

It is necessary that the parties to the subsequent suit be the same parties as were in the former
suit, or are parties who are claiming under the parties to the former suit.

The parties should have been litigating under the same title, i.e. in the same capacity as the
former suit.

In order for the bar of res judicata to apply to the subsequent suit, or the issues therein, the same
(matters directly and substantially in issue) should have been heard and decided by a Court in the
former suit. It is important to note that the Court which decided the former suit should have been
competent to decide such former suit, and had done so on merits.

Earlier, it was required that the Court which decided the former suit must be competent to decide
the subsequent suit as well. However, now, with the insertion of Explanation VIII into the
section, such a requirement has been done away with.

2.1 Matter Directly And Substantially In Issue

The words in S.11 use the phrase matter directly and substantially in issue". Thus, for res
judicata to operate the former suit and the subsequent suit should have matter which was
directly and substantially in issue". [20]
The test to decide whether a matter was directly and substantially in issue in the earlier
proceedings is to see if it was necessary for that issue to be decided in order for an adjudication
upon the principal issue. However, every single issue framed is not a matter which is directly and
substantially in issue. Thus, is becomes imperative to examine the plaint and the written
statement to arrive at a conclusion as to which issues were directly and substantially in issue and
which ones were merely incidentally or collaterally in issue. [21] Another manner in which such
may be tested is by checking if decision on such an issue would materially affect the decision of
the suit. [22]

Where there are findings on several issues or where the court rests its decision on more than one
point, the findings on all the issues or points will be res judicata. [23] However, no objective test
can be laid down to definitively determine which matters are directly and substantially in issue in
every case and it depends on the facts and circumstances of each case.

2.2 Former Suit

The most important condition that needs to be satisfied is that the matter in issue in the
subsequent suit was in issue, directly and substantially, in a former suit. The general and ordinary
meaning of suit" is a proceeding which is commenced by presentation of a
plaint. [24] Ordinarily, and in more specific terms, a suit" is a civil proceeding that is instituted
by the presentation of a plaint. [25] The expression former suit" denotes a suit that has been
decided earlier in time than the suit in question, i.e. the subsequent suit, regardless of whether
such a suit which was decided earlier was instituted subsequently to the suit in question or not. If
two suits are instituted one after the other, and both relate to the same question in controversy,
the bar of res judicata will apply even in cases where the subsequently instituted suit is decided
first. [26]

2.3 Suit Between Same Parties

A party is a person whose name appears on the record at the time of the decision. A party may
be the plaintiff or defendant. The condition recognizes the general principle of law that
judgments and decrees bind the parties and privies. [27] Once the matter is heard and decided in
one suit, the same cannot be agitated again by the same parties, their legal representatives or
successors. Res judicata binds in a subsequent suit, the same parties to the former suit, the legal
representatives of such parties or anyone claiming under such parties. Further, even if a
subsequent suit is brought about in a different form or under a different guise, but seeking to
agitate the same matter as was decided in the former suit, it will be barred by res judicata. E.g. A
sues B for breach of contract. As suit is dismissed. A cannot file a fresh suit against B for
claiming damages.

Res judicata also operates between co-plaintiffs and co-defendants. In case of co-plaintiffs, it
must be necessary that there is a conflict between the plaintiffs which must be resolved in order
to give relief to the defendant, and such a matter is decided by the Court and the parties were
necessary or proper parties in the former suit. If it is so decided, the decision will operate as res
judicata between the co plaintiffs in a subsequent suit. [28]

Iftikhar Ahmed V. Syed Meherban Ali [29]

There was a dispute as to title to some land. The appellant sought to challenge the decision of the
High Court, which was to the effect that the respondents also had some title to the land in
question. Initially, the dispute between the parties was referred to an arbitrator by the Civil
Judge. The holding of the arbitrator was that that the respondents had no title and sole title
belonged to the appellant. The decision of the arbitrator was based upon a judgment of the High
Court in an earlier judgement, wherein both the present appellant and respondents were co-
plaintiffs in a suit against another person, again in respect of title to the land. Such a decision of
the High Court was considered by the arbitrator to operate as res judicata, and hence held in
favour of the appellants.

The respondents then filed objections against the decision of the arbitrator with the Civil Judge,
Meerut, and the Civil Judge said that the decision of the High Court did not operate as res
judicata and since the decision of the arbitrator, dependent as it was on the decision of the High
Court as res judicata, was manifestly wrong and vitiated by error of law. An order for fresh
arbitration was passed.

The appellants then filed objections before the Civil Judge who did not find anything manifestly
wrong on the face of the record and confirmed the decision of the arbitrator. The appellants
preferred an appeal to the District Court, which allowed it, opining that the decision of the High
Court did constitute res judicata and hence ordered a fresh arbitration. The respondents then filed
a revision petition in the High Court, and the High Court confirmed the decision of the Civil
Judge, reversing the decision of the District Court.

The matter then came up before the Supreme Court a Special Leave Petition. The Supreme Court
considered the matter, and considered the question of whether the respondents, who had had
failed previously to establish title to the properties, could agitate the matter again. In doing so,
the Court also explained the concept of res judicata between defendants and reiterated the
established rule that in order that such a principle may be invoked, the following conditions must
be met:

1) there was a conflict of interest between co-defendants;

(2) that it was necessary to decide the conflict in order to give the relief which the plaintiff
claimed in the suit;

(3) and that the court actually decided the question.

The Court then went on to say that if all these conditions were satisfied mutatis mutandis, there
was no reason why the previous decision should not operate as res judicata between co-plaintiffs
as well. On this reasoning, the Court agreed with the holding of the earlier arbitrator and
contention of the appellants that the earlier decision of the High Court did operate as res judicata,
since all the three conditions had been met mutatis mutandis between the co-plaintiffs in the
earlier case, and accordingly allowed the appeal.

It is also important to mention that the parties in the subsequent suit, though they may be the
same, must additionally be litigating in the same capacity as they were in the former suit.

2.4 Matter To Be Decided By A Competent Court

It is essentially for res judicata to operate against the subsequent, that the former suit should have
been decided by a court competent to try" the subsequent suit. The expression competent to
try" means competent to try the subsequent suit if brought at the time the first suit was
brought". [30] Before Explanation VIII was added to S. 11, the position was that the Court which
decided the former suit must have been competent to decide the subsequent suit as well, and if it
was not, then res judicata would not apply. However, with the insertion of Explanation VIII,
even if the Court which decided the former suit is not competent to decide the subsequent suit,
res judicata will still be applicable provided that the former suit was decided by a competent
Court.

The current position of law is that even if the Court that decided the former suit is not competent
to decide the subsequent one, and yet there are some common issues which arise in the
subsequent suit, which the Court (being competent to do so), decided in the former suit, the
doctrine of res judicata will operate against such issues, and the Court deciding the subsequent
suit will not decide upon these issues.

This may arise in the case of pecuniary jurisdiction, the Court which decided the first suit cannot
decide the second one, but the second suit does have certain issues which were decided in the
former suit (and competently so). In such a case, the second court shall not decide those issues
that were decided by the first court in the former suit. In such a case, res judicata will apply not
to the subsequent suit, but to those issues therein which were decided in the former suit.

2.5 The Matter Should Be Heard And Finally Decided

For res judicata to be applied, it is necessary that that the matter should have been heard and
finally decided in the former suit, and whether such decision be right or wrong is of
consequence. [31] If an opinion is expressed on issues not material to the decision, then res
judicata will not apply. [32] The matters which are directly and substantially in issue in the
subsequent suit must have been heard by the Court in the former suit and a final decision on the
same must have been delivered. In such cases, res judicata will apply to the subsequent suit.
Such a provision also applies to former suits that were disposed of ex parte, provided that
notifications were suitably issued to the party in question. But if a suit is dismissed on a technical
ground, such a non-joinder of necessary party, it would not operate as res judicata. [33]

2.6 Res Judicata V. Res Sub Judice

Often people confuse the concepts of res sub judice and res judicata. Res sub judice is discussed
in S. 10 and applies to a the date of institution of suit. It is matter pending judicial enquiry. S. 11
of the CPC and is a matter adjudicated upon and applies to the date of adjudication.
Res sub judice stays the latter suit instituted in court which has the same matter directly and
substantially in issue in the previous suit. Res judicata bars the trial of a suit in which the matter
directly and substantially in issue has already been adjudicated upon in a previous suit. [34]

2.7 Res Judicata And Writ Petitions

It was debatable whether the term suit would include writs and whether the principle of res
judicata would apply to writ petitions.

Daryao V. State Of U.P [35]

Six writ petitions were presented before the Supreme Court entertaining this question. One of the
writ petitions was examined in detail by the court.

Facts - The relevant facts are that the petitioners were tenants in the lands of which the
respondents were proprietors. The petitioners had to leave the lands for some period owing to
communal disturbances. When the petitioners returned, they found that the respondents were in
unlawful possession of the land. The petitioners then filed ejectment suits under S. 180 of the
U.P. Tenancy Act, 1939, and obtained a decree in their favour, which was confirmed in appeal,
and thereby obtained possession of the said lands through Court.

The respondents preferred a second appeal before the Board of Revenue under S. 267 of the Act
of 1939, wherein the Board allowed the appeal and held that the respondents were entitled to the
possession of the lands in question.

High Court: The petitioners filed a writ petition under A. 226 before the High Court. However,
before the petition was filed, the Allahabad High Court had interpreted a particular section of the
U.P. Land Reforms Act, and such an interpretation was against the interests of the petitioners.
Hence, in consequence of such interpretation, the petitioners could not press their petition, and it
was consequently was dismissed. The same section of the said Act was later amended, in
consequence of which the petitioners approached the Supreme Court via writ petition under A.
32.

The question that arose for consideration was that since the grounds were same as those raised
before the Allahabad High Court, was the writ petition was hit by res judicata? The petitioners
placed reliance on the supremacy of A. 32 and it being above all other rights. They emphasized
that a fundamental right cannot be whittled down by a technical rule of the C.P.C. as the
Constitution is supreme.

Suprme Court: The Supreme Court was not impressed with the arguments of the petitioners. The
court held that the rule of res judicata as embodied in S. 11 of the Code did have some technical
aspects, but was by and large based on high public policy that there should be a finality to
litigation, and was also based upon the notion that no person should be vexed twice for the same
cause. Due to the doctrine being based on these considerations it couldnt be treated as irrelevant
or inadmissible even where writ petitions dealing with fundamental rights were concerned.

The other contention of the petitioners was that High Court and Supreme Court cannot be said to
be courts of competent jurisdiction as they are different. This contention was also negated by the
court and it held that the jurisdictions of the High Court under A. 226 and the Supreme Court
under A. 32 were substantially the same, and even on that count, the application of res judicata
couldnt be barred. Based on these reasons, the Supreme Court dismissed the writ petitions as
being barred by res judicata arising from the pervious decision of the High Court and laid down
the rule that

We hold that if a writ petition filed by a party under Art. 226 is considered on the merits as a
contested matter, and is dismissed the decision thus pronounced would continue to bind the
parties unless it is otherwise modified or reversed by appeal or other appropriate proceedings
permissible under the Constitution. It would not be open to a party to ignore the said judgment
and move this Court under Art. 32 by an original petition made on the same facts and for
obtaining the same or similar orders or writs. If the petition filed in the High Court under Art.
226 is dismissed not on the merits but because of the laches of the party applying for the writ or
because it is held that the party had an alternative remedy available to it, then the dismissal of the
writ petition would not constitute a bar to a subsequent petition under Art. 32 except in cases
where and if the facts thus found by the High Court may themselves be relevant even under Art.
32."

However, this view of the Supreme Court has been criticized by some jurists. They have argued
that the judiciary has reduced the fundamental fight in Article 32 as one subject to the principle
of res judicata and even laches, forgetting that there is no great fundamental principle than the
right guaranteed in moving the court under Article 32. Article 32 is silent as to res judicata and
limitation but judicial legislation has introduced these needless aspects into writ
jurisprudence. [36]

It is submitted that the researcher agrees with the view of the Supreme Court. There has to be
finality to litigation. Keeping in view the slow process of judicial remedy and frivolous litigation
in our society, it is rather imperative that the principle of res judicata be given as liberal an
interpretation and its scope should not be curtailed