RES JUDICATA

(Term paper towards partial fulfillment of the assessment in the subject of Jurisprudence )

Submitted By: Submitted To:

Samvid Shetty Mr. Deepankar Sharma
B.P.Sc. LLB.(Hons.) Faculty of Law
Semester – III Code of Civil Procedure
Roll No. 1238

NATIONAL LAW UNIVERSITY, JODHPUR

SUMMER SESSION
(JULY-NOVEMBER 2015)
 TABLE OF CONTENTS

ACKNOWLEDGEMENTS..........................................................................................................................3

HISTORY OF THE DOCTRINE...................................................................................................................5

RATIONALE BEHIND THE DOCTRINE......................................................................................................6

ESSENTIALS FOR RES JUDICATA.............................................................................................................7

APPLICATION OF RES JUDICATA............................................................................................................8

NON-APPLICATION OF RES JUDICATA..................................................................................................11

RES JUDICATA: DIFFERENCE FROM OTHER DOCTRINES.......................................................................12

CONCLUSION.......................................................................................................................................15

BIBLIOGRAPHY.....................................................................................................................................16

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 ACKNOWLEDGEMENTS

On the completion of this project I find that there are many persons to whom I
would like to express my gratitude, since without their help and co-operation
the success of this educative endeavour would not have been possible.

I welcome this opportunity to express my sincere gratitude to my teacher and

guide, Mr. Deepankar Sharma, Faculty of Code of Civil Procedure, who has
been a constant source of encouragement and guidance throughout the course
of this work.

I am grateful to the IT Staff for providing all necessary facilities for carrying out
this work. Thanks are also due to all members of the Library staff for their help
and assistance at all times.

I am also grateful to all my friends and colleagues for being helpful in their
differences and for their constant support.

I express my deepest gratitude to my parents Mrs. Varsha Shetty and Mr. Sunil

Shetty, who have been the real driving force for this work.

Samvid Shetty.

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 INTRODUCTION

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.”)1.

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.

Res' in Latin means thing 'Judicata' means already decided 2. This rule operates as a bar to the

trial of a subsequent suit on the same cause of action between the same parties. Its basic

purpose is - "One suit and one decision is enough for any single dispute". The rule of 'res

judicata' does not depend upon the correctness or the incorrectness of the former decision3.

It is a principle of law by which a matter which has been litigated cannot be re-litigated

between the same parties. This is known as the rule of "res judicata" (thing decided) 4.

The aim of this rule is to end litigation once a matter has been adjudicated. It aims to save the

court time and prevent harassment to parties5.

1
C.K Takwani, “Code of Civil Procedure”, 7th ed. Pg 2.
2
Black’s Law Dictionary, 9th ed.
3
Supra at 1, Pg 9.
4
http://www.legalservicesindia.com/article/article/res-judicata-a-brief-study , last visited on 4th September 2015.
5
Supra at 4.

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 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.  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. 

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]  

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

6
http://studentlawnotes.blogspot.in/2012/12/res-judicata, last visited on 4th September 2015.

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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 judgments7. Essentially, the doctrine of res judicata in general is

based on the three following maxims 8 : ‘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,

‘andres 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 9. The

underlying purpose for this judicially created doctrine was to instill finality into litigation and

to provide for sound economic use of judicial resources10. 

ESSENTIALS FOR RES JUDICATA

The general principle of res judicata is embodied in its different forms in three different

Indian major statutes—Section 11 of the Code of Civil Procedure, Section 300 of the Code

of Criminal Procedure, 1973 and Sections 40 to 43 of the Indian Evidence Act, yet it is

7
Mulla, “Code of Civil Procedure”, 15th ed. 2012 pg 4.
8
http://www.legalblog.in/2011/02/res-judicata-law, last visited on 4th September 2015.
9
Supra at 7, pg 5.
10
http://legalperspectives.blogspot.in/2010/03/constructive-res-judicata-law-revisited , last visited on 4th
September 2015.

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not exhaustive. Here, we are concerned only with Section 11 of the Code of Civil

Procedure. Following conditions must be proved for giving effect to the principles of res

judicata under Section 1111—

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

B. That the matter directly and substantially in issue in the subsequent suit must be same

which was directly and substantially in issue in the former suit,

C. That the matter in issue has been finally decided earlier.

D. That the matter in issue was decided by a Court of competent jurisdiction12.

If any one or more conditions are not proved, the principle of res judicata would not

apply. Where all the four conditions are proved, the Court has no jurisdiction to try the suit

thereafter as it becomes not maintainable and liable to be dismissed. For application of

principle of res judicata, existence of decision finally deciding a right or a claim

between parties is necessary13.

11
Sheodansingh v. Daryao Kunwar, AIR 1966 SC 1332.
12
Ibid.
13
http://www.lawteacher.net/free-law-essays/constitutional-law/res-judicata-and-code-of-civil-procedure-
constitutional-law-essay.php, last visited on 4th September 2015.

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 APPLICATION OF RES JUDICATA

The 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, industrial adjudication, writ petitions, administrative orders,

interims orders, criminal proceedings, etc14. Following cases illustrates the applicability of res

judicata:

Res Judicata in Execution Proceedings:

Explanation VII15 added in the section 11 has made it clear that not only general principle of

Res Judicata but also constructive Res Judicata apply to execution proceedings. The

provisions of the section are now applicable to a proceeding for the execution of a decree,

and references in the section to a suit, issue or former suit shall be construed as references

respectively to a proceeding for the execution of a decree, question arising in such proceeding

and a former proceeding for the execution of that decree. However, an application by decree-

holder to transfer certain papers to another Court for further execution is not an

executionapplication and its dismissal does not bar a fresh application. The Law Commission

suggested that the rule of Res Judicata ought to be connected to the circumstances of

processes in execution and autonomous incidents and prescribed insertion of Section 11a. As

opposed to embeddings Section 11a the Joint Committee of Parliamen tprescribed insertion

of Explanation to Section 11 and on the foundation of that report, Explanations VII and VIII

have been embedded by C.P.C. (Revision) Act, 1976. Segment 11of the present Code

rejecting Explanation VIII imagines that judgment in a previous suit might work as Res

Judicata if the Court which chose the suit was skilled to attempt the same by goodness of its
14
Supra at 1, pg 70.
15
Explanation VII, Code of Civil Procedure, 1908.

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monetary purview and the topic to attempt the consequent suit all things considered it is not

vital that the said Court may as well have had regional ward to choose the resulting suit16.

Constructive Res Judicata:

Explanation IV to Section 11 says that any matter which might or ought to have been made a

ground of defence or attack in the former suit shall be deemed to have been a matter

constructively in issue in that suit.Thus, if a matter which might and ought to have been

raised by the plaintiff in the former suit is not raised by him there he would be estopped from

raising the same question in a subsequent suit between the same parties.Similarly, where a

defendant did not raise all the objections which he might and ought to have raised in the

former litigation in controverting the plaintiffs claim, he will be barred from raising them in a

subsequent suit between the same parties.Where a matter has been actually in issue in a

former suit between the same parties, litigating under the same title, in a court competent to

try such subsequent suit, it must have been heard and decided for the purpose of constituting

res judicata but where a matter has been constructively in issue it could not from the very

nature of things be heard and decided.Nevertheless it will be deemed to have been heard and

decided against the party omitting to allege it, provided the conditions of res judicata are

complied with.

Writ Petitions and Res Judicata

In M.S.M sharma V. Dr. Shree Krishna17, , for the first time Supreme Court held that the

general principle of res judicata applies even to writ petition filed under Article 32 of the

Constitution of India. Thus, once the petition filed under Article 32 is dismissed by the court,

subsequent petition is barred.

16
http://www.jiarm.com/April2014/paper12252, last viewed on 4th September 2015.
17
M.S.M sharma V. Dr. Shree Krishna AIR 1960 SC 1186.

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Similarly a writ petition filed by a party under Article 226 is considered on merit as a

contested matter and is dismissed, the decision thus pronounced would continue to bind

unless it is otherwise modified or reversed in appeal or in other appropriate proceedings

permissible under the Constitution.

In the leading case of Daryao V. State of U.P18., the Supreme Court has placed the doctrine of

res Judicata on a higher footing, considering and treating the binding character of the

judgments pronounced by competent courts as an essential part of the rule of law.

Applicability of Constructive res Judicata in Writ Petition

The question arose for the first time before the Supreme Court in Amalgamated Coalfields

Ltd. V. Janapada Sabha19, , whether the concept of constructive res judicata can be applied in

writ petition or not. In Devilal Modi V. STO20, Supreme Court clarified the stand and said the

principle of constructive res judicata also applies in writ petition. A direct question, however

arose before the Supreme Court in State of U.P. V. Nawab Hussain21, , the Court held that

principle of constructive res judicata is applicable.

It should be noted that the principle of res judicata and constructive res judicata are held not

applicable in Habeas Corpus Petition by Supreme Court in Ghulam Sarwar V. Union of

India22, and in Lallubhai V. Union of India23, respectively24.

18
Daryao V. State of U.P AIR 1961 SC 1457.
19
Amalgamated Coalfields Ltd. V. Janapada Sabha AIR 1964 SC 1013.
20
Devilal Modi V. STO AIR 1965 SC 1153.
21
State of U.P. V. Nawab Hussain AIR 1977 SC 1680.
22
Ghulam Sarwar V. Union of India AIR 1967 SC 1335.
23
Lallubhai V. Union of India AIR 1981 SC 728.
24
http://www.legalservicesindia.com/article/article/res-sub-judice-res-judicata-and-constructive-res-judicata ,
last visited in 4th September 2015.

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 NON-APPLICATION OF RES JUDICATA

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 recognise

the judgment of a foreign court25.

The principle of res judicata was not applied where the first writ petition was filed and was

dismissed as withdrawn and the second petition was filed on the ground of apprehended bias

and was dismissed as withdrawn and the second petition was filed on the allegation of actual

bias. The subject-matter was also different26. Principle of res judicata u/s. 11 is attracted

where issues directly and substantially involved between the same parties in the previous and

subsequent suit, are the same. If it may be that in the previous suit only part of property was

involved whereas in the subsequent suit, the whole property is involved 27.If a review petition

is filed before High Court and during its pendency a special leave petition against main

judgment is also filed before Supreme Court. The SLP is dismissed without assigning any

reason. The main judgment of the High Court would not get merged with this order of the

Supreme Court. Subsequently if the review petition is dismissed by the High Court then

another SLP against this dismissal order rejecting review petition will not be barred by res

judicata.

25
Supra at 13.
26
G.N.Nayak v. Goa University, AIR 2002 SC 790.
27
K.Ethirajan v. Lakshmi, AIR 2003 SC 4295.

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 RES JUDICATA: DIFFERENCE FROM OTHER DOCTRINES

Res judicata and Res Sub Judice

1. Res judicata relates to a matter already decided, i.e. a matter on which judgment has

been pronounced, whereas res. Subjudice (laid down in Section 10) relates to matter

which is pending for judicial enquiry.

2. Res subjudice bars the trial of a suit in which the matter directly and substantially in

issue is pending judicial decision, in a previously instituted suit by staying the trial of

the latter suit, whereas res judicata bars altogether the trial of a suit or an issue in

which the matter directly and substantially in issue has already been adjudicated upon

in a previous suit.

3. The object of res subjudice is to prevent Courts of a concurrent jurisdiction from

simultaneously entertaining and adjudicating upon two parallel litigations in: elute

causeof action, same subject-matter and same relief whereas the object of Res judicata

is that there should be an end to litigation and that no man should be vexed twice over

for the same cause28.

Res Judicata and LisPendens

In case where there is a conflict between res judicata and lispendens (which means that a

transferee during the pendency of the suit is bound by the result of litigation) /is pendens

gives way and the principle of res judicata will prevail.

28
Supra at 1, pg 75.

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Res judicata means a matter adjudicated upon or a matter on which decision has been made,

whereas lispendens is an action pending litigation29.

Res Judicata and Estoppel

Res judicata is sometimes treated as part of the doctrine of estoppel, but the two are

essentially different.The following are the points of distinction between the two doctrines-:

1. Res judicata is the result of a decision of a Court of law, whereas estoppel is the

result of the act of parties;

2. The object of the rule of res judicata is to bring an end to the litigation whereas the

object of the rule of estoppel is to prevent a person who by his conduct induced

another to alter his position to his disadvantage;

3. The jurisdiction of the Court is ousted by res judicata, whereas estoppel is only a rule

of evidence;

4. The plea of res judicata presupposes the truth of the decision in the former suit

whereas the rule of estoppel simply prevents a person from denying what he has once

called the truth.

The shortest way to describe the difference between the res judicata and estoppel, is to say

that while the former prohibits the Court from entering into an inquiry as to a matter already

adjudicated upon, the latter prohibits a party, after the inquiry has already been entered

upon,from providing anything which would contradict his own previous declaration or act to

the prejudice of another party, who relying upon those declarations or acts, has altered his

position. In other words, res judicata prohibits an inquiry in limine, whilst an estoppel is only

29
Supra at 1, pg 75.

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a piece of evidence.30Res Judicata creates a different kind of estoppel namely, estoppel by

accord31.

Res Judicata and Withdrawal of suits

Order 23, Rule 1 deals with withdrawal of suits. It enacts that where the plaintiff withdraws

the suit or abandons his claim without the leave of the court, he will be precluded from

instituting a fresh suit in respect of the same cause of action.

The distinction between Res Judicata and withdrawal of suits lies in the fact that while in the

former the matter is heard and finally decided between the parties, in the latter the plaintiff

himself withdraws or abandons his claim before it is adjudicated on merits32.

Res Judicata and stare Decisis

Res Judicata means “a thing adjudicated”; “a case already decided”; or “a mater settled by a

decision or judgment”. Stare Decisis means “stand by decided cases”, “to maintain former

adjudications” or “not to disturb settled law”.

Res Judicata and Stare Decisis are members of the same family. Both relate to adjudication of

matters. Both deal with final determination of contested questions and have the binding effect

in future litigation. Both the doctrines are the result of decisions of a competent court of law

and based on public policy.

There is, however, distinction between the two. Whereas res judicata is based upon

conclusiveness of judgment and adjudication of prior findings, stare decisis rests on legal

principles. Res Judicata binds parties and privies, while stare decisis operates between

strangers also and bind courts from taking a contrary view on the point of law already

30
Sita Ram v. Amir Begum (1886) 8 ALL 324
31
Supra at 1, pg 75.
32
Supra at 7, pg 79.

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decided. Res Judicata relates to a specific controversy, stare decisis touches legal principle.

Res Judicata presupposes judicial finding upon the same facts as involved in subsequent

litigation between the same parties. Stare decisis applies to same principle of law to all

parties33.

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 extent 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 extent have widened with the

passage of time and the Supreme Court has elongated the areas with its judgments. Some

problems still persist but the courts and legislature are trying to deal with these problems.

33
Supra at 7, pg 79.

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 BIBLIOGRAPHY

Cases

Amalgamated Coalfields Ltd. V. Janapada Sabha AIR 1964 SC 1013.................................................7

Daryao V. State of U.P AIR 1961 SC 1457...........................................................................................7
Devilal Modi V. STO AIR 1965 SC 1153..............................................................................................7
G.N.Nayak v. Goa University, AIR 2002 SC 790..................................................................................8
Ghulam Sarwar V. Union of India AIR 1967 SC 1335..........................................................................7
K.Ethirajan v. Lakshmi, AIR 2003 SC 4295..........................................................................................8
Lallubhai V. Union of India AIR 1981 SC 728......................................................................................7
M.S.M sharma V. Dr. Shree Krishna AIR 1960 SC 1186.....................................................................6
Sheodansingh v. Daryao Kunwar, AIR 1966 SC 1332..........................................................................4
Sita Ram v. Amir Begum (1886) 8 ALL 324........................................................................................11
State of U.P. V. Nawab Hussain AIR 1977 SC 1680.............................................................................7

Statutes

Explanation VII, Code of Civil Procedure, 1908...................................................................................5

Treatises

Black’s Law Dictionary, 9th ed...............................................................................................................1

C.K Takwani, “Code of Civil Procedure”, 7th ed. .................................................................................1
Mulla, “Code of Civil Procedure”, 15th ed. 2012...................................................................................3

Web Links

http://legalperspectives.blogspot.in/2010/03/constructive-res-judicata-law-revisited............................3
http://studentlawnotes.blogspot.in/2012/12/res-judicata........................................................................2

Articles

http://www.jiarm.com/April2014/paper12252.......................................................................................6
http://www.legalservicesindia.com/article/article/res-judicata-a-brief-study.........................................1
http://www.legalservicesindia.com/article/article/res-sub-judice-res-judicata-and-constructive-res-
judicata..............................................................................................................................................7

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