Res Judicata

RES JUDICATA means "a thing decided" in Latin. It is a common law doctrine meant to bar re-litigation 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 re-litigation 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

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