The term res judicata is made up of the two words res and judicata. The term res
means a situation where a dispute already existed and the term judicata means a
situation when a dispute is already settled. Hence, it can be said that the term
res judicata simply means that a dispute which existed at some point of time has
already been settled. It can also be referred as a dispute which has already
Res judicata has been defined in section 10 of the code of civil procedure under
section 10 reads, as No court shall proceed with a trial of any suit in
which the matter in issue is also directly and substantially in issue in a
previously instituted suit between the same parties or between parties under
whom they or any of them claim to be litigating under the same title where such suit
is pending in the same or any other court in India having jurisdiction to grant
the relief or in any code beyond the limits of India, established or constituted
by the central government, and having jurisdiction before the Supreme
According to the definition there are certain essentials of res judicata, namely:
- The suit in issue must be between the same parties or between the parties litigating under the same title
- The issue must be the same as that of a formerly decided suit.
- The former suit must have been heard and decided by a competent court.
What is a competent court?
A competent court is one that holds sufficient power and jurisdiction
to try the new suit brought The former suit must be heard and decided by the
competent court. The competency of court is not determined in respect of any
provision relating to right to appeal. [ii]
What is a former suit? Explanation 1
The former suit is such a suit in which the decision has come prior to the
decision of suit in question. the prior suit is one which has ben disclosed
first and not which has been instituted first. It is immaterial as to which suit
was instituted first.
What is subject matter of the suit. Explanation 3&4
The subject matter of any suit includes all the issues and question which has
been alleged by one party and admitted or denied by other party. If there is any
matter which has neither been alleged nor admitted or denied, and the matter is
of such a nature that it could have been alleged and the other party could have
made a defence, such matters are also treated as matter directly or
substantially in issue.
If any relief has been claimed in a plaint and the court while deciding the suit
has not expressly granted the relief in the decree then it shall be deemed to
have been refused.
When there are many persons litigating in respect of a public right or when a
private right is claimed in common, all the persons interested in this right
though not a party to suit res judicata will apply to them if they bring a suit
with similar subject matter. Res judicata applies to all suit in representation.
The provision of res judicata also applies to execution proceedings.
Res judicata also applies to issues decided by the courts of limited
Daryao And Others vs The State Of U. P. And Others [iii]
The petitioners of this case ere the tenants and the respondent were the
landlord. in the year 1947 a lot of communal disturbance took place due to which
the petitioners left their village on July 1947. Later, when they returned in
the year 1949, they found that med an unlawful possession of the land.
The petitioner filed a suit of ejectment under section 180 of the U.P. tenancy
act, 1939. In trial court the petitioner succeeded and a decree was passed in
their favour. The petitioner obtained the possession of land.
The respondent preferred a second appeal before board of revenue u/s 267 of up.
tenancy act, 1939. The board allowed the respondent appeal and dismissed
petitioner suit with respect to the land.
Then the petitioner moved to the high court under article 226 of the Indian
constitution and files a writ of certiorari, for the high court to direct the
quashing of the said judgement. Later the petitioner filed a petition upon the
same matter under article 32 in the supreme court of India.
The issue arose that whether moving supreme court for the enforcement of
fundamental rights can be restricted by the principle of res judicata or can res
judicata be applied on the article 32.
It was held that if a writ petition has been filed under article 226 to high
court and the high court has considered the matter on merit and then dismissed,
then the parties will be bound by such decision. Hence the provision of res
judicata will apply in case of writ jurisdiction. It has a universal
- Code of civil procedure
- Explanation 2, section 11 of C.P.C
- 1961 AIR 1457, 1962 SCR (1) 574