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Meaning, Concept and Historical Background of Doctrine of Res Judicata as contained in Section 11 of CPC

Brief History and Origin of Res Judicata

Res Judicata Pro Veritate Accipitur is the full Latin maxim which has, over the years, shrunk to mere Res Judicata.

The concept of Res Judicata finds its evolvement from the English Common Law system, being derived from the overriding concept of Judicial economy, consistency, and finality. From the common law, it got included in the Code of Civil Procedure and which was later as a whole was adopted by the Indian legal system. From the Civil Procedure Code, 1908 the Administrative Law witnesses its applicability. Then, slowly but steadily the other Acts and Statutes also started to admit the concept of Res Judicata within its ambit.

Background
Various authors agree that the Rule of Res Judicata traces its origins to Roman law. However, one of the earliest articulations within the common law of the Rule of Res Judicata appears to have been the case of the Duchess of Kingston in 1776 [(1776) 20 Howell's State Trials 355].

In deciding the case Sir William de Grey, C. J. laid down the following oft-quoted principle:
The Judgment of a Court of concurrent jurisdiction, directly upon the point, is, as a plea, a bar, or as evidence, conclusive between the same parties, upon the same matter, directly in question in another Court.

As is evident, on its own terms, this paragraph is fairly wide in its scope.

However, within legal theory, the Law of Res Judicata came to be divided into two distinct aspects:

  1. Bar by (former) Judgment and
  2. Conclusiveness of Judgment or bar by verdict.
As per the Rule of Bar by Judgment, the Judgment in any action extinguishes that cause of action so that no subsequent Suit may be founded upon it. The accent here is on the identity of causes of action. The Rule of Bar by Verdict states that when an issue has been decided, such decision are conclusive. The parties are barred by the Verdict to re-agitate the same issue subsequent Suit. According to this Rule, the identity of issues, not the identity of causes of action would be determinative.

At the risk of over-simplification, the following scenario illustrates the difference between the two principles:

A and B are involved in an automobile accident in which both cars are damaged and A suffers bodily injuries. A sues B for damages based on personal injury and does not succeed because the Court comes to the determination that there was contributory negligence on her part. A cannot subsequently sue B again for personal injuries due to the Res-judicata Principle of Bar by Judgment. Furthermore, if B ever sued A for compensation for damages to his car, the determination of contributory negligence in the previous Suit would be binding in this subsequent Suit as well due to the Principle of Bar by Verdict. In other words, although the causes of action in both Suits are different, the conclusive determination of any issue between parties in any Suit would be binding in any subsequent Suit between the same parties in which the same issue arose.

Res Judicata in Indian Statutes from 1802 -1908

Due to reasons that are difficult to state with any accuracy, the former Rule – the Rule of Bar by Judgment – came to be incorporated into Indian law.

Madras Regulation II of 1802 simply laid down the following Rule:

When a second Suit may be instituted for the same cause of action, such second Suit should be dismissed with costs to be paid by the Plaintiff. (emphasis added)
Despite seemingly referring only to the Rule of Bar by Judgment, by 1850, Indian Courts had begun to apply this provision to incorporate both causes of action and issues.

Thus writing in 1850, Macpherson formulated the Rule of Res Judicata in the following terms:

A Civil Court cannot entertain any cause which from the production of a former decree, or of the records of the Court, shall appear to have been heard and determined by any former Judge, or by any superintendent of a Court having competent jurisdiction; or even one, which under the rules against the splitting of claims, ought to have been included in a previous suit.

Macpherson continues to explain that:

A cause may fairly be considered to have been heard and determined before, if the subject matter of the former Suit was the same; the parties, or at least the parties really and effectively interested, the same; the issue the same; if the proceedings were taken for the same purpose; the jurisdiction competent; and if the claim, which is sought to be enforced, has been directly adjudicated upon in a former Suit by a decree or order, declaring or recognizing a right, or negativing it by the dismissal of a Plaint.

It is clear from this explanation that the conception of Res Judicata prevalent in the Indian legal system till 1850 included both Bar by Judgment and Bar by Verdict.

This settled position was altered significantly in 1859 by the enactment of the first Civil Procedure Code. Section 2 of the Code of 1859 stated:

The Civil Courts shall not take cognizance of any Suit brought on a cause of action which shall have been heard and determined by a Court of competent jurisdiction, in a former Suit, between the same parties or between parties under whom they claim

As is evident, Section 2 of the 1859 Code only enacted into law one element of the Rule of Res Judicata – Bar by Judgment. Very soon after the enactment of the Code, the absence of the other component of Res Judicata- Bar by Verdict - began to be felt by the Judiciary.

Several cases arose after 1859 in which although the causes of action were distinct, the issues had already been heard and determined by a previous Court. In such cases, Section 2 would have required them to re-hear the same issues. However, in several cases, Courts avoided this outcome by holding that notwithstanding the restrictive language of Section 2, a ‘general law' of Res Judicata in India still applied which included Bar by Verdict.

In 1877, under direction of the Law Commission, the Code of Civil Procedure was substantially altered and re-enacted in India. The principle of Res Judicata was substantially reformulated and re-numbered as Section 13 of the new Code. A key member of the Law Commission, Whitley Stokes, describes the language of Section 13 as having been ‘founded on' Livingston's famous Code of Evidence for the State of Louisiana.

The principal clause of the Section read as follows:

No Court shall try any Suit or issues in which the matter, directly and substantially in issue, has been heard and finally decided by a Court of competent jurisdiction, in a former Suit between the same parties, or between parties under whom they or any of them claim, litigating under the same title

Manifestly, this wording was significantly different from the language of the 1859 Code. Importantly, the vocabulary of cause of action was dropped and in its place the accent was on Suits or issues which had been previously decided. In other words, the 1879 Code had succeeded in merging both the ‘Bar by Judgment' and the ‘Bar by Verdict' conceptions of Res Judicata.
Another important change made to the law in 1882 was the insertion of an express requirement that for a Judgment to be Res Judicata it must have concurrent jurisdiction with the subsequent Court.

In the two decades following its enactment Section 13 of the 1877 Code was modified a few times. In 1908, the Code of Civil Procedure was comprehensively restructured and re-enacted into its present form as the Code of Civil Procedure Code, 1908.

The language of Section 13 of the 1879 Code was retained in toto in Section 11 of the new Code of 1908, the principal Section of which reads as follows:

11. Res judicata- 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.

Section 11 of Code of Civil Procedure, 1908 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 re-open 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 of Res Judicata is understood as a matter adjudged. Founded on the principle that a litigation between parties must attain finality [M. Nagabhushana Vs. State of Karnataka, (2011) 3 SCC 408, at Paras 12 - 15], and on the principles of justice, equity and good conscience [Lal Chand Vs. Radha Krishan, (1977) 2 SCC 88, at Para 19], Res Judicata dictates that a right or fact established by a competent Court in an earlier proceeding ought to be conclusive and binding upon the parties and those in privity with law or in estate [Duchess of Kingston's Case, (1776) 20 St Tr 355]. The earlier proceeding need not be a Suit even though the later could be a Civil Suit. [State of Tamil Nadu Vs State of Kerala, (2014) 12 SCC 696].

Fundamentally, there are three legal maxims that form the underlying basis of this doctrine:

  1. Nemo Debet Lis Vaxari Pro Eadem Causa which means that no man should be tormented twice for the same cause,
  2. Interest Republicae Ut Sit Finis Litium meaning that it is in the interest of the State that there should be an end to a litigation and
  3. Res Judicata Pro Veritate Occipitur which means that a Judicial decision must be accepted as correct.

In India, 'Res Judicata has been codified in Section 11 of the Code of Civil Procedure, 1908. One of the earliest attempts to summarise the essentials for availing the defence of Res Judicata was made by the Supreme Court in the decision of [Raj Lakshmi Dasi Vs. Banamali Sen, 1953 SCR 154].

However, the Locus Classicus was established by the Supreme Court in the decision of [Satyadhyan Ghosal Vs. Deorijin Debi, (1960) 3 SCR 590], holding that (w)hen a matter on question of facts and 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 same parties to canvass the matter again.

Again, [Daryao Vs. State of Utter Pardesh, (1962) 1 SCR 574] categorised and summarised the salient features of Res Judicata.
The matter that is directly and substantially in issue is one that had already been alleged or raised by one party, and pursuant to the admission or denial of the said matter, has been adjudicated upon by a Court in a former Suit. The expression former Suit, is understood to mean a suit which is decided prior in point of time, even in the event that such suit was not instituted prior in time. [Lonankutty Vs. Thomman, (1976) 3 SCC 528].

Thus, if the matter in issue in a given situation, is purely that of fact, then notwithstanding the correctness of the said decision, the parties shall be bound in a subsequent litigation by way of the operation of Res Judicata. A mixed question of law and fact that had been determined in the earlier proceeding between the same parties may not, for the same reason, be questioned in the subsequent proceeding between the same parties [Union of India Vs. Reliance Industries Ltd., (2015) 10 SCC 213]. The Caveat here, is that such matter in issue ought to be directly or substantially [Sheodan Singh Vs. Daryao Kunwar, (1966) 3 SCR 300] in issue in the former Suit.

In the case of [Nagabhushanammal Vs. C. Chandikeswaralingam, (2016) 4 SCC 434], the Supreme Court answered that an earlier Suit for possession does not bar a subsequent Suit for partition, the cause of action being different in both the Suits.

However, where a Court has ruled erroneously on a pure question of law, the same does not operate as Res Judicata in a subsequent proceeding. Alternatively, Res Judicata cannot be used as a defence to take refuge in a Judgment where there has been an erroneous interpretation of a statutory provision [SCG Contracts (India) (P) Ltd. Vs. K. S. Chamankar Infrastructure (P) Ltd, (2019) 12 SCC 210].

Allegations or issues that might or ought to have been raised in the former Suit/proceeding shall be deemed to have been a matter directly or substantially in issue. Reliefs sought in respect of such issues when not granted expressly by the Court, are deemed to have been refused.

While direct Res Judicata is restricted to a matter actually in issue, the principle of constructive Res Judicata engrafted in Explanation IV of Section 11 of the Code is an artificial form of Res Judicata. It prescribes that a party to a subsequent Suit could invoke this principle on the ground that a matter which might and ought to have been made a ground of defence or attack in a former Suit, shall be deemed to have been a matter directly and substantially in issue in such a Suit.

The Supreme Court in its decision in [State of UP Vs. Nawab Hussain, (1977) 2 SCC 806], while extending the application of this doctrine to Writ proceedings as well [Shiv Chander More Vs. Lt. Governor, (2014) 11 SCC 744], opined that the absence of such a preclusion would aggravate the burden of litigation.

In the recent decision of [Asgar and Others Vs. Mohan Varma & Others, 2019 SCC OnLine SC 131], Justice. D. Y. Chandrachud has reiterated the view taken by the Constitution Bench in [Direct Recruit Class II Engineering Officers' Association Vs. State of Maharashtra, (1990) 2 SCC 91], while observing that even assuming that liberty may have been granted to the party by the Court in a prior proceeding to pursue an appropriate remedy, the same would not bar the application of 'constructive' Res Judicata in a subsequent proceeding.

As a logical corollary, a relief claimed which is not expressly granted by a Court, leads to the issue becoming Res Judicata in respect of the subsequent proceeding initiated. It is therefore essential that the Court considers all the reliefs sought by a party and adjudicates thereupon [Yashwant Sinha Vs. CBI, (2020) 2 SCC 338], so as to avoid any ambiguity and multiplicity of litigation on the same cause of action. A person who challenges a decision of an authority in Court and loses, cannot go back to Court challenging the same decision based on another ground, which was available to him at the first instance.

Another key aspect that requires attention is to assess, while applying the rule of Res Judicata, whether it is between the same parties or their privies or representatives in title. The provision also deals with representative suits and provides that where persons litigate bonafide in respect of either a public right or a private right claimed in common for themselves and others, then all such persons interested in such a right shall be deemed to claim under the persons so litigating. [K.S. Varghese Vs. St. Peter's & St. Paul's Syrian Orthodox Church, (2017) 15 SCC 333].
After the insertion of Explanation VIII, the Court which decided the former Suit could be either a Court of exclusive jurisdiction; or a Court of concurrent jurisdiction; or a Court of limited jurisdiction. [Sulochana Amma Vs. Narayanan Nair (supra)]

A matter can be said to have been heard and finally decided notwithstanding that the earlier Suit was disposed of (i) ex parte; or (ii) by failure to produce evidence (Order 17 Rule 3); or (iii) by a decree or an award etc.

But where the Suit is dismissed on technical grounds, the same would not operate as Res Judicata between the parties [City Municipal Council Bhalki Vs. Gurappa, (2016) 2 SCC 200]. An ex parte Judgment can operate as Res Judicata unless there is a fraud in obtaining the same [Saroja Vs Chinnusamy, (2007) 8 SCC 329]. Different stages of the same proceedings also attract Res Judicata [Y. B. Patil Vs Y. L. Patil, AIR 1977 SC 392]. However dismissal of a Suit under Order XXII Rule 2 of Code of Civil Procedure, 1908 at the threshold does not attract bar under Section 11 in a subsequent Suit with respect to an application filed under Order I Rule 10 of Code of Civil Procedure, 1908. [Pankajbhai Rameshbhai Zalavadiya Vs. Jethabhai Kalabhai Zalavadiya, (2017) 9 SCC 700].

Exceptions to the Rule of Res Judicata

In [Raju Ramsing Vasave Vs. Mahesh Deorao Bhivapurkar, (2008) 9 SCC 54], the Supreme Court laid down three exceptions to the application of Res Judicata:
  1. When a Judgment is passed by a Court lacking jurisdiction [Union of India Vs. Pramod Gupta, (2005) 12 SCC 1];
  2. When matter involves a pure question of law; and
  3. When Judgment has been obtained by committing fraud on the Court.

In [Canara Bank Vs. N. G. Subbaraya Setty, (2018) 16 SCC 228],
it was held, that save and except the three exceptions to the principles of Res Judicata, i.e., erroneous decision of the Court in the earlier Suit, error in the decision on account of not giving effect to the statutory provision, and when the issue of law is different from what had been raised in the prior Suit, the bar would be attracted in a subsequent proceeding on fulfilment of all other conditions.

It is, therefore, safe to state that the Supreme Court has taken a consistent view on the position that the earlier Suit would operate as Res Judicata only with respect to 'question of facts' and not on issues of 'pure questions of law' when wrongly decided. [Satyendra Kumar Vs. Raj Nath Dubey, (2016) 14 SCC 49].

In [Krishna Hare Gaur Vs. Vinod Kumar Tyagi, (2015) 11 SCC 355], it was laid down that in case of a fraud played on the Court, the appointment will be a nullity and doctrine of Res Judicata will not apply. Relying on the decision of [Meghmala Vs. G. Narasimha Reddy, (2010) 8 SCC 383], the Supreme Court held that the High Court had erred in applying the principles of Res Judicata in the instant case, while opining that (w)hen the appointment is made dehors the rules, the same is a nullity. In such an eventuality, the statutory bar like doctrine of Res Judicata is not attracted.

Similarly in [Asharfilal Vs Koili, (1995) 4 SCC 163], the Supreme Court held that gross negligence may amount to fraud and remanded the matter to the consolidation authorities to frame an issue on the question of fraud/collusion and decide the same.

Res Judicata is a very strong weapon in defence. The Indian Legal System, being particularly vexed with frivolous and duplicate claims, should make use of this doctrine to effectively nip a deluge of superfluous litigation in the bud and save precious judicial time, which is currently scarce. The Court should separate the grain from the chaff and if the Plaint discloses a sham cause of action, then, after a preliminary examination of the parties, it should be rejected at the threshold. [T. Arivandandam Vs. T. V. Satyapal, (1977) 4 SCC 467].

This piece only gives an overall view about the provision. The principle has been made applicable in a variety of proceedings like Writs, labour proceedings, consolidation proceedings, etc. It applies among co-defendants, co-plaintiffs, etc when they are essential parties to the litigation. It does not apply in matters of Habeas Corpus, and in matters of successive years of taxation.

In fact the issue of Res Judicata can be raised as a preliminary issue in any subsequent proceeding so that the entire trial into the second proceeding need not be undertaken. Heavy costs must be imposed on frivolous and vexatious litigation and this has to be treated as an abuse of process of Court when the issue is once decided and attained finality. Therefore, it is safe to say that both public interest and private justice have adequately been taken care of under this doctrine. Technically, no party gets a second bite at the same cherry.

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

The Scope of res judicata has very well been decided in the case of [Gulam Abbas v/s. State of Utter Pardesh, (1982) I SCC 71] where the Code embodies the Rules of conclusiveness as evidence or bars as a plea of an issue tried in an earlier Suit founded on a Plaint in which the matter is directly and substantially an issue becomes final. Section 11 of Code of Civil Procedure, 1908 does not create any right or interest over the property but merely operates as a bar to try the issue ‘once again'.

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. The scope of the principle of Res Judicata is not confined to what is contained in Section 11 of Code of Civil Procedure, 1908 but is of more general application.

Therefore, the scope of the doctrine of Res Judicata is to enable the Courts to deliver the Justice and then to dismiss or freeze the other active Suits which are of the very same nature although is at different stage. Such a role enables the Court to dismiss the matter from its jurisdiction and also the jurisdiction of the other Courts which are at the same level.

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 wide and it includes a lot of things which even includes Public Interest Litigation. 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 has widened with the passage of time the Supreme Court has elongated the areas with its Judgments.

Written By: Dinesh Singh Chauhan, Advocate, J&K High Court of Judicature, Jammu.
Email: [email protected], [email protected]

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