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When Can A Matter Be Pursued Despite Res Judicata?

What is Res Judicata?

In Latin Res signifies a thing while Judicata means already decided. The purpose of Res Judicata is to end litigation when a matter has been adjudicated once. It aims to save time for courts timing and harassment to parties. 'Res judicata pro veritate accipitur' is the legal maxim used in India. Section 11 of the Civil Procedure Code defines Res Judicata.

It states that when a suit is already under the judicial proceedings and the court has provided the decision, then the same suit with the same subject matter, same parties or the legal representatives cannot be raised as another suit to any competent court or any judicial authority inside or outside India which is governed by the Central Government. The previous decision will be binding throughout. The doctrine of Res Judicata is based on three maxims.

The maxims on which Res Judicata is based
Nemo debet lis vaxari pro eadem causa

"No one should be tried twice in respect to the same matter." This signifies double jeopardy. In the civil aspect it means that one shall not be sued under the same issue more than once. Or in other words, no one shall be punished for the same accusation brought against them.

Interest reipublicae ut sit finis litium
"It is not permissible for the parties to reopen the concluded judgments of the court as it would have a far-reaching adverse effect on the administration of justice" - Union of India and Others v. Major S. P. Sharma and Others (2014). The maxim says that it is for the public good that there be an end to litigation after a long hierarchy of appeals.

Re judicata pro veritate occipital
It signifies that a point judicially decided is taken to be correct. In simpler words when a decision has been passed by a competent court on a matter in issue between the parties after a full inquiry, the same case shall not be entertained by the same court or any other court on the same subject matter between the same parties.

Constructive Res Judicata

Constructive Res Judicata comes into action when the second suit is filed to a competent court with some new evidence. To this, the court will look into the new evidence and also interpret it to the utmost, and observe whether there was any possibility of producing the same material in the previous appeal. In the case of the wider scope of the existence of the same evidence that it was in existence earlier also, the court will simply give no opportunity to proceed with the argument and the case will be dismissed at once.

State of U. P. v. Nawab Hussain (1977)
In this case, the respondent, the sub-inspector of police, was dismissed from his position by the Deputy Inspector General (DIG) of the police on the grounds of corruption charges. He filed the writ petition to the Allahabad High Court stating that he was denied the chance to be heard.

However, this writ was dismissed. He, then, again filed a suit on the ground that DIG does not possess the authority to terminate his position as he was not the same person who appointed him. To this, the Supreme Court held that the plea was within the knowledge of the plaintiff and was in existence during the earlier writ petition, so on this ground, the suit is barred by Constructive Res Judicata.

When Public Interest Litigation, arbitral awards, writs, and appeals are not subjected to Res Judicata

Public Interest Litigation

Public Interest Litigation favors human rights, equality that gets infringed for a whole lot of people. In this, the issue is raised for public concern. It especially focuses on the causes of minority and disadvantageous groups or individuals. This type of case corresponds to both private and public. The former signifies such aspects where a public body is not involved and the latter deals with those rights and duties which are imposed upon the public at large.

Rural Litigation and Entitlement Kendra v. the State of U.P. (1985)
This case is also known as Doon Valley Case. It so happened that the limestone was being extracted from the hills by using dynamite. Due to this practice, many landslides occurred which destroyed houses of villagers, and agricultural land, and also several villagers and cattle lost their lives. In 1991, mining was prohibited by the Ministry of Mines.

However, mining operations were reopened and even got the leases for twenty years, where illegal and corrupt practices continued without any safety rules. In 1982, leases came up for renewal, and those got rejected by the State on the grounds of ecological destruction. However, an injunction was granted by the Allahabad High Court on the grounds of economic benefits that resulted in the mining practices continuing.

In 1983, this matter was taken to the Supreme Court where a complaint letter was sent by the plaintiff highlighting the environmental degradation. The Court treated the letter as a writ petition under Article 32 and conducted a review for the need for mining operations.

How the case proceeded with time
After 1983 several times this case had appeared before the courts where directly and indirectly the subject matter was presented before the courts. In various ways, the claims were raised in the context of ecological destruction in respect of economic gain.

In 1983, the Court prohibited the blasting practices for the extraction of limestone, where it determined the operations of mines concerning the safety standards, according to the Mines Act 1952.

In 1985, the Court denied the leases as the mines were destroying the Mussoorie City and aiding troubles to the operations of the city. This was done by favoring the recommendation of the Bhargava Committee.

Another committee, known as the Bandyopadhyay Committee was formed which was responsible to collect the claims of those who were severely affected by the operations of the mine. Here, the government later provided funds and other facilities to aid the needy ones. Also, other works of the Committee determined the plans submitted by the miners concerning the safeguards. To this, the Court favored a specific group of mines owned by the State to continue with the operations, which also caused fewer damages before.

In 1897, another change came up wherein the Court ordered to cease the operations of the mines, except for those activities that aided the interest of the defense of the country and safeguarding the foreign exchange of the country.

Once again two affidavits came up before the court from the Director of Environment, Forests, and Wildlife in the Ministry of Environment and Forests. The content of one of them was about the detailed usage of limestone by the industries within Uttar Pradesh but did not provide a satisfactory evaluation of other sources of the limestone within India and the extent to which national defence industries relied on the limestone.

A second affidavit contained all the required evaluation and concluded that the continuing of mining operations of any mine in the Dehradun-Mussoorie Region was not justified on the ground that it is a requirement of the defence industries.

In 1988, the Court concluded that all the mines in Dehradun Valley should remain closed, except for three operations.

One defect was detected that the renewal of the leases was granted before the Act came into force, to this, the Supreme Court stated that the state government will only renew the pre-existing leases after the review and approval by the Central Government, concerning the provisions of the Forest Conservation Act, 1980.

A Monitoring Committee was established to determine the reforestation, mining activities, and all other aspects necessary to bring about normalcy in the Doon Valley. The Committee consisted of Central, State, and Local officials to carry out the operation.

But one of the lesse misused the permission granted by the Court and continued to quarry limestone in an unscientific manner and disregarded the directions issued by the Monitoring Committee. To this, the Court stated that Vijay Shree Mines had caused immense damage, and was asked to compensate about Rs. 3 Lakh to the Monitoring Committee.

A similar issue to this was the existence of a company (ARC cement) that was in operation since November 1982, till the Supreme Court passed the order to shift their location to somewhere else on the grounds of pollution. But the company failed to execute the order. Again after four years, the Supreme Court was highly dissatisfied and passed the order to shift from the present location.

The petitioner was permitted to indicate some alternative site so that there would be an option suitable to the State Government and the Pollution Board to consider as an acceptable site for shifting the cement factory from the present location. The efforts to relocate the cement factory failed and in February 1995, ARC Cement was ordered to wound up by the Board for Industrial and Financial Reconstruction.

How the aid of Res Judicata was not applicable

Since 1982 several times, the same case has appeared with the same objective for permission to continue the mining operations. The purpose of Res Judicata is to prevent the same litigation more than once, and the parties follow what the court said. But here the parties like Vijay Shree Mines and ARC Cement have disregarded the orders passed by the Supreme Court. So in such PIL cases, there is wide scope for the parties not to execute the orders and to continue with the work.

In the ARC Cement case, the maxim Res judicata pro veritate occipital which signifies 'a point judicially decided is taken to be correct' has been violated as even after four years the company failed to shift their organization, where the Supreme Court passed the same order for relocation.

Interest republicae ut sit finis litium maxim that signifies 'the public interest of a matter so that a litigation should end' has been infringed by the case of Vijay Shree Mines, where the mine continued the operations through unscientific manner which was against the public good which resulted in bringing the matter related to the mine before the court, were already the court has passed the order to maintain the safeguard for the extraction of limestone.

Arbitral Award

An arbitral award signifies the decision passed by the arbitrator in an arbitration. It has been declared by the court that an award passed after an arbitration proceeding shall be binding upon the parties. No parties can raise any issue for not abiding by the award. An award can only be challenged by any of the parties only if it fulfills the grounds mentioned under Section 34 of the Arbitration and Conciliation Act 1996.

Considering this aspect, it can be said that even after the passing of the award there still exists a narrow scope to challenge it, at this point, it is clear that Res Judicata cannot be applied to the arbitral awards. This Section states five grounds and additional two more special grounds upon which one can challenge the arbitral award.

The grounds are as follows:

  • When one of the parties was in incapacity and the award has been passed.
  • When the party can prove that the award is null and void in the eye of law.
  • When an award has been passed upon an invalid agreement or has been passed by some arbitrator other than the appointed one.
  • When no proper notice was provided to the parties by the arbitrator regarding the arbitral proceedings.
  • When the award is not dealing with the issues as mentioned in the agreement.
     
Additional grounds:
  1. If the subject matter of a dispute is not for settlement as in the cases of any criminal offense.
  2. When the arbitral award conflicts with the public policy of India.


K.V. George v. Secretary to Government (1989)
In this case, the appellant who was a contractor by profession had entered into a contract on 22nd April 1978 for the construction of an embankment. According to the agreement, it was decided that the work will be completed within two years. But the appellant failed to complete the work where the respondent canceled the contract by providing notice at his own risk.

How the case proceeded with time
After the cancelation of the contract, the appellant filed a claim stating the dues regarding the earthwork as mentioned in the agreement. He also claimed for the delay in the payments and costs.

To this, the respondent contended that the appellant was not entitled to any payments as he has not completed even 35% of the work according to the contract. Upon this, the respondent filed a counterclaim for an amount of Rs. 28,84,000.

The arbitrator passed his decision stating that the respondent should pay the appellant according to the amount of work that has been completed. But regarding the claim for the delay of payment by the appellant and the counterclaim by the respondent, the arbitrator said that these are separate issues and will be dealt with later.

The appellant again filed before Sub Judge Trivandrum for passing the award, the respondent too raised an objection to which Sub Judge stated for new fresh consideration as the counterclaim was not considered previously.

To this order, the appellant again filed a review on the ground of wrongful termination of the contract.

In 1981, the arbitrator passed the award that the respondent shall provide the remaining payment for the completed work which were not involved in the previous arbitration. Along with this some of the other claims were allowed.

The respondent was not satisfied with the order and brought two appeals before the Kerala High Court.

The Court held that the principle of constructive res judicata would apply to the arbitration case. Eventually, the Court set aside the orders of the Sub Judge.

How the aid of Res Judicata was not applicable

In this judgment, the Court mentioned that the arbitrator must consider the claims and the counterclaims at the same time during the passing of the award, but the orders of the court were not followed. Also as it was said that the award is binding and cannot be challenged, but in this case, it has been challenged more than once.

Writ
In simple language, writ means 'command in writing in the name of the court.' It signifies a legal document issued by the court that orders a person or entity to perform a specific act or to cease performing a specific action or deed. Generally, writs are issued for the enforcement of fundamental rights.

Under Indian Law, there are five types of writs:
  1. Writ of Habeas Corpus
  2. Writ of Mandamus
  3. Writ of Certiorari
  4. Writ of Prohibition
  5. Writ of Quo-Warranto
Out of all these writs, Res Judicata is not applicable upon the writ of Habeas Corpus.

Writ of Habeas Corpus

In a nutshell, Habeas Corpus means 'to have a body of.' This writ aids a person in case one has been unlawfully detained or imprisoned. Due to the nobility of this writ, the Court directs to bring the individual before the Magistrate within 24 hours to examine the legality of one's detention. In the absence of justified reason for the detention, the person will be released. But in case a person has been arrested by the orders of the competent court Habeas Corpus will not apply to that circumstance.

Srikant v. District Magistrate (2006)

In this case, the appellant's brother Shri Shivalingappa (detenu) has been charged under the provisions of the Karnataka Prevention of Dangerous Activities of Bootleggers, Drug Offenders, Gamblers, Goondas, Immoral Traffic Offenders and Slum Grabbers Act, 1985. The detention order was passed by the magistrate as the detenu was involved in such activities which amounted to immoral activities.

The order of detention was approved by the State Government and the Advisory Board. The main ground of challenge in the writ petition was alleged non-compliance with the procedure contemplated under Article 22(5) of the Constitution of India, 1950.

How the case proceeded with time
Under the present suit, the detaining authority mentioned that there was no opportunity of making representation and the right of the detenu to make such representation was not made known to the detenu. They also said that the appellant had taken the matter to the High Court where it had been dismissed because there were no new findings in the second writ petition. But the appellant contended that Res Judicata applies to civil matters and it won't bar the present suit as in these the liberty of a citizen is involved.

The High Court found that this contention was directly challenging the detention, but it has no new grounds which were not raised earlier.

The appellant stated that the Court should decide based on merits as issues of great importance were involved so here there is no role of res judicata or constructive res judicata to play upon. But the defendant stated that in the second writ petition no new ground was taken and since points were already raised or were available to be raised maintainability of the subsequent writ petition was ruled out.

Finally, the Court stated that if some surgical changes are made with the context, substance, and essence remaining the same, it cannot be said that the challenge is on new or fresh grounds.

How the aid of Res Judicata was not applicable
In the lower court, the detention order has been passed by the magistrate. But in the present case, the suit had been filed against the Magistrate before the higher court. This signifies the no. of appeals and the continuation of the litigation. Both the reasons contradict the concept of Res Judicata. It is also believed that Res Judicata is much more applicable in civil cases than criminal ones.

Appeal
An appeal can be defined as a measure or a legal proceeding taken to the higher court to re-examine the decision of the lower court or to review the order of an administrative agency. The concept of appeal arises when there is an existence of judicial hierarchy. There must be a presence of question of law because the lower courts have to interpret the facts at the initial stage.

There are different levels of appeal and ultimately an appeal leads to the Supreme Court.

Poovamma and Others v. Sumathi and Others (1969)

To cut a long story short, this case deals with property disputes, where the provisions of the Land Acquisition Act, 1894 have been implemented. Here the suit revolves among the claimants regarding the compensation entitlements.

How the case proceeded with time
In the petition, the learned Subordinate Judge of the Appellate Court held that respondents claimants 11 to 18 were solely entitled to the entire compensation. To this claimants 2, 4 to 7, and 19 were not satisfied and initiated this current appeal against Claimants 11 to 18 as respondents.

During the hearing the respondents raised two preliminary objections
  1. The appeal is barred by the principle of res judicata, as the appellants did not appeal from the decree in the suit which was decided along with the original petition by a common judgment.
  2. The entire appeal abated on the death of appellant No. 5, Vedavathi, whose legal representatives have not been brought on record.

To this, the appellants elaborately addressed these objections.
The learned counsel stated that there is an existence of a common ground for the Original Petition and Original Suit where the main issues are also the same. So there was a common judgment in both the cases with two separate decrees one for the Original Suit and the other for the Original Petition. He also mentioned that the decree of the Original Suit operates as res judicata, therefore no appeal has been filed for that.

Here a question arises:
When there are two proceedings with the same issues which got disposed of by the same judgment, and an appeal is being filed against only one decree. It becomes a contradiction that whether the matter decided in the latter proceedings, becomes res judicata so that it cannot be reopened in the appeal, is one on which there is no decision of this Court. On this question, there is a conflict of decisions of different High Courts.

To the former appeal, at the hearing, it was contended by the respondent that it was barred by the principle of res judicata on account of the dismissal of the latter appeal. The High Court upheld that contention and dismissed the former appeal also on the ground that the judgment in the latter appeal operated as 'res judicata.'

Against this decision of the High Court, the plaintiff again filed two appeals that came up before the Supreme Court.

The Supreme Court held that it is now well settled that where there has been one trial, one finding, and one decision, there need not be two appeals even though two decrees may have been drawn. The court stressed more on determining the matter of controversy than the decree.

It was also mentioned that when there is only one suit, the question of res judicata does not arise at all but in the present case, both the decrees are in the same case and based on the same judgment, and the matter decided concerned the entire suit. As such, there is no question of the application of the principle of res judicata. The same judgment cannot remain effective just because it was appealed against with a different number or copy of it was attached to a different appeal.

Finally, the decree of the Original Suit regarding the title of the acquired land which has not been appealed becomes the final and the principle of res judicata bars the appeal from the decree in the original petition.

How the aid of Res Judicata was not applicable

From the beginning of the case starting from the Appellate court to the Supreme Court it is observed that the case was moving by the hierarchy of the courts and in every situation, there was a proper trial and a judgment was provided. This is evident that the res judicata was not in action to such a situation.

Also in the last stage, the case was dismissed, this also shows that even one gets the right to appeal which does not correspond to getting the judgment in its favor. Also, every time whether be it in the case of the High Court or the Supreme Court there was an existence of a question of law that fulfilled the ground for proceeding further.

When Res Judicata is not applicable

Fraud

When the judgment is not by merit, there lies doubt regarding the binding nature of the judgment. Hence the judgment cannot be held and it is transparent that there might be an existence of mala fide intention. Such a situation can also be a part of fraud practices. Eventually, concerning Res Judicata, such a decision won't be considered a valid judgment.

Beli Ram and Brothers v. Chaudri Mohammad Afzal, 1948

Facts:
In this case, the High Court set aside the judgment of the lower court.

Ghulam Rasul was a Sunni Mohammadan of the Hanafi Sect and was possessed of considerable property. On October 29, 1917, he executed a will for part of his property described as part "A" and the other part of his property described as "B" for wakfnama. There is no satisfactory evidence that Ghulam Rasul kept separate accounts of the wakf property or that he made the monthly deposit of Rs. 1,875 as required by the wakf deed.

Also, the deed consists of several clauses, including the terms and the conditions. The property was not transferred in the mutation register into his name as Mutwalli and he continued to grant tenancies in his name.

In April 1921 Mussammat Mumtaz, the daughter of Ghulam Rasul, died. On 6th April 1923, Ghulam Rasul decided to cancel the deed of the wakf.
A new document was framed where it was mentioned Chaudhri Din Mohammad and Chaudhri Ghulam Mustafa, son of Ghulam Rasul, will become the owner in equal shares after his death, and till then will be the absolute owner of the entire property.

This document was registered on 6th April 1923.

On February 6th, 1925 Gulam Rasul died. Before that, he executed various mortgages of the property, which included the deed of the wakf. So accordingly after his death, his sons executed various mortgages and sales of property included in the deed of the wakf.

Verdict
When new laws come into action
When an Act of Parliament is repealed, it is considered as it was never been in existence. The effect of such a statute is demolished from the records of the Parliament as treated in such a manner that it had never been passed and also it is considered that the law that never existed except for those actions which were commenced, prosecuted, and concluded whilst it was an existing law.

A repeal generally has its impacts. The rights arising from the repealed statute get dangled also the cause of action gets destroyed. Any proceeding which is yet to begin or pending at the time of enactment of the repealing act is prosecuted for a final judgment and creates a vested right.

Keshavan Madhava Menon v. the State of Bombay, 1951

Facts
In this case, Keshavan Madhava was the secretary of the company 'Peoples Publishing House Ltd' which was registered under the Indian Companies Act. In Bombay, they published a pamphlet in September 1949. It was under the name 'Railway Mazdooran Ke Khilaf Nayi Sazish.'

The defense stated that the plaintiff has committed an offense as he had not taken the permission of publishing such a pamphlet according to the Indian Press Act 1931. Hence prosecution has been initiated against Keshavan Menon.

Initially, the case was heard by the trial court where it was decided that this case includes a question of law, so it must be dealt with by the High Court.

Meanwhile, the Constitution of India came into existence on 26th January 1950. To this, the petitioner submitted a written statement stating that Section 2(6) which defines the new sheet, that and Section 15 and 18 of the Indian Press Act, 1931 were ultra vires and also infringes Article 19(1)(a) and Article 13 of the Constitution. Therefore accordingly the hearing of the case did not go further until the High Court of Bombay had looked into this.

On 7th March 1950, in addition to this, another petition was filed in the High Court of Bombay through Article 1950 of the Indian Constitution. The petitioner prayed that Section 15 and 18 of the Indian Press Act 1931 must be declared void and should be read with Section 2(6) and 10 which creates a liability for restrictive measures for citizens. The reason given behind these sections was that these sections were ultra-vires of Article 19(1)(a) and on 23rd March 1950, the charge was framed by the Chief Presidency Magistrate.

Verdict
The HC of Bombay, in this case, held that the term 'void' in Article 13(1) of the Indian Constitution refers to the meaning 'repealed', and this attracts S.6 of General Clauses Act along with that of the Constitution's Article 367. The court said that the proceedings which took place before the advent of the Indian Constitution will not be affected. The petition, as filed by the petitioner, was thereby dismissed.

The decision was taken by the HC of Bombay in favor of the respondents and an appeal to the same was filed in the Supreme Court of India. The SC upheld the decision taken by the HC of Bombay and gave a judgment in favor of the respondents once again. The court interpreted Article 13 and held that a law can be held void only to the extent of its inconsistency. All laws will have a prospective effect until and unless it is made retrospective expressly. The language of this Article doesn't permit retrospective effect and doesn't declare such laws to be void ab initio.

So, as the fundamental rights got introduced with the Constitution, the pre-existing laws will be (to the required extent) void from that date i.e. 26th January 1950; not before. But this doesn't imply that a person will not be prosecuted or punished for any offense done before the advent of the Constitution. In this case, it was held that at the time of the offense, the appellant didn't have the right of freedom of speech [Article 19(1) (a)]. Hence, Article 13 was held to not be applicable in this case.

When there is an Interlocutory Order
Interlocutory orders can be termed temporary injunctions. Generally, these orders are avoided by the courts, but such actions are taken when a question of law is answered by an appellate court before the proceeding or to prevent irreparable harm from occurring to a person or property during the pendency of a lawsuit or proceeding. These actions are only taken when the case is serious.

Indian Enviro Legal Council v. Union of India, 1996

Facts
In this case, an environmental association called the Indian Council for Environmental Legal Action lodged a writ petition where the issue was related to the pollution caused by the industries to the village, Bichhri Village, which was occupied by chemical industries plants.

The fourth defendant Hindustan Agro Chemicals Limited in 1987, was manufacturing a concentrated type of sulphuric acid called oleum together with a single super-phosphate. The fifth respondent TataSilver Chemicals began the manufacturing of 'H' acid within the very same area.

The eighth respondent Jyoti chemicals was situated in another compound that was producing 'H' acids mostly, along with several other toxic chemicals. other chemical industries were also created for the production of fertilizers as well as other such chemicals which were contributing in some or other way towards pollution. All the defendants, in this case, were generating hazardous waste discharge in this specific region, which was not even being adequately treated by these industrial plants.

Accordingly, a report was submitted which stated that about 2,500 tons of extremely poisonous sludge being generated along with that approximately 375 tons of 'H' acid were also being manufactured that for export business without any proper treatment done to the waste materials a .which were being dumped in the village region.

Verdict
After a thorough observation of the facts the judges provided their decision. Judges ruled that the industries will have to deposit the penalty, as ordered by the Court in its judgment dated 11 April 1997, which amounts to Rs. 37,385,000 together with a compound interest of 12 percent per annum. But since 1997, the respondents have intentionally failed to comply with the court's direction.

Due to this act, residents of the village were affected as there were no corrective measures taken. The respondents continued the case for fifteen years by submitting interlocutory requests. an and this the respondents were directed by the court to pay the litigation fees as their actions resulted in wasting of the court's money and resources.

Regarding the interlocutory applications, the court ordered the respondent industries to pay a sum of Rs.10,00,000. It was also mentioned that this sum of money will be used for performing corrective actions around the Bichhri village and neighboring regions within the Udaipur district, Rajasthan, India.

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