IS RES JUDICATA AN EVOLVING PRINCIPLE?

Mohammed Anas Riyaz♠

INTRODUCTION

Res judicata is a Latin term which stand for ‘the thing has been judged’, meaning the
issue before the court has already been decided by another court, between the same
parties. Therefore, the court will dismiss the case before it as being useless.

Res judicata is, in both civil law and common law legal systems, a case in
which there has been a final judgment and is no longer subject to appeal. The term is
also used to refer to the doctrine meant to bar relitigation of such cases between the
same parties, which is different between the two legal systems. 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 the res
judicata doctrine 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 may not recover damages from
the defendant twice for the same injury. Res judicata is intended to strike a balance
between competing interests. On one hand, it assures an efficient judicial system that
renders final judgments with certainty and prevents the inequity of a defendant
having to defend the same claim or issue of law repeatedly. On the other hand, it
protects the plaintiff’s interest in having issues and claims fully and fairly litigated.

♠
III Year, National Law Institute University, Bhopal, (Madhya Pradesh).

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 Res judicata is intended to strike a balance between competing interests. On
one hand, it assures an efficient judicial system that renders final judgments with
certainty and prevents the inequity of a defendant having to defend the same claim
or issue of law repeatedly. On the other hand, it protects the plaintiff’s interest in
having issues and claims fully and fairly litigated.

SCOPE

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 or sometimes those in privity with a party. Issue preclusion bars the
relitigation of factual issues that have already been necessarily determined by a judge
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 may
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 it 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.

RATIONALE

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 it to challenge a
judgment rather than trying to start a new trial, and once the appeals process is

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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 recognise the
judgment of a foreign court. In addition, in cases involving due process, cases that
appear to be res judicata may be re-litigated. An instance would be the establishment
of a right to counsel. People who have had their liberty taken away (that is,
imprisoned) may be allowed to be re-tried with a counselor as a matter of fairness.

CIVIL LAW

The doctrine of res judicata in nations that have a civil law legal system is much
narrower in scope than in common law nations.

In order for a second suit to be dismissed on a motion of res judicata in a

civilian jurisdiction, the trial must be identical to the first trial in the following
manner:
(1) identical parties;
(2) identical theories of recovery; and
(3) identical demands in both trials. In other words, the issue preclusion
or collateral estoppel found in the common law doctrine of res
judicata is not present in the civilian doctrine.

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In addition if all else is equal between the two cases, minus the relief sought, there
will be no dismissal based on res judicata in a civil law jurisdiction. While most
civilian jurisdictions have slightly broadened the doctrine through multiple
exceptions to these three requirements, there is no consensus on which exceptions
ought to be allowed. 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 recognise it in the first place.

INDIAN SENARIO

Das Gupta, J. said that ‘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 is judicata, it will 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. The Code of Civil Procedure, 1908, s. 11 of 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

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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.

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 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 CODE OF CIVIL PROCEDURE, 1908, S. 11 IS MANDATORY

The provisions of the Code of Civil Procedure, 1908, s. 11 are not directory but
mandatory. The judgment in a former suit may be avoided only by taking recourse to
the Indian Evidence Act, 1872, s. 44 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 s. 11 are mandatory and the ordinary
litigant who claims less than one of the parties to the former suit may only avoid its
provisions by taking advantage of the Indian Evidence Act, 1872, s. 44, 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.

The Three Maxims

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The doctrine of res judicata is based on three maxims:
(1) Nemo debet lis vaxari pro eadem causa (no man should be vexed twice for
the same cause)
(2) Interest republicae ut sit finis litium ( it is in the interest of the state that
there should be an end to a litigation); and
(3) 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 Case1 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 cognisable, nor of any matter
to be inferred by argument from the judgment.

Code of Civil Procedure, 1908, s. 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) a nd

1 SMITH’S L.C., (13th edn.) (644-645).

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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 provision 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 Juris2, it has been stated that 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 must be an end to
litigation; the other, the hardship to the individual that he must 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 therefore, applies to civil
suits, execution proceedings, arbitration proceedings, taxation matters, writ petitions,
administrative orders, interim orders, criminal proceedings, etc.

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:
(1) matter which was directly and substantially in issue in former suit
must be directly and substantially issue in the subsequent suit also.
(2) Both the former and subsequent suit must have been between the
parties or between the parties litigating under some titles.
(3) The former suit must have been decided by competent court, which
may try subsequent suit also.

2 Corpus Juris Secundum (vol. 34, Thompson West) (743).

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 (4) Any matter, which might and ought to have been made a ground of
defence or attack in such former suit, will be deemed to have been a
matter directly and substantially in issue in each suit.
(5) The onus of proof lies on the party relying on the theory of res
judicata.

CASE LAWS

Jallur Venkata Seshayya vs. Thadviconda Koteswara Rao3

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 may 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 may 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

3 AIR 1937 Mad 2638.

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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

Beliram and Brothers vs. Chaudari Mohammed Afzal

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 the Indian Evidence Act, 1872, s. 44 and does
not operate res judicata. The principle of res judicata in Code of Civil Procedure,
1908, s. 11 is modified by the Indian Evidence Act, 1872, s. 44 and the principles will
not apply if any of the three grounds mentioned in s. 44 exists. General principles
may not be applied in a way making Code of Civil Procedure, 1908, s. 11 nugatory.

Sarla Bala Devi vs. Shyam Prasad Chatterjee

The Division Bench of Calcutta High Court held that 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 Code of Civil Procedure, 1908, s. 11 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 may override the conditions specified in s. 11.

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Abinash Chandra vs. Madhusudan Majumdar

In this case the majority of their Lordships of the Supreme Court held that the
provisions of Code of Civil Procedure, 1908, s. 11 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 s. 11 and also apply to
cases not coming within the four corners of the section but if the case fails within
the terms of s. 11 conditions of the provisions 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 s.
11. Where the court is dealing with a suit the only ground on which res judicata may
be urged against such a suit would be the provisions of s. 11 and no other. Scope of
the principle of res judicata is not confined to what is contained in s. 11 but of more
general application.

Arikapudi Balakotayya vs. Yadlapalli Nagayyaheld

The Division Bench of the Madras High Court in as follows : it is undoubtedly the
law that the doctrine of 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 proceedings other than a suit may still

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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 the Madras Hindu Religious and Charitable Endowments Act,
1959, s. 84(2), may not 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 s. 84(2) are of a summary nature.
The decision of the district judge therefore, operates as res judicata in a subsequent
proceeding between the same parties. Though Code of Civil Procedure, 1908, s. 11 is
largely modified even then it is not exhaustive. The plea of res judicata still remains
apart from the separate provisions of Code of Civil Procedure, 1908. The statement
of doctrine of res judicata contained in s. 11 is not exhaustive and therefore 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 s. 11 are not to be regarded as exhaustive. The binding force of judgment in
probate proceedings depends upon the s. 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 courts in India therefore must
include by no technical consideration of form but by matter of substance within the
limit allowed by law the application of the rule of res judicata.

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 to illegal mining, subsequent public interest litigation to protect
environment is not barred.

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Rural Litigation And Entitlement Kendra vs. State of Uttar
Pradesh

It was held that 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 must be permitted or stopped. 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. 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 19 November 1986. Under this enactment, 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 enactment
came into force. The principle of res judicata does not apply strictly to public interest
litigations. The procedural laws are not fully applicable to public interest litigation
cases. Where the prior public interest relates to illegal mining, subsequent public
interest litigation to protect environment is not barred.

Forward Construction Company vs. 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.

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Joint Family of Udayan Chinubhai vs. Commissioner of Income
Tax 4

It was held that decision in one year will not operate as res judicata in subsequent
year. An assessment year under the enactment is a self-contained assessment period
and a decision in one assessment year does not ordinarily operate as res judicata in
respect of the matter decided in any subsequent year, for the Assessing officer is not
a court and he is not precluded from arriving at a conclusion inconsistent with his
conclusion in another year.

Dwarkadas Kesardeo Morarka vs. Commissioner of Income Tax 5

It was held that earlier decision in assessee’s own case may be relied on. Though the
principles of res judicata will not apply to income-tax proceedings, when a question
of law or fact is decided in the assessee’s own case for an earlier assessment year, and
an identical question comes up for consideration for a later year, the tribunal will be
justified in placing reliance on the earlier decision to base its conclusion in the
absence of any new material or change in circumstances.

Commissioner of Income Tax vs. P. Krishna Warrier6

It was held that in matters relating to properties and rights res judicata will apply.
The principle of res judicata would apply to proceedings under the enactment
regarding questions relating to assessment which do not vary with the income every
year but depend on the nature of the property or questions on which the rights of

4 1966 INDLAW SC 212, [1967] 63 ITR 416 (SC).

5 1961 INDLAW SC 271, [1962] 44 ITR 529 (SC).
6 1994 INDLAW KER 119, [1994] 208 ITR 823 (Ker).

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the parties to be taxed are based - Judicial propriety requires consistency - Under the
income-tax law, though the principles of res judicata are not applicable and the
assessee as well as the department is free to challenge the order in a different year,
judicial propriety requires consistency.

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