Chapterisation:

1. Chapter - Introduction
2. Chapter - Concept of Res- Judicata or Rule of Conclusiveness
2.1. Meaning and Nature
2.2. Scope of the Res-Judicata
2.3. Object of Res- Judicata
2.4. Extent and Applicability
2.5. Requirements of the applicability of Res-Judicata
2.6. Comparative Study of the Doctrine of Res Judicata with Other Doctrines
3. Chapter - Conclusion
4. Bibliography
CHAPTER - I
INTRODUCTION
The Civil Procedure Code (hereinafter referred to as ‘Code’) is a procedural law,
enacted in the year of 1908, and came into force with effect from 1 st January 1909. It not only
provides the procedure to be appreciated in the Civil Courts but also the principles to be
adopted in Writ Courts and Tribunals. With the applicability of Civil Procedure Code in the
redressal of the disputes, a Fair procedure is envisaged which ensures the opportunity to the
parties to be informed about the basic contention of the opposite party which gives a timely
opportunity to prepare their case. Hence it is evident that the CODE envisages the litigant a
fair Trial. subject to Natural Justice Principles
Brief Background of the Code
Before 1859, there was no uniform ‘Code of Civil Procedure. There were different
systems of Civil Procedure in various parts of the country. The Committee headed by Mr.
John Romily enacted the first Code in 1859. The first uniform CPC enacted in 1859, but it
was not made applicable to the Supreme Courts in the Presidency Towns and to the
Presidency Small Cause Courts. There were several amendments in 1877 and later in 1882,
but which does not tend to fulfil the objective
Later, the Committee headed by Sir Earle Richards drafted it once again. It is to be
noted that the legislation is drafted only after understanding the Culture, Tradition, History of
the Country. Only in 1908, the present CPC was enacted and came into force with effect from
1st January, 1909 and extended to all the states of India with exception being given to the
State of Jammu & Kashmir, the State of Nagaland and the Tribal Areas 1. By the Amendment
of 1976, some important changes were made to give more effectiveness to fair trails by
accepting the principles of Natural Justice and for speedy disposal civil suits.
Objectives of Code
The Main Object of the code is to consolidate and amend the laws relating to the
procedure of the courts of civil Judicature. In view of giving substantial justice, the
provisions of the code were constructed liberally. Apart from few provisions, which provides
the Right to appeal, review, and revision under Sec. 96,100,114,115, the other provisions are
procedural in nature. The civil procedure code deals with two important parts. The first part
contains 158 sections and the second part i.e first Schedule of the code contains 51 Orders
and rules. The first part of the code lays down the general principles of jurisdiction of a
substantial nature. The Second part (first Schedule) relates to the procedure and the method,
1
See S.1 Code of Civil Procedure, 1908
manner and the mode in which the jurisdiction of the courts may be exercised. The legislature
is the only authority that can amend any portion of the first part of the code. The Second part
of the code can be amended by the high courts. To understand the scheme as laid down in the
Act, the sections and the rules must be read together. If any consistency is found in between
the section and the rules, the sections will prevail. The Amendment of 1976 2 brought about
the various important changes. Some of the important changes were list below.

1. The SC is empowered to transfer the case from one high court to another.
2. The provisions to give the statutory notice U/S 80, before the institution of a suit
against the government or public officer
3. Restrictions on the right of appeal and revision
The Principle features of the code of 1908 are the following.
1. It provides the procedure to be adopted by all civil courts in India
2. It is designed to facilitate justice and is not a penal enactment
3. The code provides for inherent powers to the courts and such powers enable the civil
courts to act in accordance with the Principles of Justice, equity, and good
conscience.
4. The Code provides for the doctrines like Res- Judicata and Res- Sub judice
5. The Words of the statue are plain, precise, and unambiguous and binding for all the
courts in India as far as it goes.
Res judicata is rests on public policy and has universal application. India has adopted the
principle of res judicata in S.11 of the Code of Civil Procedure, 1908. Modern day society is
filled with disputes and litigations. The courts are flooded with frivolous, slow and
cumbersome cases. The embodiment of a principle like res judicata, is but one of necessity in
our country. In order to bring finality to litigation and prevent a person from being dragged to
court again and again, res judicata is essential in any society. In this project, the researcher
will elucidate the concept of Res-Judicata as contemplated in Section 11 with its explanations
in detail, also explain its applicability of this doctrine, and briefly explain about the
constructive res-judicata.
Research Question
 Whether Res- Judicata acts a bar for deciding cases involving substantial question of
Law?

2
The CPC Amendment Act 1976
  How does a matter actually in issue determine the operation of res-Judicata under
Explanation III ?
 Whether Res- Judicata acts as an absolute bar for retrospectively rehearing of the
same matter or not ?

CHAPTER - II
CONCEPT OF RES- JUDICIATA OR RULE OF CONCLUSIVENESS
MEANING AND NATURE
The Doctrine of Res Judicata otherwise known as rule for conclusiveness of the
Judgement is embodied in Section 11 of the Code, which means once a matter is finally
decided by the competent court; no party cxan be permitted to reopen the suit by a subsequent
registration. 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 expenses3.
Res Judicata is a judicial creation with roots in the Latin phrase “Res judicata pro
veritate accipitur,"4 a matter adjudged is taken for truth" 5 The traces of Res judicata can be
found both in Common law and civil law systems, so once there is a Judgement which is of
final nature, there arises no appeal (either because of the limitation period crossed before
filing an appeal or the Subject matter is not feasible for appeal). The underlying principle of
the Doctrine of res judicata is not the creature of any statute or the handwork of any code of
law. It is the gift of public policy. It is based partly on the maxim of Roman jurisprudence
 ''interest reipublicae ut sit finis litium'' means '' the State’s Interest to end suits – to
bring finality''
 Partly on the maxim ''nemo debet bis vexari pro uno et eadem causa” means '' once
a man is already punished or penalised for something which would vex him, he shall
not be vexed again for the same cause''6.
 And on the maxim “res judicata pro veritate occipitur” which means that once a
judgement passed is to be presumed as Correct.

3
Satyadhyam Ghosal v. Deorjin Debi, AIR 1960 SC 941.
4
Kunjan Nair Sivaraman Nair v. Narayanan Nair (2004) 3 SCC 277).
5
Shah Shivraj Gopalji v. ED-, Appakadh Ayiassa Bi & Ors., AIR 1949 PC 302; Mohanlal Goenka v. Benoy
Kishna Mukherjee & Ors., AIR 1953 SC 65).; Daryao v. State of U.P AIR 1961 SC 1457.;
6
Dr. Subramanian Swamy v. State of Tamil Nadu & Ors 2014 (1) SCALE 79
 In Smt. Raj Lakshmi Dasi & Ors. v. Banamali Sen & Ors. 7, the apex Court while
dealing with the doctrine of res judicata referred to and relied upon the judgment in
Sheoparsan Singh v. Ramnandan Singh8, wherein it had been observed as under:

“…….. the rule of res judicata, while founded on ancient precedents, is

dictated by a wisdom which is for all time….. Though the rule of the Code may be
traced to an English source, it embodies a doctrine in no way opposed to the spirit of
the law as expounded by the Hindu commentators. Vijnanesvara and Nilakantha
include the plea of a former judgment among those allowed by law, each citing for
this purpose the text of Katyayana, who describes the plea thus: 'If a person though
defeated at law, sue again, he should be answered, ‘‘you were defeated formerly".
This is called the plea of former judgment.’... And so the application of the rule by the
courts in India should be influenced by no technical considerations of form, but by
matter of substance within the limits allowed by law’’

Which also confirms that the matter to be adjudged is to be determined by the Court of Law
that whether there is any substantial question of law that is involved in the dispute to put it for
an appeal.

SCOPE OF RES- JUDICATA

It is based on the doctrine of public Interest and not absolute justice. In the event of a
wrong decision, “the suffering citizen must appeal to the law-giver and not to the lawyer” 9. In
Satyadhyan Ghosal & Ors. v. Smt. Deorajin Debi & Anr10.case explained the scope of
principle of res-judicata observing as under:
The principle of res judicata is based on the need of giving a finality to
judicial decisions. What it says is that once a res is 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 canvass the matter again. This principle of res judicata is embodied
in relation to suits in S. 11 of the Code of Civil Procedure; but even where S. 11 does
7
AIR 1953 SC 33
8
AIR 1916 PC 78
9
Sheoparsan Singh v. Rammandan Singh, AIR 1916 PC 78,
10
AIR 1960 SC 941 Para 7.
 not apply, the principle of res judicata has been applied by courts for the purpose of
achieving finality in litigation. The result of this is that the original court as well as
any higher court must in any future litigation proceed on the basis that the previous
decision was correct.”

Which says that there were instances where even though S.11 is not applicable in a particular
case the Court applied the Principle to achieve finality. It is can be very well said that this
principle is concerned about the Judgement’s finality and so it presumes that the previous
adjudication is correct.

EXTENT AND APPLICABILITY:

This Doctrine though based on the Public Policy 11 it also takes into consideration the Private
Interest. Hence it can be said that the Principle though applies to civil suits its applicability is
extended to arbitration proceedings, execution proceedings, taxation matters, writ petitions12,
industrial adjudication, administrative orders13, criminal proceedings etc.

REQUIREMENTS FOR THE APPLICATION OF RES JUDICATA:

1. Both the Former and the Later Suit has the same matter that is directly and
substantially in issue.
2. The previous suit filed should be between the parties that are same in the
subsequent suit.
3. Parties claimed for the Same Title (i.e., the Same Relief) in the later suit as like
claimed in the previous suit.
4. The issue before the Court in the later suit should have been heard and finally
decided in the former suit.
5. The Court which tried the Former Suit is also competent to try the Later Suit.

To define and clarify the principle contained in Section 11 of the Code, eight Explanations
have been provided. They are

1. Explanation I states that the expression ‘former suit’ refers to a suit which had been
decided prior to the suit in question whether it was instituted prior thereto.
11
Standard Chartered Bank v. Andhra Bank Financial Services Ltd. & Ors., (2006) 6 SCC 94)
12
Amalgamated Coal Fields Ltd. & Anr. v. Janapada Sabha Chhindwara & Ors., AIR 1964 SC 1013
13
Dir., Cent. Marine Fisheries Res. Inst. & Ors. V. A. Kanakkan & Ors., (2009) 17 SCC 253
 2. Explanation II states that the competence of a court shall be determined irrespective
of whether any provisions as to a right of appeal from the decision of such Court.
3. Explanation III: states that the matter directly and substantially in issue in the
former suit, must have been alleged by one party or either denied or admitted
expressly or impliedly by the other party.
4. 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.
5. 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.
6. Explanation VI: Where persons litigate bonafide in respect of a 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
litigating.
7. Explanation VII: The provisions of this section shall apply to a proceeding for the
execution of a decree and references in this Section to any suit, issue or former suit
shall be construed as references, respectively, to a proceeding for the execution of the
decree, question arising in such proceeding and a former proceeding for the execution
of that decree.
8. 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 a
subsequent suit, notwithstanding that such Court of limited jurisdiction was not
competent to try such subsequent suit in which such issue has been subsequently
raised.
EXPLANATION OF KEY INGREDIENTS
Matter Directly and Substantially in Issue

Explanation III: Matter Directly and Substantially In Issue

Directly” means directly, at once immediately, without intervention and the term
used in contradistinction to ‘collaterally or incidentally. The words in S.11 use the phrase
“matter directly and substantially in issue". Thus, for res Judicata to operate the former suit
and the subsequent suit should have matter which was “directly and substantially in issue".
No hard and fast rule can be laid down as to when a matter can be said to be directly in issue
and it depends upon the facts and circumstances of the case14.

“Substantially” means essentially, materially or in a substantial manner. It is

something short of certainty but indeed more than suspicion. It means “in effect though not
in express terms”15. Therefore, a matter can be said to be substantially in issue, if it is of
importance for the decision of a case. However, no rule of universal application can be laid
down as to when a matter is said to be substantial except when the parties by their conduct
treated it as a substantial one16.

The test to decide whether a matter was directly and substantially in issue in the
earlier proceedings is to see if it was necessary for that issue to be decided in order for an
adjudication upon the principal issue. However, every single issue framed is not a matter
which is directly and substantially in issue. Thus, is becomes imperative to examine the plaint
and the written statement to arrive at a conclusion as to which issues were directly and
substantially in issue and which ones were merely incidentally or collaterally in issue. Where
there are findings on several issues or where the court rests its decision on more than one
point, the findings on all the issues or points will be res Judicata.

The Supreme Court17 Observed that

'' It is well settled that the final decision on more than one point, each of which by
itself would be sufficient for the ultimate decision, the decision on each of the points operates
as res Judicata between the parties.''

However, no objective test can be laid down to definitively, determine which matters
are directly and substantially in issue in every case and it depends on the facts and
circumstances of each case.

 Matter actually in issue:

In the case Lonan Kutty vs Thomman 18, the court said that ''A matter is actually in
issue when it is in issue directly and substantially and a competent court decides it on merits.''
 Matter constructively in issue

14
Ramadhar Shrivas v. Bhagqwandas, 2005, 13 SCC 1.
15
Pandurang Ramachandra v. Shantibai Ramachandra, AIR 1989 SC2240 at 2248.
16
Krishna Chandra v. Challa Ramanna, AIR 1932 PC 50.
17
Telecom Officers Forum v. Union Of India, AIR 1990 SC787
18
AIR 1976 SC 1645
 Explanation IV: A matter is said to be constructively in issue, when it ‘might and
ought’ to have been made a ground of defence or attack in the former suit. This is a deeming
provision. The object of this provision is to compel the plaintiff or defendant to take all
grounds of attack or defence, which were open to him. This means that all the grounds of
attack must be taken in the suit. A party is bound to bring forward his whole case in respect
of the matter in issue and cannot abstain from relying or giving up any ground which is in
controversy and for consideration before a Court and afterwards make it a cause of action for
a fresh suit19. If a fresh suit is permitted the doctrine of finality of judgments pronounced by
the courts would also be materially affected20.
This principle, therefore, helps in raising the bar of res Judicata by suitably construing
the general principles of subduing a cantankerous litigant. That is why the rule is called
Constructive Res Judicata, which, in reality, is an aspect or amplification of the general
principles of res Judicata.21 This principle also applies to pleas, which were taken but not
pressed at the time of hearing.22

COMPARATIVE STUDY OF THE DOCTRINE OF RES JUDICATA WITH OTHER

DOCTRINES:

1. RES JUDICATA AND RULE OF LAW:

The doctrine of res Judicata has universal application. In the historic decision
of Duryao vs State Of U.P 23, the Supreme Court has placed the doctrine of res
Judicata on a still broader foundation.
“The binding character of judgments pronounced by courts of competent
jurisdiction is itself an essential part of the rule of law, and the rule of law obviously
is the basis of the administration of justice on which the Constitution lays so much
emphasis”.
2. RES JUDICATA AND RES SUB-JUDICE:
Differs in two aspects;
 Res Judicata, applies to a matter adjudicated upon (res judicatum),

19
State of Karnataka v. All India Manufacturers Organization, 2006 4 SCC 683.
20
Devilal Modi v. STO, AIR 1965 SC 1150.
21
State Of U.P. v. Nawab Hussain, AIR 1977 SC 1680.
22
Nirmal Emem v. Jahan Ara, AIR 1973 SC 1406.
23
AIR 1961 SC 1457
  res sub-judice applies to a matter pending trial (sub Judice); and. Res Judicata bars
the trial of a suit or an issue which has been decided in a former suit, res sub judice
bars trial of a suit which is pending decision in a previously instituted suit.
The object of Res Sub-Judice is to prevent Courts of a concurrent jurisdiction from
simultaneously entertaining and adjudicating upon two parallel litigations with same
Cause of action, same subject matter and same relief whereas the object of Res
Judicata is that there should be an end to litigation and that no man should be vexed
twice over for the same cause.,24 which is also been laid down by the Legal Maxims
mentioned above.
 Res Sub Judice bars the Trial of a suit in which the matter directly and substantially in
issue is pending judicial decision, in a previously instituted suit by stating the trial of
the latter suit, whereas Res Judicata bars altogether the trial of a suit or an issue in
which the matter directly and substantially in issue has already been adjudicated upon
in a previous suit.25
3. RES JUDICATA AND LIS PENDENS:

 Doctrine of Lis pen dens is one aspect of rule of res judicata.

 Lis Pendens is stated in Section 52 of The Transfer of Property Act, 1882.
 An alienee pendente lite is bound by the out come of the litigation, while the rule
in Section 11 of the Code relates to matters passed into rem jurisdiction.
 Where a conflict arises between the doctrine of res judicata and lis pendens , the
former will prevail over the latter. This means that once a judgment has been duly
pronounced by a competent court in regard to the subject matter of the suit in
which the doctrine of lis pendens applies , the said decision would operate as res
judicata and wound bind not only parties thereto but also the transferees pendent
lite.
 Res Judicata means a matter adjudicated upon or a matter on which decision has
been made, whereas lis pendens is an action pending litigation.
4. RES JUDICATA AND WITHDRAWAL OF SUITS:
 Order XXIII, Rule 1 deals with withdrawal of suits.

24
Dr. Subramanian Swamy v. State of Tamil Nadu & Ors 2014 (1) SCALE 79
25
Infra note 13 at Pg.238
  In res judicata the matter is heard and finally decided between the parties while in
the case of withdrawal of suits the Plaintiff himself withdraws or abandons his
claim before it is adjudicated on merits.
 An order granting or refusing permission to withdraw the suit with permission to
file fresh suit on the same cause of action is neither a “decree” nor an appealable
order. Hence, no appeal lies against such order.26

5. RES JUDICATA AND ESTOPPEL

The doctrine of is often treats as a branch of the law of Estoppel 27.and it is really
Estoppel by verdict or Estoppel by judgment 28. The rule of constructive res Judicata is
nothing else but a rule of Estoppel. In the case of Mohan Ram v. T.L.Sudararamier 29,
The following are the differences were laid down

 Res Judicata is the result of a decision of a Court of Law, whereas Estoppel is

the result of the act of Parties.
 The object of the rule of Res Judicata is to bring an end to litigation whereas
the object of the rule of estoppel is to prevent a person who by his conduct
induced another to alter his position to his advantage;30
 The rule of res Judicata is based on public policy while Estoppel proceeds
upon the doctrine of Equity.
 It ousts the jurisdiction of a court to try a case and precludes an enquiry in
limine; Estoppel is only a rule of evidence and shuts the mouth of a party.
 Res Judicata prohibits a man averring the same thing twice in successive
litigations; while Estoppel prevents him from saying one thing at one time and
the opposite at another.
 The rule of res Judicata presumes conclusively the truth of the decision in the
former suit, while the rule of Estoppel prevents a party from denying what he
has called the truth. In other words, while res Judicata binds both the parties

26
See. C.K. Takwani, Civil Procedure with Limitation Act, 1963; Seventh Edition (Reprint), Pg.375 Eastern
Book Company, Lucknow, 2015.
27
Swamy Atmananada v. Sri Ramakrishna Tapovanam, 2005, 10 SCC 51.
28
V. Rajeswari v. T.C.Saravanabhava, 2004 1 SCC 551.
29
AIR 1960 MAD 377 (F.B.)
30
BM Prasad Manish Mohan, The Manual of The Civil Procedure Code ,Vol 1 Pg.237(15th Ed. 2015), Lexis
Nexis, Haryana.
 to litigation, Estoppel binds only that party who made the previous statement
or showed the previous conduct.
6. RES JUDICATA AND ISSUE ESTOPPEL:
 Section 300 (1) of the Code of Criminal Procedure, 1973 declares that a
person who has once been tried by a court of competent jurisdiction for an
offence and convicted or acquitted of such offence cannot be tried again for
the same offence so long as the acquittal or conviction operates.
 Section 11 of the Code of Civil Procedure, 1908 enacts that once the matter is
finally decided by a competent court; no party to such proceeding can be
allowed to reopen it in subsequent litigation. This principle is also applicable
to criminal proceedings and it is not permissible in the subsequent stage of the
same proceedings or in subsequent proceeding to try a person for an offence in
respect of which he has been acquitted or convicted31.
7) RES JUDICATA AND STARE DECISIS: Res Judicata and Stare Decisis are
members of the same family. Both relate to adjudication of matters. Both deal with
final determination of contested questions and have the binding effect in future
litigations. Both the doctrines are the result of decisions of a competent court of law
and based on public policy. Res Judicata is based upon conclusiveness of judgment
and adjudication of prior findings, while rests on legal principles. Res Judicata binds
parties and privies, while stare decisis operates between strangers also and binds
courts from taking a contrary view on the point of already decided. Res Judicata
relates to a specific controversy, stare decisis touches legal principles. Res Judicata.
presupposes judicial finding upon the same facts involved in subsequent litigation
between the same parties, stare decisis applies to same principle of law to all parties.
8) RES JUDICATA AND SPLITTING OF CLAIMS:
Doctrine of Res Judicata differs from ORDER II, Rule 2 of the Code. Res Judicata
refers to a plaintiff’s duty to bring forward all the grounds of attack in support of his
claim, while splitting of claims only requires a plaintiff to claim all reliefs flowing
from the same cause of action. Res Judicata applies to both the parties, plaintiff as
well as defendant, and precludes a suit as well as a defence, while splitting of claims
refers only to a plaintiff and bars a court.
Bar of subsequent suit: Conditions for invocation of order 2 rule 2

31
Bhanu Kumar v. Archana Kumar, 2005 1 SCC 787.
 The bar of subsequent suit as envisaged under order 2 rule 2 comes into operation if
the following conditions are fulfilled:32
(i) Where the cause of action on which the previous suit was filed forms the
foundation of the subsequent suit;
(ii) When the plaintiff could have claimed the relief sought in the subsequent suit, in
the earlier suit; and
(iii) Both the suits are between the same parties.
Furthermore, the court held,33 the bar under order 2 rule 2 must be specifically
pleaded by the defendant in the suit and the trial court should frame a specific issue in
that regard wherein the pleading in the earlier suit must be examined and the plaintiff
is given an opportunity to demonstrate that the cause of action in the subsequent suit
is different. The court in order to determine whether a suit is barred under the said
provisions must examine the cause of action pleaded by the plaintiff in his plaints
filed in the relevant suits. Considering the technicality of the plea under order 2 rule
2, both the plaints must be read as a whole to identify the cause of action, which is
necessary to establish a claim or necessary for the plaintiff to prove if traversed.
Therefore, after identifying the cause of action if it is found that the cause of action
pleaded in both the suits is identical and the relief claimed in the subsequent suit
could have been pleaded in the earlier suit, then the subsequent suit is barred by order
2 rule 2.

Bibliography

Primary Sources

 The Code of Civil Procedure, 1908

Secondary Sources

 C.K. Takwani, Civil Procedure with Limitation Act, 1963; Seventh Edition (Reprint),
Eastern Book Company, Lucknow, 2015

 B M Prasad and Manish Mohan, Mulla’s The Code of Civil Procedure, Vol. 1 (18th ed.,
2011), Lexis Nexis, Haryana.

32
Coffee Board v. Ramesh Exports (P) Ltd. (2014) 6 SCC 424. See also, Ratnavathi v. Kavitha Ganashamdas
(2015) 5 SCC 223
33
Ibid
 B M Prasad and Manish Mohan, The MLJ Manual of the Civil Procedure Code, Vol. 1
(15th ed., 2015), Lexis Nexis, Haryana.
 Sukumar Ray, The Code of Civil Procedure, (3rd ed., 2015), Lexis Nexis, Haryana
 Mulla, Edited by B M Prasad Manish Mohan, The Code of Civil Procedure, Vol 1 (18 th
Ed.2015), Lexis Nexis, Haryana.