Name : Kinza Azeem

Roll # 48045
Subject : CPC
Subject teacher : Sir Arif
Assignment Topic: Doctrine of Res Judicata .

Principle of Res Judicata under Code of Civil Procedure

INTRODUCTION
The common Law doctrine of Res Judicata gives respect and finality to the
Judicial decisions: This doctrine has been incorporated in section 11, of C P.C.
based on the general rule, that man shall not be twice vexed, for the same
cause. The bar of Res Judicata contained in section 11 would be fully attracted
when matter involved in second suit was the same as involved in previous
litigation up to High Court.

2. RELEVANT PROVISIONS
Following are the relevant provision of C.P.C regarding the topic of Res Judicata.
(I) Section 11 of C.P.C
(II) Cross Reference
(i) Section 151 of C.P.C
(ii) Section 403 Cr.P.C.

3. MEANING OF RES JUDICATA

"The term Res judicata Signifies, that the matter in dispute has been considered
and finally settled, and that the adjudication has a conclusive effect, upon the
rights determined".

4. DEFINTITION OF RESJUDICATA
(I) According to Spencer Sower:
Res judicata means final judicial decision pronounced by a judicial tribunal
having competent jurisdiction over the cause or matter in litigation and over the
parties thereto".

(II) According to justice Das Gupta

The doctrine of Res Judicata has been explained in the simplest manner by
justice Das Gupta in the case of satyadhyn vs. Deorjn Debi, in the following
words.
"The principle of Res Judicata is based on the need of giving a finality to judicial
decision".

5. COMMON LAW PRINCIPLE OF RES JUDICATA

The common Law principle of Res Judicata can be discussed as under.

LEADING CASE OF DUCHESS OF KINGSTONES'S CASE

In this case Sir William de Grey summarize the doctrine of res judicata in his
judgment in the following words.

"From the variety of cases relative to judgments being given in evidence in civil
suit, these two deduction seems to follow as generally true.
Firstly: Judgment, of a Court of concurrent jurisdiction, directly upon a point is
conclusive between the same parties upon the same matter directly in question
in another Court.

Secondly: Judgment, of a court of exclusive jurisdiction, directly upon the point

is, conclusive between the same parties upon the same matter, coming
incidentally question, in another Court.

6. BASIS OF PRINCIPLE OF RES JUDICATA

The rule of res judicata is based on the ground of public policy. If litigations
between parties on the same subject matter involving the same issue are
allowed to proceed there can be no end to litigation.

(I) Case Law: Bahadur vs. Umar Hayat (PLD 1993)

"Res Judicata is based on the consideration, that it would result in hardship to
individual, if he were to be vexed twice for the same cause, and it is in the
interest of state, that there should be an end to litigation".

THE DOCTRINE OF RES-JUDICATA IS BASED ON THREE

MAXIMS.
(i) Namo debt lix Vexari Prouna et eaden causa:
"No man should be vexed (annoy) twice over for the same cause".
(ii) Interest republicae ut sit finislitium
"It is in the interest of the state that there should be an end to a litigation".
(iii) Resjudicata Proveritate Occipitur
"A judicial decision must be accepted as correct".

According to Sir Lawrence Jenking:

"The rule of res judicata, while foundation account of precedent is directed by a
wisdom which is for all time".
Thus the doctrine of Res Judicata is the combined result of public policy
reflected in maxims (ii) and (iii) and private justice: expressed in maxim (i) and
they apply to all judicial proceeding whither- civil or criminal. But this rule there
would be no end to litigation and no security for any person, the rights of
person would be involved -endless confusion and great injustice done under
cover of the law. The principle is founded on justice, equity and good
conscience.

7. REASONS FOR RES JUDICATA

Following are the reasons for the principle of Res Judicata.
(I) EFFICIENCY OF COURT
Efficiency of Court requires, that finality should be given judicial decisions and
res judicata works for this purpose.
(II) PUBLIC CONVENIENCE
It is for the public convenience, that having been tried one all litigation about
that cause should be concluded forever between those parties.
(III) MAINTENANCE OF SOCIETY
The maintenance of Public order and society requires that, what has been
definitely determined by competent tribunals shall be accepted as legal truth.

(IV) SECURITY OF RIGHTS

If the principle of Res Judicata not apply then the most important function of
Government that of. ascertaining and enforcing persons rights, would go
unfulfilled.

8. PRINCIPLE OF RES JUDICATA U/S 11 C.P.C

It is not every matter decided in a former suit that can be pleaded, as res
judicata in a subsequent suit, but in order to constitute a matter res judicata the
following conditions must be present.

Case Law: 2002 CLC KAR. 1620

The principle of Res Judicata is embodied in section 11 of C.P.C. by virtue of
which subsequent Court is barred to try a suit, where the matter, directly and
substantially in issue, is been decided by a Court of competent jurisdiction.

(I) ESSENTIAL INGREDIENTS/CONDITIONS FOR THE APPLICABILITY OF SECTION

11:
To apply section 11 following essentials ingredients/ conditions must be
fulfilled;
(i) Same Matter in issue
All the matter in issue must be same in both the suits. The term matter means
necessary facts, constituting the claim or defense.
Directly or substantially: Matter in both suits must be directly and substantially
same.
"A matter shall be directly in issue which have been alleged by one party and
either denied or admitted expressly or impliedly by the other". "A matter shall
be substantially i issue if it is important and valuable for the decision of the
case".
(ii) Same Parties
Both the suits must have been between the same, parties or their
representatives under whom they or any of them claim. For the purposes of res
judicata a person can either be;
(i) A party or
(ii) Claim under a party i.e. privy
(iii) or be represented by a party to a suit, or
(iv) be a complete stranger
Examples: If A sues B for a declaration of title to a certain land and obtains a
decree and A, then sues C for possession and C contends that B is the owner of
the land and he is in possession as tenant of B the defense is barred by the
principle of Res Judicata.

Ordinarily, a person whose name appears on the record as a plaintiff or

defendant at the time of the decision of the suit, is a party for the purposes of
res judicata, but where the name is omitted in the formal order by mistake such
person will still be bound. A person who intervenes in a suit will be considered
to be a party. A judgment as such will not operate as res judicata upon some
persons, even though they may have been parties to the suit at same stage.
For Instance:
(i) A party whose name is struck off or who is discharged from the suit.
(ii) A person whose name is born on the record fraudulently and without his
knowledge.
(iii) A person whose application be made a party has been refused.
(iii) Same Title
•The parties must be contesting in both the suits, under the same title;
•The term "Titles" refers to the legal capacity on interest of a party of legal
personality of a party. In order that a matter be res judicata not only should the
parties be the same, but such parties should litigating under the same title as in
the former suit. The title will be the same in the following cases.
(i) Former suit as husband's heir and subsequent suit as claimant for dower.
(ii) Former suit against firm and subsequent suit against partner thereof.

•A verdict against a man suing in one capacity will not stop him when he sues
in another capacity. Thus where a suit is brought by a person for possession of
math property in the mi capacity of an heir of the deceased mahant but the suit
fails because of his failure to establish heir ship, he is not debarred to bring
another suit in the capacity of manager of the math property.

• The title of a property has nothing to do with the subject matter of the suit, or
the cause of action. All that is to be seen that the matters directly and
substantially in issue must be the same in both suits where the parties to the
former suit and the subsequent suit are the same but they are not legitimating
under the same title, the decision in the former suit will not be Res Judicata in
the subsequent suit.

(iv) First suit must be DECIDED

• Such matter in issue in a subsequent suit must have been heard and finally
decided by the Court in the first suit.

• The term res judicata indicates that the matter has already been adjudicated
upon in a former suit. A matter will be res judicata only if it has been heard and
finally decided.

• There must be final decision of the matter. It is not sufficient for the
applicability of this doctrine that the matter was directly and substantially in
issue. It is of the very essence that such matter was heard and finally decided. A
matter cannot be said to have been heard and finally decided unless the finding
on the issue was necessary for the determination of the suit and finding cannot
be said to be necessary to the decision unless the appeal lies against the finding.

•A long as a matter is pending adjudication, a court may very its earlier orders,
but the parties cannot be allowed to reopen such matter, but a court having
finally decided a matter, cannot reopen the same at a large stage of the
proceedings.

If the appeal is withdrawn dismissed in fault or dismissed on a preliminary

point with the appellate court having discussed the merits of the case, the
decision of the lower court remains intact and will continue to operate as res
judicata. Further it is the decision that creates the bar and not the decree. It is
not necessary that the decision should have been incorporated in the decree.

Illustration: A sues B to recover certain property belonging to the estate of C

alleging that his father had been adopted by C's brother, D to whom the
property decanted on C's death. The suit is dismissed on the ground that the
adoption is not proved. A then sues B to recover the same property claiming it
as C's bandhu. The suit is barred as res judicata. A ought to have claimed the
property in the first suit in the alternative as C's bandhu.

(v) Competency of Court

The Court which decided the former suit, means the suit which has been
decided prior to the suit in question, whether or not it was instituted prior in
tame, must be competent to try the subsequent suit. The effect of this condition
is that the court which tired the former suit and the court trying the subsequent
suit should be courts of concurrent jurisdiction. The term competent as used in
section II refers to competence of the former court to try the whole of the
subsequent suit. It is competence of the former trail court that is to be
established and not that of the appellate court which may have finally
determined the matter.

(II) BAR TO TRY SUBSEQUENT SUIT

Where conditions of section 11 are fulfilled, it bars the jurisdiction of a court to
try a subsequent suit.

9. SCOPE OF RES JUDICATA

Said principle can be applied to proceedings other than suits viz. constitutional
petitions, rent applications, and cases before the settlement authorities. [2002
CLC Kar. 1620]

10. CONSTRUCTIVE RES JUDICATA

The doctrine of constructive Res Judicata is embodied in explanation IV to sec
11 of C.P.C. [2002 CLC 1620]
(I) MEANING OF CONSTRUCTIVE RES JUDICATA
Constructive Res Judicata, refers, that if the parties had an opportunity of
asserting a ground, in support of their claim or defense in a former suit, and
have not done so, they shall be deemed to have raised such grounds in a former
suit, and it shall be further deemed, that these grounds had been heard and
decided, as if, these matters had been actually in issue.

(II) EXCEPTIONS
Following are the exceptions to the doctrine of constructive Res Judicata:
(i) Where pleas are barred by law.
(ii) Where pleas need not to be raised in the former suit:
(iii) The pleas raised but not decided by the Court.
(iv)Where the matter is not in issue actually or constructively.

11. WAIVER OF RES JUDICATA

The plea of Res Judicata must be raised in the pleadings and if not so raised, it
shall be deemed to have been waived or deemed to have been raised, and
decided against the party not raising it, by virtue of doctrine of constructive Res
Judicata:

12. SECTION 11 IS NOT EXHAUSTIVE

Section 11 is not exhaustive, and in its terms it applies only to suits but the
principle underlying the rule of Res Judicata can be invoked by virtue of section
151 of C.P.C.

13. CASES WHERE BAR OF RES JUDICATA MAY BE AVOIDED

Following are the cases where bar of Res Judicata may be avoided.
(i) Judgment obtained by Fraud Collusion or without Jurisdiction
A party can avoid the bar of Res Judicata by proving that the Judgment has been
obtained by fraud, or collusion or passed by a Court without jurisdiction.
(ii) Recall of Orders under Section 151
A court or tribunal may recall its orders, if it is without jurisdiction or is tainted
with fraud or collusion.

14. ON WHOM RES JUDICATA APPLIES

A decision will be Res Judicata between the following parties:
(i) Parties on opposite sides
(ii) Parties on the same sides.
(I) PARTIES ON OPPOSITE SIDES
A decision will be Res Judicata between the parties on opposite sides i.e.
plaintiff and defendant.
(II) PARTIES ON SAME SIDES
A decision will be Res Judicata between the parties on the opposite sides i.e.
plaintiff and defendant. When there is more than one plaintiff involved in a suit
and that suit is properly decided by the court then the principle of Res Judicata
will be applied on all the plaintiffs and .the defendant or the defendants as the
case may, be. But the dismissal of suit under Order XVII, rule 3 of C.P.C for non
production of evidence by some of plaintiffs of the case could not be made basis
of Res Judicata for the other plaintiffs. (2006 CLJ 633)

(i) Conflict of Interest

There should have been a conflict of interest between such co-plaintiff and co-
defendants in the former suit.
(ii) Necessary to decide Such Conflict
It must have been necessary, to decide such conflict, for granting relief in the
suit.
(iii) Finally Decided Matter
Such conflict or matter must have been finally decided.
(iv) Party in Former Suit
Such person must have been a necessary or a proper-party, in the former suit.
Illustration: In a suit for the partition of land by A and B against C and 'D,' all the
four conditions, enumerated above are fulfilled, and a decision given in such
suit, will be Res Judicata between all these four parties.

15. CONCLUSION
To conclude that Justice requires that every cause should be once fairly tried
and public tranquility demands that having been tried once all litigation about
that cause should be concluded forever between those parties. Whenever there
is a judgment by a competent court inter-parties, it will prevent a fresh suit
upon the same matter. Res Judicata as inserted under section 11 of C.P.0 is of
great importance, because by applying this doctrine the sanctity and
conclusiveness is given to the decisions of the court, and the law becomes more
certain. This doctrine is applicable only in civil cases, while in criminal law
parallel to this doctrine, is doctrine of dual Jeopardy. The doctrine of res
judicata is of universal application and intact a fundamental concept in the
organization of every judicial system.