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 CHAPTER -II

MEANING. CONCEPT AND HISTORICAL BACKGROUND

OF THE DOCTRINE OF RES JUDICATA

Doctrine of res judicata is founded on finality of a

judgment delivered by a court. If suits are allowed to be failed
endlessly for the same cause of action, it will be impossible for
the existing courts to deal with ever growing number of suits.
Endless litigation disturbs the peace of the society and leads to
disorder and confusion. It is a rule common to all civilized
systems of jurisprudence, and was well known to Hindu judicial
system as well as other modem systems of law. It would,
therefore, be pertinent to cast a bird’s eye view on historical
background of the doctrine including its meaning and concept.
Res judicata comprises two words ‘res’ and judicatu­
res means thing and judicata means already decided. Res
judicata is the Latin term for “a matter already decided”,
any may refer to two things in both civil law and common
law legal systems, firstly, a case in which there has been a
final judgment and is no longer subject to appeal; and the
secondly, the term is also used to refer to the legal doctrine
meant to bar or preclude, continued litigation of such cases
between the same parties, which is different between the two
legal systems. In this latter usage, the term is synonymous with
“preclusion.”1

In the case of res judicata the matter cannot be raised

again, either in the same court or in a different courts. A court
will use res judicata to deny reconsideration of a matter.2

Res Judicata is a phrase which has been evolved from a

Latin maxim, which stand for ‘the thing has been judged’,
meaning thereby 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.
The term is also used to mean as to ‘bar re-litigation’ of
such cases between the same parties, which is different between
the two legal systems. Once a final judgment has been
announced in a suit, the subsequent judges who are confronted
with a suit that is identical to or substantially the same as the
earlier one, they would 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

1 Allen v. Me Curry, 449 U.S. 90,94, 101 Set. 411 (1980)

2 England v. Louisiana State Board of Medical Examiners, 375, U.S. 411 (1964)
mostly to avoid unnecessary waste of resources and time of the
Judicial System. And, therefore, the same case cannot be taken
up again either in the same or in the different Court of India.
This is just to prevent them from multiplying judgments.
In CORPUS JURIS3, it has been stated:

“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 should be an end to litigation; the
other, the hardship to the individual that he should
not be vexed twice for the same cause”.
As per The Law Lexicon “res judicata” means-
“A matter adjudged; a thing judicially acted upon
or decided; a thing or matter settled by judgment; a
thing definitely settled by judicial decision, the
thing adjudged.”

3 vol. 34, p.743

According to West’s Encyclopedia of American Law4,

“Res Judicata, the thing has been judged, meaning

the issue before the court has already been decided
by another court, with the same parties. Therefore,
the court will dismiss the case before it as being
useless. Example: an Ohio court determines that
John is the father of Betty's child. John cannot raise
the issue again in another state. Sometimes also
called as res judicata.”
According to Gerald N. Hill and Kathleen T. Hill5 res

judicata means -
“1. The decision of a legal or equitable issue, by
a court of competent jurisdiction.
2. It is a general principle that such decision is
binding and conclusive upon all other courts
of concurrent power. This principle pervades
not only our own, but all other systems of
jurisprudence, and has become a rule of
universal law, founded on the soundest
policy. If, therefore, Paul sue Peter to recover

4 2nd Edition 2008

5 Edition 2005
the amount due to him upon a bond and on
the trial the plaintiff fails to prove the due
execution of the bond by Peter, in
consequence of which a verdict is rendered
for the defendant, and judgment is entered
thereupon, this judgment, till reversed on
error, is conclusive upon the parties, and Paul
cannot recover in a subsequent suit, although
he may then be able to prove the due
execution of the bond by Peter, and that the
money is due to him, for, to use the language
of the civilians, res judicata facit ex albo
nigrum, ex nigro album, ex curvo redum, ex
recto curvum.
The constitution of the United States and the
amendments to it declare, that no fact, once
tried by a jury, shall be otherwise
reexaminable in any court of the United
States than according to the rules of the
common law.
 4. But in order to make a matter res judicata
there must be a concurrence of the four
conditions following, namely:
(i) Identity in the thing sued for,
(ii) Identity of the cause of action;
(iii) Identity of persons and of parties to the
action; this rule is a necessary
consequence of the rule of natural justice:
ne inauditus condemnetur.
(iv) Identity of the quality in the persons for or
against whom the claim is made;”.
Thus, res judicata means that a final judgment on the
merits by a court having jurisdiction is conclusive between the
parties to a suit as to all matters that were litigated or that could
have been litigated in that suit.

B. HISTORICAL BACKGROUND
Res judicata Pro Veritate Accipture” is the full maxim
which has, over the years, shrunk to mere res judicata6, which

expression means a matter already decided.

6 Deva Ram v. Ishwar Chand AIR1996SC378-; Kunjan Nair Shivaraman Nair v. Narayanan Nair, AIR
2004 SC 1761.
 This principle was also known to Roman law as 'exceptio
res judicata'. Julian defined the principle thus,
"Generally the plea of former Judgment is a bar
whenever the same question of right is renewed
between the same parties by whatever form of action
— Et generaliter (ut julianus definit) exceptio rel
judicata obstat, quotisns inter easdem personas
esdem quaestio revocator, vel alio genere judicli.)
This doctrine was adopted by the countries on the
European continent which had modelled their civil
law on the Roman pattern. In France, the doctrine is
known as 'Chose jugee' -- thing adjudged. This
principle of preclusion of re-litigation, or the
conclusiveness of Judgment, has struck deep roots in
Anglo-American jurisprudence and is equally well-
known in the Commonwealth countries which have
drawn upon the rules of Common law. The doctrine
of res judicata is recognised as a principle of
universal jurisprudence forming part of the legal
systems of all civilised nations7.”

7 Mt. Lachhmi v. Mt. Bhulli AIR 1927 Lah 289.

 The concept of res judicata finds its evolvement from the
English Common Law system, being derived from the
overriding concept of judicial economy, consistency, and
finality. From the common law, it got included in the Code of
Civil Procedure and which was later as a whole was adopted by
the Indian legal system.
The doctrine of res judicata is based on three maxims
1. Nemo debet bis vaxari pro eadem causa which means that
no man should be vexed twice for the same cause;
2. Interest republicae ut sit finis litium, the meaning thereby
is that it is interest of the State that there should be end to a
litigation; and
3. Res judicata pro veritate occipitur, that is a judicial
decision must be accepted as correct.
The first maxim looks to the interest of the litigant, who
should be protected from a vexatious multiplicity of suits, for
otherwise a man possessed of wealth and capacity to fight may
overawe his adversary by constant dread to litigation. The
second maxim is based on the ground of public policy that there
V

should be an end to litigation. Third maxim is that judicial

decisions must be accepted as correct, for otherwise if suits were
allowed to be filed endlessly for the same cause of action, it will
be impossible for the existing courts to deal with ever growing
number of suits.
The doctrine of res judicata have been well summarized
by Sir William De Gray in the leading case of the Duchess of
o
Kingstone as follows-
“From the variety of cases relative to judgment
being given in evidence in civil suits these two
deductions seem to follow as generally true; first
that a judgment of a court of concurrent
jurisdiction, directly speaking on the point, is, as
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 on the point, is, in like manner, conclusive
upon the same matter, between same parties,
coming incidentally in question in another court,
for a different purpose. But neither the judgment of
a court of concurrent or exclusive jurisdiction is
evidence of any matter which came collaterally in
question, though within their jurisdiction, nor of
8
(1776) 2 Smith’s leading cases, 11th Edition P. 731
 nay matter incidentally cognizable nor of any
matter to be inferred by argument from the
judgment.”
The principle of res Judicata may be used either by a
judge or a defendant.
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.
A defendant in a lawsuit may use res judicata as defense.
The general rule is that a plaintiff who prosecuted an action
against a defendant and obtained a valid final judgment is not
able to initiate another action vs. the same defendant where:
• the claim is based on the same transaction that was at issue
in the first action;
• the plaintiff seeks a different remedy, or further remedy,
than what was obtained in the first action;
• the claim is of such nature as could have been joined in the
first action.9

9 Mt. Lachhmi v. Mt. Bhulli AIR 1927 Lah 289.

 The doctrine of res judicata is based on two theories : (1) the
finality and conclusiveness of judicial decisions for the final
termination of disputes in the general interest of community as a
matter of public policy and (ii) the interests of the individual that
he should be protected from multiplication of litigation. It,
therefore, serves not only a public but also a private purpose by
obstructing the reopening of matters which have once been
adjudicated upon. It is thus not permissible to obtain a second
judgment for the same civil relief on the same cause of action,
for the otherwise the spirit of contentiousness may give rise to
conflicting judgments of equal authority, lead to multiplicity of
actions and bring the administration of justice into disrepute. It
is the cause of action which gives rise to an action, and that is
why it is necessary for the court to recognize that a cause of
action which results in a judgment must lost its identity and
vitality and merge in the judgment when pronounced. It cannot,
therefore, survive the judgment, or give rise to another cause of
action on the same facts. This is what is known as the general
principle of res judicata.
The Seventh Amendment to the United States Constitution
provides that no fact having been tried by a jury shall be
otherwise re-examinable in any court of the United States or of
any state than according to the rules of law.
For res judicata to be binding, several factors must be met:
• identity in the thing at suit;
• identity of the cause at suit;
• identity of the parties to the action;
• identity in the designation of the parties involved;
• whether the judgment was final;
• whether the parties were given full and fair opportunity to
be heard on the issue.
INDIAN NOTION OF RES JUDICATA
In ancient India the principle of prangnyaya i.e. previous
judgment is found which was evolved and developed by the
ancient Indian jurists. The principle of prangnyaya is found
applicable in law suits as Manu says10,
"cfrRef ^ ^ wPft j

cifci cri^fcrr fcTErr^T cT^fr Pm^ci i i"

The meaning appears to be that the King should not retry

case that have already been settled*11. In other words whenever

something has been adjudicated and a judgment issued it is

10 Manu Samriti, 9/233

11 Patrick olivelle, Manu’s Code of Law, 2nd Ed. 2006 P. 332 Pub. Oxford University Press., New
Delhi
recognized as executed according to the law and not bring it
back again.12

Brihaspati also found to have enunciated the principle of

prangnyaya thus ,
“If a person who has been defeated in a suit
according to law (acharena avasanoopi) files his
plaint once again he must be told that he has been
defeated already, this is called plea of prangnyaya.”
The plea of former Judgment has been illustrated in the
text of Katyayana thus,
"If a person though defeated at law sues again, he
should be answered ’you were defeated formerly"14

It was the right of defendant to raise the plea of

prangnyaya. In Harita Dharam Sutra, the rule of pragnyaya in
the earliest period of the development of law in ancient India15.

In Medieval period the bar of prangnaya was also to be

established by the defendant because it was duty to prove his

12 Ibid P.202
13 Brashpati Samriti cited in Tondon’s Code of Civil Procedure and revised by J. Rajesh Tondon 26th
Ed. 2005 p. 43
14 Raj Lakshmi Dasi v. Banamali Sen, AIR 1953 Section C. 33; Sheoparsan Singh v. Ramnandan
Singh (1916) 43 I.A.91.

15 Samriti Chandrika Part-I, p. 77, by Devanand Bhatt cited by Justice M. Ramajois, Legal and
Constitutional History of India, Ed. 1984 reprint 2008 p. .26, Universal Law publishing company Pvt.
Ltd. Delhi.
former victory.16 In the present era it has been incorporated

under section 11 of the Code of Civil Procedure, 1908 which

affords relief in subsequent litigation when the general doctrine
of res judicata is invoked.
The doctrine of res judicata in nations that have a civil law
legal system is much narrower in scope than in common law
nations. According to the dictionary meaning, 'Res Judicata'
means a case or suit involving a particular issue between two or
more parties already decided by a court. Thereafter, if either of
the parties approaches the same court for the adjudication of the
same issue, the suit will be struck by the law of ’res judicata'.
Section 11 of Code of Civil Procedure deals with this
concept. It embodies the doctrine of res judicata or the rule of
conclusiveness of a judgement, as to the points decided either of
fact, or of law, or of fact and law, in every subsequent suit
between the same parties. It enacts that once a matter is finally
decided by a competent court; no party can be permitted to
reopen it in a subsequent litigation. In the absence of such a rule
there will be no end to litigation and the parties would be put to
constant trouble, harassment and expenses.

16 Mishra Vachaspati, vyovhara Chintamani, Edited by Dr. Ludo Rocher ed. 1956 P. 64 University of
Ghent, See also note 7
The pre-requisites which are necessary for res judicata are:
1. There must be a final judgment;
2. The judgment must be on the merits;
3. The claims must be the same in the first and second suits;
4. The parties in the second action must be the same as those
in the first, or have been represented by a party to the prior
action. -
The provisions of Section 11 are not at all exhaustive even
though it has very wide and enlarged amplitude.
The section “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, then they are not
competent i.e. they become barred to try the subsequent suit in
which such issue has been raised .
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.
An ordinary litigation being a party or claiming under a
party of a former suit cannot avoid the applicability of section
11 of C.P.C. as it is mandatory except on the ground of fraud or
collusion as the case may be. The onus of proof lies on the party
relying on the theory of res Judicata. The provisions of section
11 of C.P.C. are “not directory but mandatory”. The judgment in
a former suit can be avoided only by taking recourse to section
44 of the Indian Evidence Act on the ground of fraud or
collusion.
Hon’ble Mr. Justice Das Gupta in Satyadhan Ghosal v.
Deorajan Deb said that ‘the principle of res judicata is based on
the need of giving finality to the judicial decisions’.
Arguably, res judicata is a general principle of
international law under Article 38 (l)(c) of the International
Court of Justice Statute.
"The Court, whose function is to decide in
accordance with international law such disputes as
are submitted to it, shall apply: ... c. the general
principles of law recognized by civilized nations”.
 Even in International Law which is applicable in The
International Court of Justice, there tGO Article 38 (1) (c) is
dedicated towards the doctrine of res judicata.
The Article reads as follows:
“The Court, whose function is to decide in
accordance with international law such disputes as
are submitted to it, shall apply:
a. international conventions, whether general or
particular, establishing rules expressly
recognized by the contesting states;
b. international custom, as evidence of a general
practice accepted as law;
c. the general principles of law recognized by
civilized nations;
d. subject to the provisions of Article 59, judicial
decisions and the teachings of the most highly
qualified publicists of the various nations, as
subsidiary means for the determination of rules
of law.”
Similar provisions are also found in the International
Covenants on Civil and Political Rights, and Article 4 of
Protocol 7 of the European Convention on Human Rights.
However, in the two said conventions, the application of res
judicata is restricted to criminal proceedings only. In the
European Convention, reopening of a concluded criminal
proceedings is possible if -
(a) it is in accordance with the law and penal procedure of the
State concerned;
(b) there is evidence of new or newly discovered facts, or
(c) if there has been a fundamental defect in the previous
proceedings, which could affect the outcome of the case.
The Criminal Law and to be more specific, Evidence Law
also talks about the doctrine of res judicata but in the same
context as that has been used in C.P.C. Therefore, apart from the
Administrative Law and C.P.C., there are some few other laws
which talk about the role of res judicata in the statute.
The legal concept of res judicata arose as a method of
preventing 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
litigants from multiplying judgments, so a prevailing plaintiff
could not recover damages from the defendant twice for the
same injury.
C. THE CONSTITUTION AND THE DOCTRINE OF
RES JUDICATA
Although by reason of the Explanation which was inserted
in Section 141 of the Code of Civil Procedure, 1908, by the
Code of Civil Procedure (Amendment) Act, 1976, Section 11 of
the Code does not in terms apply to any proceeding under
Article 226 of the Constitution, the principle of res judicata
17
does not apply to all Writ Petitions under Article 226.
However where Section 11 of the Code is not applicable, the
general principle of res judicata is made applicable to Writ
Petitions.18

Once the question which has been decided in SLP and

Writ Petition cannot be allowed to reopen in appeal.19 It is well

settled that a decision on an issue raised in a Writ Petition under

Article 226 or Article 32 of the Constitution would also operate
as res judicata between the same parties in subsequent judicial
proceedings. The only exception is that the rule of res judicata
would not operate to the detriment or impairment of a

17 G.K. Dudani v. S.D. Sharma, AIR1986SC1455.

18 Amalgamated Coalfields v. Janapada Sabha, AIR 1964 SC 1013.
19 State Of Gujarat v. Bhaterdevi Ramnivs Sanwalram (2002) 7 SCC 500.
 20
fundamental right. In other words the doctrine of res judicata
or the principles of finality of Judgment cannot be allowed to
whittle down or override the express constitutional mandate to
01
the Supreme Court enshrined in Article 32 of the Constitution.
It is settled law that even the dismissal of special leave
petition in limine operates as a final Order between the parties
and any Order passed by the High Court or Tribunal
subsequently operates as a res judicata as far as the parties
thereto are concerned. However, a different view has been
taken in another matter by the Supreme Court, wherein they
have mentioned that disposal of SLP against a Judgment of the
High Court does not mean that the said Judgment is affirmed by
such dismissal. The Order on a special leave petition is also
never res judicata. Principles of res judicata are a procedural
provision. The same has no application where there is inherent
lack of jurisdiction. 23
A Writ Petition dismissed under Article 226 of the
Constitution of India would not ordinarily bar filing of Writ
Petition under Article 32 or on special leave petition under

20 Ashok Kumar Srivastav v. National Insurance Company Ltd. (1998) 4 SCC 361; Bua Das Kaushal
v. The State Of Punjab AIR 1971 SC 1676.
21 Kirit Kumar Chaman Lai Kundaliya v. State of Gujarat.
22 Sree Narayana Dharamasanghom Trust v. Swami Prakasananda. (1997) 6 SCC 78.
23 Ramnik Vallabhdas Madhvani v. Taraben Pravinlal Madhvani (2004) 1 SCC 497.
 24 •
Article 136. The doctrine of res judicata or the principles of
finality of Judgment cannot be allowed to whittle down or
override the express constitutional mandate to the Supreme
Court enshrined in Article 32 of the constitution.25

Where a Writ Petition is dismissed in limine, it depends on

the nature of the Order if the principle of res judicata can be
made applicable or not e.g., a speaking Order may amount to res
judicata but dismissing a petition without assigning reasons may
not. If the Order is on the merits it would be a bar; if the Order
shows that the dismissal was for the reason that the petitioner
was guilty of laches or that he had an alternative remedy it
would not be a bar. If the petition is dismissed in limine without
passing a speaking Order then such dismissal cannot be treated
as creating a bar of res judicata. It is true that, prima facie,
dismissal in limine even without passing a speaking Order in
that behalf may strongly suggest that the Court took the view
that there was no substance in the petition at all; but in the
absence of a speaking Order it would not be easy to decide what
factors weighed in the mind of the Court and that makes it

24 State of Punjab v. Ram Lubhaya Bagga, AIR 1998 SC 1703 (1707).

25 Kirit Kumar Chaman Lai Kundaliya v. Union of India (UOI) and Kirit Kumar Chaman Lai
Kundaliya v. State of Gujarat: AIR1981SC1621.
26 Direct Recruit v. State of Maharashtra, AIR 1990 SC 1607; Rabindra Nath Biswas v. General
Manager, N.F. Rly AIR 1988 Pat 138.
difficult and unsafe to hold that such a summary dismissal is a
dismissal on merits and as such constitutes a bar of res judicata
against a similar petition filed under Article 32.27 A different

view however is that even if one Writ Petition is dismissed in

limine by a non-speaking Order 'dismissed', another Writ
Petition would not be maintainable because even the one-word
Order, as must necessarily be taken to have decided impliedly
that the case is not a fit one for exercise of the writ jurisdiction
of the High Court. Another Writ Petition from the same Order or
decision will not lie. But the position is substantially different
when a Writ Petition is dismissed either at the threshold or after
contest without expressing any opinion on the merits of the
matter; then no merit can be deemed to have been necessarily
and impliedly decided and any other remedy of suit or other
proceeding will not be barred on the principle of res judicat. In
another case it has been held by the Supreme Court that where a
Writ Petition is dismissed with one-word Order, 'Dismissed',
such an Order would not operate as res judicata in any other
proceedings but would only debar the party concerned from

27 Daryao v. The State of U.P. AIR1961SC1457.

28 Workmen of Cochin Port Trust v. Board of Trustees of the Cochin Port Trust and Anr. 1978.
 00
filing a fresh Writ Petition. Where however, the second
petition was based on an entirely different cause of action, the
dismissal could not stand in the way of the petitioner invoking
the jurisdiction of the High Court under Article 226 of the
Constitution.30

It is in the interest of the public at large that a finality

should attach to the binding decisions pronounced by Courts of
competent jurisdiction, and it is also in the public interest that
individuals should not be vexed twice over with the same kind
of litigation. If these two principles form the foundation of the
general rule of res judicata they cannot be treated as irrelevant
or inadmissible even in dealing with fundamental rights in
petitions filed under Article 32.31 If the petition is dismissed as

withdrawn it cannot be a bar to a subsequent petition under

Article 32, because in such a case there has been no decision on
the merits by the Court.32 Where therefore a Writ Petition is

dismissed without notice to the other side but the Order of

dismissal is a speaking Order and the petition is disposed of on
merits that would still amount to res judicata and would bar a

29 Teja Singh v. Union Territory, of Chandigarh (1981) 1 Serv LR 274; Hoshnak Singh v. Union of
India 1978.
30 Hoshnak Singh v. Union of India 1978.
31 AIR 1961 SC 1437, Daryao v. State of U.P.
32
Daryao v. The State of U.P. AIR1961SC1457.
petition under Article 32. The petitioner's only proper remedy in
such a case would be to come in appeal from such a speaking
Order passed on the merits, even though the High Court may not
have issued notice to the other side.
Even successive petitions for habeas corpus under Article
32 would be maintainable in this Court provided the points
raised in the subsequent petitions are additional points not
covered or agitated in the previous petitions.34 This principle of

public policy is entirely inapplicable to illegal detention and

does not bar a subsequent petition for a writ of habeas corpus
under Article 32 of the Constitution on fresh grounds, which
t 'jr

were not taken in the earlier petition for the same relief. Where
the first petition for writ of habeas corpus was dismissed, the
second petition lies only on fresh ground. However, so far as
petitions for habeas corpus are concerned, the doctrine of
'VI
constructive res judicata could not apply. It is however stated
if the doctrine of res judicata is attracted to an application for a
writ of habeas corpus, there is no reason why the principles of
constructive res judicata cannot also govern the said application,

33 The Virudhunagar Steel Rolling Mills’ case AIR 1968 SC 1196.

34 Shri Lallubhai Jogibhai Patel v. Union of India W. P. No. 4349 of 1980,
35 Ibid.
36 Dr. (Smt.) Bharti Raj v. Sumesh Sachdeo, AIR 1986 All 259.
37 Ghulam Sarwar v. Union of India, 1966.
for the rule of constructive res judicata is only a part of the
general principles of the law of res judicata, and if that be
applied, the scope of the liberty of an individual will be
considerably narrowed. If the doctrine of constructive res
judicata be applied, this Court, though it is enjoined by the
Constitution to protect the right of a person illegally detained,
will become powerless to do so. That would be whittling down
•30

the wide sweep of the constitutional protection.

There is no good reason to preclude decisions on matters
in controversy in writ proceedings under Article 226 or Article
32 of the Constitution from operating as res judicata in
subsequent regular suits on the same matters in controversy
between the same parties and thus to give limited effect to the
principle of finality of decision after full contest. Where, a writ
involving same question decided in earlier writ between parties
to present writ and third party in question and the right inter se
the present parties in writ is not decided in earlier writ it was
held that res judicata or constructive res judicata was not
applicable in the given facts.40

39 Union of India v. Nanak Singh.

40 Ferro Alloys Coipn. Ltd. v. U.O.I. AIR1999SC1236.
 A Writ Petition dismissed on the ground of laches does not
operate as res judicata41 It was held that the dismissal of a Writ

Petition challenging disciplinary proceedings on the ground that

the charged officer had not been afforded reasonable
/

opportunity to meet the allegations against him, operated as res

judicata in respect of the subsequent suit in which the Order of
dismissal was challenged on the ground that it was
incompetently passed.42

A dispute raised by an application under Article 32 of the

Constitution must be held to be barred by principles of res
judicata including the rule of constructive res judicata, if the
same has been earlier decided by a competent Court by a
Judgment which became final.43 Where the first Writ Petition

was withdrawn without grant of liberty by the Court to file a

second Writ Petition, the second Writ Petition for that very
purpose is not maintainable as attracting the principle of
constructive res judicata. A finding recorded by the Court in

41 Pujaribai v. Madan Gopal.

42 State of U.P. v. Nawab Hussain, Pondicherry Khadi and Village Industries Board v. P. Kulothangan
AIR 2003 SC 4701.
43 Federation Of Directly Appointed Officers Indian Railway v. Union of India AIR 1993 SC 2422.
44 AvinashNagra v. Navodaya Vidyalaya Samiti: (1997) 2 SCC 534.
its Judgment passed on a Writ Petition, operates as res judicata
in subsequent judicial proceedings.45

The principles of res judicata even apply to the

Constitution matters. The rule of res judicata is basically a rule
of private law but has been transposed into the area of writ
proceedings as well. Thus, the person is debarred from taking
one proceeding after another and urging new grounds every
time, in respect of one and the same ground every time causing
harassment to the opposite party. Therefore, a subsequent writ
petition cannot be moved against the judgment of a petition in a
particular High Court. The judgment can be of any nature and of
any High Court, b^^^^^^er cannot be in any sense be

challenged.

D. JUSTIFICATIO E DOCTRINE
Res judicata is intended to strike a balance between
competing interests. On one hand, it assures an efficient judicial
system. Justice Stewart explained the need for this legal precept
as follows:
“Federal courts have traditionally adhered to the
related doctrines of res judicata (claim preclusion)

45
Ashok Kumar Srivastava v. National Insurance Co. Ltd., AIR 1998 SC 2046.
 and collateral estoppel (issue preclusion). Under
Res judicata, a final judgment on the merits of an
action precludes the parties . . . from re-litigating
issues that were or could have been raised in that
action. Under collateral estoppel, once a court has
decided an issue of fact or law necessary to its
judgment, that decision may preclude re-litigation
of the issue in a suit on a different cause of action
involving a party to the first cause. As this court
and other courts have often recognized, res judicata
and collateral estoppel relieve parties of the costs
and vexation of multiple lawsuits, conserve judicial
resources, and by preventing inconsistent
decisions, encourage reliance on a judication.”
The Doctrine of res judicata can be understood as
something which restrains the either party to “move the clock
back” during the pendency of the proceedings. The extend of res
judicata is very-very wide and it includes a lot of things which
even includes Public Interest Litigations. This doctrine is
applicable even outside the Code of Civil Procedure and covers
a lot of areas which are related to the society and people. The
scope and the extend has widened with the passage of time and
the Supreme Court has elongated the areas with its judgments.
Res Judicata does not restrict the appeals process, which is
considered a linear extension of the same lawsuit as the suit
travels up (and back down) the appellate court ladder. Appeals
are considered the appropriate manner by which to challenge a
judgment rather than trying to start a new trial. Once the appeals
process is exhausted or waived, res judicata will apply even to a
judgment that is contrary to law.
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 on the competence of the earlier court to
issue that decision. 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 recognize the judgment of
a foreign court.
In addition, in matters involving due process, cases that
appear to be res judicata may be re-litigated. An example would
be the establishment of a right to counsel. People who have had
liberty taken away (i.e., imprisoned) may be allowed to be re­
tried with a counselor as a matter of fairness.
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 recognize it in the first place.
Res Judicata may not apply in cases involving the England
reservation. If a litigant files suit in federal court, and that court
stays proceedings to allow a state court to consider the questions
of state law, the litigant may inform the state court that he
reserves any federal-law issues in the action for federal court. If
he makes such a reservation, ras judicata would not bar him
from returning the case to federal court at conclusion of action
*

in state court.
Res Judicata may be avoided if claimant was not afforded
a full and fair opportunity to litigate the issue decided by a state
court. He could file suit in a federal court to challenge the
adequacy of the state's procedures. In that case the federal suit
would be against the state and not against the defendant in the
first suit.
Res Judicata may not apply if consent (or tacit agreement)
is justification for splitting a claim. If plaintiff splits a claim in
the course of a suit for special or justifiable reasons for doing so,
a judgment in that action may not have the usual consequence of
extinguishing the entire claim.
In the case of Tallur Venkata Seshayya vs. Thadviconda
Koteswara Rao46, a suit was filed in the Court for the purpose

of declaring certain temples public temples and for setting aside

alienation of endowed property by the manager thereof. A
similar suit was dismissed by the Court two years ago and the
plaintiffs here contended that it was the gross negligence on the
part of the plaintiffs (of the previous suit) and hence the doctrine
of res judicata should not be applied. But, the Privy Council
said that finding of a 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
46
AIR, 1937 P.C. 1
suit establishing either want of bona fide of collusion on the part
of plaintiffs as res judicata.
In the case of Beliram and Brothers vs. Chaudari
Mohammed Afzal47 it was held that where a 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.
In the case of Rural Litigation And Entitlement Kendra
vs. State of Uttar Pradesh48, it was held that the writ petitions

filed in the Supreme Court 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

47 AIR 1948 P.C. 171

48 AIR 1987 S.C. 2426
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. The
Court was 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 became 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.
In Forward Construction Co. v. 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.
In another case of Ramdas Nayak v. Union of India, the
court observed: It is a repetitive litigation on the very same issue
coming up before the courts again and again in the grab of
public interest litigation. It is high time to put an end to the
same. These were few cases in which the Court pronounced its
judgement either in favour or against the doctrine of res judicat.
E. SCOPE OF THE DOCTRINE
Res judicata includes two related concepts: claim
preclusion and issue preclusion (also called collateral estoppel
or issue estoppel), though sometimes res judicata is used more
narrowly to mean only claim preclusion.
Claim preclusion bars a suit from being brought again on
an event which was the subject of a previous legal cause of
action that has already been finally decided between the parties
or those in privity with a party.
Issue preclusion bars the relitigation of issues of fact or
law that have already been necessarily determined by a judge or
jury as part of an earlier case.
It is often difficult to determine which, if either, of these
concepts apply to later lawsuits that are seemingly related,
because many causes of action can 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 the action will
be affected.
. The Doctrine of res judicata strives to strike a balance
between the two largely separated poles. One 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 plaintiffs interest in having issues and
claims fully and fairly litigated.
The basic point involved in the Nature of the doctrine of
res judicata is that the doctrine tries to bring in natural and fair
justice to the parties and that too by barring the other party to
file a multiple number of suits either for justice or for harassing
the other party.
Also that 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 exhausted or waived, res judicata will apply
even to a judgment that is contrary to law.
The Scope of res judicata has very well been decided in
the case of Gulam Abbas v. State of U.P.49 where the code

embodies the rules of conclusiveness as evidence or bars as a

plea of an issue tried in an earlier suit founded on a plaint in
which the matter is directly and substantially an issue becomes
final. Section 11 does not create any right or interest over the
property but merely operates as a bar to try the issue ‘once
again’. The Court is assumed and applied to all the judicial
bodies working in India.
The scope of an earlier judgment is probably the most
difficult question that judges must resolve in applying res
judicata. Sometimes merely part of a subsequent lawsuit 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. The principle of res judicata has been held to be of
wider application on the basis of the wider principle of the
finality of decision by Courts of law. The scope of the principle
of res judicata is not confined to what is contained in Section 11
but is of more general application. Res judicata could be as
49
(1982) 1 S.C.C. 71, 91, 92
much applicable to different stages of the same suit as to
findings on issues in different suits.
In the case of Satyadhyan Ghosal y. Smt. Deorajin
Debi , where the principle of res judicata is invoked in the case
of the different stages of proceedings in the same suit the nature
of the proceedings, the scope of the enquiry which the adjectival
law provides for the decision being reached as well as the
specific provision made on matters touching such decisions are
some of the factors to be considered before the principle is held
to be applicable. Order IX Rule 7 does not put an- end to the
litigation nor does it involve the determination of any issues in
controversy in the suit. A decision or direction in an
interlocutory proceeding of the type provided for by Order IX
Rule 7 is not of the kind which can operate as res judicata so as
to bar the hearing on the, merits of an application under Order
IX Rule 13.
Therefore, the scope of the doctrine of res judicata is to
enable the Courts to deliver the justice and then to dismiss or
freeze the other active suits which are of the very same nature
although is at different stage. Such a role enables the Court to

50
AIR, 1960 S.C. 941
dismiss the matter from its jurisdiction and also the jurisdiction
of the other Courts which are at the same level.
The Doctrine of res judicata can be understood as
something which restrains the either party to “move the clock
back” during the pendency of the proceedings. The extent of res
judicata is very- very wide and it includes a lot of things which
even includes Public Interest Litigation. This doctrine is
applicable even outside the Code of Civil Procedure and covers
a lot of areas which are related to the society and people. The
scope and the extent has widened with the passage of time the
Supreme Court has elongated the areas with its judgments.

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