CHAPTER, - yi

JUDICIAL 'TRENDS RELATING

TO TNE DOCTRINE Of
RES JUDICATA AND
COMPARATIVE ASPECTS
IN DlffERENTLAlVS.
 CHAPTER -VI
JUDICIAL TRENDS RELATING TO THE DOCTRINE
OF RES JUDICATA AND COMPARATIVE ASPECTS IN
DIFFERENT LAWS.

Judiciary in every country plays an important role not only

in adjudication but also safeguarding the interest of individuals,
society and State. Judiciary gives direction to the legislature and
points out the weaknesses and ambiguities. Hence, the object of
this chapter is to study the judicial trends of law relating to the
doctrine of res judicata.
In order to evaluate the interpretation of the foregoing
legislative provisions and. to assess the judicial trends pertaining
to the law relating to res judicata. The researcher has taken
approximate 55 cases right form the year, 1916 to 2011. Some
of the cases have been discussed at length with a view to clarify
the particular legal position such as the application of concept
and scope of the doctrine of res judicata as to the procedure of
civil, criminal and constitutional matters. The researcher has
tried the best to deal with all the important cases of the Privy
Council, various High Courts and the Supreme Court of India.
 The judicial trends have been almost positive and changing
in various cases; it has struck down the old discriminatory
notions of the law relating to the doctrine of res judicata.
Therefore, the study of the cases has become important on the
subject, the changing dimensions of the doctrine of res judicata
and the procedure of civil courts.
Article 20(2) can operate as a bar only when the second
prosecution and punishment is for the identical offence for
which the person concerned has already been prosecuted and
punished. The same or identical offence means an offence
whose ingredients are the same. If the offences are distinct, there
is no question of the rule as to double jeopardy being applicable.
If one and the same act of a person constitutes two different
offences, then the punishment for one offence does not bar
prosecution and punishment for the other offence.
A limitation read into Article 20(2) is that the former
‘prosecution,’ which indicates that the proceedings are of a
criminal nature, must be before a court of law, or a judicial
tribunal required by law to decide matters in controversy
judicially on evidence and on oath which it must be authorised
by law to administer, and not before a tribunal which entertains
a departmental or administrative enquiry, even though set up by
a statute, but not required to proceed on legal evidence given on
oath.
The words ‘before a court of law or judicial tribunal’,
though not found specifically in the Article, have, nevertheless,
been read therein. What has been observed in the cases decided
by the courts submitted as below:-
In Maqbool Hussain v. State of Bombay1, the appellant

who was an Indian citizen arrived at an Indian airport from

abroad. He was found in possession of gold which was against
the law at the time. Under Section 167(8) of the sea Customs
Act 1978, an action was prosecuted before a criminal court
under the Foreign Exchange Regulation Act. The question was
whether the plea of ‘autrefois acquit’ could be raised under
Article 20(2). The Supreme Court came to the conclusion that
the proceedings before the customs authorities did not constitute
‘prosecution’ of the appellant, and the penalty imposed on him
did not constitute a ‘punishment’ by a judicial tribunal. In these
circumstances, the trail of the petitioner before the criminal
court was not barred. The Court observed.

1 AIR 1953 SC 32
 “It is clear that in order that the protection of
Article 20(2) be invoked by a citizen there must
have been a prosecution and punishment in
respect of the same offence before a court of
law or a tribunal, required by law to decide the
matters in controversy judicially on oath which
it must be authorised by law to administer and
not before a tribunal which entertains a
departmental or an administrative enquiry even
though set up by a stature but not required to
proceed on legal evidence given on oath. The
every wording of Article 20 and the words used
therein: ’’convicted”, commission of the act
charged as an offence,” be subjected to a penalty
“commission of the offence”, prosecuted and
punished” accused of any offence”, would
indicate that the proceedings therein
contemplated are of the natural of criminal
proceedings before a court of law or a judicial
tribunal and the prosecution in this context
would mean an initiation or starting of
 proceedings of a criminal nature before a court
of law or a judicial tribunal in accordance with
the procedure prescribed in the statute which
creates the offence and regulates the
procedure.2”

It, therefore, follows that when the Custom Authorities

confiscated the gold in question, neither the proceedings taken
before the sea Customs Authorities constituted prosecution of
appellant, nor did the order confiscation constitute punishment
inflicted by a court or judicial tribunal on the appellant.
The Court ruled that the Sea Custom Authorities are not a
judicial tribunal and adjudging by it of confiscation increased
rate of duty or penalty under the provisions of the Sea Customs
Act do not constitute a judgment or order of a court or judicial
tribunal necessary for the purpose of supporting the plea of
double jeopardy. Therefore, when the customs authorities
confiscated the gold, the proceedings before them neither
constituted a prosecution of the appellant nor did the offer of
confiscation constitute a punishment inflicted by a court or
judicial tribunal on the appellant. The appellant could not be

2 Ibid
said by virtue of these proceedings to have been “prosecuted and
punished” for the same offence with which he was charged later
before the criminal court under Section 23. foreign Exchange
Regulation Act.
In S.A. Venkataraman v. Union of India3, an inquiry

was constituted against the petitioner under the Public Servants

(inquires) Act, 1850, which itself did not create any offence or
provide for any punishment for the acts committed by the
petitioner.
He was dismissed after an inquiry under the Public
Servants (inquires) Act. Thereafter he was tried under Section
161 and 165, of the Indian Penal Code, 1860 and Section 5 (2)
of the Prevention of Corruption Act.
The court held that his dismissal from government service
on the ground of misbehavior after a departmental inquiry, his
later prosecution on the same charges which had been earlier
inquired into and for which he was punished by dismissal,
would not be barred by Article 20 (2). The earlier ‘inquiry’
could not be regarded as ‘prosecution’ for a criminal offence
and so Article 20(2) would not apply. Thus, a departmental

3 AIR, 1954 SC 375,1954 3 CR 1150

inquiry does not bar a later prosecution and punishment in a
court.
The Court has explained the legal position under Article
20(2) as follows
“To invoke of the same offence. The words
“prosecuted and punished” are to be taken not
distributive so as to mean ‘prosecuted’ or
punished. Both the factors must co-exist in order
that the operation of Article 20(2) may be
attracted. When a departmental inquiry is held
against a civil servant under the Public Servants
(Inquires) Act of 1850, he is not “prosecuted’
and ‘punished’ for an offence as contemplated
by Article 20(2).”
The Supreme Court has made observation on the nature of
the inquiry commissioner appointed under the Inquires Act, thus
“A commissioner appointed under this Act has
no duty to investigate and offence which is
punishable under the Indian Penal Code or the
Prevention of Corruption Act and he has
absolutely no jurisdiction to do so. The subject
 matter of investigation by him is the truth or
otherwise of the imputation of misbehavior
made against a public servant and it is only as
instances of misbehavior that the several articles
of charge are investigated, upon which
disciplinary action might be taken by the
Government if it so chooses. The opinion
expressed by the commissioner after the inquiry
is not binding. “This is a mere expression of
opinion and it lacks both finality and
authoritativeness which are the essential tests of
a judicial pronouncement.4”
In Leo Roy frey v. Supdt. District Jail5 the question

arose whether a crime and the offence of conspiracy to commit

the crime are different offences. The petitioner in the instant
case was found guilty of an offence under Section 107(8), Sea
Customs Act, 1878, and was punished accordingly. Thereafter,
prosecution for criminal conspiracy under Section 120-B, of the
Indian Penal Code, was brought against him. The Supreme

4 Ibid
5 AIR 1958 SC 119. SCR 822.
Court ruled that the second prosecution was not barred since it
was not for the same offence.
The Court explained the position thus;
“The offence of a conspiracy to commit a crime
is an offence separate from the crime itself
which is the object of the conspiracy, because
the conspiracy precedes the commission of the
crime and is complete before the crime is
attempted or committed. Equally the crime
attempted or completed does not require the
element of conspiracy as one of its ingredients.
The two are therefore quite separate offences.
Accordingly, punishment for one offence does
not bar punishment later for the other.”
In Thomas Dana v. State of Punjab6 the facts were as

follow. The appellant, sought to take out some foreign exchange

from India which was confiscated by the customs authorities
after following due procedure under the Sea Customs Act. Later
he was prosecuted before a criminal court under the provisions
of the Foreign Exchange Regulation Act and the Sea Customs

6 AIR 1959 SC 375.

Act and he was duly convicted for the offence. The High Court
dismissed his appeal. He then filed a writ petition in the
Supreme Court against his conviction on the ground that Article
20(2) barred his prosecution. The Supreme Court dismissed the
petition saying that in imposing confiscation and penalty under
the Sea Customs Act and FERA, the concerned authority acts
judicially but it is not a court. The proceedings before the officer
do not amount to “prosecution” within the meaning of Article
20(2). Therefore, the later prosecution before a criminal court
would not be hit by Article 20(2).
The Supreme Court pointed out that in order to bring the
petitioner case within the prohibition of Article 20(2), it was
necessary to show that he had been “prosecuted” by the
Collector of Customs, and “punished” by him for the ‘same
offence” for which the has been convicted and punished as a
result of the judgment and orders of the criminal court below. If
any one of these three essential conditions was not fulfilled the
petitioner would have failed to bring the case within the
prohibition of Article 20(2).7

7 Ibid
 In Baij Nath Pd. Tripathi v. State of Bhopal8 the

petitioner was a Sub- Inspection of Police, who was prosecuted

in the Court of Special Judge, Bhopal, and convicted of offences
under Section 161, IPC and Section 5 of the Prevention of
Corruption Act, 1947. He was sentenced to nine month’s
rigorous imprisonment on each count. On appeal the Judicial
Commissioner, held that no sanction according to law has been
given for prosecution of the petitioner and the special judge had
no jurisdiction to take cognizance of the case; the trial was
accordingly ab initio invalid and accordingly he quashed the
proceedings. He then observed: that the parties would thus be
relegated to the position as f no legal charge- sheet had been
submitted against the appellant. Thereafter the Chief
Commissioner passed an order under Section 7(2) of the
Criminal Law Amendment Act, 1952, that the petitioner shall be
tried by the Special Judge, Bhopal, for certain offences under
the Prevention of Corruption Act read with Section 161, Indian
Penal Code. The case of the petitioner was that he could not be
prosecuted and tried again for the “same offences” under the
aforesaid order. The Supreme Court considered the earlier

8
AIR 1957 SC 494 (1957) SCR 650
decision of the Privy Council, the Federal Court and its own
decision,9 and observed,

“Section 403, Criminal Procedure Code, applies

to cases where the acquittal order has been made
by a Court of competent jurisdiction but it does
not bar a retrial of the accused in case where
such an order has been made by a court which
had no jurisdiction to take cognizance of the
case. It is quite apparent on this record that in
the first instance was by a magistrate who had
no jurisdiction to try him.”
In Sardar Sardul Singh Caveeshar v. State of
Maharashtra,10 the Supreme Court found that there were two

conspiracies: One known as the Jupiter conspiracy and another

known as the Empire conspiracy. It was not possible to say that
some of the ingredients of both the conspiracies were the same.
Therefore, it was held that they do not form the same offence
within the meaning of Article 20(2) of the Constitution.

9 Yusofalli Mulla v. the King, AIR 1949 PC 26.

10 (1964) 2 SCR
 In State of Rajasthan v. Hat Singh11 the Supreme Court

held that the prosecution and punishment for offences under

Sections 5 and 6 (3) of Rajasthan Sati (Prevention)
Ordinance/Act 1987 was not violative of Article 20(2) or rule
against double jeopardy as offences under each section are
distinct from each other. Sections 5 punishes “any act for the
glorification of sati’ whereas Section 6 (3) punishes any
violation of prohibitory order issued by the Collector.
In State of Bombay v. S.L. Apte & Another two
officers of the insurance company were prosecuted for an
offence under section 409 of I.P.C. and also for an offence under
section 105 of the Indian Insurance Act, 1953: the Magistrate
convicted and sentenced both the officers for both the offences
with which they were charged. On appeal the Session Judge,
confirmed the conviction and sentence under section 409 of
I.P.C. and set aside their conviction under section 105 of the
Insurance Act on the ground that the sanction required under the
Insurance Act for initiation of the prosecution had not been
obtained before the complaint in respect thereof had been filed.

11 AIR 2003 SC 791

12 AIR 1961 SC 578, (1961) 3 SCR 107.
Subsequently the Insurance Company obtained the sanction of
the Advocate- General of Bombay under section 107 of the
Insurance Act and filed a fresh complaint in the Court of the
Judicial Magistrate against the two respondents charging each of
them with an offence under section 105 of the Insurance Act.
The Magistrate acquitted the respondents on the ground that
Article 20(2) of the Constitution and section 26 of the General
Clauses Act, 1897 were a bar to their conviction and
punishment. On appeal the High Court upheld the judgment, but
granted a certificate on the strength of which the State filed an
appeal in the Supreme Court. The Supreme Court allowed the
appeal and set aside the order of the High Court and directed the
Magistrate to proceed according to law. Speaking on behalf of
the Constitution Bench of the Supreme Court, Ayyangar J.
observed as under:
“To operate as a bar the second prosecution and
the consequential punishment there under, must
be for “the same offence.” The crucial
requirement therefore for attracting the Article is
that the offences are the same, i.e. they should be
identical. If, however the two offences are
 distinct, then notwithstanding that the allegations
of facts in the two complaints might be
substantially similar, the benefit of the ban cannot
be invoked. It is, therefore, necessary to analyze
and compare not the allegations in the two
complaints but the ingredients of the two offences
and see whether their identity is made out.”
In State of NCT of Delhi v. Navjot Sandhu,13 the court

held where there are two distinct offences made up of different

ingredients, embargo under Article 20(2) or Section 26, General
Clauses Act, 1897 has no application, though the offences may
have some overlapping features. The argument based on
Section- 71 IPC is no different from the argument advanced
with reference to section 26 of the General Clauses Act.
Offences under section 302 EPC, sections 3(2) and 3(3) of
POTA are distinct offences and a person can be charged, tried,
convicted and punished for each of them severally. The analysis
of these provisions show that the ingredients of these offences
are substantially different and that an offence falling within the
ambit of section 3(1), POTA may not be squarely covered by

13 (2005) 11 SCC 600, 2005 SCC (Cri) 1715

the offence under section 300 IPC. The same set of facts may
constitute different offences.
Thus, it is clear beyond any doubt that Clause (2) of
Article 20 of the Constitution has no application in these cases.
The petitioner were not prosecuted and punished for the same
offence more than once. The earlier proceedings, by a Court of
competent jurisdiction are not a conviction or acquittal in force
to stand as a bar against their trial for the same offences.
Early in the year 1916, in Sheoparsan Singh v.
Ramanandan Prasad14, the Privy Council observed,

“The rule of res judicata to while founding on

ancient precedents is dictated by a wisdom
which is for all time and the enforcement of the
principle of finality should be depended upon no
technical considerations of forms, but by matter
of substance within the limits allowed by law.”

AIR 1916 P.C. 78,43 IA 91

Ram Bhai v. Ahmed Said Akhtar Khan15 the court had clearly

explained the rationale of the rule of res judicata as,

“The counter finality on decisions arrived at by
the competent courts between interested parties
after genuine contest; and to allow person who
had deliberately chosen a position to reprobate it
and to blow hot now when they were blowing
cold before would be completely to ignore the
whole foundation of the rule.”
In Chandue Lai v. Khalillur Rahman16, lord Symonds of

Privy Council ruled out the doctrine of res judicata is applicable

as between the parties and said,
“It may be added that the doctrine may apply
even though the party against whom it is sought
to enforce it, did not in previous suit think fit to
enter an appearance and context the question.
But to this the qualification must be added that,
if such party is to be bound by a previous
judgment, it must be proved clearly that he had

13 AIR 1938 Lah. 671

16 AIR 1950 P.C. 17
 or must be deemed to have had notice that the
relevant question was in issue and would have to
be decided.”
In Mathura Prasad v. Dossibai17, the law relating to the

doctrine of res judicata by Supreme Court has been stated as

follows,
“It is true that in determining the application of
the rule of res judicata the court is not concerned
with the correctness or otherwise of the earlier
judgment. The matter in issue, if it is one purely
of fact, decided in the earlier proceeding by a
competent court must in a subsequent litigation
between the same parties be regarded as finally
decided and cannot be re-opened. A mixed
questions of law and fact determined in the earlier
proceeding between the same parties may not for
the same reason, be questioned in a subsequent
proceeding between the same parties. But, where
the decision in an a question of law, i.e. the
interpretation of a statute, it will be res judicata in

17
AIR 1971 Sc 2355, 91970) 3 SCR 830
 a subsequent proceeding between the same parties
where the cause of action is the same.......where,
however, the question is one purely of law and it
relates to the jurisdiction of the court sanctioning
something which is illegal, by resort to the rule of
res judicata a party affected by the decision will
not be precluded from challenging the validity of
the order under the rule of res judicata, for a rule
of procedure cannot supersede the law of the
land.”
In Ramagya Prasad Gupta v. Murli Prasad18, two suits

between the same parties were consolidated and tried together.

Whatever may have been the common issues between the two
suits, one was not common and made the subject- matter of both
the suits different. Two appeals were taken from the judgment.
The appeal which arose out of the earlier suit was dismissed.
The Supreme Court held that as the subject matter of two suits
was different, the other appeal was not barred by principle of res
judicata.

18 AIR 1974 SC 1320 at P. 1325

 In Daryao v. State of U.P.19, in this case the petitioner had

filed writ petitions in the High Court of Allahabad under Article

226 of the Constitution and they were dismissed. Thereafter,
they filed substantive petitions in the Supreme Court under
Article 32 of the Constitution for the same relief and on the
same grounds. The respondents raised a preliminary objection
regarding maintainability of the petition by contending that the
prior decision of the High Court would operate as res judicata to
a petition under Article 32. The Supreme Court upheld the
contention and dismissed the writ petitions.
The court held that the rule of res judicata applies also to a
petition under Article 32 of the Constitution and if a petition
filed by a petitioner in the High Court under Article 226 of the
Constitution is dismissed on merits, such decision would operate
as res judicata so as to bar a similar petition in the Supreme
Court under Article 32 of the Constitution. The Supreme Court
has made some observations on the aspect or amplification of
the general principle of res judicata as follows,
“Now, the rule of res judicata as indicated an
Section 11 of the Code of Civil Procedure has no

19 AIR 1961 SC 1475

 doubt some technical aspect, for instance, the rule
of constructions res judicata may be said to be
technical but the basis on which the said rule rests
in founded on consideration of public policy. It is
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.”
In Workman of Cochin Port Trust v. Board of Trusts
of the Cochin Port Trust20- The Supreme Court on extent of

the doctrine of res judicata observed thus,

“... the technical rule of res judicata, although a
wholesome rule based upon public policy, can
not be stretched too far to bar the trial of
identical issues in a separate proceeding merely
on an uncertain assumption that the issue must
have been decided. It is not safe to extend the

20
(1978)3 SCC 119
 principle of res judicata to such an extent so as
to found it on mere guess work.”
Thus, the doctrine of res judicata is based on the public
policy that there should be a finality to litigation and no one
should be vexed twice for the same cause.
In Gulam Abbas v. State of U.P.21 - it has been held that

the jurisdictional competence of the forum to adjudicate the

subject- matter or grant relief sought in the subsequent litigation,
would be immaterial when the general doctrine of res judicata is
to be invoked.
State of Punjab v. Surinder Kumar & Co.22, the

appellant filed a writ petition wherein it was alleged that the

minister concern has mala fide against the appellant in
cancellation of license to sale liquor, the High Court, without
deciding the case issued directions for availing alternate remedy
of appeal and for decision of appeal on merits. In subsequent
writ petitioner the minister was not made a party. The appellant
was not allowed to raise a plea of mala fide as it is clear from
the words ‘might’ and ‘ought’ under Section 11.

21 (1982) 1 SCC 71,91,92

22 AIR 1997, SC 809,1997 (9) SCC 66
•mo
 National institute of Mental Health & Neuro Sciences
v. C. Parmoshawara , where a pharmacist was removed from
service for misappropriation of drugs. The order was challenge
in the labour court which set aside the order of removal. The
Employer institute filed a writ petition against the order passed
by the labour court on the other land, the employer had also filed
a civil suit to recover the loss caused on filing of an application
to stay suit the court held that the proceedings before the Labour
Court could not be equated with proceedings before the Civil
Court. As section 10 is not applicable, court could no also grant
stay in exercise of its inherent powers. Therefore, Section 10
would apply only if there is identity of the matter in issue in
both the suits, meaning thereby, that the whole of subject matter
in both the proceedings is identical.
94.
T.P. Moideen Koya v. Government of Kerla , where
the petitioner filed or hears corpus unit petition against the
detention order passed against him for quashing the some and
was dismissed by the Karla High Court against which the
appellant moved to the Supreme Court by filing an appeal under

23 AIR 2005 SC 242, (2005) 2 SCC 256

24 AIR 2004 SC 4733 (2004) 8 SCC 106.
Article 136 of the Constitution of India with special leave. He
challenged the deduction order and also continuous desertion. It
was the question before the court whether even in such
circumstances a subsequent petition under Article 32 of the
Constitution seeking to challenge the same desertion order
would be a maintainable. The subsequent petition under Article
32of the Constitution seeking a writ of habeas corpus for setting
at liberty a person who has been detained under any of the
detention laws would be maintainable of the circumstances have
changed. It would also' be maintainable on the grounds which
were not available when the earlier petition was decided. The
appeal was dismissed by a detailed judgment wherein all these
contentions laying challenge to the detection order and also to
the continued detention of the petitioner had been considered.
The applicability of bar of the doctrine of res judicata on habeas
corpse petition under Article 32 was allowed by the court.
In Ramnik Vallabhadas madhvani v. Taraben Pravinla
rye

Madhvani , however a deferent view was taken by the

Supreme Court that disposal of special leave petition against a

25
(2004) 1 SCC 497.
judgment of the High Court does not mean that the said
judgment is affirmed by such dismissed.
The orders on special leave petition I also never res
judicata. The same has no application where the is a inherent
back ofjurisdiction.
In pondicheriy Khadi & Village Industries Board v. P.
Kaluthanagar26, the applicability of res judicata to industrial

adjudication was determined. In this case the services of a

temporary workman were terminated. It was held that the
principle of res judicata would apply.
In State of Kernataka v. All India Manufactures
97
Organisation , the question of applicability of doctrine of res
judicata in public interest litigations (PIL) was determined by
holding that before the previous litigation was in public interest
and a bona fide litigation. The judgment in previous litigation
will operates judgment in rem and bars subsequent public
interest litigation (PIL) on the principle of res judicata.
Bishwanafh Prasad Singh v. Rajendra Prasad28, in this

case the contention was that, the court of the Munsif was a court

26 AIR 2003 SC 401 (2004) SCC 68.

27 AIR 2006 SC 1846
28 AIR 2006 SC 2965, (2006) 4 SCC 432
exercising limited jurisdiction while entertaining an application
under Section 83 of the transfer of property act, 1882 and the
decision of such a court of limited jurisdiction would also
operate as res judicata was not tenable. The court held that the
question of determination in suit was a pure question of law, the
principle of res judicata would not apply.
Food Corporation of India v. M/s A.M. Ahmed &
Company , in this case an application was made for
appointment of arbitrator etc. claim was made for
reimbursement of exaltation of costs. A specific plea was taken
by F.C.I. as to escalation clause in contract. It had been
confirmed by High Court and Supreme Court. The F.C.I. was
barred by res judicata from raining same issue again in
subsequent proceedings.
In Nilofur Siddique v. Indian Oil Corporation Ltd30 the

earlier suit was dismissed on technical ground without any

consideration of merit. In such circumstances, the Court allowed
the bar of res judicata for subsequent suit.

29 AIR 2007 SC 829 (2006) 13 SCC 779.

30 AIR 2007 Raj 93, 94
 Shy am Lai v. Leelawati31, In this case first dicers petition

was based solely on the ground of ‘cruelty’. Therefore, the

issued of desertion was not even deeded. It was neither directly
nor substantially in question. In the record of divorce petition,
although the ground of desertion was pleaded, but the court did
not decide the said issue. Therefore, the court held that, the
learned judge was wrong in treating the third divorce petition as
being hit by res judicata on the basis of the decision of the
second divorce petition. That is to say t hat the res judicata is
not applicable on the third divorce petition.
Bajrang Lai lal Shivchand Ruia V. Shashikant N. Ruia
& ors.32, in this case Respondent No. I and 2 were aggrieved by

a decree passed against them by the division bench. Respondent

No. 1 & 2 both filed S.L.P. separately. The appeal filed by
respondent No. 2 was dismissed for default for non-removal of
office objections: In those circumstances, the court has held that
it can not be said that- an order, dismissing a subsequent appeal
for default can operate as res judicata in respect of an earlier

31 AIR 2008 Pat. 5

32 AIR. 2004 S.C. 2546.
appeal. Neither Section 11 of the C.P.C., nor any principle
derivable there from, would bar the appeal.
Ashok Leyland Ltd. V. State of Tamil Nadu & ors33, in

the instant case: the Supreme Court has held that the principle of
res judicata is a procedural provision. A jurisdictional question
if wrongly decided would not attract the principles of res -
judicata. When an order is passed without jurisdiction, the same
becomes a nullity. When an order is a nullity, it cannot be
supported by invoking the procedural principles like, estoppels,
waiver or res judicata.
Mehar Rusi Dalai V. Union of India & ors34, in this

case, the court has held that it is settled law that in every
proceeding the whole of the claim which a party is entitled to
make should be made and where a party omits to sue in respect
of any portion of the claim, he can not afterwards sue for the
portion so omitted. Explanation IV to Section 11, C.P.C. also
provides that any matter which might or ought to have been
made a ground of defence or attack in a former proceeding will
be deemed to have been a matter directly and substantially in

33 AIR. 2004, S.C. 2836.

34 A.I.R. 2004, S.C. 3491
issue in that proceeding. Therefore, it is clear that the claim
made is barred on principle of res judicata or principled
analogous thereto.
K. Sivaramaiah V Rukmani Ammal35, where the earlier

suit was withdrawn bv the appellant with liberty to file fresh suit
which the appellant had filed on the same cause of action the
court has decided that the fresh suit filed by the appellant is not
barred by the principle of res judicata.
T.P. Moideen Koya v. Govt, of Kerla & Ors,36 the

petitioner filed a petition of habeas corpus under article 32

seeking quashing of the detention order passed against him, the
court has determined that the bar of res judicata or constructive
res judicata would apply even to a petition under Article 32 of
the Constitution where a similar petition seeking the same relief
has been filed under Article 226 of the Constitution before the
High Court and the decision rendered against the petitioner
therein has not been challenged by filing an appeal in the
Supreme Court and has been allowed to become final. However,

35 A.I.R. 2004 S C 508.

36 AIR 2004, SC 4733
the bar of res judicata would not apply to a writ of habeas
corpus where the petitioner prays for setting him at liberty.
Executive Engineer, Z P Engg. Div. V. Digambara
etc37, in this matter the Supreme Court has determined that the

general principles of res judicata applies to an industrial

adjudication.
M/s. I.T.C. Ltd. V. Commissioner of Central Excise,
<30

New Delhi , the Supreme Court has held that there is no doubt,
the principle of res judicata is a fundamental doctrine of law
that there must be an end to litigation, but the plea of res
judicata has to be specifically and expressly raised, where it is
said that the foundation of the plea of res judicata must be laid
in the pleadings. If this was not done, no party would be
permitted to raise it for the first time at the stage of appeal. The
only exception to this requirement is when the issue of res
juclicata is in fact argued before the lower court.
Shanmugha sun dor am V. Dir avia Nadar, & ors ,
where the arbitration award was set aside by the Civil Court on
two grounds viz. breach of natural justice and all owners being

AIR, 2004 SC 4839

38 AIR 2005, SC 1370
39 AIR, 2005, SC 1836.
not parties to agreement. The second ground of invalidity of the
award was not expressly challenged in the appeal preferred to
the High Court against the order setting aside the award and the
same got finality the court held that it would operate as res
judicata. The party can not plead in subsequent proceedings that
the award was set aside only on the first ground and the Civil
Court would not allow revival of arbitration proceedings in the
same agreement.
U.P. State Road Transport Corporation V. Omaditya
Verma & Ors.40, in the instant case the Supreme Court while

remanding the matter to the tribunal categorically stated that all

these matters should be sent to the State Transport Appellate
Tribunal which shall treat the writ petitions .filed in the High
Court as appeals and after hearing all the parties, dispose off the
matters in accordance with law. The court expressed no opinion
on the merits of the case whatsoever the dismissal of SLPs
s

would not amount to res judicata.

U.P. State Road Transport Corporation v. State of
U.P.41, in this case, nationalization of route draft scheme was

40 AIR 2005, SC 2250

41
AIR, 2005 SC 446
specifically considered by the Supreme Court and the
controversy was set at rest by the decision of the court. The
Supreme Court, on re-open the issue and to record a contrary
finding by the High Court, has opined that the principle of res
judicata is based on the need of giving finality to judicial
decisions. The principle which prevents the same case being
twice litigated is of general application and is not limited by the
specific words of Section 11 of the Code of Civil Procedure in
this respect. Res Judicata applies also as between two stages in
the same litigation to this extent that a court, whether a trial
court or a higher court having at an earlier stage decided a
matter in one way will not allow the pat-ties to re-agitate the
matter again at a subsequent stage of the same proceedings.
Bhanu Kumar Jain v. Archana Kumar & ors42, in the

instant case, the Supreme Court has made a distinction between

‘issue estoppel’ and ‘res judicata As the res judicata debars a
court from exercising its jurisdiction to determine the Us if it has
attained finality between the parties where as the doctrine of
issue estoppels is invoked against the party, if such an issue is
decided against him, he would be estopped from raising the

42
AIR, 2005 SC 626.
same in the latter proceedings, the doctrine of res judicata
creates a different kind of estoppels viz. Estoppels by Accord.
Harichand & ors v. Faridabad Complex Adm.43, where

the earlier suit was instituted by certain employees for availing

benefit of pension scheme which was decreed by the civil court
and the decree had attained finality. The appellants were not
party in a earlier suit, though similarly placed. The court
observed that the doctrine of res judicata does not strictio sense
apply to proceedings under Article 226, ii has no application to
the facts of the case.
Sarat Chandra Mishra V. State of Orissa44, in the

instant case, appellants and respondents were lower division

assistants. The respondents had passed an examination for
availing promotional opportunities earlier and the respondents,
therefore, were shown senior to the appellants. On
representation by the appellants tile government issued new
principle of seniority and fresh gradation list which was held
illegal by the tribunal. The government issued a circular as per
tribunal’s decision. Being aggrieved by the, decision, one of the

43 AIR 2005, SC 2429.

44 AIR 2006, SC 861
appellant, filed an S.L.P. in the court who dismissed the S.L.P.
as in ffuctuous in view of 'Government circular issued as per
tribunal’s decision. The court has also observed that the
appellant is, however, given liberty to assail action of the
government on different cause, but afresh petition filed by the
appellants stressing to maintain fresh gradation list is barred by
principle of res judicata.
Bharat Sanchar Nigam Ltd. V Union of India45, in this

case, the Supreme Court has determined that res judicata does
not apply in matters pertaining to tax for different assessment
year because res judicata applies to debar courts from
entertaining issues on the same cause of action whereas the
cause of action for each assessment year is distinct. The courts
however would adopt decision given in earlier year because of
theory of precedent. But its overruling in subsequent list by
court of superior jurisdiction or strength is permissible.
State of Karnataka V. All India Manufacturers
Organization & ors.46, in the instant matter,, the Supreme

Court has held that it can not be disputed that Section 11 applies

45 AIR 2006, SC 1383.

46
AIR, 2006 SC 1846
to public interest litigation, as long as it is shown that the
preview litigation is in public interest and a bona fide litigation,
a judgment in a review public interest litigation operates as
judgment in rem and bars subsequent public interest litigation
principle of res judicata.
Bishwanath Prasad Singh V. Rajendra Prasad & ors.47;

the court has decided in the matter that permission under Section
83, of the Transfer of Property Act to deposit in court money
due to mortgage, does not operate as res judicata in suit for
declaration that transaction in question was mortgage.
Deewan Singh v. Rajendra Prasad Ardevi & Ors48, this

case was related to issue of management of the temple known as

Shri Rikhabdev ji situated in the village Dhulev near Udaipur,
Rajasthan. Some members belonging to Swetambers Jain sect
filed a writ petition before the Rajasthan High Court questioning
the validity of some of the provisions of the Rajasthan Public
Tmst Act,'1959 the stand of the State of Rajasthan in the case
inter alia was that the temple in question was a Hindu temple
and not a Jain temple although the Jains have the right of

47 AIR 2006 SC 2965

48 AIR 2007 SC 767.
worship. The High Court of Rajasthan however held that the
temple of Shri Rikshabdev Ji is a Jain Temple of Swetamber
Jain Sect
The matter came up before the Supreme Court wherein the
court opined that Shri Rikshabdev Ji Temple is a Jain Temple
not a Hindu temple and set aside the directions to constitute a
c 1 lmnaittee for management.
When the committee of management, however, was not
constituted within a reasonable time, the Swetamber again filed
a writ petition before the Rajasthan High Court. The single
bench of the High Court inter alia directed the state to constitute
committee for management under the Act. The D.B. of the High
Court in the appeal affirmed the said directions with certain
modifications. Review petition was also dismissed.
There were four sets of appeals filed before the supreme
court. Two sets of appeals by the Swetamber Jain Sect, on by
the State Government and one by the Digamber jain Sect, were
filed against the impugned judgments and orders of the Division
Bench of the High Court. The State of Rajasthan while
contending inter alia raised a contention that the temple in
question is a Hindu temple. The court did not permit the state to
raise such a contention and held that the stand of the state in the
earlier round of litigations was that the temple in question was a
Hindu temple and the court categorically opined that it is a Jain
temple. The principle of res judicata, thus, would come to play
the issue cannot be permitted to be re opined.
Food Corporation of India v. M/s. A.M. Ahmed & Co,49

Appellant- F.C.I. entered into contract with respondent who

made application for revision of rates. The claim for escalation
made by the indent was rejected by the F.C.I. on the ground that
the agreement not providing for any escalation clause. The
respondent filed a publication for appointment of arbitrator in
the dispute, regarding salvation in the subordinate court. The
F.C.L made a specific plea as, to solution clause in the contract.
The sub ordinate, court while rejecting to plea of the F.C.I. held
that said claim was arbitral. This was firmed by the High Court
and the supreme court in the judgment on 1989 passed in S.L.P.
filed by the F,C.I.
Following the dismissal of the S.L.P., the F.C.L appointed
indent No. 1 as sole arbitrator, who passed an award which was
challenged by the F.C.I. by filing an appeal in- the High Court

49 AIR 2007 SC 829.

of disnature at Madras. The appeal was dismissed. Aggrieved by
the dismissal of appeal by the High Court, F.C.I. preferred this
appeal ore the Supreme Court. In his judgment the Supreme
Court said that issue of jurisdiction of the arbitrator to go into
the claim of the claimant towards compensation and
neutralization of the extra expenditure incurred on account of
statutory wage revisions- had already included in the earlier
proceedings wherein the S.L.P. filed by the appellant was
dismissed by order on 5.5.89. Thus, the F.C.I. is barred by res
judicata from raising the same issue again in the present
proceedings.
G. Basava Reddy V. Smt. K. Parvathamma & ors,50 by

the instant case, the court has decided that a decision on pure
question of law may not operate as res judicata. But decision on
mixed question of fact and law does operate as res judicata in
respect of pleas of fact not raised.
Chairman Board of Trustees for the Port of Calcutta .
Iftikher Khan & ors,51 where an appeal was preferred against

interlocutory order. It has been determined by the court that

50 AIR 2008, A.P. 53.

51 AIR 2008 Cal: 61.
decision at interlocutory stage would operate as res judicata in
subsequent stage of same proceedings.
Prem Singh v. Dalahoo & ors , in this case, the court has
held that in previous suit claiming easementory right,
amendment application of plaintiff was rejected by court after
observing that the plaintiff may file another suit on the basis of
title of land. Neither question of title was in issue in previous
suit nor was it decided. The subsequent suit for removal of
obstruction and mandatory injunction based on title not barred
by res judicata.
Smt. Pamela Wasan v. M/s. Om Prakash Satyapal
contractors & ors , where the parties consented to
appointment of an arbitrator and the dispute between the parties
stand adjudicated by passing an award which was subsequently
set aside by the court. It has been held that an application for
referring dispute to sole arbitrator is barred by principle of res
judicata.
Monica Bedi v. State of A.P.54 this case is related to

Article 20 (2) of the Constitution of India, Sections 109, 120 B,

52 AIR 2008, UTR. 85

53 AIR 2008 CHH 619
54
AIR 20111 SCC 284
409, 419, 420, 463, 465 and 468 of Indian Penal Code, 1860,
Section 12 of the Passports Act, 1967, Section 300, 313 and 428
of the Code of Criminal Procedure, 1973, Section 26 of General
Clauses Act, 1897. In this case the Supreme Court has decided
that court in exercise of jurisdiction under Article 136 of
Constitution normally does not interfere with the concurrent
finding of facts arrived at by the Courts below on proper
appreciation of evidence unless and until there is any perversity
or infirmity.

Kolia Veera Raghav Rao v. Gorantla Venkateswara

Rao and Anr.55 In this case the Section 138 of Negotiable

Instruments Act, 1881, Sections 221(1), 221(2) and 300(1) of

the Code of Criminal Procedure, 1973, Section 420 of Indian
Penal Code, 1860, Article 20(2) of Constitution of India have
been discussed in detail and the court applied the principle of
double jeopardy as provided under Section 300(1) of the Code
of Criminal Procedure, 1973 and the Article 20(2) of the
Constitution of India.

55
AIR, 2011 SC 86
 The courts in India have recognised the doctrine of res
judicata in their various judgment in positive sense and enlarged
the scope of the doctrine by applying the general rule of res
judicata. As the doctrine of res judicata is wholesome one,
which is applicable not merely to matters governed by the
provisions of the Code of Civil Procedure, but to all litigations.
The doctrine of res judicata has been applied by the courts with
condition that there should be no unnecessary litigation and
whatever claims and defences are open to parties shall all be put
forward at the same time so that the finality should attach to the
binding decision of the courts and the individuals should not be
vexed twice over with the same kind of litigation.

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