PROJECT ON AN ANALYSIS OF THE DOCTRINE

OF RES JUDICATA
SUBMITTED BY:-ANJALI DORA
BATCH:-BBALLB(H)
REGISTRATION NO:- 2041801011
SESSION:-2020-2025
GUIDED BY:- PROF. MS. AMRITA MISHRA MAAM

SOA NATIONAL INSTITUTE OF LAW (SNIL)

SIKSHA ‘O’ ANUSANDHAN DEEMED TO BE
UNIVERSITY BHUBANESWAR, ODISHA
 DECLARATION

I ANJALI DORA a student of BBALLB (H) of SOA National Institute of

law (SNIL) , Siksha ‘O’ Anusandhan Deemed to be university ,
Bhubaneswar , Odisha , does hereby I, declared that the project work titled
– “ AN ANALYSIS OF THE DOCTRINE OF RES JUDICATA, have
given the original and authentic data, information and maintained full
confidentially to the best of my knowledge in the analysis of project work
and case and that no part of this information has been used for any other
assignment but for the partial of the requirement towards the completion
of the said course.
ANJALI DORA
BBA LLB
2041801011
 ACKNOWLEDGEMENT

I, ANJALI DORA student of SOA NATIONAL INSTITUTE OF

LAW, Department of Law, 7th semester, BBALLB(H) would like to pay
thanks to our respected teacher professor MS AMRITA MISHRA ASST.
PROFESSOR for her guidance and support for the completion of my
project “ AN ANALYSIS OF THE DOCTRINE OF RES JUDICATA”
and also provided me with the knowledge, inspiration and information. It
would not be possible for me to complete the assignment without her
sincere and affectionate help.
DATE : 8th DECEMBER 2023
NAME- ANJALI DORA
 PREFACE
It gave me immense pleasure to write a preface on my project on topic
“AN ANALYSIS OF THE DOCTRINE OF RES JUDICATA”.
I have decided the assigned project work into four chapters;
In first chapter I have introduced the subject.
In the second chapter, I have mentioned the legislative provisions.
In third chapter, it is mentioned the judicial analysis regarding the subject.
In the fourth chapter, the conclusion with appraisal and suggestions are
mentioned.
I have tried my best to the work on this project. The project work is well
researched instead of searching in various sites and preferring various
materials. I have tried my best to omit the errors but still if there is any,
then, it will be deeply regretted and the feedbacks are mostly humbly
welcomed.
ANJALI DORA
BBA LLB (H)
 CONTENTS

CHAPTER I INTRODUCTION
CHAPTER II LEGISLATIVE PROVISIONS
CHAPTER III JUDICIAL ANALYSIS
CHAPTER IV SUGGESTION AND
CONCLUSION
 CHAPTER I
INTRODUCTION
The law of res judicata is a universal principle of law which requires that matters judicially determined
must not be re-litigated. In India, this law is embodied in section 11 of the Code of Civil Procedure, 1908.
However, the Indian courts have also resorted to what they call a ‘general law’ to affect res judicata
when the statutory law is inapplicable. This paper employs two approaches to study the development of
the law of res judicata in India: legislative and interpretational. It begins with a brief narration of the
historical background to the statutory law. It then picks up three distinctive features of the statutory law
to analyze how the content of the general law of res judicata, created and developed through judicial
interpretations, compares to that of the textual law. Next, the paper maps the terminologies that Indian
courts use for articulating this general law onto those used by the statute for defining the statutory law.
Through a comparison of the vocabularies of the two laws, the paper shows the operating requirements
of the general law. The paper then discusses the scope of application of general law by looking at the
situations in which courts have invoked it.

By studying the general law in contrast to the statutory law, the paper argues thus:

(a) the general law neither answers to the common law of res judicata nor suffers the limitations
of the statutory law.

(b) This court-created general law is the law of res judicata reduced to its bare essentials
which makes it applicable in almost all situations – even in situation where the statutory law is
the controlling law

(c) with its unfettered scope; the general law appears to have taken away the exclusivity of the
statutory law. The paper then concludes by restating the principle clause of statutory law to bring
it in conformity with the law of res judicata, as it stands today in India.

1
It is a universal principle of law that a judicial decision given by a competent court must not be re-
litigated once it becomes final2. In most legal systems, this principle is given effect to by a doctrine called
res judicata, ‘a thing [already] adjudicated. The doctrine bars courts from admitting suits on causes of
action or issues which have already been previously adjudicated upon. In India, there are in fact not one
but two instantiations of the principle of res judicata operating simultaneously. The statutory law of res

2 2
Supreme Court Employees v. Union Of India, AIR 1990 SC 334
3
Black’s Law Dictionary, 8th Edition, p.1337
judicata is contained in Section 11 the Code of Civil Procedure,1908.3 However, in situations where
Section 11 has no operation, courts have applied what they have termed the ‘general law’ of res
judicata.5

This paper provides a brief overview of both the statutory law and the general law of res
judicata in India. My interest lies in mapping the ways in which the court-created ‘general law’
has, over the span of more than a century, virtually overridden the text of the statutory law.
Towards that end, this paper does not attempt to exhaustively detail the various minutiae of the
law of res judicata – merely to highlight areas where courts have applied the general law in
situations where the statute was found unavailing.

Based on my survey of case law on the topic, I advance the following two arguments: (a) that
the statutory law of res judicata has been greatly diminished in its importance with the
gradual expansion of the general law and (b) that in the name of applying the ‘general law’ of
res judicata, courts have in fact assumed virtually unlimited powers to reshape the law.

This paper is divided into two parts followed by a conclusion.

In Part I of this paper, I discuss the history and the key features of the statutory law of res judicata
contained in Section 11 of the Civil Procedure Code 1908. Although Section 11 is an extremely
complex, multi-faceted section, I focus attention on only three of its key features: identity of
issues, competence of courts and the restrictive application of S.11 to ‘suits’. These topics have
been selected both owing to their importance to the operation of Section 11, as well as their utility
in contrasting ways in which court-created General law of res judicata has overridden them.

In Part II, I shift to a discussion of the ‘general law’ of res judicata. Beginning with a
brief account of its genesis in Indian courts, I describe several key features of the ways in which

3 4
Kunjan Nair v. Narayanan Nair, (2004) 3 SCC 277
5
The rule of res judicata laid down under Section 11 of the Civil Procedure Code is not the ‘fountain head’ of
the doctrine of res judicata. See, Standard Chartered Bank vs Andhra Bank,(2006) 6 SCC 94. Section 11 merely
gives statutory recognition only to an aspect of the principles of res judicata. See, Vora Gulambhai v. The State Of
Gujarat: (1968) 9 GLR 340. It is an error to regard all questions of res judicata as being governed by Section 11 of
the C.P.C. See, George Henry Hook v. Administrator-General of Bengal, A.I.R. 1921 P.C. 11. The rule of res judicata
in s. 11 is not exhaustive of the principles of res judicata and any previous decision entered after full contest by a
competent court operates as res judicata under the general principles of res judicata. See, Gulabchand Chhotalal v.
State of Gujarat, AIR 1956 SC 1153. Also see, The Commissioner, Hindu Religious and Charitable Endowments v.
Vaithinatha Gurukkal (1974 )1MLJ 406
it has been applied and changed over the past 150 years. In particular I focus on ways in which
in crafting this general law of res judicata, courts have both borrowed from Section 11, but
also, importantly, conveniently overridden it where it was found inconvenient.

Illustratively, like

Section 11, the general law of res judicata requires identical issues to have arisen, however
where section 11 only applies restrictively to “suits”, the general law applies even when either
or neither of the judicial proceeding under consideration is a “suit”.

In the concluding part of this paper, I draw on the material presented in the preceding sections to
make some observations about the career of the general law in India. I end by providing a draft
of what an amended Section 11 might look like if it factored in the general law.
The statutory law of res judicata in India as contained in Section 11 of the CPC:-

Various authors agree that the rule of res judicata traces its origins to Roman law. However, one
of the earliest articulations within the common law of the rule of res judicata appears to have
been the case of the Duchess of Kingston in 1776. In deciding the case Sir William de Grey, C.J.
laid down the following oft-quoted principle:

"the judgment of a court of concurrent jurisdiction, directly upon the point, is,
as a plea, a bar, or as evidence, conclusive between the same parties, upon the
same matter, directly in question in another court.”

As is evident, on its own terms, this paragraph is fairly wide in its scope. However, within
legal theory, the law of res judicata came to be divided into two distinct aspects: a) Bar by
(former) judgment and (b) Conclusiveness of judgment or bar by verdict.

As per the rule of bar by judgment, the judgment in any action extinguishes that cause of action
so that no subsequent suit may be founded upon it. The accent here is on the identity of
causes of action.

The rule of bar by verdict states that when an issue has been decided, such decision
are conclusive. The parties are barred by the verdict to re-agitate the same issue subsequent
suit. According to this rule, the identity of issues, not the identity of causes of action would
be determinative.

At the risk of oversimplification, the following scenario illustrates the difference between
the two principles:

A and B are involved in an automobile accident in which both cars are damaged and A
suffers bodily injuries. A sues B for damages based on ‘personal injury’ and does not succeed
because the court comes to the determination that there was contributory negligence on her part.
A cannot subsequently sue B again for personal injuries due to the res-judicata principle of bar
by judgment. Furthermore, if B ever sued A for compensation for damages to his car,
the determination of contributory negligence in the previous suit would be binding in
this subsequent suit as well due to the principle of bar by verdict. In other words, although
the causes of action in both suits are different, the conclusive determination of any issue
between parties in any suit would be binding in any subsequent suit between the same parties in
which the same issue arose.

Res Judicata in Indian statutes from 1802 -1908

Due to reasons that are difficult to state with any accuracy, the former rule – the rule of bar
by judgment – came to be incorporated into Indian law. Madras Regulation II of 1802 simply
laid down the following rule:

“When a second suit may be instituted for the same cause of action, such
second suit should be dismissed with costs to be paid by the Plaintiff.”
(emphasis added)

Despite seemingly referring only to the rule of bar by judgment, by 1850, Indian courts
had begun to apply this provision to incorporate both causes of action and issues. Thus writing
in 1850 MACPHERSON formulated this rule in following terms4:-

“A Civil Court cannot entertain any cause which from the production of a
former decree, or of the records of the Court, shall appear to have been heard
and determined by any former Judge, or by any superintendent of a Court
having competent jurisdiction; or even one, which under the rules against the
splitting of claims, ought to have been included in a previous suit.”

4
WILLIAM MACPHERSON, THE PROCEDURE OF THE CIVIL COURTS OF THE EAST INDIA COMPANY: IN THE PRESIDENCY OF
FORT WILLIAM, IN REGULAR SUITS 40 (1850).
Macpherson continues to explain that:

“A cause may fairly be considered to have been heard and determined before,
if the subject matter of the former suit was the same; the parties, or at least
the parties really and effectively interested, the same; the issue the same; if
the proceedings were taken for the same purpose; the jurisdiction competent; and
if the claim, which is sought to be enforced, has been directly adjudicated upon in
a former suit by a decree or order, declaring or recognizing a right, or negativing
it by the dismissal of a plaint.”5

It is clear from this explanation that the conception of res judicata prevalent in the Indian
legal system till 1850 included both bar by judgment and bar by verdict.

This settled position was altered significantly in 1859 by the enactment of the first
Civil Procedure Code. Section 2 of the Code of 1859 stated:

“The civil courts shall not take cognizance of any suit brought on a cause
of action which shall have been heard and determined by a court of
competent jurisdiction, in a former suit, between the same parties or between
parties under whom they claim”

As is evident, Section 2 of the 1859 Code only enacted into law one element of the rule of
res judicata – bar by judgment.6 Very soon after the enactment of the code, the absence of the
other component of res judicata – bar by verdict – began to be felt by the judiciary.

Several cases arose after 1859 in which although the causes of action were distinct, the issues had
already been heard and determined by a previous court.

5 0
Id. at 41.

1
A Treatise on the Law of Res Judicata, Hukm Chand, William Clowes & Sons, London, 1894. P.
6
In such cases, Section 2 would have-

required them to re-hear the same issues. However, in several cases, courts avoided this outcome
by holding that notwithstanding the restrictive language of Section 2, a ‘general law’ of res
judicata in India still applied which included ‘bar by verdict’.

In 1877, under direction of the Law Commission12, the Code of Civil Procedure was
substantially altered and re-enacted in India. The principle of res judicata was substantially
reformulated and re-numbered as Section 13 of the new Code. A key member of the Law
Commission, Whitley Stokes, describes the language of Section 13 as having been ‘founded on’
Livingston’s famous Code of Evidence for the State of Louisiana.13 The principal clause of the
section read as follows14:

“No court shall try any suit or issues in which the matter, directly
and substantially in issue, has been heard and finally decided by a Court of
competent jurisdiction, in a former suit between the same parties, or between
parties under whom they or any of them claim, litigating under the same title”

Manifestly, this wording was significantly different from the language of the 1859
Code. Importantly, the vocabulary of “cause of action” was dropped and in its place the accent
was on suits or issues which had been previously decided. In other words, the 1879 Code had
succeeded in merging both the ‘bar by judgment’ and the ‘bar by verdict’ conceptions of res
judicata.15

Another important change made to the law in 1882 was the insertion of an express
requirement that for a judgment to be res judicata it must have concurrent jurisdiction with the
subsequent court.16

In the two decades following its enactment Section 13 of the 1877 Code was modified a
few times. In 1908, the CPC was comprehensively restructured and re-enacted into its
present form as the Code of Civil Procedure Code 1908. The language of Section 13 of
the 1879 Code was retained in to in Section 11 of the new Code of 1908, the principal
section of which reads as follows:
 “11. Res judicata— No Court shall try any suit or issue17 in which the
matter directly and substantially in issue has been directly and substantially in
issue in a former suit between the same parties, or between parties under whom
they or any of them claim, litigating under the same title, in a Court competent to
try such subsequent suit or the suit in which such issue has been subsequently
raised, and has been heard and finally decided by such Court.”

RATIONALE BEHIND THE DOCTRINE

The essence of the doctrine of res judicata is the judicially formulated proposition that a matter
which has been adjudicated in a prior action cannot be litigated a second time. The policies which
res judicata is designed to serve include the public interest in decreasing litigation, protection of
the individual from the harassment of having to litigate the same cause of action or issue against
the same adversary or his privy more than once, and facilitation of reliance on judgments.
Essentially, the doctrine of res judicata in general is based on the three following maxims :

• Nemo debet bis vexari pro una et eadem causa: This maxim means no person shall
be subject to prosecution for the same action twice. This principle aims to protect an
offender from frivolous litigation. The aim of the criminal justice system is
reformation, not vexatious litigation against the offender.

• Res judicata pro veritate accipitur: A decision of a judicial authority must be duly
accepted as correct. If the judicial decision is not respected as conclusive, then there
will be indefinite litigation, which will lead to confusion and chaos.

• Interest republicae ut sit finis litium: The interest of state lies in an end to litigation.
It is a part of the public policy of the country that the courts should not be
overburdened by the piling up of repeated suits over the same subject matter.

The principle itself is founded upon the principles of justice equity and good conscience, and
applies to various civil suits, criminal proceedings, writs, execution proceedings etc. The
underlying purpose for this judicially created doctrine was to instill finality into litigation and to
provide for sound economic use of judicial resources.
Directly and substantially in issue

Merely because a matter was in issue in a former suit would not suffice to invoke the doctrine of
res judicata. It is necessary that the matter be directly and substantially in issue in the previous
suit. It should have been alleged by one party and admitted or denied by the other party. The
admission or denial may be done expressly or by necessary implication.

The doctrine of res judicata applies where the issues in the two suits are identical in nature. Thus,
even if the cause of action, object, and relief claimed in the two suits are distinct, the doctrine of
res judicata can be invoked so long as the issues are identical.

A suit may also involve certain subsidiary issues that are secondary to the primary issues. Those
issues that are ancillary to the substantial and direct issues are known as collateral or incidental
issues. The doctrine of res judicata cannot be invoked with respect to these collateral or
incidental issues.

Decision on merits

The decision of a court will operate as res judicata only if it is given on the merits of the case.
Thus, if a suit is dismissed due to an absence of jurisdiction or if a compromise decree is passed
by the court, then such a dismissal or suit will not operate as res judicata. Similarly, if a suit is
dismissed on procedural grounds such as misjoinder of parties or due to failure in furnishing
security, then such a decision would not operate as res judicata.

As indicated above, there are three important features of S. 11 that I would like to discuss in
this paper viz. identity of issues (including issues not directly, but constructively in
issue), competence of courts and the restriction of the applicability of the section to ‘suits’.
These features have been chosen both because of their intrinsic importance, as well for their
utility in comparison with the ‘general law’ developed by courts, discussed in Part II of this
paper. Other features not discussed here have been treated as non-distinctive or non-relevant
under the scope of this paper.18
 Identity of issues:

For res judicata to operate it is essential that the issues in the prior suit and the subsequent
suit must be identical. Identity of issues has been regarded as the essence of the statutory
law..19

Two issues are identical if they are directly and substantially in controversy in former
and subsequent suits.20 The Code states that an issue arises when a material proposition of fact
or law is alleged by one party and denied by the other.

If the issues are different, then the decision in the previous suit is not given res judicata
effect. Such decision would not be binding on parties in a subsequent suit.

The case of Lonankutty v. Thomman7 illustrates this aspect of the statutory law. In this case,
A filed a suit against B in which an issue arose whether A had a right to use water from B’s
land. The court held that A had no such right. In a subsequent suit filed by B against A, the
question again arose whether A could use water from B’s land. B argued that the question had
been decided in the previous case between A and B. Hence A is bound by the decision and
cannot state that he has a right to use of water from B’s land. The court observed that the issue
in the previous suit and that suit was identical and hence the court was barred by law of res
judicata from trying that issue.

But what if a party does not bring out all the issues in the previous suit? When an issue which
a party could have raised in the previous suit is also at issue in a subsequent suit, would that
affect her case? Can that party take the defense that res judicata would not apply to bar the
litigation on that issue as it was not litigated previously? The answer to these questions is in
the affirmative. What law of res judicata bars actively it also bars constructively.

7
AIR 1976 SC 1645
Constructive res judicata

In some cases, the law of res judicata also prohibits litigation on issues that had not been directly
litigated upon in a prior suit. This bar on trial of such issues is effectuated by an explanation to
Section 11 which states as follows:

“Explanation IV.—Any matter which might 8

and ought 9
to have been
made ground of defence or attack in such former suit shall be deemed to have
been a matter directly and substantially in issue in such suit.”

Put simply, the explanation states that if a party could and should have brought up an issue
in previous suit, then she must have brought it up. The court will not give any litigant
another chance at hearing on those issues in a subsequent suit. This concept is known as
‘constructive’ res judicata.

An illustration of the above concept is as follows:

In this case A filed a suit against B in 1937 in which it was held that B was the proprietor of
a certain business. In 1943, A filed another suit against B for a declaration that A and B
were partners in the business as per a partnership agreement entered by and between A and B in
1935. B argued that the decision of the previous court holding that B was a proprietor was binding
on A. The court observed that in the previous suit, A ought to have disclosed the existence
of partnership agreement as it was directly and substantially material to the decision in that
case. Hence the court held that A’ claim that B was not the proprietor of the business was barred
by res judicata.10

As stated previously, for the rule of res judicata to operate, the issues in previous and subsequent
suits must be identical. The question that begs an answer then would be this: how could an issue

8
The word might presupposes that that the party affected had knowledge of the ground of attack and defense at
the time of previous suit. See, Fakir v. Ekkari , (1938) 42 C.W.N. 560
9
If raising the issue in subsequent suit would defeat, vary or affect the decree passed in the previous suit such
an issue is deemed to be one which ought to have been raised. See, Sarojini Debya v. Lakhi Priya Guha, AIR 1925
Cal 427

10
Behari Lal vs Ram Swarup, AIR 1949 All 265. For another illustration on this point see, Sardani Vidya Wanti
Kaur. v. Sardar Shahdev Singh, A.I.R. (25) 1938 Lah. 139.
in a subsequent suit be identical to one in previous suit if the one in previous suit was never
raised? Answering this question would tell us the how constructive res judicata operates and
what the purpose of this concept is.

Constructive res judicata completes the law of res judicata by plugging gaps in the latter. Without
constructive res judicata, the rule of res judicata could be easily circumvented. In absence of this
concept, all that a litigant would need would be to not disclose to the court, the entire range of
issues arising in that suit. A litigant could store part of issues only to litigate them at a later point
of time. This would defeat the policy goals behind the law.11

Competence of court

For a decision of a court to apply as res judicata it must have been issued by a court that
was ‘competent’ to decide the case. This means that the court must have the authority
(i.e. jurisdiction) over subject matter of the suit or issue in a suit. Commonly, jurisdiction of
courts could be limited either by a pecuniary limit (some courts can only try suits up to a
certain monetary value), territorially (most courts can try a suit that arises only within a
particular geographic area) or by subject matter (some courts can only try suits pertaining to a
particular subject, e.g. Insolvency Courts, Family Courts). For a judgment to apply as res
judicata, firstly, the decision in the previous suit must have been rendered by a court which had
pecuniary12and subject matter jurisdiction to try that suit.28Secondly, the previous court must
also have had the jurisdiction to try and determine the subsequent suit i.e. the two courts must
have concurrent jurisdiction.29

Below are two illustrations of the concurrence of pecuniary and subject matter
jurisdiction respectively.

11 6
Devilal Modi v. Sales Tax Officer, AIR 1965 SC 1150
It must be noted here that lack of pecuniary jurisdiction in a former case
12
It must be noted here that lack of pecuniary jurisdiction in a former case is no longer regarded as invalidating
its res-judicata effect after Section 21 of the Code was amended in 1976. However, even before 1976, courts had
begun to apply the ‘general law’ of res judicata to ignore pecuniary incompetence. It is in order to highlight this
aspect (discussed more fully in later sections of this paper) that I have opted to retain a discussion of pecuniary
jurisdiction in this section
Concurrence of Pecuniary Jurisdiction:

A filed a suit against B in the year 1941 in which it was held that a certain sale deed was
invalid. Subsequently, in 1955, B filed a suit against A where the validity of same sale deed was
in issue. A stated that the decision of the previous court that the sale was invalid, was binding
on B. The court observed that the previous court had a limited pecuniary jurisdiction of Rs.
5000. However, the subsequent suit was valued at Rs. 11,001. Thus the Court held that since
the previous court had no pecuniary jurisdiction to try the subsequent suit.

Subject matter jurisdiction

A filed a civil suit against B in 1940 in which it was held that B was not an adopted son of J.
In 1957 B filed a suit against A claiming possession of the certain property on the basis of being
an adopted son of J. A argued that the decision of the previous court on adoption of B was
res judicata. The court held that in 1940, the civil courts were barred by law from hearing
adoption cases against Inamdars (B’s community). Thus the court held that since previous court
lacked subject matter jurisdiction, its decision would not operate as res judicata and that B was
allowed raise the same issue again. 31

As is clear from the illustrations above, Section 11 places heavy emphasis on this
‘double competency’ of courts. In subsequent sections of this paper we will witness how this rule
has been significantly relaxed by the ‘general law’. For the present we turn to the third element
of Section 11 that I wish to discuss in this paper – the requirement that Section 11 only
operates between two “suits”.

‘In a suit’

Section 11 of the CPC has been held to be applicable only between two “suits”. Both the
prior decision, and the subsequent proceeding in which the prior decision is sought to be used
must be “suits”32

For example, in a probate proceeding, A contended that the will of the deceased was forged
and that A was the next reversion to the estate of the deceased. This claim was rejected.
A subsequently filed a suit for a declaration that A was the next reversioner to the estate of
the deceased and that the probate should be revoked. B argued that the decision in the
probate proceedings would operate against A as res judicata. The court observed that Section 11
would apply to give res judicata effect the decision in probate proceedings as the proceedings
could not be termed as ‘suit’. 33

Section 11 is also inapplicable between different stages of the same suit. As for example,
a decision on defendant’s application to condone non-appearance for ‘good cause’ would not
be res judicata in an application filed by him at a later stage to set aside ex-parte decree. In
the latter proceeding, the defendant can raise the question of existence of such good cause.
Section 11 would not be applicable to such cases, despite the issues being identical as they do
not arise in the successive suits.

The broad inference that flows from this discussion is that S. 11 is not applicable to ‘non-suit’.

What is a non-suit? A swift response would be that a non-suit would be any proceeding which
is not a suit. This begs the question of what a suit is.

The term ‘suit’ has not been defined in the Code. However, Section 26 of the Code stipulates
that “Every suit shall be instituted by the presentation of a plaint.”

Thus a working definition of suit could be ‘a proceeding initiated by a plaint. From this
it would follow that all those proceedings that do not require filing of plaint for their initiation
are not suits. It is in this sense that this paper uses the somewhat awkward phrase ‘non-
suit’. Examples of non-suit proceedings would be writ proceedings, election petitions
proceedings before industrial tribunals; Bar Council of India; administration courts, land
tribunals etc.

So what happens to the decisions in non-suits? Can a party litigate the same matters endlessly
if his action is not a suit? Additionally, what if the previous court lacked the competence to try
the subsequent suit or proceeding? Would this render the doctrine of res judicata inapplicable?
In situations such as these, Indian courts have not been constrained by the language of Section
11. They have applied what they have called the ‘general law’ of res judicata to such situations.
In the next Part we look closely at the genesis and key elements of this court-created ‘general
law’ of res judicata.
 CHAPTER II

LEGISLATIVE PROVISIONS

General Law

From the discussion in the previous Part, it is evident that although Section 11 was framed
in fairly wide terms, it still contained several limitations. It is in the context of these
limitations that courts in India, rather than being constrained by the language of Section 11,
nevertheless applied res judicata by taking recourse to what they termed the ‘general law’ of res
judicata. In the sections that follow, we briefly examine the context in which the courts began
and continue to apply the ‘general law’ of res judicata. We then undertake an examination of the
key features of this general law to see how it relates to the language of Section 11.

Existence of general law independent of statutory law

The case of Soorjomonee Dabee v. Sudddnund Mahapatur13 decided in 1872 seems to

have been the first case to have recognized the existence of general principles of res judicata
apart from that contained in the Code of Civil Procedure. Recall that Section 2 the Code of
1859 had only codified one aspect of the law of res judicata – bar by judgment. In terms of this
provision, res judicata would only apply where the cause of action in two suits was the same. It
would not apply where the causes of action in two suits were different, but the same issue had
already been previously adjudicated upon. In order to get around this defect in the rule, the
Judicial Committee of the House of Lords took recourse to what it called a ‘general law’ of res
judicata that, in its view, would serve as a supplement to Section 2. The court held:

"[Section 2]would by no means prevent the operation of the general law

relating to res judicata founded on the principle, nemo debet bis vexari pro eadem
causa [A man shall not be vexed twice for the same cause]."

13
(1872) I.A. Supp. 212, (12 B. L. R. 304).
It is noteworthy that the court does not in this case spell out any elements of this ‘general law’
of res judicata. Specifically, it does not tell us if this general law refers to principles of res
judicata that were a part of English common law, or Indian common law prior to 1859.
This indeterminacy proved to be of great utility to courts. This newly discovered (or invented)
general law was applied with enthusiasm by several courts in India between 1872 and 1877
(when, as noted above, the CPC was re-enacted to specifically include bar by verdict). Although
this widening of the statutory law of res judicata in 1877 ought to have ended the reference by
courts to the ‘general law’, in fact this did not happen. Over the span of the next century, at
every instance where the statutory text was found limiting, the courts resurrected the ‘general
law’ as a way around the problem.

Over the past 150 years, there have been at least three important legal occasions when
this general law was applied by courts to circumvent the rigors of Section 11:

a) To make res judicata applicable to non-suits and to different stages within a

suit; b) To get around the requirement of ‘double competency;’
c) To make res judicata applicable to consent decrees;

In the sections that follow, we briefly survey the extension of the general law in these
two situations.

General Law of res-judicata applicable to non-suits

As noted earlier, under section 11, a decision can only be applied as res judicata if it was rendered
in a suit. Also, such a decision has a res judicata effect only if the subsequent proceeding is a suit
as well.

Against this clear statutory position, courts have invoked the general law of res judicata in
inter alia, the following situations:

1. In situations where both prior and subsequent proceedings are non-suits, general law
is applied to effect res judicata.14

14
Jodhan v. Board of Revenue: AIR 1967 All 442
 2. Where the former action is a suit, its decision applies as res judicata on a subsequent
action in a non suit proceeding in a general principle of res judicata

In addition, the general law of res judicata appears even to have done away with the
requirement of two suits – a previous and a subsequent suit. The general law has been held
applicable to situations where within the same suit, parties have sought to re-agitate issues that
had been settled at an earlier stage of that same suit. A plain reading of section 11 would not bar
such a re
agitation of issues within the same suit. The existence of two suits is essential to Section 11
since it requires a ‘former suit’ and ‘subsequent suit’.43 However, the courts in such cases
have invoked the general law of res judicata. The case of Ram Kirpal Sukul v. Mussumat Rup
Kuari illustrates this point.44

In this case, during the execution of the trial court decree, the executing court decided that
the decree awarded mesne profit. This decision was not appealed. At a later stage of the
same execution proceeding when the party tried to re-agitate the issue whether the decree
awarded mesne profits, the court held that a decision which has become final and hence
conclusive cannot be reopened at a later stage of the same proceeding. The court justified its
application of res judicata to this situation by holding that the purpose of the law would otherwise
be defeated.45

However, the application of Section 11 also turns upon the competence of the court. Even
when both proceedings are suits, section 11 may not apply if the former court was incompetent
to try the later suit. Simply stating that general law applies in non-suit proceedings is not
helpful. Such description may lead us to take a simplistic view of the applicability of the
general law that where the prior and the subsequent proceedings are non-suit, general law
applies. This take on general law would not tell us whether the former decision in a suit loses
its res judicata quotient if the subsequent proceeding is non-suit. It would also not tell us
whether decisions in non-suit proceedings can be pleaded to set up res judicata defense in a
suit? And it also does not inform us whether a decision in a suit by a court not competent to try
the subsequent suit would still have res judicata application in other proceedings?

General law of res-judicata applicable where former court was incompetent to try
the subsequent suit
As mentioned previously, under section 11, the decision of a court is res judicata in a
subsequent proceeding if two conditions are satisfied:

a) The former court has subject matter jurisdiction to try the subsequent
suit

b) The former court had the pecuniary jurisdiction to try the subsequent
suit.

This is commonly referred to as the rule of double competence.

Notwithstanding this statutory position, a decision from a court which suffers from the defect
on both the above counts can still operate as res judicata under the general principles of law.
All that is required is that that the former court had the jurisdiction to try that previous case.46

Once, the above criterion of competency is met, the decision of the court acquires the force of
res judicata through the general rule. Such a decision would bar the relitigation of issues in
a subsequent proceeding.47

Thus, even though a prior decision in a suit may not be binding under section 11 because
the previous court was incompetent to try the later suit (for want of pecuniary or subject
matter jurisdiction) , the same decision could be applied to suit under the general law of res
judicata. As a corollary to the above logic, the decision in suits can also bind the parties in
subsequent non
suit proceedings through the general law48. Again, this would not be possible through the rule
of res judicata of section 11 which applies only between two suits.49
Consent/Compromise Decrees

Section 11 of the CPC requires a suit to have been “heard and decided” by a court in order
to apply as res judicata in a subsequent suit. However, not all cases conclude with a
decision following full blown adjudication. In many cases, a suit may be brought to an end by
a compromise entered into between the parties which may be formalized into a consent decree.
A question that has arisen frequently in this context is whether such consent decrees can
operate as res judicata in subsequent suits between the same parties.

In parallel to these developments however, a line of judicial reasoning had already

developed which held that consent decrees would operate as res judicata under Section 11.
Perhaps the clearest articulation of this position is to be found in Chintaharan Ghose v. Gujaraddi
Sheik59 where the court held that a compromise decree would be applicable as res judicata in
a subsequent suit “though not by virtue of rule of res judicata as introduced by Section 11, Civil
P. C. but on general principles of res judicata”.

As recently as in 2008, the Supreme Court in Raghunandan v Ali Hussain Sabir60 was able
to ‘assume’, on the strength of a submission by counsel, that “consent decree… operates as
estoppel by judgment, [upon] the general principles of res judicata”.

The general law of res judicata appears therefore to have filled a legislative vacuum and
thus rendered legislative intervention unnecessary.

Despite these various departures from the statutory text of Section 11, to what extent does
the general law mimic Section 11? We take this question up in the next section.
What is the general law?

What are the key elements of the general law of res judicata? Due to its very nature, as
judge made law, the ‘general law of res judicata’ is incapable of any definitive statement.
However, the main features of this law may be discerned inductively, through a comparative
reading of various cases in which it has been invoked.

Given below are excerpts from five cases in which I have emphasised what I regard as the
key vocabularies through which the general law operates:

“What is essential for raising the plea of res judicata, on general principle, is
that there must be a judicial determination of issue in controversy with a
final decision thereon; in an earlier proceedings between the same parties. It is
only such a decision pronounced by a court or tribunal, of competent
jurisdiction, is binding between the parties, on the issues which directly and
substantially in controversy before the court or the tribunal, of competent
jurisdiction and is sought to be raised again in a subsequent proceedings" 61

“For the purpose of the application of the general principles of res judicata
a particular matter should have been directly and substantially in issue in
former proceedings so as to bar the reconsideration of the same matter in
subsequent proceedings”62

“ In fact, general principles of res judicata also require that the earlier
decision be between the same parties. A decision not inter parties cannot, even
on general principles of res judicata

“When a plea of res judicata is founded on general principles of law, all that
is necessary to establish is that the Court that heard and decided the former
case was a Court of competent jurisdiction. It does not seem necessary in such
cases to further prove that it has jurisdiction to hear the later suit."64
 “the decision of such competent court on the concerned issues must operate as
a bar to any subsequent agitation of the same issues between the same parties
on general principles of res judicata.”65

As is evident from the excerpts above, the general rule of res judicata is framed through
several technical terms viz. ‘matter in issue’, ‘directly and substantially’, ‘same parties’, ‘same
title’, ‘competent’ and ‘heard and decided’. These terms quite manifestly adopt the language
contained in Section 11 and indicate the extent to which, even as they have crafted a parallel law,
courts have been mindful of the vocabulary of S. 11.

This is particularly evident in the way in which courts have had no difficulty in
holding constructive res judicata to be a component of the general law of res judicata.

As mentioned earlier, Section 11 applies res judicata to even issues which ought to have
been raised in a previous suit. This does not flow from the language of the principal clause of
Section 11, but was specifically made possible through the insertion of Explanation VI to Section
11.

Interestingly, this rather exceptional concept of constructive res judicata was quite
comfortably stated to always have been an element of the general law of res judicata. The case
of K.V. George v. Secretary To Govt66, illustrates the application of this principle to general law.
In this case A initiated an arbitration against B in 1980 which got decided in A’s favour. In the
same year, A initiated another arbitration before the same arbitrator for certain other claims.
B argued that A ought to have raised those claims in the first arbitration. Hence A was bound
by the decision of first arbitration. The court held that A was barred from raising those issues in
the second arbitration under the principle of constructive res judicata.

Clearly, from the foregoing discussion, it is evident that the general law of res judicata is
a parallel law which contains all of the features of Section 11 with some extensions. If the
general law is so widely encompassing, why do courts even need to use Section 11? Are there
any situations then, where courts would refrain from using the general law? In the final section
of this part, we examine this question.
Where only section 11 applies:

Exclusive application of statutory law From the discussion in this section so far, it appears
clear that courts in India have largely had a free rein when applying the general law to
situations not covered by Section 11. However, curiously, they have also simultaneously
exhibited great restraint in invoking the general law where the facts are prima facie within the
four corners of Section 11.

Thus courts have held that where both previous and the subsequent actions are suits, it is
only section 11 that must be applied, and not the general law.67 In situations that are covered
by section 11, it has been held that the court cannot travel beyond the law and apply
general principles instead as the Code must be treated as exhaustive on the matters with respect
to which it declares the law.68 This type of restrain appears to occur however, primarily in
suits where a prior suit between different parties was sought to be given res judicata effect.

The case of Jujjuvarapu Kotamma v. Pappala Simhachalam69 illustrates this point. In this case, A
filed a suit against B. In the suit it was held that C passed no title of suit property to B as the ‘will’
bequeathing the property to C was invalid.. C then filed a suit against A. In the suit she claimed
possession of the same property on the basis of the same will. B argued that the previous court
had already decided that C’s will was invalid and hence it would operate at res judicata on C’’s
claim under general law of res judicata. The court held that the decision in the previous suit would
not bar C’s claim. Court stated that though the situation was covered under section 11, since C
was not a party to the previous suit between A and B, she would not be bound by the decree of
the previous suit. The court negatived the contention of the defendants that since section 11 could
not be applied, the case must be decided on the basis of general principles of law which is wider
than section 11. The court observed thus:

“It is well settled that where a case does fall within in the terms of Section 11
C. P. C. the conditions laid down therein must be strictly complied with. If
the conditions prescribed therein under which the decision in a suit can be
res judicata are not satisfied it is not permissible to resort to general principles
of res judicata.”
RELATION OF RES JUDICATA WITH OTHER LAWS:

RES JUDICATA IN EVIDENCE ACT

Res judicata is a legal principle that refers to the concept that a matter that has been adjudicated
by a competent court and has received a final judgment cannot be re-litigated between the same
parties. It prevents the same parties from bringing the same issue before the court again. Res
judicata is based on the idea that once a matter has been finally decided, there should be an end
to litigation and the parties should not be allowed to contest the same issue repeatedly.

The Indian Evidence Act, on the other hand, deals with the rules and principles governing the
admissibility of evidence in Indian courts. It provides a framework for the presentation and
evaluation of evidence during legal proceedings.

While the Indian Evidence Act and the principle of res judicata address different aspects of legal
proceedings, there is a connection between them, particularly in the context of Section 41 of the
Indian Evidence Act.

Section 41 of the Indian Evidence Act states that when facts are in issue in any proceeding, the
judgment of a court of competent jurisdiction which is relevant for the determination of those
facts is relevant evidence. In other words, the judgment of a court can be used as evidence in a
subsequent proceeding.

Now, when it comes to res judicata, the final judgment of a court on a particular issue prevents
the same issue from being re-litigated. In this context, the judgment itself, as well as the facts and
issues decided in that judgment, may become relevant evidence in a subsequent proceeding.
Courts may rely on the principle of res judicata and the judgments of earlier cases as part of the
evidence in deciding the current matter.

In summary, the connection between res judicata and the Indian Evidence Act lies in the
admissibility of judgments and their relevance as evidence in subsequent proceedings. The finality
of a judgment due to res judicata may influence the admissibility and consideration of that
judgment under the rules outlined in the Indian Evidence Act.
Res judicata in the context of arbitration proceedings

Res judicata in the context of arbitration proceedingsrefers to the legal principle that a final and
binding arbitral award on a particular dispute between parties has a conclusive effect and prevents
the same parties from relitigating the same issues in subsequent arbitration or court proceedings.
It reflects the idea that once a matter has been conclusively resolved through arbitration, the
parties should not be allowed to reopen the same dispute.

Here are some key points to understand the application of res judicata in arbitration proceedings:

1. **Finality of Arbitral Awards:**

- When an arbitral tribunal renders an award on a specific dispute, that award is considered final
and binding on the parties.

- The finality of the award is a fundamental principle of arbitration, and it is akin to the finality
of judgments in traditional court proceedings.

2. **Preclusion of Relitigation:**

- Res judicata in arbitration means that the parties are precluded from initiating a new arbitration
or court proceedings on the same issues that were conclusively decided in a prior arbitral award.

3. **Arbitration and Judicial Recognition:**

- Courts generally recognize and enforce arbitral awards, and the principle of res judicata is
applicable in arbitration proceedings as well.

- When parties seek to set aside or challenge an arbitral award in court, the court's review is
typically limited, and the finality of the award is upheld.

4. **Consistency and Efficiency:**

 - Res judicata in arbitration promotes consistency and efficiency in dispute resolution. It
discourages parties from engaging in multiple rounds of arbitration or litigation on the same
issues, ensuring a more expeditious resolution of disputes.

5. Limited Grounds for Challenging Awards:**

- The grounds for challenging an arbitral award are typically limited and are specified in
arbitration laws or the relevant arbitration agreement.

- Challenging an award on the same grounds that were already addressed in a previous
arbitration is generally not permissible under the principle of res judicata.

It's important to note that the application of res judicata in arbitration may vary depending on the
legal framework governing arbitration in a particular jurisdiction. Many countries have adopted
international arbitration conventions and model laws that address the finality and enforcement of
arbitral awards, and these provisions may influence the application of res judicata in the context
of arbitration.

Here's how res judicata is generally understood in relation to other laws:

1. **Civil Law and Common Law Systems:**

- Res judicata is recognized in both civil law and common law legal systems, though the specific
rules and terminology may vary.

- In civil law systems, res judicata is often referred to as "la chose jugée" in French legal systems,
and it operates similarly to its common law counterpart.

2. **Criminal Law:**

- Res judicata is generally not applied in criminal law to the same extent as in civil law. In
criminal cases, the principle of double jeopardy is more commonly invoked, protecting
individuals from being tried or punished twice for the same criminal offense.

3. **Administrative Law:**
 - Res judicata is applicable in administrative law, preventing the relitigation of administrative
decisions in subsequent proceedings.

- For example, if an administrative agency renders a decision on a particular matter, that decision
may be considered final, and the same issues may not be relitigated in a different administrative
or judicial forum.

4. **Family Law:**

- Res judicata can be relevant in family law cases, particularly in matters such as divorce and
child custody.

- Once a court has issued a final judgment on these issues, the parties may be precluded from
reopening the same disputes in subsequent proceedings.

5. **Intellectual Property Law:**

- Res judicata can impact intellectual property disputes. For instance, if a court has already
determined the validity of a patent in a prior case, the same parties may be barred from challenging
the patent's validity in a subsequent case.

6. **Tort Law:**

- Res judicata can affect tort claims. If a court has already adjudicated a tort claim between the
same parties, the principles of res judicata may prevent relitigation of the same issues.

7. **International Law and Treaties:**

- Res judicata principles are recognized in international law, and international courts may apply
similar doctrines to prevent the relitigation of issues between states or parties in different forums.

- Treaty provisions and international agreements may also address the finality of decisions in
specific contexts.
In summary, res judicata is a fundamental legal principle that transcends specific areas of law. Its
application aims to provide certainty, prevent abuse of legal processes, and promote the efficient
resolution of disputes across various legal domains. The specific rules and terminology may vary,
but the underlying principle of preventing the relitigation of the same issues remains consistent.
 CHAPTER III

JUDICIAL ANALYSIS

Res Judicata landmark cases in India

Daryao v. State of Uttar Pradesh

In the historic case of Daryao v. State of Uttar Pradesh, the doctrine of res judicata is of universal
application was established. The Supreme Court of India placed the doctrine of res judicata on a
still broader foundation. In this case, petitioners filed a writ petition in the High Court of Allahabad
under Article 226 of the Constitution. But the suit was dismissed. Then they filed independent
petitions in the Supreme Court under the writ jurisdiction of Article 32 of the Constitution. The
defendants raised an objection regarding the petition by asserting that the prior decision of the
High Court would be operated as res judicata to a petition under Article 32. The Supreme Court
dismissed and disagreed with the petitions.

The court held that the rule of res judicata applies to a petition under Article 32 of the Constitution.
If a petition is filed by the petitioner in the High Court under Article 226 of the Constitution and
it is dismissed on the basis of merits, it would be operated as res judicata to bar a similar petition
in the Supreme Court under Article 32 of the Constitution.

Devilal Modi vs. Sales Tax Officer

In the leading case of Devilal Modi vs. STO, B challenged the validity of an order of assessment
under Article 226. The petition was dismissed on the basis of merits. The Supreme Court also
dismissed the appeal that was made against the order on the basis of merits. B again filed another
writ petition in the same High Court against the same order of assessment. This time the petition
was dismissed by the High Court. The Supreme Court held that the petition was barred by the
principle of res judicata.
Avtar Singh v. Jagjit Singh

A peculiar problem arose in the case of Avtar Singh v. Jagjit Singh. A filed a civil suit, a contention
regarding the arbitration of the Court was taken by B. The objection was sustained and the plaint
was returned to the plaintiff for the presentation. The Revenue Court did not have any jurisdiction
when A approached the Revenue Court so he returned the petition. Once again A filed a suit in the
Civil Court. B contended that the suit was barred by the doctrine of res judicata.

Mathura Prasad v. Dossabai N.B. Jeejeebhoy

In the case of Mathura Prasad v. Dossibai N.B. Jeejeebhoy, it was held that res judicata constitutes
between the parties to the previous case and cannot move again in collateral proceedings.
Generally, a decision by a competent court operates as res judicata even on point of law. However,
a question of law which is not related to facts that gives rise to the right, will not operate as res
judicata. When the cause of action is different or the law is different, the decision has been already
altered by an authority. The decision made will be declared as valid and res judicata will not
operate in the subsequent proceeding.

Exceptions to res judicata

Cases where Res Judicata does not apply

The principle of res judicata does not apply in the Writ of Habeas Corpus as far as High Courts
are concerned. Article 32 gives power to the Supreme Court to issue writs and some power is given
to High Courts under Article 226. The Courts need to give proper reasoning while applying the
doctrine of res judicata. There are some exceptions to res judicata which allow the party to
challenge the validity of the original judgment even outside the appeals. These exceptions are
usually known as collateral attacks and are based on jurisdictional issues. It is not based on the
wisdom of the earlier decision of the court but the authority to issue it. Res judicata may not be
applicable when cases appear that they need relitigation.
Pure question of law

The principle of res judicata does not apply to pure questions of law. For example, if any
decision is rendered by a court of incompetent jurisdiction, a challenge to the jurisdiction of the
court, being a pure question of law, would not be barred by res judicata. If a court does have the
competent jurisdiction to try a case, then the decision rendered by it cannot be accorded finality
by relying on the principle of res judicata. Thus, the jurisdiction of the court, being a pure
question of law, can always be challenged in a subsequent suit. Similarly, if any other pure
question of law is erroneously decided by a court, then such erroneous interpretation can be
challenged in a subsequent suit, and it would not be barred by res judicata.

Instalment Supply private limited vs. Union of India

In cases of income tax or sales tax, the doctrine of res judicata does not apply. It was discussed in
the case of Instalment Supply private limited vs. Union of India where the Supreme Court held
that assessment of each year is final for that year and it will not govern in the subsequent years.
As it determines the tax only for that particular period.

P. Bandhopadhya and others v. Union of India and others

In the case of P. Bandhopadhya and others v. Union of India and others, The appeal was made in
the Bombay High Court and the appellants asserted that they will be entitled to receive an amount
as damages. The Supreme Court bench held that the appellants were not entitled to receive
damages which were pensionary benefits under the Pension Rules 1972. They were entitled to
receive benefits as the case was barred by the principle of res judicata.

In the case of Public Interest Litigation, the doctrine of res judicata does not apply. As the primary
object of res judicata is to bring an end to litigation so there is no reason to extend the principle of
public interest litigation.

Dismissal of special leave petition in limine does not operate as res judicata between the parties.
A fresh petition will not be filed either under Article 32 or under Article 226 of the Constitution.
Beliram and Brothers v. Chaudhari Mohammed Afzal

In the case of Beliram and Brothers v. Chaudhari Mohammed Afzal, it was held that a minors suit
cannot be brought by the guardian of the minors. However, it was brought in collaboration with
the defendants and the decree obtained was by fraud within the Indian Evidence Act, 1872 and it
will not operate res judicata.

Jallur Venkata Seshayya v. Thadviconda Koteswara Rao

In the case of Jallur Venkata Seshayya vs. Thadviconda Koteswara Rao, a suit was filed in the
Court so that certain temples are called public temples. A similar suit was dismissed by the Court
two years ago and the plaintiff contended that it was negligence on the part of the plaintiffs (of the
previous suit) and therefore the doctrine of res judicata can not be applied. However, the privy
council said that the documents were suppressed which means that the plaintiff in the earlier suit
had bona fide intention( something that is genuine and there is no intention to deceive).

Brobston v. Darby Borough

In the case of Brobston v. Darby Borough, Brobston was the plaintiff who was injured while
driving a vehicle on a public highway in the Borough of Darby. Due to a transit company that was
occupying the street, the steering wheel of the machine operating pulled by the driver’s hand. This
resulted in injury to the complainant. A suit was filed against the street railway in the Court of
Philadelphia to recover damages. It was proved that negligence was there on the part of both the
parties also known as contributory negligence. The judgment was passed in favour of the
defendant. Later action was again brought against the same defendant based on the same cause of
action and against the same transit company. The judgment in the first proceeding was brought to
the attention of the court. The plaintiff admitted that Brobston was the same person who was the
plaintiff in the action brought earlier in Philadelphia.

The action was brought for injuries occurring at the same place and the verdict of the court was in
favour of the defendant. The facts and cause of action were the same but the only difference was
the name of the defendant. The legal question involved was what are the rights of the plaintiff in
this case. The court refused the facts which were proven by the counsel. Hence a nonsuit was
entered because of the earlier judgment. The plaintiff should have been permitted to call the
witness but no merit was seen.
These conditions were entered in the record to enable the Court to pass the legal question involved.
The plaintiff had the right to recover under the circumstances. The counsel made an offer to prove
the facts which the court had refused to do. A complaint was made that the plaintiff must have
been permitted to call the witness to establish the matters. The facts were essential for the legal
determination of liability before the court and consent of both the parties were needed.

Lowe v. Haggerty

In the case of Lowe v. Haggerty, a question was raised considering the effect of former judgment
for defendant when he was sued by the guest. It was held that a suit was bar by the driver of the
car which had been struck by any other person. There was no previous record that disclosed what
was in the first proceeding. It was held that it was not possible to determine what was the issue
involved in the previous suit. A different situation was there the court disposed of the record made
by the parties. Nonsuit was not granted in this case and the plaintiff’s appeal was refused.

Henderson v. Henderson

Henderson v Henderson was a case in which the English Court confirmed that a party can not raise
a claim in litigation which was raised in the previous suit. In 1808, two brothers Bethel and Jordan
Henderson became business partners and they operated in both Bristol and Newfoundland. In
1817, their father died on a date that was not recorded. The wife of Jordan Henderson was
appointed as the administrator and she brought legal proceedings in the Court. She also brought
separate proceedings and claimed that he had failed to provide an account as executor of the will.
The Court of Appeal held that there was no estoppel by convention and that the proceedings were
an abuse under the rule in Henderson v Henderson. The Court of Appeal held that just one of Mr
Johnson’s claims should be struck out for a reflective loss.

Johnson v. Gore Wood and Company

Johnson v Gore Wood and Company is a leading UK case in which the House of Lords decided
the case relating to litigating issues that had already been determined in the previous litigation. Mr
Johnson was a director and majority shareholder in a lot of companies, including Westway Homes
Limited and Gore Wood & Co were a firm of lawyers who acted for the companies and also
occasionally worked for Mr Johnson in his personal capacity.

In 1998, Gore Wood was acting for the company and served notice to acquire land from a third
party upon the lawyers for that third party. The third-party alleged that this was not service, and
refused to convey the land. Legal proceedings followed and ultimately the company succeeded.
However, because the third party was penurious and was funded by legal aid, the wood company
was unable to regain the full amount of its losses and legal costs.

Accordingly, the wood company issued proceedings against Gore Wood for negligence and
alleged that their losses would have been entirely prevented if Gore Wood had properly served the
original notice on the third party instead of the third party’s lawyers.

Gore Wood ultimately settled those claims, and the settlement agreement included two provisions
that were later proved that they were important. Firstly, it included a clause stating that any amount
which Mr Johnson wished to subsequently claim against Gore Wood in his personal capacity
would be limited to an amount, excluding interest and costs. The confidentiality clause contained
an exception which permitted the settlement agreement to be referred which Mr Johnson brought
against Gore Wood.

Mr Johnson then issued proceedings against Gore Wood in his personal name, and Gore Wood
made applications to dismiss some or all of the claims on the basis that it was an abuse of process
to seek to litigate again the issues which had already been compromised in the agreement.

Can Res Judicata be waived?

In the case of P.C. Ray and Company Private Limited v. Union of India it was held that the plea
of res judicata may be waived by a party to a proceeding. If a defendant does not raise the defence
of res judicata then it will be waived. The principle of res judicata belongs to the procedure and
either party can waive the plea of res judicata. The court can decline the question of res judicata
on the ground that it has not been raised in the proceedings.

How to defeat Res Judicata?

The doctrine of res judicata would not apply to the case until the conditions are met. The essential
condition for the applicability is that the succeeding suit or proceeding is founded on the same
cause of action on which the former suit was founded. The principle of res judicata can be defeated
when the party has filed the suit on a reasonable ground for example in case a public interest
litigation has been filed there is no reason not to extend the doctrine of res judicata. The PIL has
been filed with a bona fide intention and the litigation cannot end.
The only possibility for defeating res judicata statutorily has been provided under Section 44 of
the Indian Evidence Act, 1872. This Section states that in a suit filed in reference to a particular
subject matter, a prior judgement on the same subject matter would not be relevant if any of the
parties was able to establish that the prior judgement was delivered by an incompetent court or
was based on fraud and collusion.

The principle contained in Section 44 of the Indian Evidence Act, 1872 has been incorporated in
Section 38 of the Bharatiya Sakshya Bill, 2023.

Res judicata as a concept under administrative law

Administrative Law deals with the structure, functions, and powers of the organs of administration.
Administrative Law is also known as regulatory law and it is enforced by some type of government
body. The law derives its power to enforce regulation from the government body. This applies to
all public officials and agencies. An administrative body of government may rulemaking or
enforce a specific agenda. It is technically considered as a branch of public law. The administrative
authority is different from the legislative and judicial authority and necessitates the power to issue
rules and regulations that are based on grant licenses and permits. The basic principles of this law
are that no person shall be unheard or deprived of his right and a person cannot be a judge on his
own in a case.

Res judicata works as a working principle under administrative law and has been adopted from the
Civil Procedure Code.
Criticism to Res Judicata

Res judicata can also be applied to judgment that may be contrary to law. The doctrine of res
judicata has been used for a long time and it encloses the general effect of one judgement upon
another trial or proceeding. It includes matters not only those of bar but also those matters which
should be litigated. For example, if a case has been dismissed on a specific ground by a court of
law or equity and it is not deemed as a final judgment and technically res judicata will apply but it
is not justified. If the chancellor has denied equitable relief on a principle but it was held by the
court that the plaintiff is barred from proceeding as a legal remedy. Most of the equity cases involve
res judicata and do not get beyond collateral estoppel. As it raises the difficulty of overlapping
more than the failure to litigate issues.

The title to real estate and the right to collect rent depended upon one and the same construction
of a will. In an interpleader over the rents, A got the decree. B appealed, without supersedeas, and
secured a reversal, but, before his appeal was decided, A had sued him in ejectment, invoking the
decree, and recovered a judgment for the real estate. B did not appeal from this judgment, but,
after the reversal of the decree, he sued A in ejectment for the land, relying upon the reversal.
 CHAPTER IV
APPRAISAL AND SUGGESTION
Res judicata is a legal principle that refers to the concept of a matter already judged. It is a doctrine
that prevents the same parties from litigating the same issues or claims more than once. The
purpose of res judicata is to promote finality and efficiency in legal proceedings, avoiding the
waste of judicial resources and preventing parties from being subjected to endless litigation on
the same matter.

Certainly! Here are some suggestions related to res judicata:

- Seek legal advice from a qualified attorney to determine whether res judicata applies to your
specific situation. An attorney can analyze the facts of your case and provide guidance on how
the doctrine may affect your legal position.

- Carefully review any previous legal cases or judgments involving the same parties and the
same or related claims. Understand the details of the prior litigation, including the issues decided
and the final judgment.

- Maintain comprehensive documentation of all relevant legal proceedings, court judgments,

and related documents. Having a well-organized record will be crucial in demonstrating the
applicability of res judicata, if necessary.

- If you believe that res judicata is applicable to your case, ensure that your pleadings and
motions clearly and persuasively present the relevant facts and legal arguments supporting the
application of the doctrine. This may involve demonstrating the identity of parties, claims, or
issues.

- Raise the defense of res judicata in a timely manner. Failing to assert the defense at the
appropriate stage of the legal proceedings may result in waiver, meaning that the defense could
be deemed forfeited.

- Be aware of jurisdictional considerations, as res judicata may have different applications in

different jurisdictions. Understanding the rules and requirements of the specific court handling
your case is essential.

- Familiarize yourself with any exceptions or limitations to the application of res judicata in
your jurisdiction. Certain circumstances, such as fraud or lack of jurisdiction in the prior
proceeding, may provide grounds for an exception to the doctrine.

- Consider exploring settlement or alternative dispute resolution methods to resolve the current
dispute without relitigating issues covered by res judicata. A negotiated resolution can save time
and resources.
 - If you disagree with a court's decision on the application of res judicata, be aware of your
appeal options. Consult with your attorney to determine whether appealing the decision is a viable
and strategic course of action.

- Throughout the legal process, maintain ongoing communication with your attorney. Legal
strategies may need to be adjusted based on developments in the case, and your attorney can
provide valuable guidance.

Legal advice should be sought to address the specific circumstances of your case, as the
application of res judicata can vary based on the details and applicable laws.

CONCLUSION
In conclusion, res judicata is a fundamental legal doctrine designed to promote finality, efficiency,
and fairness in the legal system. This doctrine prevents the same parties from relitigating the same
claims or issues that have been previously adjudicated in a final judgment. The two main
components of res judicata are claim preclusion (merger or bar), which prohibits the relitigation
of the same claims, and issue preclusion (collateral estoppel), which bars relitigation of specific
issues or factual determinations.

Res judicata serves important purposes in the legal realm, including reducing the burden on the
judicial system, preventing parties from being subjected to multiple lawsuits on the same matter,
and ensuring the stability and predictability of legal outcomes. Parties are encouraged to seek
legal advice, carefully review previous cases, maintain thorough documentation, and assert the
defense of res judicata in a timely manner.

While res judicata provides a crucial framework for legal finality, it is not without exceptions.
Courts may consider factors such as fraud, lack of jurisdiction, or other compelling circumstances
that could justify an exception to the general application of the doctrine.

Ultimately, a clear understanding of res judicata and its implications is essential for litigants and
legal professionals alike. It underscores the importance of comprehensive legal strategy, effective
case management, and adherence to the principles of justice and fairness in the legal system.

The Doctrine of Res Judicata can be understood as something which restricts either party to “move
the clock back” during the pendency of the proceedings. The extent of res judicata is wide and it
includes a lot of things which even include Public Interest Litigations. This doctrine can be applied
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 have widened with the passage of time and the Supreme Court
has elongated the areas with its judgments.
One of the first and highest duties of all Courts is to take care that the act of the Court does no
injury to the suitors. It has been said that “an act of the Court shall harm none” (actus curiae
neminem gravabit). All courts, therefore, are bound to take care that their acts do not cause harm
or injury to suitors.
In the case of A.R. Antulay v. R.S. Nayak, the Supreme Court ordered withdrawal of a case against
the appellant pending in the Court of a Special Judge and transferred it to the High Court of
Bombay. A preliminary objection was raised by the appellant against the jurisdiction of the
Bombay High Court. It was, however, negatived by the Court. The appellant then approached the
Supreme Court. It was contended that the direction was contrary to law and could not have been
issued. The argument of respondent was of res judicata. Allowing the appeal and recalling the
earlier order, the Apex Court observed that the direction was violative of the fundamental rights
of the appellant and no rule of res judicata would apply to such a situation.

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.
 CHAPTER V
BIBILIOGRAPHY
Statutes

Code of Civil Procedure, 1908.

Treatises

Black’s Law Dictionary, 9 th ed. 1

C.K Takwani, “Code of Civil Procedure”, 7 th ed. 1

Mulla, “Code of Civil Procedure”, 15 th ed. 2012 3

Web Links

legalperspectives.blogspot

studentlawnotes.blogspot

Articles

Jiarm

legalservicesindia.com

www.legalservicesindia.com/article/article/res-sub-judice-res-judicata-and-constructive-res-

judicata