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Object and Essential Conditions of the Rule of Res Judicata (India)

January 12, 2019 0 Comment

Object of Res Judicata:

Res Judicata connotes a thing already adjudicated upon res means thing and judicata means already decided.

The rule of res judicata as enunciated in Section 11 of the Code of Civil Procedure reads thus:—

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“No court shall try any suit or issue 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 the suit in which such issue has been subsequently raised, and has been heard and finally decided by such court.

Explanation I:

The expression ‘former suit’ shall denote a suit which has been decided prior to the suit in question whether or not it was instituted prior thereto.

Explanation II:

For the purpose of this section, the competence of a court shall be determined irrespective of any provisions as to right of appeal from the decision of such court.

Explanation III:

The matter above referred to must in the former suit have been alleged by one party and either denied or admitted expressly or impliedly, by the other.

Explanation IV:

Any matter which might and ought to have been made ground of defense or attack in such former suit shall be deemed to have been a matter directly and substantially in issue in such suit.

Explanation V:

Any relief claimed in the plaint which is not expressly granted by the decree, shall for the purpose of this section, be deemed to have been refused.

Explanation VI:

Where persons litigate bona fide in respect of a public right or of a private right claimed in common for themselves and others all persons interested in such right shall, for the purposes of this section, be deemed to claim under the persons so litigating.

Explanation VII:

The provisions of this section shall apply to a proceeding for the execution of a decree and references in this section to any suit, issue or former suit shall be construed as references, respectively, to a proceeding for execution of the decree, question arising in such proceeding and a former proceeding for the execution of that decree.

Explanation VIII:

An issue heard and finally decided by a court of limited jurisdiction, competent to decide such issue, shall operate as res judicata in a subsequent suit, notwithstanding that such court of limited jurisdiction was not competent to try such subsequent suit or the suit in which such issue has been subsequently raised.”

Necessary Conditions for Res Judicata:

It will thus be clear from the above that the following conditions must be satisfied to constitute a bar of res judicata:

1. The matter directly and substantially in issue in the subsequent suit must be the same matter which was directly and subsequently in issue, either actually or constructively, in the former suit.

In order that the condition may be fulfilled it must have been alleged by one party and either denied or admitted expressly or by necessary implication by the order. It is, however, not necessary that a separate issue should have been raised upon it. It is enough if the matter was in issue in substance in the former suit as also in the subsequent suit.

It is essential that the matter must be in issue directly and substantially in the suit under trial and not collaterally or incidentally. The expression “collaterally or incidentally in issue” means only ancillary to the direct and substantial issue and refers to a matter in respect of which no relief is claimed but which is put in issue to enable the court to adjudicate upon the matter which is directly and substantially in issue.

It is only those matters which are directly and substantially in issue that constitute res judicata and not the matters which are in issue only collaterally or incidentally. An example or two will make the point clear. A sues B for the rent due for year 1975. B’s defense is that no rent is due.

Here the claim for rent is the matter in respect of which relief is claimed. This, therefore, is a matter directly and substantially in issue. But when A sues B for rent and claims abatement of rent on the ground that the area is less than that entered in the lease and the finding of the court is that the area is greater than that shown in the lease, the finding as to the excess area in not res judicata for this was not the matter directly and substantially in issue but only ancillary to the direct and substantial issue, viz., whether the area is equal to that shown in the lease or less.

The matter directly and substantially in issue may either be actually in issue or constructively in issue, and both the matters constitute res Judicata if the same were in issue in the former suit and are also in issue in the subsequent suit.

A matter is actually in issue when it is alleged by one – party and denied by the other. It is constructively in issue when the matter might or ought to have been made a ground of attack or defense in the former suit.

Explanation IV to Section 11 says that any matter which might and ought to have been made a ground of defense or attack in such former suit shall be deemed to have been a matter directly and substantially in issue in such suit.

It may, therefore, happen that a matter though not actually in issue directly and substantially may nevertheless be regarded as having been in issue in a suit when the same might and ought to have been made a ground of attack or defense.

The test is whether the parties had an opportunity of controverting it and if they had, the matter will be treated as actually controverted and decided. When the matter is actually in issue the same is heard and decided, but when it is constructively in issue from its very nature it could not be heard and decided, for this was a matter which might and ought to have been made a ground of attack or defense in the suit. An illustration or two will make the point clear.

The plaintiff A sues Bon a contract and obtains a decree. B cannot afterwards sue for rescission of the contract on the ground that it did not fully represent the agreement between the parties, for this was a matter which might and ought to have been made a ground of defense in the earlier suit.

Similarly A, a Hindu, dies leaving a widow, who makes a gift to her brother B of certain property belonging to her husband and, after the death of the widow, one alleging that he and A were members of a joint Hindu family sues for declaration of his title to the property by right of survivorship cannot subsequently sue to recover the same property as the nearest reversionary heir of A, once the suit is dismissed on the finding that A and C were separate. The suit is barred by res judicata, for C might and ought to have set up his title by heir ship as a ground of attack in the former suit in the alternative.

Where no finding was given on an issue in the previous suit the judgment therein cannot operate as res judicata in a subsequent suit, on the ground that the finding must be assumed to have been given as an inference. Explanation IV to S.11, C.P.C., would be of no assistance in such a case. (Hayatuddin Haji Shujauddin v. Abdul Gani Abdul Hafiz, 1975 Mah. L.J. 345).

2. The second essential condition to constitute the bar of res judicata is that the former suit must have been a suit between the same parties or between parties under whom they or any of them claim. Res judicata not only affects the parties to the suit, but his privies, i.e., persons claiming under them.

Explanation VI to Section 11 says that where persons litigate bona fide in respect of a public right or of a private right claimed in common for themselves and others, all persons interested in such right shall, for the purpose of this section, be deemed to claim under the person so litigating. It thus refers to cases in which a decision in a suit may operate as res judicata against persons not expressly named as parties to the suit.

Explanation VI, Section 11, C.P.C. applies to public interest litigation as well but it must be proved that the previous litigation was public interest litigation not by way of a private grievance. It has to be a bona fide litigation in respect of a right which is common and is agitated in common with others.

Where the High Court had held that the previous writ petition was not bona fide public interest litigation as the petition in that case had been put by a disgruntled person, the subsequent public interest writ petition before the High Court would not be barred by Section 11, C.P.C.

The possibility of litigation to foreclose any further enquiry into a matter in which an enquiry is necessary in the interest of public interest cannot be ruled out. I Forward Construction Company & Ors. v. Prabhat Mandal (Redg.) Another & Ors., (1986) 1 S.C.C., 100].

3. The third essential condition to constitute the bar of res judicata is that the parties must have litigated under the same title in the former suit. The expression “same title” means in the same capacity.

Thus, a suit brought by a person to recover possession from a stranger or math property claiming it as heir of the deceased Mahunt is not bar to a suit by him as manager of the math if the first suit is dismissed on his failure to produce the succession certificate, for the two suits arise under different capacities.

4. The fourth condition is that the court which decided the former suit must have been a court competent to try the subsequent suit or the suit in which such issue is subsequently raised.

In its true conception a decree in a previous suit could not be pleaded as res judicata in a subsequent suit unless the judge by whom it was made has jurisdiction to try and decide not only the particular matter in issue in the former suit but also the subsequent suit itself in which the issue is subsequently raised.

The effect of this provision has greatly been modified by insertion of Explanation VIII to S. 11 by the Amendment Act, 1976, which provides that an issue heard and finally decided by a court of limited jurisdiction, competent to decide such issue, shall operate as res judicata in a subsequent suit, notwithstanding that such court of limited jurisdiction was not competent to try such subsequent suit or the suit in which such issue has been subsequently raised.

5. The last condition is that the matter directly and substantially in issue in the subsequent suit must have been heard and finally decided by the court in the first suit. The section requires that there should be a final decision on which the court has exercised its judicial mind.

A matter will be said to have been heard and finally decided notwithstanding that the former suit was disposed of ex parte or by dismissal under O. 17, rule 3, le., for failure to produce evidence when time was allowed to do so or by a decree or an award or by dismissal owing to the plaintiffs failure to adduce evidence at the hearing.

But it is necessary that the decision in the former suit must have been on merits and so the matter cannot be said to have been heard and finally decided when the former suit was dismissed for want of jurisdiction, on the ground of non-joinder or misjoinder of parties on account of multifariousness or a technical mistake, or for want of cause of action.

Then the determination in the former suit must have been necessary to the determination of that suit. It is the right of appeal that indicates whether a finding was necessary or not. A finding on an issue cannot be said to be necessary to the decision of a suit unless the decision was based upon that finding.

Thus, in a suit by A against B for ejectment, B contends that no notice to quit was given and that the land being common land he was not liable to be evicted at all. The suit is dismissed on the finding that no notice to quit was given.

The court however also finds that land was not common land. This second finding was irrelevant to the disposal of the suit and does not operate as res judicata so as to preclude B from raising the same contention in a subsequent suit, the reason being that A’s suit having been dismissed, B could not have appealed from the finding that the land was not common land.

Explanation V to Section 11 may also be noted in this connection. It says that any relief claimed in the plaint, which is not expressly granted by the decree, shall, for the purpose of this section, be deemed to have been refused.

Where a decision is given on the merits by the trial court and the matter is taken in appeal and the appeal is dismissed on some preliminary ground, like limitation or default in printing, such dismissal by an appellate court has the effect of confirming the decision of the trial court on merits and it amounts to the appeal being heard and finally decided on the merits whatever may be the ground for dismissal of the appeal. (Sheodan Singh v. Smt. Daryao Kumar, A.I.R. 1966 S.C. 1332 and Ram Gobinda Daw v. Smt. Bhakta Bala Dassi, A.I.R. 1971 S.C. 664).

Section 11, C.P.C. aims to prevent multiplicity of the proceedings and accords finality to an issue, which directly and substantially had arisen in the former suit between the same parties or their privies, decided and became final, so that parties are not vexed twice over.

It is based on public policy as well as private justice. It would apply, therefore, to all judicial proceedings whether civil or otherwise. It equally applies to all quasi-judicial proceedings of the tribunals other than the civil courts. (Sulochana Amma v. Narayan Nair, J.T. 1993 (5) S.C. 450).

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