RES JUDICATA [SECTION 11]. Discuss in detail.

 

RES JUDICATA [SECTION 11]

•      Section 11 of the CPC 1908 states about the doctrine of res judicata or the rule of conclusiveness of a judgment, as to the points decided either of fact, or of law, or of fact and law, in every subsequent suit between the same parties.

•      It enacts that once a matter is finally decided by a Competent Court, then no party can be permitted to re-open it in a subsequent litigation. In the absence of such a rule there will be no end to litigation and the parties would be put to constant trouble, harassment and expenses.

BASIS OF THE DOCTRINE OF RES JUDICATA

The doctrine of res judicata is based on the following three maxims:-

1.     Nemo debet bis vaxari pro una et eadem causa which means that no one should be vexed twice for the same cause;

2.     Interest reipublicae ut sit finis litium which means that it is in the interest of the state that there should be an end to the litigation.

3.     Res Judicata pro veritate accipitur which means that a judicial decision must be accepted as correct.

Section 11 is reads as under:-

RES JUDICATA- 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 the 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.

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 provision as to a 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 defence or attack in such former suit shall be deemed to have been matter directly and substantially in issue in such suit. [ Constructive Res- Judicata]

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, then all persons interested in such right shall, for the purpose of this section, be deemed to claim under the persons so litigating. [ Res Judicata in Representative Suit].

Explanation VII- [ Inserted by CPC( Amendment) Act 104 of 1976]- 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 the execution of the decree, question arising in such proceeding and a former proceeding for the execution of the decree. 

Explanation VIII- An issue heard and finally decided by a Court of limited Jurisdiction, 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.

[Note - The principle of res judicata applies in Nagaland, though as per Section 1(3)(b) the Code does not apply to Nagaland]

When Res Judicata Applies

In Saroja vs. Chinnusamy (2007) 8 SCC 329, the Apex Court observed that in order to constitute res judicata the following conditions must be satisfied:-

1.     There must be two suits- one former suit and the other subsequent suit;

2.     The Court which decided the former suit must be competent to try the said issue which is also directly and substantially in issue in the subsequent suit;

3.     The matter directly and substantially in issue must be the same either actually or constructively in both the suits;

4.     The matter directly and substantially in issue in the subsequent suit must have been heard and finally decided by the Court in the former suit.

5.     The parties to the suit or the parties under whom they or any of them claim must be the same in both the suits.

6.     The parties in both the suits must have litigated under the same title.

(I)  MATTER IN ISSUE

A decision of a competent Court on a matter in issue may be res judicata in another proceedings between the same parties;

Ø  The “ matter in issue” may be an issue of fact, an issue of law or one of mixed issue on law and fact.

Ø  Matter in issue may be classified as under:-

A.   Matters directly and substantially in issue

        1. Actually in issue

        2. Constructively in issue.

B.   Matters collaterally or incidentally in issue.

Matter directly & Substantially in issue: (Explanation III)

•      A matter directly and substantially in issue in a former suit will operate as “Res Judicata” in a subsequent suit.

•      “Directly” means directly, at once, immediately without intervention. No hard and fast rule can be laid down as to when a matter can be said to be directly in issue and it depends upon the facts and circumstances of each case.

•      “ Substantially” means essentially or in a substantial manner. A matter can be said to be substantially in issue if it is of importance for the decision of a case.

                                 Illustrations

1.  A sues B for the rent due. The defence of B is that no rent is due. Here the claim for the rent is the matter in respect of which the relief is claimed. The claim of rent is, therefore, a matter directly and substantially in issue.

2.  A sues B for the possession of certain property on the basis of a sale deed in his favour. B impugns the deed as fictitious. The plea is upheld and the suit was dismissed. A subsequent suit for some other properties on the basis of the same sale deed is barred as the issue about the fictitious nature of the sale deed was actually in issue in the former suit directly and substantially.

    When there are findings on several issues or where the court rests its decision on more than one point, then the findings on all the issues or points will be res judicata.

A.   Matter actually in issue:- A matter is actually in issue when it is in issue directly and substantially and a competent Court decides it on merits. A matter is actually in issue when it is alleged by one party and denied or admitted by the other. [ Explanation III ]

B.    Matter constructively in issue : Explanation IV- Matter is constructively in issue when it might and ought to have been made a ground of attack or defence in the former suit. Explanation IV to Section 11 by a deeming provision lays down that any matter which might and ought to have been made a ground of defence or attack in the former suit , but which has not been made a ground of attack or defence, shall be deemed to have been a matter directly and substantially in issue in such suit.

The object of Explanation IV is to compel the plaintiff or the defendant to take all the grounds of attack or defence which were open to him. That is why it is also called as Constructive Res Judicata.

Now let us discuss Constructive Res Judicata with some examples:-

1. A sues B for the possession of property on the basis of ownership. The suit is dismissed. A cannot thereafter claim the possession of property as mortgagee as that ground ought to have been taken in the former suit as a ground of attack.

2. A files a suit against B for declaration that he is entitled to certain lands as heirs of C. The suit is dismissed. The subsequent suit by A against B, claiming the same property on the ground of adverse possession, is barred by the constructive res judicata. 

3. A files a suit against B to recover money on a pronote. B contends that the promissory note was obtained from him by undue influence. The objection is overlooked and the suit is decreed. B cannot challenge the promissory note on the ground of coercion or fraud in the subsequent suit ,as he ought to have taken that defence in the former suit.

In State of U.P. Vs. Nawab Hussain ( 1977) 2 SCC 806, A, a sub- inspector of police, was dismissed from service by the D.I.G. He challenged the order of dismissal by filing a writ petition in the High Court on the ground that he was not afforded a reasonable opportunity of being heard before the passing of the order. The contention was, however, negatived and the petition was dismissed. He then filed a suit and raised an additional ground that since he was appointed by the I.G.P., the D.I.G. had no power to dismiss him. The State contended that the suit was barred by constructive res-judicata. The trial Court, the first appellate court as well as the High Court held that the suit was not barred by res-judicata. Allowing the appeal filed by the State , the Supreme Court held that the suit was barred by constructive res- judicata as the plea was within the knowledge of the plaintiff and could have been taken in the earlier writ petition.

Matter collaterally or incidentally in issue

•      Decision on matters collateral or incidental to the main issue in a case will not operate as res judicata. A collateral or incidental issue means an issue which is ancillary to the direct and substantive issue. It refers to a matter in respect of which no relief is claimed and yet it is put in issue to enable a Court to adjudicate upon the matter which is directly and substantially in issue.

•      For example:- A sues B for the rent due. B pleads abatement of the rent on the ground that the actual area of the land is less than that mentioned in the lease deed. The Court, however finds the area greater than that shown in the lease deed. The finding as to the excess area, being ancillary and incidentally to the direct and substantial issue, is not res judicata.

•      Finding on matter not in issue:-  If a finding is recorded by a Court in a former suit on a question not in issue between the parties, then it will not operate as res judicata.

(II) Same Parties

The second condition of res-judicata is that the former suit must have been a suit between the same parties or between the parties under whom they or any of them claim. Therefore, when the parties in the subsequent suit are different from the former suit, then there is no res- judicata.

For example-

1. A sues B for rent. B contends that A is not the landlord, and the suit is dismissed. A subsequent suit either by A or by X claiming through A is barred by res- judicata. 

2. A sues B for the rent. B contends that C is the owner and not the A. A fails to prove his title and the suit was dismissed. A then sues B and C for a declaration of his title to the property. The suit is not barred as the parties in the both the suit are not the same parties.

Party ( Meaning)

A “ party” is a person whose name appears on the record at the time of the decision of the suit. Thus, a person who has intervened in the suit is a party but a party to the suit whose name is struck off or who is discharged from the suit or who dies pending the suit but whose name continues on record erroneously is not a party. A party may be a plaintiff or a defendant. The res judicata shall be applicable only on those persons who will be parties to the suit at the time of the decision of the suit.

Res Judicata between the co-defendants

An adjudication will operate as res- judicata between co-defendants if the following conditions are satisfied:-

1.     There must be a conflict of interest between the co- defendants.

2.     It must be necessary to decide that conflict in order to give relief to the plaintiff;

3.     The question between co-defendants must have been finally decided; and

4.     The co-defendants were necessary or proper parties in the former suit.

For example:- A sues B,C and D and in order to decide the claim of A, the Court has to interpret a will. The decision regarding the construction of the Will on the rival claims of the defendants will operate as res judicata in any subsequent suit by any of the defendants against the rest.

In Mahboob Sahab vs. Syad Ismail ( 1995 ) 3 SCC 693, the Supreme Court added a word of caution while applying the doctrine of res judicata between the co-defendants and states that if a party obtains a decree from the court by practicing fraud or collusion, then he cannot be allowed to say that the matter is res-judicata and cannot be reopened.

Res Judicata between Co- plaintiffs

Just as a matter may be res judicata between the co-defendants, so also it may be res judicata between co-plaintiffs. If there is a conflict of interest between the plaintiffs and it is necessary to resolve the same by a Court in order to give relief to a defendant, and the matter is in fact decided, then it will operate as res-judicata between the co-plaintiffs in the subsequent suit.

Pro-forma defendant

A defendant to a suit against whom no relief is claimed is called a pro- forma defendant. A person may be added as a pro-forma defendant in a suit merely because his presence is necessary for a complete and final decision of the questions involved in the suit. In such a case, since no relief is sought against him, so a finding does not operate as res-judicata in a subsequent suit against him. On the other hand, the fact that the party is described as a pro-forma defendant or that no relief is claimed against him is, by itself, not sufficient to avoid the bar of res-judicata if other conditions laid down in the section are satisfied.

Illustration

1. A sues B for possession of property contending that he is tenant of C. C is joined as pro forma defendant and no relief is claimed against him. The suit is dismissed as the court finds B to be the owner. C then sues B for possession on the basis of title. B’s contention that the issue regarding ownership of property is res-judicata must fail as the issue was decided in the former suit between A and B and not between C and B as C was only a pro forma defendant in the former suit.

2. A sues B for rent claiming to be sole owner of property in the possession of B. B contends that X was also a Co- Owner and the suit filed by A alone was therefore not maintainable. X was joined as pro-forma defendant in the suit and no relief was claimed against him. A finding by the Court that A was the sole owner of property would operate as res- judicata in a subsequent suit between X and A on the question of Co-Ownership as the decision in the previous suit was necessary for granting relief in favour of A. 

Interveners

•      An “ intervener” is one “ who intervenes in a suit in which he was not originally a party” “ an affected person who, with the permission of the Court, participates in a Civil Suit after its inception by either joining with the plaintiff or by uniting with the defendant”

•      A person may intervene in a Civil Suit either on his own behalf or on behalf of the parties with the leave of the Court.

•      Such intervener is considered to be a party to the suit once he is permitted to intervene in the suit. No matter at what stage of the suit he intervene in the suit.

•      The decision in the suit then will operate as “ res judicata” in a subsequent suit by or against such intervener on the points already decided.

Minor in Res Judicata

•      When a suit is filed against a minor who is duly represented by a guardian or next friend and a decree is passed in such suit, then the decree binds the minor as he was properly represented in the suit by the guardian or by next friend.

•      But if the decree is obtained against a minor who was not represented by a guardian or there is fraud, collusion or gross negligence of the guardian, then a decree passed in the suit will not operate as res- judicata against the minor in a subsequent suit.

Parties under whom they or any of them claim

•      The doctrine of res-judicata operates not only against the parties to the suit but also against or for the persons claiming under the parties to the decision.

•      The object underlying the doctrine of res judicata is that if a proceedings originally instituted is proper, then the decision given therein is binding on all persons on whom a right or interest may devolve.

ILLUSTRATION:

•      A sues B for a declaration of title to the property and obtains a decree. Thereafter A sues C for the possession of that property. C contends that B is the owner and that he is in possession as B’s tenant. The defence is barred as C is claiming in the case through B.

Representative Suit:- Explanation VI

•      Where a representative suit is brought under Section 92 of the Code and a decree is passed in such a suit, then the law assumes that all the persons who have the same interest as the plaintiffs in the representative suit were represented by the said plaintiffs and therefore are constructively barred by res- judicata from reagitating the matters directly and substantially in issue in the former suit.

Conditions

The following conditions must be satisfied before a decision may operate as res judicata under Explanation VI:-

1.     There must be a right claimed by one or more persons in common for themselves and others not expressly named in the suit;

2.     The parties not expressly named in the suit must be interested in such right.

3.     The litigation must have been conducted bona fide and  on behalf of  persons interested; and

4.     If the suit is under Order 1 , Rule 8 CPC, then all the conditions laid down therein must have been strictly complied with.

             It is only when the above conditions are satisfied then a decision may operate as res judicata in the subsequent suit.

             It is also very important to note here that the Explanation VI is not confined to cases covered by Order 1, Rule 8 CPC, but would include any litigation in which parties  are entitled, to represent interested persons other than them.

•      Thus where a party claims a right for himself alone which happens to be common to him and others, it cannot be said that he was litigating on behalf of others and then Explanation VI does not apply.

•      Similarly, if the earlier proceeding was not a bona fide public interest litigation, then the subsequent proceedings would not be barred.

Illustrations

1.     A decree in a suit against certain members of a sect alleged to be wrongdoers in their individual capacity cannot operate as res-judicata in a subsequent suit against the other members of the sect.

2.     A, alleging that he is the proprietor of a Village sues B, C and D for ejectment . The defence is that A is not the proprietor and that part of the village belongs to B, C and D and the rest to X, Y and Z. The court finds that A is not the proprietor and A’s suit was dismissed. A then sues X, Y and Z and B, C and D for a declaration that he is the proprietor of the village and for possession. The question of A’s title to the village is res-judicata so as to bar the suit against B, C and D, who were parties to the former suit, but it is not res judicata so as to bar the suit against X, Y and Z who were not parties to the former suit. It cannot be said that B, C and D litigated in the former suit in respect of a private right claimed in common for themselves and  X, Y and Z. They set up only their right to a part of the property and as to the rest they alleged that it belongs to X, Y and Z.

Litigating under the same title

•      The third condition of res-judicata is that the parties to the suit must have litigated under the same title in the former suit.

•      The expression “same title” means the “same capacity”.

•      A finding against a man suing in one capacity will not stop him when he sues in another distinct capacity, because law assumes him a different person at that time.

•      Therefore, the rule of res-judicata will not apply if the capacity of a person is different in the former suit and in the subsequent suit.

Now let us understand this point by some examples

•      A sues B for title to the property as an heir of C under the customary law. The said suit is dismissed. The subsequent suit for title to the property as an heir of C under the personal law is barred.

•      A sues for possession of math property as an heir of Mahant. The suit is dismissed. A subsequent suit by A against B as the manager of the math is not barred.

Test

•      The test for res-judicata is the identity of title in the two litigations and not the identity of the subject matter involved in the two cases.

•      The term “same title” has nothing to do either with the cause of action or with the subject matter of two suits.

•      Where the right claimed in both the suits is the same, then the subsequent suit will be barred even though the right in the subsequent suit is sought to be established on a ground different from the one in the former suit.

•      The word “between the same parties under whom they or any of them claim litigating under the same title” covers a case where the latter litigant occupies, by succession, the same title as the former litigant occupied in the former suit. 

Competent Court

•      The fourth condition of res-judicata is that the Court which decided the former suit must have been a Court “Competent to try” the subsequent suit.

•      The expression “competent to try” means “competent to try the subsequent suit if brought at the time the first suit was brought.”

•      In other words, the relevant point of time for deciding the question of competence of the court is the date when the former suit was brought and not the date when the subsequent suit was filed.

Types of Courts

In order that a decision in a former suit may operate as res-judicata, the court which decided the suit must have been either:-

a.      A Court of Exclusive Jurisdiction; OR

b.     A Court of Limited Jurisdiction; OR

c.      A Court of Concurrent Jurisdiction.

A. Court of Exclusive Jurisdiction

•      A plea of res-judicata can successfully be taken in respect of judgments of courts of exclusive jurisdiction, like Revenue Courts, Land Acquisition Courts, Administration Courts etc. If a matter directly and substantially in issue in a former suit has been adjudicated upon by a Court of exclusive jurisdiction, then such adjudication will bar the trial of the same matter in a subsequent suit in an ordinary civil court.

B. Courts of Limited Jurisdiction

•      A decision on an issue heard and finally decided by a court of limited jurisdiction will also operate as res-judicata in a subsequent suit irrespective of the fact that such court of limited jurisdiction was not competent to try the subsequent suit.

•      The expression “Courts of Limited Jurisdiction” occurring in Explanation VIII means Courts other than ordinary civil courts. Courts such as the Small Causes Courts and the Courts with limited pecuniary jurisdiction are also courts of limited jurisdiction.

•      These Courts are also Courts of Exclusive Jurisdiction in respect of matters they are to try.

•      But, all findings of Courts of limited jurisdiction will not operate as res- judicata. Only those findings which that Court had exclusive jurisdiction to render would operate as res- judicata.

•      Thus, a Motor Accident Claims Tribunal in a claim petition filed under section 166 of the Motor Vehicles Act did not have jurisdiction to decide dispute regarding the grant of succession certificate. Therefore, such a decision would not operate as res-judicata.

C. Court of Concurrent Jurisdiction

•      Where the Court which decided the former suit was a court of concurrent jurisdiction having the competence to try the subsequent suit, then the decision given by it would operate as res-judicata in a subsequent suit. Concurrent Jurisdiction means concurrent as regards the pecuniary limit as well as the subject-matter of the suit. “ Competency” in Section 11 has no reference to the territorial jurisdiction of the court. [ Maqbul vs. Amir Hasan AIR 1916 PC 136]

When the First Court is a “Criminal Court” and the Second Court is a “ Civil Court” 

•      A Criminal proceedings is not a “suit” hence no finding of a criminal court can be res-judicata in a subsequent suit. Therefore, the finding of a criminal court that A assaulted or abducted B is not res-judicata in a suit for damages against A for assault or abduction; nor is an acquittal bar to a civil suit against the accused. A conviction by a criminal court is no bar in challenging the order in disciplinary proceedings before the civil court.

(V) Heard and Finally Decided

•      The last and fifth condition of res- judicata is that the matter directly and substantially in issue in the subsequent suit must have been heard and finally decided by a Court in the former suit.

•      In order that a matter may be said to have been heard and finally decided, the decision in the former suit must have been on merits even though the former suit was disposed of ex-parte, or dismissed for failure to produce evidence when sufficient time was allowed to do so.

•      But where a suit is dismissed as being premature or on the ground of a technical mistake i.e. improper valuation of the suit or for the want of a cause of action or for the want of jurisdiction or on the ground of limitation or for the default of plaintiff’s appearance or on the ground of non- joinder or misjoinder of parties etc. then the decision is no bar to the filing of a subsequent suit.

                                    Illustration

A, a partnership firm which was unregistered filed a suit against B for the recovery of a certain amount. As the partnership firm was not registered under the provisions of Indian Partnership Act 1932 so the Court dismissed the suit on the ground of non- maintainability. Thereafter the firm was got registered and the subsequent suit was filed on the same cause of action. The subsequent suit is not barred by res- judicata as the former suit was dismissed on technical ground and not on merits.

•      Necessity of decision : In order to operate as res-judicata, a finding of a Court must have been necessary for the determination of that former suit. If a finding is not necessary then it will not operate as res- judicata.

•      Here it is very important to note here that the applicability of the rule of res-judicata does not depend upon the correctness or the incorrectness of the former decision. Whether right or wrong the former decision is binding between the parties.

•      Res-judicata cannot be avoided on the ground that the earlier decision was wrong in law or on facts. However, a pure question of law unrelated to facts which gives rise to a right does not operate as res-judicata. A rule of procedure cannot supersede the law of the land.[ Mathura Prasad Vs. Dossibai AIR 1971 SC 2355]

 

Finding on more than One issue

When a finding is recorded by a Court on more than one issue, then the legal position is an under:-

(A) When Suit is dismissed: If the suit of the plaintiff is dismissed wholly, then no issue decided against the defendant can operate as res-judicata against the defendant in a subsequent suit, because he cannot appeal from a finding on any such issue, as the decree being wholly in his favour. But every issue which was decided against the plaintiff may operate as res-judicata against the plaintiff in a subsequent suit, because he can appeal from a finding on issue, the decree being against him.

(B) When the suit is decreed: If the suit of the plaintiff is wholly decreed, then no issue decided against him can operate as res-judicata as he cannot appeal from a finding on any such issue because the decree being wholly in his favour. But every issue decided against the defendant is res-judicata against him as he can appeal from a finding on such issue, the decree being against him.

(C) When the suit was partly decreed and partly dismissed : In this case the finding on any issue decided against the plaintiff or defendant will operate as res-judicata against the plaintiff or defendant respectively as both can make appeal in this case.

(D) Appeal against Finding: No appeal lies against a mere finding, for the simple reason is that CPC does not provide for filing of any such appeal.

Important Notes:

1. Where in the judgment and decree in the former suit it is stated that it is to be subject to a decision of a Higher Court, then the decision is not a final one.

2. Where the issue of res judicata was neither raised by the parties nor framed by the trail court, when the appellate court sue motu invoked and applies the principle of res-judicata, it was held as not proper and the court was found to have no jurisdiction to answer the issue of res-judicata, if it was not raised by the parties.

When Res Judicata shall not apply?

The doctrine of res-judicata shall have no application in the following cases:

1. When a decree is a nullity being passed by the court having no jurisdiction.

2. When the suit has been dismissed for non-prosecution.

3. When a fresh cause of action arises.

4. When the suit is withdrawn with the liberty to prosecute remedy before the other forum.

5. When no speaking judgment is passed.

6. Where proceedings are criminal in nature.

To Which proceedings Res-Judicata applies

The doctrine of res-judicata applies to all judicial proceedings whether civil or criminal includes quasi judicial proceedings of the tribunal.