Res Judicata and Code of Civil Procedure

Laws of every land are based on principles. These principles govern the entire realm of jurisprudence in a country. These principles guide legislation, give legitimacy to judicial decisions and protect the citizens of a nation. The judiciary incorporates these principles in deciding cases and ensures conformity by the legislature and executive to such principles.

Res judicata is one such principle, whose origin cannot be sufficiently traced. It is an all pervading concept present in all jurisdictions of the world. Res judicata is based on public policy and has universal application. India, has adopted the principle of res judicata in S.11 of the Code of Civil Procedure, 1908 (hereinafter referred to as “C.P.C.”).

Modern day society is filled with disputes and litigations. The courts are flooded with frivolous, slow and cumbersome cases. The embodiment of a principle like res judicata, is but one of necessity in our country. In order to bring finality to litigation and prevent a person from being dragged to court again and again, res judicata is essential in any society.

This paper essentially focuses on S.11 of the C.P.C. The scope of this project covers an overview of the doctrine of res judicata in general providing a background to this paper. This paper seeks to analyze theory of the doctrine and its application in the form of case laws. Chapter One deals with res judicata in general, seeking to provide the reader with a background of the doctrine in general. Chapter Two deals with the essentials for application of res judicata.

CHAPTER 1: WHAT IS RES JUDICATA?

“The principle of res judicata while founded on ancient precedent, is dictated by a wisdom which is for all time” [1]

-Sir Lawrence Jenkins

Res judicata is a judicial creation with roots in the Latin phrase “Res judicata pro veritate accipitur,” “a matter adjudged is taken for truth”. [2] Res judicata is, in both civil law and common law systems, a case in which there has been a final judgment and is no longer subject to appeal. The term is also used to refer to the doctrine meant to bar re-litigation of such cases between the same parties, which is different between the two legal systems. Once a final judgment has been handed down in a lawsuit, subsequent judges who are confronted with a suit that is identical to or substantially the same as the earlier one will apply the res judicata doctrine to preserve the effect of the first judgment. [3] The principle of res judicata is not the creature of any statute or the handiwork of any code of law. It is the gift of public policy. [4]

1.1 History of the Doctrine

The doctrine of res judicata, in its essence, has an ancient history, although it is difficult to say definitively whether or not the doctrine as it stands now was formulated before 1776. [5] Understood in the distant past by both Hindu lawyers and Muslim jurists, it was known to ancient Hindu Law as “Purva Nyaya” or “former judgement” [6] . Under Roman Law, it was recognised by the doctrine of exception rei judicatae which also meant “previous judgment”. Under English law, the principle is embodied in the maxim interest reipublicae ut sit finis litium, which means the interest of the State lies in that there should be a limitation to law suits. Now, all the countries of the Commonwealth and those of the European Continent accept that once a matter has been brought to trial once, it should not be tried again except by way of appeal. [7]

In order for the bar of res judicata to be applicable, it must be shown that the cause of action in both the suits is the same as well as that the plaintiff had an opportunity to get the relief that is now being claimed in the subsequent suit, in the former proceeding itself. [8] Res judicata bars the opening of final, un-appealed judgments on the merits, even where the judgment may have been wrong or based on a legal principal subsequently overruled. [9]

1.2 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. [10]

Essentially, the doctrine of res judicata in general is based on the three following maxims [11] :

1. nemo debet lis vexari pro una et eadem casua meaning that no man should be vexed twice for the same cause,
2. interest republicae ut sit finis litium or that it is in the interest of the State that there should be an end to litigation, and
3. res judicata pro veritate occipitur meaning that a judicial decision must be accepted as correct.

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. [12] The underlying purpose for this judicially created doctrine was to instill finality into litigation and to provide for sound economic use of judicial resources. [13]

1.3 Explanations I – VIII to Section 11, Code of Civil Procedure, 1908

Explanation I to S.11 states that res judicata depends upon the decision unlike S. 10, wherein res sub judice hinges upon the institution of a suit.

Explanation II to S. 11 lays down that the finality of such a decision does not depend upon the existence of a right to appeal. The decision is taken as final regardless of whether the right to appeal exists.

Explanation III deals with matters that are actually in issue, vis-à-vis constructively in issue (as in Explanation IV), inasmuch as there is a dispute, where one party alleges something and the other party either denies it or admits it.

Explanation IV embodies the doctrine of constructive res judicata.

Explanation V declares that if multiple reliefs are sought in the plaint, those which are not granted expressly by the Court are deemed to have been refused. So, if the Court does not make reference to some or any reliefs which are claimed, the law deems them to have been refused by the Court.

Explanation VI provides that if one or more persons file a suit on behalf of many others, who also have a right to file such a suit, then the decision in such a suit will be binding upon those who file the suit, as well as all those people on whose behalf such a suit is filed/who are represented by the persons who actually file the suit.

Explanation VII, as explained earlier, indicates that the doctrine of res judicata as provided for by S. 11 applies to execution proceedings as well. However, it is important to note that different petitions may be filed asking for different reliefs. E.g. While a civil arrest may be sought only once, attachment of property, immovable or movable, may be sought numerous times, since the defendant may acquire new property. Hence, res judicata will not apply, as in each case the property is different.

Explanation VIII declares that res judicata will apply to a subsequent suit even where the Court which decided the former suit is not competent to try the subsequent one, provided that it was competent to try the former suit, wherein the decision was given.

1.4 Applicability of Res judicata

Res judicata is a principle of universal application. It applies to civil suits, criminal proceedings, writ petitions, execution suits etc. This doctrine is however, neither applicable to summary dismissal nor to compromise and consent decrees. [14] The doctrine of res judicata is not confined to the limits prescribed in Section 11, Civil Procedure Code. The underlying principle of that doctrine is that there should be finality in litigation and that a person should not be vexed twice over in respect of the same matter. [15] The essential condition for the applicability is that the subsequent suit or proceeding is founded on the same cause of action on which the former suit was founded. [16] It is a debatable point whether the doctrine of res judicata should be interpreted liberally or strictly. However, keeping in view its basis and objective, which is based on public policy, it can be reasonably asserted that the doctrine of res judicata should be interpreted liberally. [17]

CHAPTER 2: ESSENTIALS OF RES JUDICATA

Res judicata has universal application. In jurisdictions world over the essentials of res judicata are that: once a court with competent personal and subject matter jurisdiction over the parties renders a final judgment, that judgment should conclude the matter between the parties. These principles provide the foundation for the doctrine of res judicata. As a general rule, in order for the doctrine of res judicata to apply to future litigation, four elements must be present. First, the court must have competent jurisdiction over both the subject matter in dispute and the parties involved in the litigation. Second, the judgment must have been “on the merits.” If the plaintiff received judgment in her favour, there is no question that the judgment was on the merits.  If the defendant received judgment in her favour, then the judgment “may or may not be upon the merits.”  As a general rule, when a plaintiff’s claim is dismissed based on procedure, the judgment is not on the merits.  However, if a court’s ruling in favour of a defendant was not based on procedural grounds, then the judgment will generally be on the merits. Third, the second case must be based on the same cause of action as the first action.  Finally, the parties in the second action must have been involved in the initial litigation. Moreover, when the doctrine of res judicata applies to a second suit involving the same parties and the same cause of action, the first judgment is conclusive not only on the matters that were “actually litigated, but on all matters which could have been litigated.”  Res judicata bars the opening of final, unappealed judgments on the merits, even where the judgment may have been wrong or based on a legal principal subsequently overruled.  The underlying purpose for this judicially created doctrine was to instill finality into litigation and to provide for sound economic use of judicial resources. [18]

Under the Code of Civil Procedure, 1908 the conditions for res judicata to apply are [19] :

• The matter which is directly and substantially in issue in the subsequent suit or issue must be the same matter which was directly and substantially in issue, either actually or constructively in the former suit. This applies to execution proceedings as well.
• It is necessary that the parties to the subsequent suit be the same parties as were in the former suit, or are parties who are claiming under the parties to the former suit.
• The parties should have been litigating under the same title, i.e. in the same capacity as the former suit.

In order for the bar of res judicata to apply to the subsequent suit, or the issues therein, the same (matters directly and substantially in issue) should have been heard and decided by a Court in the former suit. It is important to note that the Court which decided the former suit should have been competent to decide such former suit, and had done so on merits.

Earlier, it was required that the Court which decided the former suit must be competent to decide the subsequent suit as well. However, now, with the insertion of Explanation VIII into the section, such a requirement has been done away with.

2.1 Matter Directly and Substantially In Issue

The words in S.11 use the phrase “matter directly and substantially in issue”. Thus, for res judicata to operate the former suit and the subsequent suit should have matter which was “directly and substantially in issue”. [20]

The test to decide whether a matter was directly and substantially in issue in the earlier proceedings is to see if it was necessary for that issue to be decided in order for an adjudication upon the principal issue. However, every single issue framed is not a matter which is directly and substantially in issue. Thus, is becomes imperative to examine the plaint and the written statement to arrive at a conclusion as to which issues were directly and substantially in issue and which ones were merely incidentally or collaterally in issue. [21] Another manner in which such may be tested is by checking if decision on such an issue would materially affect the decision of the suit. [22]

Where there are findings on several issues or where the court rests its decision on more than one point, the findings on all the issues or points will be res judicata. [23] However, no objective test can be laid down to definitively determine which matters are directly and substantially in issue in every case and it depends on the facts and circumstances of each case.

2.2 Former Suit

The most important condition that needs to be satisfied is that the matter in issue in the subsequent suit was in issue, directly and substantially, in a former suit. The general and ordinary meaning of “suit” is a proceeding which is commenced by presentation of a plaint. [24] Ordinarily, and in more specific terms, a “suit” is a civil proceeding that is instituted by the presentation of a plaint. [25] The expression “former suit” denotes a suit that has been decided earlier in time than the suit in question, i.e. the subsequent suit, regardless of whether such a suit which was decided earlier was instituted subsequently to the suit in question or not. If two suits are instituted one after the other, and both relate to the same question in controversy, the bar of res judicata will apply even in cases where the subsequently instituted suit is decided first. [26]

2.3 Suit Between Same Parties

A ‘party’ is a person whose name appears on the record at the time of the decision. A party may be the plaintiff or defendant. The condition recognizes the general principle of law that judgments and decrees bind the parties and privies. [27] Once the matter is heard and decided in one suit, the same cannot be agitated again by the same parties, their legal representatives or successors. Res judicata binds in a subsequent suit, the same parties to the former suit, the legal representatives of such parties or anyone claiming under such parties. Further, even if a subsequent suit is brought about in a different form or under a different guise, but seeking to agitate the same matter as was decided in the former suit, it will be barred by res judicata. E.g. A sues B for breach of contract. A’s suit is dismissed. A cannot file a fresh suit against B for claiming damages.

Res judicata also operates between co-plaintiffs and co-defendants. In case of co-plaintiffs, it must be necessary that there is a conflict between the plaintiffs which must be resolved in order to give relief to the defendant, and such a matter is decided by the Court and the parties were necessary or proper parties in the former suit. If it is so decided, the decision will operate as res judicata between the co plaintiffs in a subsequent suit. [28]

Iftikhar Ahmed v. Syed Meherban Ali [29]

There was a dispute as to title to some land. The appellant sought to challenge the decision of the High Court, which was to the effect that the respondents also had some title to the land in question. Initially, the dispute between the parties was referred to an arbitrator by the Civil Judge. The holding of the arbitrator was that that the respondents had no title and sole title belonged to the appellant. The decision of the arbitrator was based upon a judgment of the High Court in an earlier judgement, wherein both the present appellant and respondents were co-plaintiffs in a suit against another person, again in respect of title to the land. Such a decision of the High Court was considered by the arbitrator to operate as res judicata, and hence held in favour of the appellants.

The respondents then filed objections against the decision of the arbitrator with the Civil Judge, Meerut, and the Civil Judge said that the decision of the High Court did not operate as res judicata and since the decision of the arbitrator, dependent as it was on the decision of the High Court as res judicata, was manifestly wrong and vitiated by error of law. An order for fresh arbitration was passed.

The appellants then filed objections before the Civil Judge who did not find anything manifestly wrong on the face of the record and confirmed the decision of the arbitrator. The appellants preferred an appeal to the District Court, which allowed it, opining that the decision of the High Court did constitute res judicata and hence ordered a fresh arbitration. The respondents then filed a revision petition in the High Court, and the High Court confirmed the decision of the Civil Judge, reversing the decision of the District Court.

The matter then came up before the Supreme Court a Special Leave Petition. The Supreme Court considered the matter, and considered the question of whether the respondents, who had had failed previously to establish title to the properties, could agitate the matter again. In doing so, the Court also explained the concept of res judicata between defendants and reiterated the established rule that in order that such a principle may be invoked, the following conditions must be met:

1) there was a conflict of interest between co-defendants;

(2) that it was necessary to decide the conflict in order to give the relief which the plaintiff claimed in the suit;

(3) and that the court actually decided the question.

The Court then went on to say that if all these conditions were satisfied mutatis mutandis, there was no reason why the previous decision should not operate as res judicata between co-plaintiffs as well. On this reasoning, the Court agreed with the holding of the earlier arbitrator and contention of the appellants that the earlier decision of the High Court did operate as res judicata, since all the three conditions had been met mutatis mutandis between the co-plaintiffs in the earlier case, and accordingly allowed the appeal.

It is also important to mention that the parties in the subsequent suit, though they may be the same, must additionally be litigating in the same capacity as they were in the former suit.

2.4 Matter To Be Decided By A Competent Court

It is essentially for res judicata to operate against the subsequent, that the former suit should have been decided by 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”. [30] Before Explanation VIII was added to S. 11, the position was that the Court which decided the former suit must have been competent to decide the subsequent suit as well, and if it was not, then res judicata would not apply. However, with the insertion of Explanation VIII, even if the Court which decided the former suit is not competent to decide the subsequent suit, res judicata will still be applicable provided that the former suit was decided by a competent Court.

The current position of law is that even if the Court that decided the former suit is not competent to decide the subsequent one, and yet there are some common issues which arise in the subsequent suit, which the Court (being competent to do so), decided in the former suit, the doctrine of res judicata will operate against such issues, and the Court deciding the subsequent suit will not decide upon these issues.

This may arise in the case of pecuniary jurisdiction, the Court which decided the first suit cannot decide the second one, but the second suit does have certain issues which were decided in the former suit (and competently so). In such a case, the second court shall not decide those issues that were decided by the first court in the former suit. In such a case, res judicata will apply not to the subsequent suit, but to those issues therein which were decided in the former suit.

2.5 The Matter Should Be Heard and Finally Decided

For res judicata to be applied, it is necessary that that the matter should have been heard and finally decided in the former suit, and whether such decision be right or wrong is of consequence. [31] If an opinion is expressed on issues not material to the decision, then res judicata will not apply. [32] The matters which are directly and substantially in issue in the subsequent suit must have been heard by the Court in the former suit and a final decision on the same must have been delivered. In such cases, res judicata will apply to the subsequent suit. Such a provision also applies to former suits that were disposed of ex parte, provided that notifications were suitably issued to the party in question. But if a suit is dismissed on a technical ground, such a non-joinder of necessary party, it would not operate as res judicata. [33]

2.6 Res judicata v. Res Sub Judice

Often people confuse the concepts of res sub judice and res judicata. Res sub judice is discussed in S. 10 and applies to a the date of institution of suit. It is matter pending judicial enquiry. S. 11 of the CPC and is a matter adjudicated upon and applies to the date of adjudication.

Res sub judice stays the latter suit instituted in court which has the same matter directly and substantially in issue in the previous suit. Res judicata bars the trial of a suit in which the matter directly and substantially in issue has already been adjudicated upon in a previous suit. [34]

2.7 Res judicata And Writ Petitions

It was debatable whether the term ‘suit’ would include writs and whether the principle of res judicata would apply to writ petitions.

Daryao v. State of U.P [35]

Six writ petitions were presented before the Supreme Court entertaining this question. One of the writ petitions was examined in detail by the court.

Facts – The relevant facts are that the petitioners were tenants in the lands of which the respondents were proprietors. The petitioners had to leave the lands for some period owing to communal disturbances. When the petitioners returned, they found that the respondents were in unlawful possession of the land. The petitioners then filed ejectment suits under S. 180 of the U.P. Tenancy Act, 1939, and obtained a decree in their favour, which was confirmed in appeal, and thereby obtained possession of the said lands through Court.

The respondents preferred a second appeal before the Board of Revenue under S. 267 of the Act of 1939, wherein the Board allowed the appeal and held that the respondents were entitled to the possession of the lands in question.

High Court: The petitioners filed a writ petition under A. 226 before the High Court. However, before the petition was filed, the Allahabad High Court had interpreted a particular section of the U.P. Land Reforms Act, and such an interpretation was against the interests of the petitioners. Hence, in consequence of such interpretation, the petitioners could not press their petition, and it was consequently was dismissed. The same section of the said Act was later amended, in consequence of which the petitioners approached the Supreme Court via writ petition under A. 32.

The question that arose for consideration was that since the grounds were same as those raised before the Allahabad High Court, was the writ petition was hit by res judicata? The petitioners placed reliance on the supremacy of A. 32 and it being above all other rights. They emphasized that a fundamental right cannot be whittled down by a technical rule of the C.P.C. as the Constitution is supreme.

Suprme Court: The Supreme Court was not impressed with the arguments of the petitioners. The court held that the rule of res judicata as embodied in S. 11 of the Code did have some technical aspects, but was by and large based on high public policy that there should be a finality to litigation, and was also based upon the notion that no person should be vexed twice for the same cause. Due to the doctrine being based on these considerations it couldn’t be treated as irrelevant or inadmissible even where writ petitions dealing with fundamental rights were concerned.

The other contention of the petitioners was that High Court and Supreme Court cannot be said to be courts of competent jurisdiction as they are different. This contention was also negated by the court and it held that the jurisdictions of the High Court under A. 226 and the Supreme Court under A. 32 were substantially the same, and even on that count, the application of res judicata couldn’t be barred. Based on these reasons, the Supreme Court dismissed the writ petitions as being barred by res judicata arising from the pervious decision of the High Court and laid down the rule that –

“We hold that if a writ petition filed by a party under Art. 226 is considered on the merits as a contested matter, and is dismissed the decision thus pronounced would continue to bind the parties unless it is otherwise modified or reversed by appeal or other appropriate proceedings permissible under the Constitution. It would not be open to a party to ignore the said judgment and move this Court under Art. 32 by an original petition made on the same facts and for obtaining the same or similar orders or writs. If the petition filed in the High Court under Art. 226 is dismissed not on the merits but because of the laches of the party applying for the writ or because it is held that the party had an alternative remedy available to it, then the dismissal of the writ petition would not constitute a bar to a subsequent petition under Art. 32 except in cases where and if the facts thus found by the High Court may themselves be relevant even under Art. 32.”

However, this view of the Supreme Court has been criticized by some jurists. They have argued that the judiciary has reduced the fundamental fight in Article 32 as one subject to the principle of res judicata and even laches, forgetting that there is no great fundamental principle than the right guaranteed in moving the court under Article 32. Article 32 is silent as to res judicata and limitation but judicial legislation has introduced these needless aspects into writ jurisprudence. [36]

It is submitted that the researcher agrees with the view of the Supreme Court. There has to be finality to litigation. Keeping in view the slow process of judicial remedy and frivolous litigation in our society, it is rather imperative that the principle of res judicata be given as liberal an interpretation and its scope should not be curtailed.