Scope of Res Judicata

  • Sec. 11, C.P.C. codifies the doctrine of res judicata, but it is not exhaustive. Apart from codified law, the doctrine of res judicata has long been used by courts in a variety of other types of cases and situations, including the rule of constructive res judicata. The courts’ implementation of the rule is influenced by matters of substance within the legal bounds, not by technical considerations of form. When Sec. 11 was unavailable, the usual principles of res judicata might be used.
  • A verdict that is the subject of an appeal cannot be res judicata. The finality of the decree was modified by the appeal, and the decree was not final in the sense that it formed res judicata between the same parties.
  • The principle of res judicata also applies between “stages in the same lawsuit,” in the sense that a court that has determined a subject in one way at an earlier stage will not enable the parties to reagitate the issue at a later level of the same proceedings. Thus, orders regarding maintainability of a suit, jurisdiction of court, etc.cannot be reopened in the same proceedings.
  • An ex parte decree will operate as res judicata if the court has brought to bear its mind on the issue, and if a party, in spite of service of notice on him, did not put in his appearance to contest the suit or appeal (Nathai v Joint Dir. of Consolidation, 1984 All, L.J. 324).
  • Sec. 11 does not apply literally in “compromise decrees” because it only relates to what has been heard and decided by the court. However, such a consent/compromise decree is effective with reference to the decision reached, provided that the court comes to the unambiguous decision that the parties intended for the consent decree to have the effect of determining the question finally.
  • A mere opinion of the court on a matter not necessary for the judgement of the case and not arising out of the questions before it is an obiterdictum and cannot be construed as a decision on any issue, and thus is not res judicata. (Narinder Singh v Khaliq-ur-Rahman AIR1974 Del 184). The decision itself, not the grounds, serves as res judicata.
  • The rule of res judicata applies to ‘execution proceedings’ (ExplanationVII). Res judicata also applies to ‘orders’ (orders are also passed after hearing the parties and can be final in those proceedings in which they are passed). Sec. 11 applies to probate proceedings, interlocutory orders in the same litigation, insolvency processes, and applications to amend a decree after the matter has been heard and decided. However, res judicata does not apply to ‘summary proceedings’.
  • Sec. 11 pertains to current and former suits and has no direct relation to a petition for a writ of habeas corpus. However, in circumstances of renewed writ applications, the broad rules of res judicata have been applied. The High Court’s ruling on the merits of a writ petition filed under Art. 226 of the Constitution on an issue after a contest would serve as res judicata in the same case. However, if such a petition is not decided on the merits (dismissed in limine -summary dismissal) but also because of the party’s laches, applying for the writ or because it is determined that the party had an alternative remedy available to it, the dismissal of the writ petition (under Art. 226) would not bar a subsequent petition under Art. 32 in Supreme Court (Daryao v State of U.P. AIR1961 SC 1457). The doctrine would applicable to Public Interest Litigation (PIL) if the case was genuine. [Forward Construction Co. v Prabhat Mandal (Regd.) AIR 1986 SC 391].
  • It there is a change in law either by amendment of the statute by the Legislature or by a judicial decision(of the Supreme Court), the previous decision between the parties will not operate as res judicata on the same question (Smt. LilawatiDatta v Karol Bagh Union Club, Delhi, AIR 1981 NOC 211 Del.).But courts of law cannot alter the rights of parties.
  • The principle of res judicata will not apply when the earlier decision is opposed to the provisions of a statute viz.declares valid a transaction which is prohibited by law. The rule of res judicata, on the other hand, is unaffected by a superior court’s subsequent opposing decision in another case. Even if a decision is later found to be incorrect by a higher court, it is nevertheless binding between the parties and has the same legal impact whether the rationale for the decision was sound or not. (State of W.B.v Hemant Kumar AIR 1966 SC 1601; Mahalingeshwara Devaru v Seetharama Bhatta AIR 1978 Kant 213).
  • When two competent courts issue competing decrees on the same subject, the rule of res judicata applies to the second decree that is in conflict with the earlier decree. The subsequent decree will be a nullity.
  • Res judicata is a defence that does not impact the court’s jurisdiction. A party may waive this plea in bar. If a party fails to use the res judicata defence, the case will be considered a matter obviously and substantially in question, and a decision will be rendered against him. (Mulla, Code of Civil Procedure, 14th Ed., Vol.I, p. 164). If a party without raising a plea of res judicata allows the court to decide the question afresh, it is not open to the parties to the subsequent decision to challenge the decision in other independent proceedings as passed without jurisdiction (KochuPennu v KalyambiNanan AIR 1985 Ker 66). The court may refuse to consider the issue of res judicata because it was not adequately mentioned in the proceedings or in the issues. (LIC v India Automobiles AIR1991 SC 884).
  • The provisions of Sec. 11 are mandatory and the ordinary litigant can only avoid it when the earlier judgment obtained by fraud or collusion, or when the earlier judgment was byan incompetent court. A void decree cannot operate as res judicata.
  • If the plaintiff’s complaint is dismissed entirely, no issue decided against him can be used as res judicata against him in a subsequent suit, because he cannot appeal from a finding on any such issue, because the decree is entirely in his favour. But, if the plaintiff’s suitis wholly decreed, no issue decided against him can operate as res judicata for he cannot appeal from a finding on any such issue, the decree being wholly in his favour.Thus, it is the ‘right of appeal’ which indicates whether the finding was necessary or merely incidental, so that the rule of res judicata can come into operation.
  • A pro forma defendant is a defendant in a lawsuit against whom no relief is sought. A person can be joined to a suit in order to get a complete and final answer to the question. A finding does not serve as res judicata in a subsequent suit against him since no relief is sought. However, if other conditions of Sec. 11 are satisfied, the bar of res judicata may apply.


*Dr. Deepak Miglani, Email id.:- [email protected]

Leave a Comment