Principles of Res judicata
Section 11 C.P.C. contains the principles of res judicata or the rule of collusiveness of 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. Section 11 provides that once the matter is finally decided by a competent court, no party can be permitted to re-open it in subsequent litigation. In the absence of such rule there will be no end to litigation and the parties would be put to constant trouble, harassment and expenses. This doctrine has been accepted in all civilized legal systems.
Definition Section 11 C.P.C.
Section 11 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 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 a suit in question whether or not it was instituted prior thereto.
Explanation II.– For the purposes of this section, the competence of a Court shall be determined irrespective of any provisions 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 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 purposes 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 the 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.
Basis of Doctrine of Res judicata
Doctrine of Res-judicata is based upon the following three maxims
(i) Interest Republicae est sit fines litium– It is the interest of State that litigation should not be protracted but finished.
(ii) Nemo debt vis vexari pro una et eadem causa-No man ought to be vexed twice for one and the same cause.
(iii) Res judicata pro verita selipoter– A judicial decision must be accepted as correct.
Is Section 11 Exhaustive in this matter?
It is well established that the doctrine of res-judicata codified in Section 11 C.P.C. is not exhaustive. Section 11 applies only to civil suits. But apart from the letter of the law, the doctrine has been extended and applied since long in various other kinds of proceedings and situations by courts in England, India and other Countries.
In Lal Chand Vs. Radha Kishan, (1977) Chandrachud, J. (as he then was) observed “The fact that S. 11 of Code of Civil Procedure cannot apply on its terms, the earlier proceeding before the competent authority not being a suit, is no answer to the extension of the principle underlying that section to the instant case, S. 11, it is long since settled, is not exhaustive and the principle which motivates that section can be extended to cases which do not fall strictly within the letter of the law. The principle of res-judicata is conceived in the larger public interest which requires that all litigation must, sooner than later, come to an end”.
Essential Conditions of Res-judicata
In order to constitute a matter res-judicata, the following conditions must be fulfilled-
1. Matter in issue
The matter 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 former suit. Explanation III and IV of S. II are to be read with this condition.
It is not enough to constitute a matter res-judicata that it was in issue in the former suit. It is further necessary that it must have been in issue “directly and substantially”. And a matter cannot be said to have been “directly and substantially” in issue’ in a suit unless it was alleged by one party and denied or admitted either expressly or by necessary implication by other.
2. Same Parties
The former suit must have been a suit between the same parties or between parties under whom they or any of them claim. Explanation VI of S. II is to be read with this condition.
3. Same Title
The parties as aforesaid must have litigated under the same title in the former suit.
4. Competent Court
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. Explanation II of this section is to be read with this condition. The Supreme Court has held that in order to determine whether a Court which decided the former suit had jurisdiction to try the subsequent suit, regard must be had to the jurisdiction of the Court at the date of the former suit and not to its jurisdiction, at the date of the subsequent suit.
5. Heard and Finally Decided
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. Explanation V of the section is to be read with this condition.
Matters Actually in Issue and Matters Collaterally and Incidentally in Issue
A matter in issue between the parties is the right claimed by one party and denied by the other. In order to constitute a matter res-judicata, it is necessary that it was in issue in the former suit directly and substantially. The expression “former suit” accordings to Explanation 1 of S. 11 makes it clear that, if a decision is given before the institution of the proceeding which is sought to be barred by res- judicata and that decision is allowed to become final or becomes final by operation of law, a bar of res-judicata would emerge. According to Explanation III a matter is said to be ‘directly’ in issue only in a suit if it was alleged by one party and denied or admitted either expressly or impliedly by the other party. The mere fact that it was alleged by one party is not sufficient. In order to constitute a matter “directly and substantially in issue” it is not necessary that a distinct issue should have been raised upon it: the matter ought to have been in issue in substance.
A collateral or incidental issue is one that is “ancillary to a direct substantive issue; the former is an auxiliary issue, the latter the principal issue. A finding of an issue must be distinguished from an opinion as to the effect of a piece of evidence.
For the applicability of the principle or res-judicata it is not necessary that the subject-matter of both the suits should be the same; but that the matter in question is directly and substantially in issue in both the suits. It is wholly immaterial if the two suits do not tally. A matter will be held to be directly and substantially in issue if the Court considers the adjudication of issue to be material and essential for its decision.
Where first suit before the Small Causes Court on the ground that defendant was a tenant was withdrawn the second suit is civil such against the same defendant on the ground that the defendant never acquired the status of tenant but was mere licensee which has been terminated, is not barred by res-judicata as the question raised was never decided in the former suit.
Doctrine of Constructive Res judicata
Matter Directly and Substantially in Issue “Constructively”-Explanation IV- (Constructive Res-judicata):
‘Might’ or ‘Ought’
Any matter which might and ought to have been made a ground of attack or defence in the former suit shall be deemed to have been “directly and substantially in issue” in that suit (Explanation IV). This is known as constructive res-judicata. A matter which might or ought to have been made a ground of attack or defence is a matter whith is constructively in issue i.e., though it is not actually in issue directly and substantially it will be deemed to be constructively in issue directly and substantially. This action makes no difference between the claim that was actually made in a suit and the claim, that might and ought to have been made if the parties had opportunity of controverting it, that is, the same thing as if the matter had been actually controverts and decided. This rule of constructive res-judicata is contained in Explanation IV of S. 11. An adjudication is conclusive and final not only as to the actual matter determined but as to every other matter which the parties might have litigated and had been decided as incident to, or essentially connected with the legitimate purview of the original action both in respect of matters of claim or defence.
The plea of res-judicata applies, except in special cases, not only to points on which the Court was actually required by the parties to form an opinion and to pronounce judgment, but to every point which properly belonged to the subject of the litigation and which the parties exercising reasonable diligence might have brought forward at the time. It is not enough that the matter was alleged by one party. At the same time it is not necessary to constitute a matter, “directly and substantially in issue” that a distinct issue should have been raised upon it, it is enough if the matter was in issue in substance.
If a plea could have been raised by a party in proceeding between him and his opponent he should not be permitted to take that plea, in a subsequent proceedings with reference to the same matter. For Example; A filed a suit for a declaration that he was entitled to certain lands as heir to X. The suit was dismissed.
Then he sued for an injunction alleging that he had been in possession for over the statutory period and had thereby acquired title by adverse possession. The title was available to him even at the time of the previous suit. The later suit is barred by res-judicata.
Objects of Res-Judicata
There are following three main objects of res-judicata-
1. End of Litigation-It is in the interest of state that the litigation should not be protracted but finished.
2. Protection Against Double Zeopardy-No one should be vexed twice for one and the same cause.
3. Decision of Court must be Accepted as Correct and Final-It is in the interest of individual, state and the courts that the decision of the competent court must be accepted as correct and final.
Does Res-Judicata Apply to Execution Proceedings?
Explanation VII specifically enacts that the rule of res-judicata applies to execution proceedings. Even before this explanation was added that was the position. After this addition the irrefutable position is that S 11. C.P.C. applies with full vigour to execution proceedings also, Bhaskar Traders vs. M. Kunhiraman, A.1.R-. 1988 Ker. 227. Similarly, the principle of constructive res-judicata is also applicable to execution proceedings and was held so applicable even before said Explanation was inserted in 1976: Arjun Singh Vs. Mohindra Kumar, A-I.R. 1964 SC 993; CHohaniaJ vs Krishna, AIR 1953 SC 65.
Distinction between Res Judicata and Estoppel:
|Res-judicata results from the decision of a court
|Estoppel results from the act of a party.
|The rule of res-judicata proceeds on the ground of public policy, i.e., there should be an end to litigation
|The rule of estoppel proceeds upon the doctrine of equity i.e., that one who by his conduct has induced another to alter his position to his disadvantage can not be allowed to turn round and
take advantage to such alteration in others position.
|Res-judicata prevents a man from agitating the same thing in successive litigations.
|Estoppel prevents a man from saying one thing at one time and opposite thing at another time.
|Res-judicata ousts the jurisdiction of the court to try the case.
|Estoppel shuts the mouth of a party, being a rule of evidence U/ S. 115 of evidence Act.
|Res-judicata binds both the parties to the litigation.
|Estoppel bind only that party who made the previous statement
Distinction between Res judicata and Res sub judice
|Res sub judice
|Res-judicata to a matter already adjudicated upon (res-judicatum)
|Res-sub-judice relates to a matter pending judicial inquiry or trial(sub-judice)
|Section 11 bars the trial of a suit or issue in which the matter directly or substantially in issue has already been adjudicated upon in a previous suit.
|Section 10 bars the trial of a suit in which the matter directly and substantially in issue is pending adjudication in a previously instituted suit.
Whether doctrine of Res-judicata is applicable to Proforma defendants?
The rule of res judicata applies to proforma defendant also, unless the plaintiff has conveyed to the defendant that no relief would be claimed against him.
A and B sue C. A. dies pendents life, and his son D is brought on the record as a proforma defendant. On his refusal to join as plaintiff, case is decided in Cs favour. Matter is not res judicata between C and D. D was a proforma defendant only.