Section
11
of the Code of Civil Procedure, 1908 (“Code”) restricts a court from trying “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”. The section
enunciates the principle of res judicata,
an essential condition of which is that there must be a formal adjudication
between the parties after full hearing; that is, the matter must be finally
decided between the parties.[1] The
question of res judicata has got to
be decided with reference to the final decision in the earlier litigation
because the words in para 1 of Section 11 of the Code are that the matter
directly and substantially in issue in the second suit has been directly and
substantially in issue in a former suit and “has been heard and finally
decided”.[2]In Syed Mohd. Salie Labbai v. Mohd. Hanifa,[3]
the Supreme Court of India (“Supreme Court”) had laid down the following
conditions to prove res judicata:
“(1)
that the litigating parties must be the same;
(2)
that the subject-matter of the suit also must be identical;
(3)
that the matter must be finally decided between the parties; and
(4)
that the suit must be decided by a court of competent jurisdiction.”
The principle is based on two maxims derived from Roman
jurisprudence: firstly, interest
reipublicae ut sit finis litium — it concerns the State that there be an
end to law suits; and, secondly, nemo
debet bis vexari pro una et eadem cause — no man should be vexed twice over
for the same cause.[4]
In other words, the principle of res
judicata is based on the need of giving finality to judicial decisions.[5]As
the doctrine of res judicata (which
is a branch of the law of estoppels) is based on public policy and justice,
section 11 of the Code is not exhaustive of it. The reason for the specific
provisions of Section 11 is not that the legislature intended to bar the
application of the general principles of res
judicata to suits when the ‘previous decision’ is arrived at in
proceedings other than suits.[6]Hence,
in Gulabchand Chhotalal Parikh v. State
of Gujarat (Constitutional Bench),[7]
while opining that the decision of a High Court in a writ petition on the
merits on a matter would operate as res
judicata in a subsequent suit, the Supreme Court held that:
“61. We
do not see any good reason to preclude such decisions on matters in controversy
in writ proceedings under Articles 226 or 32 of the Constitution from operating
as res judicata in subsequent regular suits on the same matters in controversy
between the same parties and thus to give limited effect to the principle of
the finality of decisions after full contest. We therefore hold that, on the
general principle of res judicata, the decision of the High Court on a writ
petition under Article 226 on the merits on a matter after contest will operate
as res judicata in a subsequent regular suit between the same parties with
respect to the same matter.”
The doctrine of res
judicata is a doctrine of wide import and it may apply apart from the
limited provisions of the Code of Civil Procedure.[8] It
is in the interest of the public at large that finality should attach to the
binding decisions pronounced by Courts of competent jurisdiction, and it is
also in the public interest that individuals should not be vexed twice over
with the same kind of litigation. If these two principles form the foundation
of the general rule of res judicata,
they cannot be treated as irrelevant or inadmissible even in dealing with
fundamental rights in petitions filed under Article 32.[9] Apart
from the codified law, the doctrine of res
judicata or the principle of res
judicata has been applied since long in various other kinds of proceedings
and situations by courts in England, India and other countries.[10]
Section 11 of the Code engrafts some limitations on the
general rule of res judicata.
Explaining the limitations, the Supreme Court, in Shyam Behari Lal v. Lala Jageshwar Prasad,[11]
opined that:
“5. The
plea of res judicata on general principle can be successfully taken in respect
of judgments of courts of exclusive jurisdiction. Courts of exclusive jurisdiction
are those which have been conferred exclusive powers to decide certain matters
like revenue courts, land acquisition courts, probate courts, etc. It is
obvious that these courts are not entitled to try regular suits. When the plea
of res judicata is founded on general principles of law all that is necessary
to establish is that the court that heard and decided the former case was a
court of competent jurisdiction. It does not seem necessary in such cases to
further prove they have jurisdiction to hear the latter suit. But if the plea
of res judicata is raised under Section 11 of the Code of Civil Procedure one
of the essential conditions to be satisfied is regarding the competency of the
former court to try the subsequent suit. That is one of the limitations
engrafted on the general rule of res judicata by Section 11 of the Code of
Civil Procedure and has application to suits alone.”
It is the decision on an issue, and not a mere finding on
any incidental question to reach such decision, which operates as res judicata.[12]
That is, what becomes res judicata is
the “matter” which is actually decided and not the reason which leads the court
to decide the “matter”.[13] The
expression of opinion on the question, which was not at issue, cannot operate
as res judicata[14]The
best method to decide the question of res
judicata is first to determine the case of the parties as put forward in
their respective pleadings of their previous suits, and then to find out as to
what had been decided by the judgments which operate as res judicata.[15]
The principle of estoppel or res judicata
does not apply where to give effect to them would be to counter some statutory
direction or prohibition.[16]
If a court lacks inherent jurisdiction, its judgment would
be a nullity and, thus, the principle of res
judicata which is in the domain of procedure will have no application.[17] The
condition regarding the competency of the former court to try the subsequent suit
is one of the limitations engrafted on the general rule of res judicata by Section 11 of the Code and has application to suits
alone.[18] Res judicata is a mixed question of law
and fact,[19]
and has no application in a criminal proceeding.[20]
A question of law which does not require a fresh
investigation into facts may be allowed to be raised at a later stage of a
proceeding but, that is subject to the qualification that the question is not
concluded by a decision between the same parties.[21]Where
there is some change in circumstances, the rule would not be applicable. Hence,
where defendant’s interest in the disputed plot has changed, the rule may not
apply.[22]
Dismissal of a suit for want of default would not act as res judicata in a subsequent suit on the
same cause of action.[23]
It is because, in such a situation, the case is not heard and finally decided.
The principle underlying res judicata
is equally applicable to the case of decisions rendered at successive stages of
the same suit or proceeding.[24]
If the principle of res judicata is
applicable to the decision on a particular issue of fact, even if fresh facts
were placed before the Court, the bar would continue to operate and preclude a
fresh investigation of the issue.[25] The
direction in the preliminary decree cannot operate, in terms of Section 11 CPC
or on general principles, as res judicata
for the simple reason that the direction is not based on the decision of
any matter in controversy between the parties and is given in the exercise of
the power vested in the court under Order 20 Rule 12(1)(c) of the Code.[26]
The principle is equally applicable in proceedings before
administrative authorities.[27] It
is also applicable where adjudication is done by a Tribunal on merits.[28] Even
where Section 11 does not apply, the principle of res judicata has been applied by courts for the purpose of
achieving finality in litigation.[29]However,
where a suit is concerned, res judicata
can be claimed only under § 11 and not otherwise.[30] The
principle of precedent is distinct from the principle of res judicata. A precedent operates to bind in similar situations in
a distinct case. Res judicata operates
to bind parties to proceedings for no other reason, but that there should be an
end to litigation.[31]
Section 11 of the Code is, no doubt, in terms inapplicable
to an industrial dispute, but the principle underlying it, expressed in the
maxim “interest rei publicae ut sit finis
litium”, is founded on sound public policy and is of universal application.[32] Similarly,
the principle of res judicata, or for
that the principles of constructive res
judicata, apply to arbitration proceedings.[33] The
decision in a title suit would act as res
judicata against co-owners.[34] However,
a claim proceeding under Rule 58 of the Code is not a suit or a proceeding
analogous to a suit. An order in the claim proceeding does not operate as res judicata.[35] In
the same manner, the dismissal of special leave petition in limine without
assigning reasons does not operate as res
judicata.[36]When
a decision is taken in appeal the rule is that it is the appellate decision and
not the decision of the trial court that operates as res judicata.[37]
Explanation VIII to Section 11 enlarges the field of res judicata, by including in its field
the decisions on the same issue, between the same parties even by a court of
limited jurisdiction even though such court may not have the competence of
deciding such an issue in a suit.[38]Also,
a consent decree does not operate as res
judicata, because a consent decree is merely the record of a contract
between the parties to a suit, to which is superadded
the seal of the Court. A matter in contest in a suit may operate as res
judicata only if there is adjudication by the Court.[39]
Another rule under section 11 of the Code is that of
‘constructive res judicata’. The
rule of constructive res judicata
is engrafted in Explanation IV of Section 11 of the Code of Civil Procedure. When
any matter which might and ought to have been made a ground of defence or
attack in a former proceeding but was not so made, then such a matter in the
eye of law, to avoid multiplicity of litigation and to bring about finality in
it is deemed to have been constructively in issue and, therefore, is taken as
decided.[40]
Explanation IV to Section 11 of the Code of Civil Procedure would come into
play only if some decision had been finally given before the second application
was filed. In that event it could have been urged that all available points
should have been urged before that decision was given.[41] The
principles of constructive res judicata
will be applicable even in execution proceedings.[42]
[4] Narayana Prabhu Venkateswara Prabhu v.
Narayana Prabhu Krishna Prabhu, (1977) 2 SCC 181, 186; See also Sri Bhavanarayanaswamivari Temple
v. Vadapalli Venkata Bhavanarayanacharyulu, (1970) 1 SCC 673, 676; Madhvi
Amma Bhawani Amma v. Kunjikutty Pillai Meenakshi Pillai, (2000) 6 SCC
301, 306
[6] Gulabchand Chhotalal Parikh v. State of
Gujarat, AIR 1965 SC 1153; See
also Union of India v. Nanak Singh, AIR 1968 SC 1370; G.K.
Dudani v. S.D. Sharma, 1986 Supp SCC 239, 251
[12] Pawan Kumar Gupta v. Rochiram Nagdeo,
(1999) 4 SCC 243, 249; Mahila Bajrangi v. Badribai, (2003)
2 SCC 464, 469
[13] Mysore State Electricity Board v. Bangalore
Woollen, Cotton, and Silk Mills Ltd., 1963 Supp (2) SCR 127:AIR 1963 SC
1128; See also Ganpat Singh v. Kailash Shankar, (1987) 3 SCC 146, 155 (res judicata would be applicable where
second application for setting aside sale is made, without order w.r.t first
application being set aside)
[16] Allahabad Development Authority v.
Nasiruzzaman, (1996) 6 SCC 424, 427; P.G. Eshwarappa v. M. Rudrappa,
(1996) 6 SCC 96, 99
[17] Swamy Atmananda v. Sri Ramakrishna Tapovanam,
(2005) 10 SCC 51, 64; P. Dasa Muni Reddy v. P. Appa Rao,
(1974) 2 SCC 725, 728; State of J&K v. Sanahullah Mir,
(1980) 3 SCC 272, 277
[24] Arjun Singh v. Mohindra Kumar, AIR
1964 SC 993; U.P. SRTC v. State of U.P., (2005) 1 SCC 444, 454; Y.B.
Patil v. Y.L. Patil, (1976) 4 SCC 66, 68; Chhabil Das v. Pappu,
(2006) 12 SCC 41, 44
[31] Makhija Construction & Engg. (P) Ltd. v.
Indore Development Authority, (2005) 6 SCC 304, 310; See also Sahu Madho Das v. Mukand Ram, AIR 1955 SC 481
[40] Workmen v. Board of Trustees, Cochin Port
Trust, (1978) 3 SCC 119, 124; Vijayabai v. Shriram Tukaram, (1999)
1 SCC 693, 701; Alka Gupta v. Narender Kumar Gupta, (2010) 10 SCC 141, 150
[42] Kamlabai v. Mangilal Dulichand Mantri,
(1987) 4 SCC 585, 600; Mohanlal Goenka v. Benoy Kishna
Mukherjee, AIR 1953 SC 65; Kani Ram v. Kazani, (1972) 2 SCC
192, 193; See also Maqbool Alam Khan v. Khodaija, AIR 1966 SC 1194 (The principle of res judicata applies to
execution proceedings)
No comments :
Post a Comment