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:
