RES JUDICATA

(Term paper towards partial fulfillment of the assessment in the subject of

Jurisprudence)

Submitted By:
Submitted To:
Samvid Shetty
Deepankar Sharma
B.P.Sc. LLB.(Hons.)
of Law
Semester III
of Civil Procedure

Mr.
Faculty
Code

Roll No. 1238

NATIONAL LAW UNIVERSITY, JODHPUR

SUMMER SESSION
(J ULY-NOVEMBER 2015)

TABLE OF CONTENTS
ACKNOWLEDGEMENTS.......................................................................................... 3
HISTORY OF THE DOCTRINE...................................................................................5
RATIONALE BEHIND THE DOCTRINE.......................................................................6
ESSENTIALS FOR RES JUDICATA............................................................................. 7
APPLICATION OF RES JUDICATA..............................................................................8
NON-APPLICATION OF RES JUDICATA....................................................................11
RES JUDICATA: DIFFERENCE FROM OTHER DOCTRINES.......................................12
CONCLUSION....................................................................................................... 15
BIBLIOGRAPHY..................................................................................................... 16

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ACKNOWLEDGEMENTS

On the completion of this project I find that there are many

persons to whom I would like to express my gratitude, since
without their help and co-operation the success of this
educative endeavour would not have been possible.
I welcome this opportunity to express my sincere gratitude to
my teacher and guide, Mr. Deepankar Sharma, Faculty of Code
of Civil Procedure, who has been a constant source of
encouragement and guidance throughout the course of this
work.
I am grateful to the IT Staff for providing all necessary facilities
for carrying out this work. Thanks are also due to all members
of the Library staff for their help and assistance at all times.
I am also grateful to all my friends and colleagues for being
helpful in their differences and for their constant support.
I express my deepest gratitude to my parents Mrs. Varsha
Shetty and Mr. Sunil Shetty, who have been the real driving
force for this work.

Samvid Shetty.

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INTRODUCTION
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.)1.
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.
Res' in Latin means thing 'Judicata' means already decided 2. This rule operates as a bar to the
trial of a subsequent suit on the same cause of action between the same parties. Its basic
purpose is - "One suit and one decision is enough for any single dispute". The rule of 'res
judicata' does not depend upon the correctness or the incorrectness of the former decision3.

1 C.K Takwani, Code of Civil Procedure, 7th ed. Pg 2.

2 Blacks Law Dictionary, 9th ed.
3 Supra at 1, Pg 9.
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It is a principle of law by which a matter which has been litigated cannot be re-litigated
between the same parties. This is known as the rule of "res judicata" (thing decided) 4.
The aim of this rule is to end litigation once a matter has been adjudicated. It aims to save the
court time and prevent harassment to parties5.

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. 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.
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

4 http://www.legalservicesindia.com/article/article/res-judicata-a-brief-study, last visited on 4th

September 2015.
5 Supra at 4.
6 http://studentlawnotes.blogspot.in/2012/12/res-judicata, last visited on 4th September 2015.
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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]

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 judgments7. Essentially, the doctrine of res judicata in general is
based on the three following maxims 8 : nemo debet lis vexari pro una et eadem casua
meaning that no man should be vexed twice for the same cause, interest republicae ut sit
finis litium or that it is in the interest of the State that there should be an end to litigation,
andres 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 9. The
underlying purpose for this judicially created doctrine was to instill finality into litigation and
to provide for sound economic use of judicial resources10.

7 Mulla, Code of Civil Procedure, 15th ed. 2012 pg 4.

8 http://www.legalblog.in/2011/02/res-judicata-law, last visited on 4th September 2015.
9 Supra at 7, pg 5.
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ESSENTIALS FOR RES JUDICATA

The general principle of res judicata is embodied in its different forms in three different
Indian major statutesSection 11 of the Code of Civil Procedure, Section 300 of the Code
of Criminal Procedure, 1973 and Sections 40 to 43 of the Indian Evidence Act, yet it is
not exhaustive. Here, we are concerned only with Section 11 of the Code of Civil
Procedure. Following conditions must be proved for giving effect to the principles of res
judicata under Section 1111
A. That the parties are same or litigating under same title,
B. That the matter directly and substantially in issue in the subsequent suit must be same
which was directly and substantially in issue in the former suit,
C. That the matter in issue has been finally decided earlier.
D. That the matter in issue was decided by a Court of competent jurisdiction12.
If any one or more conditions are not proved, the principle of res judicata would not
apply. Where all the four conditions are proved, the Court has no jurisdiction to try the suit
thereafter as it becomes not maintainable and liable to be dismissed. For application of

10 http://legalperspectives.blogspot.in/2010/03/constructive-res-judicata-law-revisited, last visited on

4th September 2015.
11 Sheodansingh v. Daryao Kunwar, AIR 1966 SC 1332.
12 Ibid.
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principle of res judicata, existence of decision finally deciding a right or a claim

between parties is necessary13.

13 http://www.lawteacher.net/free-law-essays/constitutional-law/res-judicata-and-code-of-civilprocedure-constitutional-law-essay.php, last visited on 4th September 2015.

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APPLICATION OF RES JUDICATA

The doctrine of Res judicata is a fundamental concept based on public policy and private
interest. It is conceived in the larger public interest which requires that every litigation must
come to an end. It, therefore, applies to civil suits, execution proceedings, arbitration
proceedings, taxation matters, industrial adjudication, writ petitions, administrative orders,
interims orders, criminal proceedings, etc14. Following cases illustrates the applicability of res
judicata:
Res Judicata in Execution Proceedings:
Explanation VII15 added in the section 11 has made it clear that not only general principle of
Res Judicata but also constructive Res Judicata apply to execution proceedings. The
provisions of the section are now applicable to a proceeding for the execution of a decree,
and references in the section to a suit, issue or former suit shall be construed as references
respectively to a proceeding for the execution of a decree, question arising in such proceeding
and a former proceeding for the execution of that decree. However, an application by decreeholder to transfer certain papers to another Court for further execution is not an
executionapplication and its dismissal does not bar a fresh application. The Law Commission
suggested that the rule of Res Judicata ought to be connected to the circumstances of
processes in execution and autonomous incidents and prescribed insertion of Section 11a. As
opposed to embeddings Section 11a the Joint Committee of Parliamen tprescribed insertion
of Explanation to Section 11 and on the foundation of that report, Explanations VII and VIII
have been embedded by C.P.C. (Revision) Act, 1976. Segment 11of the present Code

14 Supra at 1, pg 70.
15 Explanation VII, Code of Civil Procedure, 1908.
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rejecting Explanation VIII imagines that judgment in a previous suit might work as Res
Judicata if the Court which chose the suit was skilled to attempt the same by goodness of its
monetary purview and the topic to attempt the consequent suit all things considered it is not
vital that the said Court may as well have had regional ward to choose the resulting suit16.
Constructive Res Judicata:
Explanation IV to Section 11 says that any matter which might or ought to have been made a
ground of defence or attack in the former suit shall be deemed to have been a matter
constructively in issue in that suit.Thus, if a matter which might and ought to have been
raised by the plaintiff in the former suit is not raised by him there he would be estopped from
raising the same question in a subsequent suit between the same parties.Similarly, where a
defendant did not raise all the objections which he might and ought to have raised in the
former litigation in controverting the plaintiffs claim, he will be barred from raising them in a
subsequent suit between the same parties.Where a matter has been actually in issue in a
former suit between the same parties, litigating under the same title, in a court competent to
try such subsequent suit, it must have been heard and decided for the purpose of constituting
res judicata but where a matter has been constructively in issue it could not from the very
nature of things be heard and decided.Nevertheless it will be deemed to have been heard and
decided against the party omitting to allege it, provided the conditions of res judicata are
complied with.
Writ Petitions and Res Judicata

16 http://www.jiarm.com/April2014/paper12252, last viewed on 4th September 2015.

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In M.S.M sharma V. Dr. Shree Krishna17, , for the first time Supreme Court held that the
general principle of res judicata applies even to writ petition filed under Article 32 of the
Constitution of India. Thus, once the petition filed under Article 32 is dismissed by the court,
subsequent petition is barred.

Similarly a writ petition filed by a party under Article 226 is considered on merit as a
contested matter and is dismissed, the decision thus pronounced would continue to bind
unless it is otherwise modified or reversed in appeal or in other appropriate proceedings
permissible under the Constitution.
In the leading case of Daryao V. State of U.P18., the Supreme Court has placed the doctrine of
res Judicata on a higher footing, considering and treating the binding character of the
judgments pronounced by competent courts as an essential part of the rule of law.
Applicability of Constructive res Judicata in Writ Petition
The question arose for the first time before the Supreme Court in Amalgamated Coalfields
Ltd. V. Janapada Sabha19, , whether the concept of constructive res judicata can be applied in
writ petition or not. In Devilal Modi V. STO20, Supreme Court clarified the stand and said the
principle of constructive res judicata also applies in writ petition. A direct question, however

17M.S.M sharma V. Dr. Shree Krishna AIR 1960 SC 1186.

18 Daryao V. State of U.P AIR 1961 SC 1457.
19 Amalgamated Coalfields Ltd. V. Janapada Sabha AIR 1964 SC 1013.
20 Devilal Modi V. STO AIR 1965 SC 1153.
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arose before the Supreme Court in State of U.P. V. Nawab Hussain 21, , the Court held that
principle of constructive res judicata is applicable.
It should be noted that the principle of res judicata and constructive res judicata are held not
applicable in Habeas Corpus Petition by Supreme Court in Ghulam Sarwar V. Union of
India22, and in Lallubhai V. Union of India23, respectively24.

NON-APPLICATION OF RES JUDICATA

There are limited exceptions to Res Judicata that allow a party to attack the validity of the
original judgment, even outside of appeals. These exceptions - usually called collateral
attacks - are typically based on procedural or jurisdictional issues, based not on the wisdom
of the earlier courts decision but its authority or competence to issue it. A collateral attack is
more likely to be available (and to succeed) in judicial systems with multiple jurisdictions,
such as under federal governments, or when a domestic court is asked to enforce or recognise
the judgment of a foreign court25.
The principle of res judicata was not applied where the first writ petition was filed and was
dismissed as withdrawn and the second petition was filed on the ground of apprehended bias
and was dismissed as withdrawn and the second petition was filed on the allegation of actual

21 State of U.P. V. Nawab Hussain AIR 1977 SC 1680.

22Ghulam Sarwar V. Union of India AIR 1967 SC 1335.
23 Lallubhai V. Union of India AIR 1981 SC 728.
24 http://www.legalservicesindia.com/article/article/res-sub-judice-res-judicata-and-constructive-resjudicata, last visited in 4th September 2015.
25 Supra at 13.
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bias. The subject-matter was also different26.

Principle of res judicata u/s. 11 is attracted

where issues directly and substantially involved between the same parties in the previous and
subsequent suit, are the same. If it may be that in the previous suit only part of property was
involved whereas in the subsequent suit, the whole property is involved 27.If a review petition
is filed before High Court and during its pendency a special leave petition against main
judgment is also filed before Supreme Court. The SLP is dismissed without assigning any
reason. The main judgment of the High Court would not get merged with this order of the
Supreme Court. Subsequently if the review petition is dismissed by the High Court then
another SLP against this dismissal order rejecting review petition will not be barred by res
judicata.

RES JUDICATA: DIFFERENCE FROM OTHER DOCTRINES

Res judicata and Res Sub Judice
1.

Res judicata relates to a matter already decided, i.e. a matter on which judgment has
been pronounced, whereas res. Subjudice (laid down in Section 10) relates to matter

which is pending for judicial enquiry.

2. Res subjudice bars the trial of a suit in which the matter directly and substantially in
issue is pending judicial decision, in a previously instituted suit by staying the trial of
the latter suit, whereas res judicata bars altogether the trial of a suit or an issue in

26G.N.Nayak v. Goa University, AIR 2002 SC 790.

27K.Ethirajan v. Lakshmi, AIR 2003 SC 4295.
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which the matter directly and substantially in issue has already been adjudicated upon
in a previous suit.
3. The object of res subjudice is to prevent Courts of a concurrent jurisdiction from
simultaneously entertaining and adjudicating upon two parallel litigations in: elute
causeof action, same subject-matter and same relief whereas the object of Res judicata
is that there should be an end to litigation and that no man should be vexed twice over
for the same cause28.

Res Judicata and LisPendens

In case where there is a conflict between res judicata and lispendens (which means that a
transferee during the pendency of the suit is bound by the result of litigation) /is pendens
gives way and the principle of res judicata will prevail.
Res judicata means a matter adjudicated upon or a matter on which decision has been made,
whereas lispendens is an action pending litigation29.
Res Judicata and Estoppel
Res judicata is sometimes treated as part of the doctrine of estoppel, but the two are
essentially different.The following are the points of distinction between the two doctrines-:
1. Res judicata is the result of a decision of a Court of law, whereas estoppel is the result
of the act of parties;
2. The object of the rule of res judicata is to bring an end to the litigation whereas the
object of the rule of estoppel is to prevent a person who by his conduct induced
another to alter his position to his disadvantage;
28 Supra at 1, pg 75.
29 Supra at 1, pg 75.
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3. The jurisdiction of the Court is ousted by res judicata, whereas estoppel is only a rule
of evidence;
4. The plea of res judicata presupposes the truth of the decision in the former suit
whereas the rule of estoppel simply prevents a person from denying what he has once
called the truth.
The shortest way to describe the difference between the res judicata and estoppel, is to say
that while the former prohibits the Court from entering into an inquiry as to a matter already
adjudicated upon, the latter prohibits a party, after the inquiry has already been entered
upon,from providing anything which would contradict his own previous declaration or act to
the prejudice of another party, who relying upon those declarations or acts, has altered his
position. In other words, res judicata prohibits an inquiry in limine, whilst an estoppel is only
a piece of evidence.30Res Judicata creates a different kind of estoppel namely, estoppel by
accord31.
Res Judicata and Withdrawal of suits
Order 23, Rule 1 deals with withdrawal of suits. It enacts that where the plaintiff withdraws
the suit or abandons his claim without the leave of the court, he will be precluded from
instituting a fresh suit in respect of the same cause of action.
The distinction between Res Judicata and withdrawal of suits lies in the fact that while in the
former the matter is heard and finally decided between the parties, in the latter the plaintiff
himself withdraws or abandons his claim before it is adjudicated on merits32.

30Sita Ram v. Amir Begum (1886) 8 ALL 324

31 Supra at 1, pg 75.
32 Supra at 7, pg 79.
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Res Judicata and stare Decisis

Res Judicata means a thing adjudicated; a case already decided; or a mater settled by a
decision or judgment. Stare Decisis means stand by decided cases, to maintain former
adjudications or not to disturb settled law.
Res Judicata and Stare Decisis are members of the same family. Both relate to adjudication of
matters. Both deal with final determination of contested questions and have the binding effect
in future litigation. Both the doctrines are the result of decisions of a competent court of law
and based on public policy.
There is, however, distinction between the two. Whereas res judicata is based upon
conclusiveness of judgment and adjudication of prior findings, stare decisis rests on legal
principles. Res Judicata binds parties and privies, while stare decisis operates between
strangers also and bind courts from taking a contrary view on the point of law already
decided. Res Judicata relates to a specific controversy, stare decisis touches legal principle.
Res Judicata presupposes judicial finding upon the same facts as involved in subsequent
litigation between the same parties. Stare decisis applies to same principle of law to all
parties33.

CONCLUSION
The Doctrine of Res Judicata can be understood as something which restrains the either party
to move the clock back during the pendency of the proceedings. The extent of Res Judicata is
very-very wide and it includes a lot of things which even includes Public Interest Litigations.
This doctrine is applicable even outside the Code of Civil Procedure and covers a lot of areas
33 Supra at 7, pg 79.
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which are related to the society and people. The scope and the extent have widened with the
passage of time and the Supreme Court has elongated the areas with its judgments. Some
problems still persist but the courts and legislature are trying to deal with these problems.

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BIBLIOGRAPHY
Cases
Amalgamated Coalfields Ltd. V. Janapada Sabha AIR 1964 SC 10137
Daryao V. State of U.P AIR 1961 SC 1457.........................................................................7
Devilal Modi V. STO AIR 1965 SC 1153............................................................................7
G.N.Nayak v. Goa University, AIR 2002 SC 790..................................................................8
Ghulam Sarwar V. Union of India AIR 1967 SC 1335...........................................................7
K.Ethirajan v. Lakshmi, AIR 2003 SC 4295........................................................................8
Lallubhai V. Union of India AIR 1981 SC 728.....................................................................7
M.S.M sharma V. Dr. Shree Krishna AIR 1960 SC 1186.......................................................6
Sheodansingh v. Daryao Kunwar, AIR 1966 SC 1332...........................................................4
Sita Ram v. Amir Begum (1886) 8 ALL 324......................................................................11
State of U.P. V. Nawab Hussain AIR 1977 SC 1680..............................................................7

Statutes
Explanation VII, Code of Civil Procedure, 1908..................................................................5

Treatises
Blacks Law Dictionary, 9th ed......................................................................................... 1
C.K Takwani, Code of Civil Procedure, 7th ed. .................................................................1
Mulla, Code of Civil Procedure, 15th ed. 2012..................................................................3

Web Links
http://legalperspectives.blogspot.in/2010/03/constructive-res-judicata-law-revisited......................3
http://studentlawnotes.blogspot.in/2012/12/res-judicata.........................................................2

Articles
http://www.jiarm.com/April2014/paper12252.....................................................................6
http://www.legalservicesindia.com/article/article/res-judicata-a-brief-study................................1
http://www.legalservicesindia.com/article/article/res-sub-judice-res-judicata-and-constructive-resjudicata................................................................................................................. 7

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