IS RES JUDICATA AN EVOLVING PRINCIPLE?

Mohammed Anas Riyaz

INTRODUCTION Res judicata is a Latin term which stand for the thing has been judged, meaning the issue before the court has already been decided by another court, between the same parties. Therefore, the court will dismiss the case before it as being useless. Res judicata is, in both civil law and common law legal systems, a case in which there has been a final judgment and is no longer subject to appeal. The term is also used to refer to the doctrine meant to bar relitigation of such cases between the same parties, which is different between the two legal systems. Once a final judgment has been handed down in a lawsuit, subsequent judges who are confronted with a suit that is identical to or substantially the same as the earlier one will apply the res judicata doctrine to preserve the effect of the first judgment. This is to prevent injustice to the parties of a case supposedly finished, but perhaps mostly to avoid unnecessary waste of resources in the court system. Res judicata does not merely prevent future judgments from contradicting earlier ones, but also prevents them from multiplying judgments, so a prevailing plaintiff may not recover damages from the defendant twice for the same injury. Res judicata is intended to strike a balance between competing interests. On one hand, it assures an efficient judicial system that renders final judgments with certainty and prevents the inequity of a defendant having to defend the same claim or issue of law repeatedly. On the other hand, it protects the plaintiffs interest in having issues and claims fully and fairly litigated.

III Year, National Law Institute University, Bhopal, (Madhya Pradesh).

Res judicata is intended to strike a balance between competing interests. On one hand, it assures an efficient judicial system that renders final judgments with certainty and prevents the inequity of a defendant having to defend the same claim or issue of law repeatedly. On the other hand, it protects the plaintiffs interest in having issues and claims fully and fairly litigated. SCOPE Res judicata includes two related concepts: claim preclusion, and issue preclusion (also called collateral estoppel), though sometimes res judicata is used more narrowly to mean only claim preclusion. Claim preclusion focuses on barring a suit from being brought again on a legal cause of action that has already been finally decided between the parties or sometimes those in privity with a party. Issue preclusion bars the relitigation of factual issues that have already been necessarily determined by a judge as part of an earlier claim.It is often difficult to determine which, if either, of these apply to later lawsuits that are seemingly related, because many causes of action may apply to the same factual situation and vice versa. The scope of an earlier judgment is probably the most difficult question that judges must resolve in applying res judicata. Sometimes merely part of it will be affected, such as a single claim being struck from a complaint, or a single factual issue being removed from reconsideration in the new trial. RATIONALE Res judicata does not restrict the appeals process, which is considered a linear extension of the same lawsuit as it travels up (and back down) the appellate court ladder. Appeals are considered the appropriate manner by which it to challenge a judgment rather than trying to start a new trial, and once the appeals process is

exhausted or waived, res judicata will apply even to a judgment that is contrary to law. However, 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 court. In addition, in cases involving due process, cases that appear to be res judicata may be re-litigated. An instance would be the establishment of a right to counsel. People who have had their liberty taken away (that is, imprisoned) may be allowed to be re-tried with a counselor as a matter of fairness. CIVIL LAW The doctrine of res judicata in nations that have a civil law legal system is much narrower in scope than in common law nations. In order for a second suit to be dismissed on a motion of res judicata in a civilian jurisdiction, the trial must be identical to the first trial in the following manner: (1) (2) (3) identical parties; identical theories of recovery; and identical demands in both trials. In other words, the issue preclusion or collateral estoppel found in the common law doctrine of res judicata is not present in the civilian doctrine.

In addition if all else is equal between the two cases, minus the relief sought, there will be no dismissal based on res judicata in a civil law jurisdiction. While most civilian jurisdictions have slightly broadened the doctrine through multiple exceptions to these three requirements, there is no consensus on which exceptions ought to be allowed. When a subsequent court fails to apply res judicata and renders a contradictory verdict on the same claim or issue, if a third court is faced with the same case, it will likely apply a last in time rule, giving effect only to the later judgment, even though the result came out differently the second time. This situation is not unheard of, as it is typically the responsibility of the parties to the suit to bring the earlier case to the judges attention, and the judge must decide how broadly to apply it, or whether to recognise it in the first place. INDIAN SENARIO Das Gupta, J. said that the principle of res judicata is based on the need of giving a finality to the judicial decisions. What it says is that once a res is judicata, it will not be adjudged again. Primarily it applies as between past litigation and future litigation. When a matter - whether on a question of fact or a question of law has been decided between two parties in one suit or proceeding and the decision is final, either because no appeal was taken to a higher court or because the appeal was dismissed, or no appeal lies, neither party will be allowed in a future suit or proceeding between the same parties to canvas the matter again. The Code of Civil Procedure, 1908, s. 11 of defines res judicata as: 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 the 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 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 reference in this section to any suit, issue or former suit shall be construed as references, respectively, to proceedings 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 as 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. THE CODE OF CIVIL PROCEDURE, 1908, S.

11 IS MANDATORY

The provisions of the Code of Civil Procedure, 1908, s. 11 are not directory but mandatory. The judgment in a former suit may be avoided only by taking recourse to the Indian Evidence Act, 1872, s. 44 on the ground of fraud or collusion. Where several defendants are there, in a suit the collusion of one of them alone is not enough to avoid the operation of rule of res judicata. Gross negligence is different from fraud and collusion. The provisions of s. 11 are mandatory and the ordinary litigant who claims less than one of the parties to the former suit may only avoid its provisions by taking advantage of the Indian Evidence Act, 1872, s. 44, which defines with precision the grounds of such evidence as fraud or collusion. It is not for the court to treat negligence or gross negligence as fraud or collusion unless fraud or collusion is the proper inference from facts.

The Three Maxims

The doctrine of res judicata is based on three maxims: (1) (2) (3) Nemo debet lis vaxari pro eadem causa (no man should be vexed twice for the same cause) Interest republicae ut sit finis litium ( it is in the interest of the state that there should be an end to a litigation); and Re judicata pro veritate occipitur (a judicial decision must be accepted as correct). As observed by Sir Lawrence Jenkins, the rule of res judicata, while founded on account of precedent, is dictated by a wisdom is for all times. Referring to the opinion of the judges expressed in 1776 in the Duches of Kingstons Case1 to which reference has been invariably made in most of the cases by the Indian courts. It was said in that case: from the variety of cases relative to judgments being given in evidence in civil suits, these two deductions seem to follow as generally true: first the judgment of a court of concurrent jurisdiction, directly upon the points, is as a plea, a bar, or as evidence conclusive, between the same parties, upon the same matter, directly in question in another Court; secondly that the judgment of a court of exclusive jurisdiction, directly upon the point, is, in like manner, conclusive upon the same matter, between the same parties, coming incidentally in question in another Court, for a different purpose. But neither the judgment of a concurrent or exclusive jurisdiction is evidence of any matter which came collaterally in question, though within their jurisdiction, nor of any matter incidentally cognisable, nor of any matter to be inferred by argument from the judgment. Code of Civil Procedure, 1908, s. 11 contains the rule of conclusiveness of the judgment which is based partly on the maxim of Roman Jurisprudence Interest reipublicaeut sit finish litium (it concerns the state that there be an end to law suits) a nd
1

SMITHS L.C., (13th edn.) (644-645).

partly on the maxim Nemo debet lis vexari pro una at eadem causa (no man should be vexed twice over for the same cause). The provision does not affect the jurisdiction of the court but operates as a par to the trial of the suit or issue, if the matter in the suit was directly and substantially in issue (and finally decided) in the previous suit between the same parties litigating under the same title in a Court, competent to try the subsequent suit in which such issue has been raised. In Corpus Juris2, it has been stated that res judicata is a rule of universal law pervading every well regulated system of jurisprudence and is put upon two grounds, embodied in various maxims of the common law; the one, public policy and necessity, which makes it to the interest of the state that there must be an end to litigation; the other, the hardship to the individual that he must not be vexed twice for the same cause. Thus, this 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, writ petitions, administrative orders, interim orders, criminal proceedings, etc. in fact means thing which had been adjudged the essential ingredients of which are to be considered while deciding whether a particular judgment operated as res judicata or not be postulated as follows: (1) (2) (3) matter which was directly and substantially in issue in former suit must be directly and substantially issue in the subsequent suit also. Both the former and subsequent suit must have been between the parties or between the parties litigating under some titles. The former suit must have been decided by competent court, which may try subsequent suit also.
2

Corpus Juris Secundum (vol. 34, Thompson West) (743).

(4)

Any matter, which might and ought to have been made a ground of defence or attack in such former suit, will be deemed to have been a matter directly and substantially in issue in each suit.

(5)

The onus of proof lies on the party relying on the theory of res judicata.

CASE LAWS

Jallur Venkata Seshayya vs. Thadviconda Koteswara Rao3

This representative suit was brought by some persons on behalf of public interest for declaring certain temples public temples and for setting aside alienation of endowed property by the manager thereof. A similar suit was brought some years ago by two persons and the suit was dismissed on the grounds that the temples were private temples and the property endowed to the temple being private endowment, the alienation thereof were valid. The plaintiffs admitted that they may be deemed to be persons claiming under the plaintiffs in prior suit and the issue in both the suits was same.It was contended however by them that finding in the prior suit may not be res judicata as against them in as much as there was gross negligence on the part of the plaintiffs in that suit in not producing the documents necessary for the decision of the suit in their favour and in not placing their evidence before the court and Privy Council held that no case of fraud apart from collusion being suggested, the plaintiffs, were bound to establish either that the decree in prior suit was obtained by collusion between the parties or that the litigation by the plaintiffs in prior suit was not bona fide. The plaintiffs based their case entirely on inferences to be drawn from alleged gross negligence on the part of the plaintiffs in the prior suit. The finding of
AIR 1937 Mad 2638.

gross negligence by the trial court was far from a finding of intentional suppression of the documents, which would amount, to want of bona fide or collusion on the part of the plaintiffs in prior suit. There being no evidence in the suit establishing either want of bona fide of collusion on the part of plaintiffs as res judicata

Beliram and Brothers vs. Chaudari Mohammed Afzal

It was held that where it is established that the minors suit was not brought by the guardian of the minors bona fide but was brought in collusion with the defendants and the suit was a fictitious suit, a decree obtained therein is one obtained by fraud and collusion within the meaning of the Indian Evidence Act, 1872, s. 44 and does not operate res judicata. The principle of res judicata in Code of Civil Procedure, 1908, s. 11 is modified by the Indian Evidence Act, 1872, s. 44 and the principles will not apply if any of the three grounds mentioned in s. 44 exists. General principles may not be applied in a way making Code of Civil Procedure, 1908, s. 11 nugatory.

Sarla Bala Devi vs. Shyam Prasad Chatterjee

The Division Bench of Calcutta High Court held that it is undoubtedly true that the principles of res judicata apply to proceedings other than suits including proceedings in execution. It must be taken as held by the Supreme Court that the principles of constructive res judicata are also applicable to execution proceedings. But the conditions of applicability of the principles of res judicata actual or constructive contained in Code of Civil Procedure, 1908, s. 11 must be complied within such cases as far as possible. It is not the law that when a court applies the principles analogous to res judicata that court may override the conditions specified in s. 11.

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Abinash Chandra vs. Madhusudan Majumdar

In this case the majority of their Lordships of the Supreme Court held that the provisions of Code of Civil Procedure, 1908, s. 11 are not exhaustive with respect to an earlier decision operating as res judicata between the same parties on the same matter in controversy in a subsequent suit and on general principles of res judicata, any previous decision on a matter of controversy decided after full contest or after affording fair opportunity to the parties to prove their case by a court competent to decide it will operate as res judicata in a subsequent regular suit. The general provisions of res judicata are wider than the provisions of s. 11 and also apply to cases not coming within the four corners of the section but if the case fails within the terms of s. 11 conditions of the provisions must be strictly complied with. The general principles of res judicata are applicable where the previous decisions has not been given in a civil suit though a plea of res judicata is raised in a subsequent civil suit but where both the proceedings are civil suits the general principles of res judicata have no application and the case must be confined to the four corners of s. 11. Where the court is dealing with a suit the only ground on which res judicata may be urged against such a suit would be the provisions of s. 11 and no other. Scope of the principle of res judicata is not confined to what is contained in s. 11 but of more general application.

Arikapudi Balakotayya vs. Yadlapalli Nagayyaheld

The Division Bench of the Madras High Court in as follows : it is undoubtedly the law that the doctrine of is not confined to decisions in a suit and that the doctrine applies even to decisions rendered in proceedings which are not suits but how far the decision which is rendered in an original proceedings will bind the parties depends upon the considerations. A decision given in proceedings other than a suit may still

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operate, as res judicata substantial rights of the parties are determined. But if the decision is given in a summary proceeding it does not operate as res judicata. Proceedings under the Madras Hindu Religious and Charitable Endowments Act, 1959, s. 84(2), may not be said to be summary proceedings even though there may be no right of appeal. The question of res judicata does not depend on the applicability of the decision, which is put forward as constituting res judicata. That question comes in incidentally to see if proceedings under s. 84(2) are of a summary nature. The decision of the district judge therefore, operates as res judicata in a subsequent proceeding between the same parties. Though Code of Civil Procedure, 1908, s. 11 is largely modified even then it is not exhaustive. The plea of res judicata still remains apart from the separate provisions of Code of Civil Procedure, 1908. The statement of doctrine of res judicata contained in s. 11 is not exhaustive and therefore recourse may properly be had to the decisions of the English courts for the purpose of ascertaining the general principles governing the application of the doctrine. The terms of s. 11 are not to be regarded as exhaustive. The binding force of judgment in probate proceedings depends upon the s. 11 but upon the general principles of law. The rule of res judicata though may be traced to an English source it embodies a doctrine in no way opposed commentators. The courts in India therefore must include by no technical consideration of form but by matter of substance within the limit allowed by law the application of the rule of res judicata. RES JUDICATA AND PUBLIC INTEREST LITIGATION Even in a public interest litigation procedural law is applicable though not strictly. Hence, the principle of res judicata is also applicable. Where the prior public interest litigation relates to illegal mining, subsequent public interest litigation to protect environment is not barred.

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Rural Litigation And Entitlement Kendra vs. State of Uttar Pradesh

It was held that the writ petitions before us are not inter-party disputes and have been raised by way of public interest litigation and the controversy before the court is as to whether for social safety and for creating a hazardless environment for the people to live in, mining in the area must be permitted or stopped. Even if it is said that there was a final order, in a dispute of this type it would be difficult to entertain the plea of res judicata. We are of the view that leaving the question open for examination in future would lead to unnecessary multiplicity of proceedings and would be against the interests of the society. It is mete and proper as also in the interest of the parties that the entire question is taken into account at this stage. Undoubtedly, the Environment (Protection) Act, 1986 has come into force with effect from 19 November 1986. Under this enactment, power is vested in the Central Government to take measures to protect and improve the environment. These writ petitions were filed as early as 1983 more than three years before the enactment came into force. The principle of res judicata does not apply strictly to public interest litigations. The procedural laws are not fully applicable to public interest litigation cases. Where the prior public interest relates to illegal mining, subsequent public interest litigation to protect environment is not barred.

Forward Construction Company vs. Prabhat Mandal

The Supreme Court was directly called upon to decide the question. The Apex Court held that the principle would apply to public interest litigation provided it was a bona fide litigation.

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Joint Family of Udayan Chinubhai vs. Commissioner of Income Tax 4

It was held that decision in one year will not operate as res judicata in subsequent year. An assessment year under the enactment is a self-contained assessment period and a decision in one assessment year does not ordinarily operate as res judicata in respect of the matter decided in any subsequent year, for the Assessing officer is not a court and he is not precluded from arriving at a conclusion inconsistent with his conclusion in another year.

Dwarkadas Kesardeo Morarka vs. Commissioner of Income Tax 5

It was held that earlier decision in assessees own case may be relied on. Though the principles of res judicata will not apply to income-tax proceedings, when a question of law or fact is decided in the assessees own case for an earlier assessment year, and an identical question comes up for consideration for a later year, the tribunal will be justified in placing reliance on the earlier decision to base its conclusion in the absence of any new material or change in circumstances.

Commissioner of Income Tax vs. P. Krishna Warrier6

It was held that in matters relating to properties and rights res judicata will apply. The principle of res judicata would apply to proceedings under the enactment regarding questions relating to assessment which do not vary with the income every year but depend on the nature of the property or questions on which the rights of
4 5 6

1966 INDLAW SC 212, [1967] 63 ITR 416 (SC). 1961 INDLAW SC 271, [1962] 44 ITR 529 (SC). 1994 INDLAW KER 119, [1994] 208 ITR 823 (Ker).

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the parties to be taxed are based - Judicial propriety requires consistency - Under the income-tax law, though the principles of res judicata are not applicable and the assessee as well as the department is free to challenge the order in a different year, judicial propriety requires consistency.

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