Doctrine of Res Judicata

(Section 11 of C.P.C)
21BAL057
Civil procedure Code

Introduction:

The common Law doctrine of Res Judicata gives respect and finality to the judicial decisions:
This doctrine has been incorporated in section 11, of C P.C. based on the general rule, that man
shall not be twice vexed, for the same cause. The bar of Res Judicata contained in section 11
would be fully attracted when matter involved in second suit was the same as involved in
previous litigation.

The doctrine of res judicata is a method of preventing injustice to the parties of a case
supposedly finished but perhaps also or mostly a way of avoiding unnecessary waste of resources
in the court system. Res judicata does not merely prevent future judgments from contradicting
earlier ones, but also prevents litigants from multiplying judgments, and confusion.

Definition of Res Judicata:

(I) According to Spencer Sower: Res judicata means “final judicial decision pronounced
by a judicial tribunal having competent jurisdiction over the cause or matter in
litigation and over the parties thereto".
(II) (II) According to Justice Das Gupta: The doctrine of Res Judicata has been explained
in the simplest manner by Justice Das Gupta in the following words. "The principle of
Res Judicata is based on the need of giving a finality to judicial decision".

Section 11 of C.P.C:

Section 11 of the C.P.C is quoted as follow; Res Judicata. No Court shall try 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 defense 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 plant, 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.”

Scope of the Doctrine:

The doctrine and concept of res judicata have been enunciated in a nut-shell by their Lordship of
the Supreme Court of India in a decision in the following words: “The principle of res judicata is
based on the need of giving finality to judicial decisions. What it says is that once a res is
judicata, it shall not be adjudged again. Primarily, it applies as between past litigation and future
litigation. When a matter, whether on a question of fact or on 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 to canvass the matter again. This principle of res
judicata is embodied in relation to suits in s 11 of the Code of Civil Procedure; but even where s
11 does not apply, the principle of res judicata has been applied by courts for the purpose of
achieving finality in litigation. The result of this is that the original court as well as any higher
court must in any future litigation proceed on the basis that the previous decision was correct.”

The bar which law imposes on subsequent litigation is created by the existence of a previous
judgment whereby the matter has once already been fully canvassed and fairly and finally
decided between the parties by a competent court of law.

He rule of res judicata so far as it relates to the trial of an issue refers not to the date of the
commencement of the litigation but to the date when the Judge is called upon to decide the issue.

It is plain from the terms of Sec.11 C.P.C. that it is equally well settled that the competence of a
court for the purpose of Sec.11 of the Civil Procedure code is to be determined irrespective of
any provision as to a right of appeal for the decision of such Court.

Historical Development of the Doctrine:

It is difficult to find out the direct origin of the doctrine of Res Sub Judice. But the roots of this
rule can be found in Roman law. Under Roman Law, this doctrine was originated from the
doctrine of exception rei judicatae which means the “previous judgment”. based upon the maxim
of Roman jurisprudence Interest reipublicae ut sit finis litium (it concerns the state that there be
an end to law suits); and, partly on the maxim Nemo debet bis vexari pro una at eadam causa (no
man should be vexed twice over for the same cause).

The doctrine has been adopted by the countries of the European continent which had modeled
their civil law on the Roman pattern. In France, the doctrine is known as 'Chose jugee' (thing
adjudged)

The spirit of the doctrine of res judicata is succinctly expressed in the well-known common law
maxim debet bis vexari pro una et eadem causa (no one ought to be twice vexed for one and the
same cause). The principle has been recognized in all civilized societies. Lord Coke declared: “it
has well been said interest republicae ut sit finis litium (interest of the state is that there should be
limit of law suits), otherwise great oppression might be done under color and pretense of law.

In the ancient history importance of this rule was also understood by both Hindu and Muslim
Jurists. Under Hindu Ancient Law Rule of the sub judice was popularly known as the Purva
Nyaya or former Judgment. The plea has been illustrated in the text of Katyayan thus "If a
person though at law sues again, he should be answered "You were defended formerly.

One of the earliest articulations within the common law of the Rule of Res Judicata appears to
have been the case of the Duchess of Kingston in 177610. In deciding the case Sir William de
Grey, C. J. laid down the following often-quoted principle:

“The Judgment of a Court of concurrent jurisdiction, directly upon the point, is, as a plea, a bar,
or as evidence, conclusive between the same parties, upon the same matter, directly in question
in another Court.” As is evident, on its own terms, this paragraph is fairly wide in its scope.
However, within legal theory, the Law of Res Judicata came to be divided into two distinct
aspects:

a. Bar by (former) Judgment and

b. Conclusiveness of Judgment or bar by verdict.

As per the Rule of Bar by Judgment, the Judgment in any action extinguishes that cause of action
so that no subsequent Suit may be founded upon it. The accent here is on the identity of causes of
action. The Rule of Bar by Verdict states that when an issue has been decided, such decision is
conclusive. The parties are barred by the Verdict to re-agitate the same issue in the subsequent
Suit. According to this Rule, the identity of issues, not the identity of causes of action would be
determinative.

Illustration:

Suppose A and B are involved in an automobile accident in which both cars are damaged and A
suffers bodily injuries. A sues B for damages based on personal injury and does not succeed
because the Court comes to the determination that there was contributory negligence on his part.
A cannot subsequently sue B again for personal injuries due to the Resjudicata Principle of Bar
by Judgment. Furthermore, if B ever sued A for compensation for damages to his car, the
determination of contributory negligence in the previous Suit would be binding in this
subsequent Suit as well due to the Principle of Bar by Verdict. In other words, although the
causes of action in both Suits are different, the conclusive determination of any issue between
parties in any Suit would be binding in any subsequent Suit between the same parties in which
the same issue arose.

Res Judicata in Indian Statutes from 1802 -1908:

Due to reasons that are difficult to state with any accuracy, the former Rule – the Rule of Bar by
Judgment – came to be incorporated into Indian law.

Madras Regulation II of 1802 simply laid down the following Rule:

When a second Suit may be instituted for the same cause of action, such second Suit should be
dismissed with costs to be paid by the Plaintiff. (emphasis added) Despite seemingly referring
only to the Rule of Bar by Judgment, by 1850, Indian Courts had begun to apply this provision to
incorporate both causes of action and issues.

Thus writing in 1850, Macpherson formulated the Rule of Res Judicata in the following terms:

A Civil Court cannot entertain any cause which from the production of a former decree, or of the
records of the Court, shall appear to have been heard and determined by any former Judge, or by
any superintendent of a Court having competent jurisdiction; or even one, which under the rules
against the splitting of claims, ought to have been included in a previous suit. Macpherson
continues to explain that:

A cause may fairly be considered to have been heard and determined before, if the subject matter
of the former Suit was the same; the parties, or at least the parties really and effectively
interested, the same; the issue the same; if the proceedings were taken for the same purpose; the
jurisdiction competent; and if the claim, which is sought to be enforced, has been directly
adjudicated upon in a former Suit by a decree or order, declaring or recognizing a right, or
negating it by the dismissal of a Plaint. It is clear from this explanation that the conception of
Res Judicata prevail in the Indian legal system till 1850 included both Bar by Judgment and Bar
by Verdict. This settled position was altered significantly in 1859 by the enactment of the first
Civil Procedure Code. Section 2 of the Code of 1859 stated:

“The Civil Courts shall not take cognizance of any Suit brought on a cause of action which shall
have been heard and determined by a Court of competent jurisdiction, in a former Suit, between
the same parties or between parties under whom they claim.” As is evident, Section 2 of the 1859
Code only enacted into law one element of the Rule of Res Judicata – Bar by Judgment. Very
soon after the enactment of the Code, the absence of the other component of Res Judicata- Bar
by Verdict - began to be felt by the Judiciary. Several cases arose after 1859 in which although
the causes of action were distinct, the issues had already been heard and determined by a
previous Court. In such cases, Section 2 would have required them to re-hear the same issues.
However, in several cases, Courts avoided this outcome by holding that notwithstanding the
restrictive language of Section 2, a ‘general law' of Res Judicata in India still applied which
included Bar by Verdict.

In 1877, under direction of the Law Commission, the Code of Civil Procedure was substantially
altered and re-enacted in India. The principle of Res Judicata was substantially reformulated and
re-numbered as Section 13 of the new Code. A key member of the Law Commission, Whitley
Stokes, describes the language of Section 13 as having been ‘founded on' Livingston's famous
Code of Evidence for the State of Louisiana. The principal clause of the Section 13 of 1877 read
as follows: “No Court shall try any Suit or issues in which the matter, directly and substantially
in issue, has been heard and finally decided by a Court of competent jurisdiction, in a former Suit
between the same parties, or between parties under whom they or any of them claim, litigating
under the same title.” Manifestly, this wording was significantly different from the language of
the 1859 Code. Importantly, the vocabulary of cause of action was dropped and in its place the
accent was on Suits or issues which had been previously decided. In other words, the 1879 Code
had succeeded in merging both the ‘Bar by Judgment' and the ‘Bar by Verdict' conceptions of
Res Judicata.

Another important change made to the law in 1882 was the insertion of an express requirement
that for a Judgment to be Res Judicata it must have concurrent jurisdiction with the subsequent
Court.

In the two decades following its enactment Section 13 of the 1877 Code was modified a few
times. In 1908, the Code of Civil Procedure was comprehensively restructured and reenacted into
its present form as the Code of Civil Procedure Code, 1908.

The language of Section 13 of the 1879 Code was retained in toto in Section 11 of the new Code
of 1908, the principal Section of which reads as follows: “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.”

Section 11 of Code of Civil Procedure, 1908 embodies the doctrine of Res Judicata or the rule of
conclusiveness of a 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. It enacts that once a matter is finally
decided by a competent Court; no party can be permitted to re-open it in a subsequent litigation.
In the absence of such a Rule there will be no end to litigation and the parties would be put to
constant trouble, harassment and expenses.

Common law principle of res judicata:

The common Law principle of Res Judicata can be discussed as under.

Leading case of duchess of kingstones's case: In this case Sir William de Grey summarizes the
doctrine of res judicata in his judgment in the following words.

"From the variety of cases relative to judgments being given in evidence in civil suit, these two
deduction seems to follow as generally true.

Firstly: Judgment, of a Court of concurrent jurisdiction, directly upon a point is conclusive

between the same parties upon the same matter directly in question in another Court.

Secondly: Judgment, of a court of exclusive jurisdiction, directly upon the point is, conclusive
between the same parties upon the same matter, coming incidentally question, in another Court.

Essential conditions for Res judicata:

To constitute a matter as res judicata all the conditions enumerated in Sec.11, C.P.C. must be
satisfied. The essential conditions for the application of the doctrine of res judicata are :

(i) Same Matter in issue All the matter in issue must be same in both the suits. The term
matter means necessary facts, constituting the claim or defense. The word “fact”
under Qanoon-e-shahadat 1984 order, section 2(d) means anything which can be
perceived and conceivable by the senses. Directly or substantially: Matter in both
 suits must be directly and substantially same. According to the section 11,
Explanation IV of the C.P.C: A matter shall be directly in issue which has been
alleged by one party and either denied or admitted expressly or impliedly by the
other. A matter shall be substantially in issue if it is important and valuable for the
decision of the case.
(ii) Same Parties: Both the suits must have been between the same, parties or their
representatives under whom they or any of them claim. For the purposes of res
judicata a person can either be;
(i) a party or
(ii) Claim under a party i.e. privy
(iii) or be represented by a party to a suit, or

Examples: If A sues B for a declaration of title to a certain land and obtains a decree and A, then
sues C for possession and C contends that B is the owner of the land and he is in possession as
tenant of B the defense is barred by the principle of Res Judicata.

Ordinarily, a person whose name appears on the record as a plaintiff or defendant at the time of
the decision of the suit, is a party for the purpose of res judicata, but where the name is omitted
in the formal order by mistake such person will still be bound. A person who intervenes in a suit
will be considered to be a party. A judgment as such will not operate as res judicata upon some
persons, even though they may have been parties to the suit at same stage.

For Instance: (i) A party whose name is struck off or who is discharged from the suit. (ii) A
person whose name is born on the record fraudulently and without his knowledge. (iii) A person
whose application be made a party has been refused.

iii)Same Title

• The parties must be contesting in both the suits, under the same title; • The term
"Titles" refers to the legal capacity or interest of a party or legal personality of a
party. In order that a matter be res judicata not only should the parties be the same,
but such parties should litigating under the same title as in the former suit. The title
will be the same in the following cases. (i) Former suit as husband's heir and
 subsequent suit as claimant for dower. (ii) Former suit against firm and subsequent
suit against partner thereof.

• A verdict against a man suing in one capacity will not stop him when he sues in
another capacity. Thus where a suit is brought by a person for possession of math
property in the capacity of an heir of the deceased but the suit fails because of his
failure to establish heir-ship, he is not debarred to bring another suit in the capacity
of manager of the math property. • The title of a property has nothing to do with the
subject matter of the suit, or the cause of action. All that is to be seen that the matters
directly and substantially in issue must be the same in both suits where the parties to
the former suit and the subsequent suit are the same but they are not legitimating
under the same title, the decision in the former suit will not be Res Judicata in the
subsequent suit.

(iv) First suit must be DECIDED

• Such matter in issue in a subsequent suit must have been heard and finally decided
by the Court in the first suit. • The term res judicata indicates that the matter has
already been adjudicated upon in a former suit. A matter will be res judicata only if it
has been heard and finally decided. • There must be final decision of the matter. It is
not sufficient for the applicability of this doctrine that the matter was directly and
substantially in issue. It is of the very essence that such matter was heard and finally
decided. A matter cannot be said to have been heard and finally decided unless the
finding on the issue was necessary for the determination of the suit and finding
cannot be said to be necessary to the decision unless the appeal lies against the
finding. If the suit is still pending in the court then section 10 will apply but section
11 will not apply because it is the Doctrine of res sub judice which deal with running
cases while the Doctrine of res judicata applies when a matter is formally decided by
a competent court and then brought to court again. • As long as a matter is pending
adjudication, a court may very its earlier orders, but the parties cannot be allowed to
 reopen such matter, but a court having finally decided a matter, cannot reopen the
same at a large stage of the proceedings. • If the appeal is withdrawn dismissed in
fault or dismissed on a preliminary point with the appellate court having discussed
the merits of the case, the decision of the lower court remains intact and will continue
to operate as res judicata. Further it is the decision that creates the bar and not the
decree. It is not necessary that the decision should have been incorporated in the
decree.

Illustration: A sues B to recover certain property belonging to the estate of C alleging

that his father had been adopted by C's brother, D to whom the property decanted on
C's death. The suit is dismissed on the ground that the adoption is not proved. A then
sues B to recover the same property claiming it as C's . The suit is barred as res
judicata. A ought to have claimed the property in the first suit in the alternative as
C's.

v) Competency of Court:

According to the section 11, Explanation I, the Court which decided the former suit, means the
suit which has been decided prior to the suit in question, whether or not it was instituted prior in
time, must be competent to try the subsequent suit. The effect of this condition is that the court
which tired the former suit and the court trying the subsequent suit should be courts of
concurrent jurisdiction. The term competent as used in section II refers to competence of the
former court to try the whole of the subsequent suit. It is competence of the former trail court
that is to be established and not that of the appellate court which may have finally determined the
matter.

Kinds of Res judicata:

Res judicata can be classified into following two kinds; (a) Direct res judicata or actual res
judicata (b) Constructive res judicata

Direct res judicata:

It means a matter actually resolved by court, between the parties in earlier suit cannot be
reopened through subsequent suit. Explanation 3 deals with the direct res judicata. It provides
that 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. So this kind of allegation, its
denial or admittance, either expressly or impliedly will be considered as direct or actual res
judicata.

Constructive Res judicata:

It is the interest of justice that a party should bring forward his whole case in respect of the
matter in suit. Constructive res judicata means a matter which might and ought to have been
made ground of claim or defense in a former suit, but a party ignores it, then the issue shall be
deemed to have been a matter directly and substantially in issue in such suit. in other words if a
party had an opportunity that he ought to have taken a plea as a plaintiff or defendant, if he fails
to do so, and the matter is decided the decision will operate as res-judicata in respect of all
issues, which were taken and which ought and might have taken and second suit would not lie
for such issue.

Ex-parte decree and res-judicata:

Where the plaintiff appears and the defendant does not appear when the suit is called on for
hearing, then if it is proved that the summons was duly served, the court may proceed ex parte.
An ex-parte decree passed by a competent court on merits will operate as res judicata, because
the effect of ex-parte decree as like as by-parte decree. But the doctrine of res judicata does not
apply to a consent decree, because in a consent decree a matter cannot be said to be heard and
finally decided on merits, the decision in the former suit will operate as res judicata though the
suit was decreed ex-parte.

Foreign judgment and res judicata:

Section 13 provide that a foreign judgment shall be conclusive as to any matter thereby directly
adjudicated upon between the same parties or between parties under whom they or any of them
claim litigating under the same title, where it has been pronounced by a court of competent
jurisdiction. Section 13 of C.P.C lay down the above given provision in the following words
“13. When foreign judgment not conclusive. A foreign judgment shall be conclusive as to any
matter thereby directly adjudicated upon between the same parties or between parties under
whom they or any of them claim litigating under the same title except__ (a) Where it has not
been pronounced by a Court of competent Jurisdiction ; (b) Where it has not been given on the
merits of the case; (c) Where it appears on the face of the proceedings to be founded on an
incorrect view of international law or a refusal to recognize the law of 2[Pakistan] in cases in
which such law is applicable; (d) Where the proceedings in which the Judgment was obtained are
opposed to natural justice ; (e) Where it has been obtained by fraud ; (f) Where it sustains a claim
founded on a breach of any law in force in Pakistan.” So if a foreign judgment is delivered on
merits by a court of competent jurisdiction in the matter, it would operate as res judicata.

Res judicata between co-plaintiffs and codefendants:

The principle of res judicata applies between co-defendants and also co-plaintiffs. The rule of res
judicata applies in a case of co-defendants, if the following conditions are satisfied: a) There
must be conflict of interest between defendants concerned. b) It must be necessary to decide the
conflict in order to give the relief which plaintiff claims. c) The co-defendants must be necessary
or proper parties to the suit. d) The questions or disputes between the co-defendants must have
been finally decided inter see between them.

Example: ‘A’ sues ‘B’, ‘C’ and D and in order to decide a claim of the court has to interpret a
will. The decision regarding interpretation of the will on rival claims of the defendants will.
Operate as res judicata in any subsequent suit by any of the defendants against the rest. However
rule of res judicata shall be applicable between co-defendants to the question finally decided
inter se between them. The doctrine of res-judicata between the co-defendants is applicable even
against the non-appearing or non-contesting defendant if he is proved that he had or must be
deemed to have had notice that the relevant question was in issue and would have to be decided.
But the doctrine of res judicata will not operate as against preform defendant against whom no
relief is asked for on a point affecting his interest decided between the principle parties.

Rule of res judicata shall also be applicable between co-plaintiffs. The rule of res judicata applies
in a case of co-plaintiffs, if the following conditions are satisfied: a) there must be a conflict of
interest between the co-plaintiffs. b) It must be necessary that such conflicts be decided, in order
to give relief to the plaintiff. c) The questions between the plaintiffs to be finally decided.