2018llb003 - Sem 5 - Law of Evidence - Conclusiveness of Judgment

DAMODARAM SANJIVAYYA NATIONAL LAW UNIVERSITY
SABBAVARAM, VISAKHAPATNAM,
A.P., INDIA
PROJECT TITLE:
CONCLUSIVENESS OF JUDGMENT-CASE ANALYSIS
SUBJECT:
LAW OF EVIDENCE
NAME OF THE FACULTY:
Dr. Nandini C.P.
NAME OF THE CANDIDATE:
AISHWARYA.V.V.BUDDHARAJU
ROLL NUMBER:
2018LLB003
SEMESTER:
5th SEMESTER
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ACKNOWLEDGEMENT
I am highly indebted to my Hon’ble Law of Evidence Professor, Dr. Nandina C.P., for giving
a a a a a a a a a a a
a me a wonderful opportunity to work on the topic: “Conclusiveness of Judgment-Case

a a a a a a a a a
Analysis”, and it is because of her excellent knowledge, experience and guidance, this project
a a a a a a a a a a a a a
a is made with great interest and effort. I would also like to thank my seniors who have guided
a a a a a a a a a a a a a a a a a
a my novice knowledge of doing research on such significant topic. I would also take this as an
a a a a a a a a a a a a a a a a
a opportunity to thank my parents for their support at all times. I express my sincere gratitude to
a each and every person who have guided and suggested me while conducting my research
a work.
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DIFFERENCE BETWEEN RES JUDICATA AND CONCLUSIVENESS OF
JUDGMENT:
Conclusiveness of judgment, a species of the principle of res judicata, bars the re-litigation of a a a a a a a a a a a a a a
a any right, fact or matter in issue directly adjudicated or necessarily involved in the
a determination of an action before a competent court in which judgment is rendered on thea a a a a a a a a a a a a a
a merits; for purposes of res judicata, only substantial identity of parties is required and not
a a a a a a a a a a a a a a
a absolute identity; substantial identity of parties, when existent.1 One of the aspects of res
a judicata, known as “conclusiveness of judgment,” ordains that issues actually and directly
a resolved in a former suit cannot again be raised in any future case between the parties
a a a a a a a a a a a a a a a
a involving a different cause of action; conclusiveness of judgment does not require identity of
a the causes of action; instead, it requires identity of issues; but the adjudication of an issue in
a the first case is not conclusive of an entirely different and distinct issue arising in the second;
a hence, facts and issues actually and directly resolved in a former suit cannot again be raised in
a any future case between the same parties, even if the latter suit may involve a different claim
a or cause of action.2 It Bars the relitigation of issues already litigated and settled in litigation
a between identical parties in different causes of action.3

a a a a a a a
HOW THE CONCEPT OF RES JUDICATA WORKS?

Res Judicata means "a thing decided" in Latin. It is a common law doctrine meant to bar re-
litigation of cases between the same parties in Court. Once a final judgment has been handed
a down in a lawsuit subsequent judges who are confronted with a suit that is identical to or
a substantially the same as the earlier one will apply res judicata to preserve the effect of the
a first judgment. This is to prevent injustice to the parties of a case supposedly finished, but
a perhaps mostly to avoid unnecessary waste of resources in the court system. Res judicata does
a not merely prevent future judgments from contradicting earlier ones, but also prevents them
a a a a a a a a a a a a
a from multiplying judgments, so a prevailing plaintiff could not recover damages from the
a defendant twice for the same injury. Res judicata includes two related concepts: claim
a preclusion, and issue preclusion (also called collateral estoppel), though sometimes res
a a a a a a a a a a
a judicata is used more narrowly to mean only claim preclusion. Claim preclusion focuses on
a barring a suit from being brought again on a legal cause of action that has already been finally
1
Rep. Lagman vs. Senate Pres. Pimentel III, G.R. No. 235935, Feb. 06, 2018
2
Excellent Essentials Int’l. Corp. vs. Extra Excel Int’l. Phils., Inc., G.R. No. 192797, April 18, 2018
3
Escobar vs. People, G.R. No. 205576, Nov. 20, 2017; Pacasum, Sr. vs. Atty. Zamoranos, G.R. No. 193719,
aMar. 21, 2017. a a
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a decided between the parties. Issue preclusion bars the re-litigation of factual issues that have
a already been necessarily determined by a judge or jury as part of an earlier claim. It is often
a difficult to determine which, if either, of these apply to later lawsuits that are seemingly
a related, because many causes of action can apply to the same factual situation and vice versa.
a The scope of an earlier judgment is probably the most difficult question that judges must
a resolve in applying res judicata. Sometimes merely part of a subsequent lawsuit will be
a affected, such as a single claim being struck from a complaint, or a single factual issue being
a removed from reconsideration in the new trial. Res judicata does not restrict the appeals
a process, which is considered a linear extension of the same lawsuit as it travels up (and back
a down) the appellate court ladder. Appeals are considered the appropriate manner by which to
a challenge a judgment rather than trying to start a new trial, and once the appeals process is
a 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
a the original judgment, even outside of appeals. These exceptions--usually called collateral
a a a a a a a a a a
a attacks--are typically based on procedural or jurisdictional issues, based not on the wisdom of
a the earlier court's decision but its authority or competence to issue it. A collateral attack is
a more likely to be available (and to succeed) in judicial systems with multiple jurisdictions,
a such as under federal governments, or when a domestic court is asked to enforce or recognize
a the judgment of a foreign court.

a a a a a
When a subsequent court fails to apply res judicata and renders a contradictory verdict on the
a same claim or issue, if a third court is faced with the same case, it will likely apply a "last in
a a a a a a a a a a a a a a a a a a a a
a time" rule, giving effect only to the later judgment, even though the result came out
a differently the second time. This situation is not unheard of, as it is typically the responsibility
a of the parties to the suit to bring the earlier case to the judge's attention, and the judge must
a a a a a a a a a a a a a a a a a a
a decide how broadly to apply it, or whether to recognize it in the first place. Public Interest
a Litigation, in simple words, means, litigation filed in a court of law, for the protection of
a "Public Interest", such as pollution, Terrorism, Road safety, constructional hazards etc.Public
a a a a a a a a a a
a Interest Litigation is not defined in any statute or in any act. It has been interpreted by judges
a to consider the intent of public at large. Although, the main and only focus of such litigation
a is only "Public Interest" there are various areas where a Public Interest Litigation can be filed.
a For e.g. a
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1. Violation of basic human rights of the poor
a a a a a a a a
2. Content or conduct of government policy

a a a a a a
3. Compel municipal authorities to perform a public duty.

a a a a a a a a
4. Violation of religious rights or other basic fundamental rights.

a a a a a a a a a
INTRODUCTION:
Section 10 deals with stay of civil suits. It provides that no court shall proceed with the trial of
a any suit in which the matter in issue is also directly and substantially in issue in a previously
a instituted suit between the same parties and that the court in which the previous suit is
a pending is competent to grant the relief claimed. Section 11, on the other hand, relates to a
a matter already adjudicated upon. It bars the trial of a suit or an issue in which the matter
a directly and substantially in issue has already been adjudicated upon in a previous suit.
a Section 10 declares that no court should proceed with the trial of any suit in which the matter
a in issue is directly and substantially in issue in a previously instituted suit between the same
a parties and the court before which the previously instituted suit is pending is competent to
a grant the relief sought4 and the same has also been established with the case of Maharashtra
a State Coop. Marketing Federation Ltd. v. Indian Bank.

a a a a a a a
The rule applies to trial of a suit and not the institution thereof. It also does not preclude a
a court from passing interim orders, such as, grant of injunction or stay, appointment of
a receiver, (Indian Bank v. Maharashtra State Coop. Marketing Federation).5 etc. It, however,
a applies to appeals. The object of the rule contained in Section 10 is to prevent courts of
a concurrent jurisdiction from simultaneously entertaining and adjudicating upon two parallel
a a a a a a a a a
a litigations in respect of the same cause of action, the same subjectmatter and the same relief.
a The policy of law is to confine a plaintiff to one litigation, thus obviating the possibility of
a two contradictory verdicts by one and the same court in respect of the same relief. The section
a intends to protect a person from multiplicity of proceedings and to avoid a conflict of

4
AIR
a 1998 SC a a a 1952; a Maharashtra a State a Coop. a Marketing Federation Ltd. v. Indian Bank, a a a a a
aAIR 1997 Bom 186

a a a
5
(1998) 5 SCC 69
a a a a
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a decisions. It also aims to avert inconvenience to the parties and gives effect to the rule of res
a judicata. (S.P.A. Annamalay Chetty v. B.A.Thornhill,;6 Shri

a a a a a a
Ram Tiwary v. Bholi Devi,).7 It is to be remembered that the section does not bar the
a institution of a suit, but only bars a trial, if certain conditions are fulfilled. The subsequent
a suit, therefore, cannot be dismissed by a court, but is required to be stayed.

For the application of this section, the following conditions must be satisfied :
(i)There must be two suits, one previously instituted and the other subsequently instituted.
(ii)The matter in issue in the subsequent suit must be directly and substantially in issue in the
a previous suit. a
(iii)Both the suits must be between the same parties or their representatives.
(iv)The previously instituted suit must be pending in the same court in which the subsequent
a suit is brought or in any other court in India or in any court beyond the limits of India
a established or continued by the Central Government or before the Supreme Court.

(v) The court in which the previous suit is instituted must have jurisdiction to grant the relief
a claimed in the subsequent suit. a a a a
(vi)Such parties must be litigating under the same title in both the suits.
As soon as the above conditions are satisfied, a court cannot proceed with the subsequently
a instituted suit since the provisions contained in Section 10 are mandatory, (Manohar Lal
a Chopra v. Seth Hiralal,)8 and no discretion is left with the court. The order staying
a proceedings in the subsequent suit can be made at any stage. (Life Pharmaceuticals (P) Ltd. v.
a Bengal Medical Hall).9 Section 10, however, does not take away power of the court to
a examine the merits of the matter. If the court is satisfied that subsequent suit can be decided
a purely on legal point, it is open to the court to decide such suit. (Pukhraj D. Jain v. G.
a Gopalakrishna).10
6
AIR 1931 PC 263
a a a a
7
AIR 1994 Pat 76
a a a a
8
AIR 1962 SC 527: 1962 Supp (1) SCR 450
a a a a a a a a a
9
AIR 1971 Cal 345
a a a a
10
(2004) 7 SCC 251 : AIR 2004 SC 3504
a a a a a a a a a
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The test for applicability of Section 10 is whether the decision in a previously instituted suit
a would operate as res judicata in the subsequent suit. If it is so, the subsequent suit must be
a stayed. Explanation to Section 10 provides that there is no bar on the power of an Indian court
a to try a subsequently instituted suit if the previously instituted suit is pending in a foreign
a court. Again, as stated above, it is only the trial and not the institution of the subsequent suit
a which is barred under this section. Thus, it lays down a rule of procedure, pure and simple,
a which can be waived by a party. Hence, if the parties waive their right and expressly ask the
a court to proceed with the subsequent suit, they cannot afterwards challenge the validity of the
a subsequent proceedings. a
Section 11 of the Code of Civil Procedure embodies the doctrine of res judicata or the rule of
a conclusiveness of a judgment, as to the points decided either of fact, or of law, or of fact and a a a a a a a a a a a a a a a a a a
a law, in every subsequent suit between the same parties. It enacts that once a matter is is
a finally decided by a competent court, no party can be permitted to reopen it in a subsequent

a litigation. In the absence of such a rule there will be no end to litigation and the parties would
a be put to constant trouble, harassment and expenses.

a a a a a a a
The doctrine of res judicata has been explained in the simplest possible manner by Hon'ble
a Das Gupta, J. in the case of Satyadhyan Ghosal v. Deorjin Debi in the following words :
“The principle of res judicata is based on the need of giving a finality to judicial decisions.
a What it says is that once a res is judicata, it shall not be adjudged again. Primarily it applies as
a a a a a a a a a a a a a a a a a a a
a between past litigation and future litigation. When a matter, whether on a question of fact or a
a question of law, has been decided between two parties in one suit or proceeding and the
a decision is final, either because no appeal was taken to a higher court or because the appeal
a was dismissed, or no appeal lies, neither party will be allowed in a future suit or proceeding
a between the same parties to canvass the matter again.

a a a a a a a a
The doctrine of res judicata is conceived in the larger public interest which requires that all
a litigation must, sooner than latter, come to an end. (Lal Chand v. Radha Krishan,)11
The principle is also founded on justice, equity and good conscience which require that a party
a who has once succeeded on an issue should not be harassed by multiplicity of proceedings
a involving the same issue. Section 11 of the Code contains in statutory form, with illuminating
11
a (1977) 2 SCC 88 : AIR 1977 SC 789 a a a a a a a a
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a explanations very salutary principle of public policy. (Narayan Prabhu Venkateswara v.
a a a a a a a a a a
a Narayana Prabhu Krishna,12). a a
It embodies the rule of conclusiveness and operates as a bar to try the same issue once again.
a It hereby avoids vexatious litigation. (Sulochana Amma v. Narayanan Nair;13 Workmen v.

a Board of Trustees, Cochin Port Trust).14

a a a a a
The doctrine of res judicata is based on three maxims :

a a a a a a a a a a
(a)nemo debet bis vexari pro una et eadem causa (no man should be vexed twice for the same
a cause);
(b)interest reipublicae ut sit finis litium ( it is in the interest of the State that there should be an
a end to a litigation); and

a a a a
(c)res judicata pro veritate occipitur ( a judicial decision must be accepted as correct ).
The doctrine of res judicata differs from res sub judice in two aspects : whereas res judicata
a applies to a matter adjudicated upon (res judicatum), res sub judice applies to a matter
a pending trial (sub judice); and res judicata bars the trial of a suit or an issue which has been
a decided in a former suit, res sub judice bars trial of a suit which is pending decision in a
a previously instituted suit. a a
Order 23, Rule 1 deals with withdrawal of suits. It enacts that where the plaintiff withdraws
a the suit or abandons his claim without the leave of the court, he will be precluded from
a instituting a fresh suit in respect of the same cause of action.

DIFFERENCE BETWEEN RES JUDICATA AND WITHDRAWAL OF SUIT:
The distinction between res judicata and withdrawal of suit lies in the fact that while in the
a former the matter is heard and finally decided between the parties, in the latter the plaintiff
a himself withdraws or abandons his claim before it is adjudicated on merits.

The plea of res judicata has to be specifically pleaded and proved, and if a party fails to raise
a such plea it will be deemed to have been waived. Such plea cannot be raised for the first time
12
(1977) 2 SCC 181
a a a a
13
2 SCC 14 : AIR 1994 SC 152
a a a a a a a a
14
(1978) 3 SCC 119
a a a a
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a at the stage of appeal or for the first time in appeal before the Supreme Court. This has been
a held in, “ ITC Ltd. v. Commr of Central Excise, New Delhi.15 The doctrine of res judicata
a operates against both the parties to the suit and not against one alone. It also applies to all
a judicial proceedings and equally applies to a quasijudicial proceeding before tribunals. Even a
a wrong decision can operate as res judicata between the parties. This has been held in, ' A.R.
a Antulay v. R.S.Nayak, AIR 1988 SC 1531”. a a a a a a
Section 300 (1) of the Code of Criminal Procedure, 1973 declares that a person who has once
a been tried by a court of competent jurisdiction for an offence and convicted or acquitted of
a such offence cannot be tried again for the same offence so long as the acquittal or conviction
a operates.
Section 11 of the Code of Civil Procedure, 1908 enacts that once the matter is finally decided
a by a competent court, no party to such proceeding can be allowed to reopen it in subsequent

a litigation. The principle is also applicable to criminal proceedings and itis not permissible in
a the subsequent stage of the same proceedings or in subsequent proceeding to try a person for
a an offence in respect of which he has been acquitted or convicted. (Bhanu Kumar v. Archana
a Kumar,16 Swami Atmananda v. Sri Ramakrishna Taporanam.17

a a a a a a
Res judicata and stare decisis are members of the same family. Both relate to adjudication of
a matters. Both deal with final determination of contested questions and have the
a binding effect in future litigation. Both the doctrines are the result of decisions of a competent
a court of law and based on public policy. There is, however, distinction between the two.
a Whereas res judicata is based upon conclusiveness of judgment and adjudication of prior
a findings, stare decisis rests on legal principles. Res judicata binds parties and privies, while
a stare decisis operates between strangers also and binds courts from taking a contrary view on
a the point of law already decided. Res judicata relates to a specific controversy, stare decisis
a touches legal principle. Res judicata presupposes judicial finding upon the same facts as
a involved in subsequent litigation between the same parties. Stare decisis applies to same
a principle of law to all parties. a a a a a
15
AIR 2005 SC 1370”.
a a a a
16
(2005) 1 SCC 787
a a a a
17
AIR 2005 SC 626
a a a a
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The doctrine of res judicata also differs from Order 2 Rule 2 of the Code; firstly, the former
a refers to a plaintiff's duty to bring forward all the grounds of attack in support of his claim,
a while the latter only requires a plaintiff to claim all reliefs flowing from the same cause of
a action. Secondly, while the former rule refers to both the parties, plaintiff as well as
a defendant, and precludes a suit as well as a defence, the latter refers only to a plaintiff and
a bars a suit. Section 11 is mandatory. The plea of res judicata is a plea of law which touches
a the jurisdiction of a court to try the proceedings. A finding on that plea would oust the
a jurisdiction of a court. If the requirements of Section 11 are fulfilled, the doctrine or res
a judicata will apply and even a concession made by an advocate will not bind a party.
The doctrine of res judicata also differs from Order 2 Rule 2 of the Code; firstly, the former
refers to a plaintiff's duty to bring forward all the grounds of attack in support of his claim,
while the latter only requires a plaintiff to claim all reliefs flowing from the same cause of
action. Secondly, while the former rule refers to both the parties, plaintiff as well as
defendant, and precludes a suit as well as a defence, the latter refers only to a plaintiff and
bars a suit. Section 11 is mandatory. The plea of res judicata is a plea of law which touches
the jurisdiction of a court to try the proceedings. A finding on that plea would oust the
jurisdiction of a court. If the requirements of Section 11 are fulfilled, the doctrine or res
judicata will apply and even a concession made by an advocate will not bind a party.
HOW IS BAR BY PRIOR JUDGMENT DIFFERENT FROM CONCLUSIVENESS OF

JUDGMENT?
In actuality, "bar by prior judgment" is a general term. It has two kinds: res judicata and bar on
a re-litigation of an issue. Most textbooks refer to "res judicata" as "bar by prior judgment."
"Conclusiveness of judgment," on the other hand," is a term used to refer to the bar on re-
litigation of an issue or issues. Bar by prior judgment is the doctrine of res judicata which bars
a a second action when there is identity of parties, subject matter and cause of action. This
a means that a judgment has already been rendered by a court or tribunal of competent authority
a and, subsequently, an action or petition involving the same parties, subject matter and cause
a of action is filed in court. In such a case, the remedy is to file a motion to dismiss on the
a a a a a a a a a a a a a a a a a a a a
a ground a of a res a judicata a (meaning a "the a thing a has a already a been a adjudicated").
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On the other hand, conclusiveness of judgment precludes the re-litigation of a particular issue
a in another action between the same parties on a different cause of action. This means that an
a issue has already been passed upon by a court of competent authority and such judgment on
a such issue has already attained finality. Any subsequent or pending action or petition that
a involves that same issue must respect the judgment on the same. In other words, an issue
a already settled cannot be open to question in court anymore.

a a a a a a a a a
RULE:
The effect of a judgment or final order rendered by a court of the Philippines, having
a jurisdiction to pronounce the judgment or final order, may be as follows:

In case of a judgment or final order against a specific thing, or in respect to the probate of a
a will, or the administration of the estate of a deceased person, or in respect to the personal,
a political, or legal condition or status of a particular person or his relationship to another, the
a judgment or final order is conclusive upon the title to the thing, the will or administration or
a the condition, status or relationship of the person, however, the probate of a will or granting
a of letters of administration shall only be prima facie evidence of the death of the testator or
a intestate;
In other cases, the judgment or final order is, with respect to the matter directly adjudged or as
a to any other matter that could have been missed in relation thereto, conclusive between the
a parties and their successors in interest, by title subsequent to the commencement of the action
a or special proceeding, litigating for the same thing and under the same title and in the same
a capacity; and In any other litigation between the same parties or their successors in interest,
a that only is deemed to have been adjudged in a former judgment or final order which appears
a upon its face to have been so adjudged, or which was actually and necessarily included
a therein or necessary thereto. (Section 47 of Rule 39 of the Rules of Court)

CASE LAWS: a
In the case of Tabangao Shell Refinery Employees Association Vs. Pilipinas Shell
a Petroleum Corporation, April 7, 2014 first, the petition is barred by res judicata in the
a concept of conclusiveness of judgment. The concept of conclusiveness of judgment is

a explained in Nabus v. Court of Appealsas follows: The doctrine states that a fact or question
a which was in issue in a former suit, and was there judicially passed on and determined by a
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a court of competent jurisdiction, is conclusively settled by the judgment therein, as far as
a concerns the parties to that action and persons in privity with them, and cannot be again
a litigated in any future action between such parties or their privies, in the same court or any
a other court of concurrent jurisdiction on either the same or a different cause of action, while
a the judgment remains unreversed or unvacated by proper authority. The only identities thus
a required for the operation of the judgment as an estoppel are identity of parties and identity of
a issues. It has been held that in order that a judgment in one action can be conclusive as to a
a particular matter in another action between the same parties or their privies, it is essential that
a the issues be identical. If a particular point or question is in issue in the second action, and the
a judgment will depend on the determination of that particular point or question, a former
a judgment between the same parties [or their privies] will be final and conclusive in the second
a if that same point or question was in issue and adjudicated in the first suit. The Decision dated
a June 8, 2005 of the Secretary of Labor and Employment in the labor dispute over which he
a assumed jurisdiction, has long attained finality. a a a a a a
The provisions of section 11 of the Code are mandatory and the ordinary litigant who claims
a under one of the parties to the former suit can only avoid its provisions by taking advantage of
a section 44 of the Indian Evidence Act which defines with precision the grounds of such
a evidence as fraud or collusion. It is not for the court to treat negligence or gross negligence as
a fraud or collusion unless fraud or collusion is the proper inference from facts. Other factors in
a exception to section 11 being present must be litigating bona fide and the fulfillment of this is
a necessary for the applicability of the section. The above ratio decidendi was laid down in
a Jallur Venkata Seshayya v. Thadviconda Koteswara Rao. This representative suit was
a a a a a a a a a a
a brought by some persons on behalf of public interest for declaring certain temples public
a temples and for setting aside alienation of endowed property by the manager thereof. A
a similar suit was brought some years ago by two persons and the suit was dismissed on the
a grounds that the temples were private temples and the property endowed to the temple being
a private endowment, the alienation thereof were valid. The plaintiffs admitted that they could
a be deemed to be persons claiming under the plaintiffs in prior suit and the issue in both the
a suits a was a same.
It was contended however by them that finding in the prior suit could not be res judicata as
a against them in as much as there was gross negligence on the part of the plaintiffs in that suit
a in not producing the documents necessary for the decision of the suit in their favour and in not
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a placing their evidence before the Court and Privy Council held that no case of fraud apart
a from collusion being suggested, the plaintiffs, were bound to establish either that the decree in
a prior suit was obtained by collusion between the parties or that the litigation by the plaintiffs
a in prior suit was not bona fide. The plaintiffs based their case entirely on inferences to be
a drawn from alleged gross negligence on the part of the plaintiffs in the prior suit. The finding
a of gross negligence by the Trial Court was far from a finding of intentional suppression of the
a documents which would amount to want of bona fide or collusion on the part of the plaintiffs
a in prior suit. There being no evidence in the suit establishing either want of bona fide of
a collusion a on a the a part a of a plaintiffs a as a res a judicata.
In Beliram & Brothers and Others v. Chaudari Mohammed Afzal and Others it was
a held that where it is established that the minors suit was not brought by the guardian of the
a minors bona fide but was brought in collusion with the defendants and the suit was a fictitious
a suit, a decree obtained therein is one obtained by fraud and collusion within the meaning of
a section 44 of the Indian Evidence Act, and does not operate res judicata. The principle of res
a judicata in section 11 CPC is modified by section 44 of the Indian Evidence Act, and the
a principles will not apply if any of the three grounds mentioned in Section 44
exists. General principles cannot be applied in a way making section 11 CPC nugatory.
In Sarla Bala Devi v. Shyam Prasad Chatterjee, thee Division Bench of Calcutta High
a Court held: It is undoubtedly true that the principles of res judicata apply to proceedings other
a than suits including proceedings in execution. It must be taken as held by the Supreme Court
a that the principles of constructive res judicata are also applicable to execution proceedings.
a But the conditions of applicability of the principles of res judicata actual or constructive
a contained in section 11 CPC must be complied within such cases as far as possible. It is not
a the law that when a court applies the principles analogous to res judicata that court can
a override the conditions specified in section 11 CPC.

a a a a a a a a
The Calcutta High Court in fact followed an earlier decision of the same court in Abinash
a Chandra v. Madhusudan Majumdar and another, section 11 does not codify or crystallize
a the entire law regarding the doctrine res judicata. It deals with some of the circumstances
a under which a previous decision will operate as res judicata but not with all. Where
a circumstances other than provided for in section 11 exists the general principle underlying the
a rule of res judicata may be invoked in proper cases without recourse to the provision to the
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a provisions of that section. But obviously it does not follow that the provision of section 11
a may be flouted or overridden or that the prohibitions or reservation express or implied in that
a section may be ignored by reference to general principles of res judicata in a case to which
a section 11 applies. a a a
The general principles of res judicata cannot be invoked in a case when the court which tried
a the first suit had no jurisdiction to try the subsequent suit in as much as section 11 is explicit
a on this point and hence a former decision by court of small causes will not operate res
a juducata. The decision on an issue by a court of inferior jurisdiction does not operate as a bar
a to the trial of the issue by a court of superior jurisdiction in a subsequent suit but the
a correctness of this view is doubtful now in view of the Amending Act of 1976.
The Division Bench of the Madras High Court in Arikapudi Balakotayya v. Yadlapalli
a Nagayyaheld as follows: It is undoubtedly the law that the Doctrine of Res Judicata is not
a confined to decisions in a suit and that the doctrine applies even to decisions rendered in
a proceedings which are not suits but how far the decision which is rendered in an original
a proceedings will bind the parties depends upon the considerations. A decision given in a
a proceedings other than a suit may still operate as Res Judicata substantial rights of the parties
a are determined. But if the decision is given in a summary proceeding it does not operate as
a Res Judicata. Proceedings under section 84(2) Madras Hindu Religious Endowments Act,
a a a a a a a a a a
a cannot be said to be summary proceedings even though there may be no right of appeal. The
a question of res judicata does not depend on the applicability of the decision, which is put
a forward as constituting res judicata. That question comes in incidentally to see if proceedings
a under section 84(2) is of a summary nature.

a a a a a a a
The decision of the District Judge therefore, operates as Res Judicata in a subsequent
a proceedings between the same parties. Though Section 11 of CPC is largely modified even
a then it is not exhaustive. The plea of res judicata still remains apart from the separate
a provisions of CPC. The statement of doctrine of res judicata contained in Section 11 of CPC
a is not exhaustive and there fore recourse may properly be had to the decisions of the English
a Courts for the purpose of ascertaining the general principles governing the application of the
a doctrine. The terms of section 11 are not to be regarded as exhaustive. The binding force of a
a judgement in probate proceedings depends upon the section 11 but upon the general
a principles of law. The rule of Res Judicata though may be traced to an English source it
a embodies a doctrine in no way opposed commentators. The application of the rule of res
14 | P a g e
a judicata therefore by the Courts in India should be included by no technical consideration of
a form but by matter of substance within the limit allowed by law.

RES JUDICATA AND PUBLIC INTEREST LITIGATION:
In Rural Litigation And Entitlement Kendra v. State of U.P. it was held on this aspect:
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 should
be permitted or stopped. We may not be taken to have said that for public interest litigations,
procedural laws do not apply. At the same time it has to be remembered that every
technicality in the procedural law is not available as a defense when a matter of grave public
importance is for consideration before the court. 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. As we have
already pointed out when the order of 12th march, 1985 (reported in AIR 1985 SC 652), was
made, no reference to the Forest (Conservation) Act of 1980 had been done. 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.
TEST OF CONCLUSIVENESS OF FOREIGN JUDGMENTS
Section 44A of Code of Civil Procedure, 1908 encapsulates the principle of reciprocity, i.e.
execution of foreign decree passed by a foreign country (reciprocating) in India and the
manner in which it is to be done. A foreign judgment or decree should be conclusive as to
any matter adjudicated by it. The test for conclusiveness of a foreign judgment or decree is
laid down in Section 13 of the Code of Civil Procedure which states that a foreign judgment
shall be conclusive unless:
1. It has not been pronounced by a court of competent jurisdiction;

2. It has not been given on the merits of the case;
3. 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 India in cases in which such law
is applicable;
4. The proceedings in which the judgment was obtained are opposed to natural justice;
15 | P a g e
5. It has been obtained by fraud;
6. It sustains a claim founded on a breach of any law in force in India.
In Brijal Ramjidas v. Govindram Gordhan Seksaria18) the Court held that Section 13 speaks
not only of judgment, but any matter directly adjudicated upon.
SUGGESTIONS AND CONCLUSION:
The principle of Res Judicata does not apply strictly to public interest litigations. The
procedural laws are not fully applicable to PIL cases. Where the prior public interest relates
to illegal mining, subsequent public interest litigation to protect environment is not barred.
Though, the provisions of section 11 of the Code are mandatory and the ordinary litigant who
claims under one of the parties to the former suit can only avoid its provisions by taking
advantage of section 44 of the Indian Evidence Act 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.
Other factors in exception to section 11 being present must be litigating bona fide and the
fulfillment of this is necessary for the applicability of the section.
Since the primary object of Res Judicata is to bring an end to litigation, there is no reason not
to extend the doctrine to public interest litigation. In Forward Construction Co. v. 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. In another case of Ramdas Nayak v. Union of India, the court observed: It is a
repetitive litigation on the very same issue coming up before the courts again and again in the
grab of public interest litigation. It is high time to put an end to the same.
18
AIR 1947 PC 192.
16 | P a g e

2018llb003 - Sem 5 - Law of Evidence - Conclusiveness of Judgment

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DAMODARAM SANJIVAYYA NATIONAL LAW UNIVERSITY

CONCLUSIVENESS OF JUDGMENT-CASE ANALYSIS

NAME OF THE FACULTY:

Dr. Nandini C.P.

NAME OF THE CANDIDATE:

a me a wonderful opportunity to work on the topic: “Conclusiveness of Judgment-Case

a determination of an action before a competent court in which judgment is rendered on thea a a a a a a a a a a a a a

a between identical parties in different causes of action.3

HOW THE CONCEPT OF RES JUDICATA WORKS?

aMar. 21, 2017. a a

a the judgment of a foreign court.

2. Content or conduct of government policy

3. Compel municipal authorities to perform a public duty.

4. Violation of religious rights or other basic fundamental rights.

a State Coop. Marketing Federation Ltd. v. Indian Bank.

a intends to protect a person from multiplicity of proceedings and to avoid a conflict of

aAIR 1997 Bom 186

a judicata. (S.P.A. Annamalay Chetty v. B.A.Thornhill,;6 Shri

a suit, therefore, cannot be dismissed by a court, but is required to be stayed.

a established or continued by the Central Government or before the Supreme Court.

a claimed in the subsequent suit. a a a a

a finally decided by a competent court, no party can be permitted to reopen it in a subsequent

a be put to constant trouble, harassment and expenses.

a between the same parties to canvass the matter again.

a Narayana Prabhu Krishna,12). a a

a It hereby avoids vexatious litigation. (Sulochana Amma v. Narayanan Nair;13 Workmen v.

a Board of Trustees, Cochin Port Trust).14

The doctrine of res judicata is based on three maxims :

a end to a litigation); and

a previously instituted suit. a a

a instituting a fresh suit in respect of the same cause of action.

DIFFERENCE BETWEEN RES JUDICATA AND WITHDRAWAL OF SUIT:

a himself withdraws or abandons his claim before it is adjudicated on merits.

a Antulay v. R.S.Nayak, AIR 1988 SC 1531”. a a a a a a

a by a competent court, no party to such proceeding can be allowed to reopen it in subsequent

a Kumar,16 Swami Atmananda v. Sri Ramakrishna Taporanam.17

a principle of law to all parties. a a a a a

HOW IS BAR BY PRIOR JUDGMENT DIFFERENT FROM CONCLUSIVENESS OF

a already settled cannot be open to question in court anymore.

a jurisdiction to pronounce the judgment or final order, may be as follows:

a therein or necessary thereto. (Section 47 of Rule 39 of the Rules of Court)

a concept of conclusiveness of judgment. The concept of conclusiveness of judgment is

a assumed jurisdiction, has long attained finality. a a a a a a

a suits a was a same.

a collusion a on a the a part a of a plaintiffs a as a res a judicata.

a override the conditions specified in section 11 CPC.

a under section 84(2) is of a summary nature.

a form but by matter of substance within the limit allowed by law.

RES JUDICATA AND PUBLIC INTEREST LITIGATION:

TEST OF CONCLUSIVENESS OF FOREIGN JUDGMENTS

1. It has not been pronounced by a court of competent jurisdiction;

SUGGESTIONS AND CONCLUSION:

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