Res judicata Under Code of Civil Procedure 1908
Questions Covered
- What are the objects and essential conditions of the doctrine of res judicata?
- Illustrate the principle of constructive res judicata.
- Can an ex parte decree act as constructive res judicata?
Res judicata is the Latin term for “a matter already judged”, and refers to the legal doctrine meant to bar continued litigation of cases that have already been decided between the same parties. The doctrine of res judicata is based on three maxims
(a) Nemo debet lis vaxari pro eadem causa (no man should be vexed twice for the same cause)
(b) Interest republicae ut sit finis litium ( it is in the interest of the state that there should be an end to litigation); and
(c) Re judicata pro veritate occipitur (a judicial decision must be accepted as correct)
The legal concept of RJ arose as a method of preventing injustice to the parties of a case supposedly finished as well as 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 litigants from multiplying judgments, so a prevailing plaintiff could not recover damages from the defendant twice for the same injury.
Res Judicata is a rule of universal law pervading every well-regulated system of jurisprudence and is based upon a practical necessity that there should be an end to litigation and the hardship to the individual if he is vexed twice for the same cause. Thus, this doctrine 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 all kinds of suits such as civil suits, execution proceedings, arbitration proceedings, taxation matters, writ petitions, administrative orders, interim orders, and criminal proceedings.
Res Judicata under Code Of Civil Procedure, 1908
Section 11 of CPC 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 reopen it in 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.
Section 11 says this:
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.
The explanation I: The expression “former suit” shall denote a suit that 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 a 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 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 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.
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, a 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 a 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 doctrine has been explained by Justice Das Gupta as follows – 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 case is res judicata, it shall not be adjudged again. Primarily it applies to pass 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.
Essential Elements for Res Judicata
1. The matter in issue in a subsequent suit must directly and substantially be the same as in the previous suit.
2. The former suit must have been between the same parties or between parties under whom they or any of them claim.
3. Such parties must have been litigating under the same title in the former suit.
4. The court which decided the former suit must be a court competent to try the subsequent suit or the suit in which such issue is subsequently raised.
5. The matter directly and substantially in issue in the subsequent suit must have been heard and finally decided by the court in the former suit.
Give Illustrations
The onus of proof lies on the party relying on the theory of res judicata.
Exceptions to application
Res judicata does not restrict the appeals process, which is considered a linear extension of the same lawsuit as the suit travels up (and back down) the appellate court ladder. Appeals are considered the appropriate manner by which to challenge a judgment rather than trying to start a new trial. Once the appeals process is exhausted or waived, res judicata will apply even to a judgment that is contrary to law.
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.
In Beliram & Brothers and Others v. Chaudari Mohammed Afzal and Others, 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 section 44 of the Indian Evidence Act, and does not operate res judicata. The principle of res judicata in section 11 CPC is modified by section 44 of the Indian Evidence Act, and the principles will not apply if any of the three grounds mentioned in Section 44 exists.
Failure to apply
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.
Constructive Res Judicata
The rule of direct res judicata is limited to a matter actually in issue alleged by one party and denied by others either expressly or impliedly. But constructive res judicata means that if a plea could have been taken by a party in a proceeding between him and his opponent, and if he fails to take that plea, he cannot be allowed to relitigate the same matter again upon that plea. In effect, the partly impliedly gives up the right to that plea by not pleading it in the previous suit. This principle is embodied in Explanation IV of Section 11.
Explanation IV. Any matter which might and ought to have been made the 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.
In the case of Kesar Das Rajan Singh v. Parma Nand Vishan Dass, AIR 1959, a peculiar situation arose. In this case, the plaintiff had filed a suit on the basis of a promissory note. However, the plaintiff himself left the country, and in subsequent proceedings since he was unable to provide the promissory note to his advocate in the foreign country the suit got dismissed. The plaintiff, later on, filed another suit in the local courts. The defendant took the plea that the present suit was barred by res judicata. The Court held that the judgment on the previous suit since it did not touch upon the merits of the case, therefore could not be held to be res judicata for the present suit.
Ex parte decree as Res Judicata
An ex parte decree, unless it is set aside, is a valid and enforceable decree. However, the real test for res judicata is whether the case was decided on merits. The real test for deciding whether the judgment has been given on merits or not is to see whether it was merely formally passed as a matter of course, or by way of penalty for any conduct of the defendant, or is based upon a consideration of the truth or falsity of the plaintiff’s claim, notwithstanding the fact that the evidence was led by him in the absence of the defendant. Thus, a decree may not act as res judicata merely because it was passed ex parte.
It, therefore, acts as a res judicata.
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