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 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 res judicata 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 could not recover damages from the defendant twice for the same injury.
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. Issue preclusion bars the re-litigation of factual issues that have already been necessarily determined by a judge or jury 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 can 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 a subsequent lawsuit 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.
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 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 court's 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 recognize the judgment of a foreign court.
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 judge's attention, and the judge must decide how broadly to apply it, or whether to recognize it in the first place. Public Interest Litigation, in simple words, means, litigation filed in a court of law, for the protection of "Public Interest", such as pollution, Terrorism, Road safety, constructional hazards etc.
Public Interest Litigation is not defined in any statute or in any act. It has been interpreted by judges to consider the intent of public at large. Although, the main and only focus of such litigation is only "Public Interest" there are various areas where a Public Interest Litigation can be filed. For e.g.
# Violation of basic human rights of the poor
# Content or conduct of government policy
# Compel municipal authorities to perform a public duty.
# Violation of religious rights or other basic fundamental rights.
Section 11 of the Code of Civil Procedure embodies the doctrine of res judicata or the rule of conclusiveness of a judgement, 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 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. The doctrine has been explained in the simplest possible manner by Das Gupta, J., ? 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 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 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.
Section 11 of the Code of Civil Procedure, 1908 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 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 a litigation); and
(c) 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 Kingston's Case (2 Smith's L.C. 13th edn. 644, 645.) 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 cognizable, nor of any matter to be inferred by argument from the judgment."
Section 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) and 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 section 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 JURIS (vol. 34, p. 743), it has been stated: 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 should be an end to litigation; the other, the hardship to the individual that he should 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.
An ordinary litigation being a party or claiming under a party of a former suit cannot avoid the applicability of section 11 of CPC as it is mandatory except on the ground of fraud or collusion as the case may be. Res Judicata 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:
# 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 should have been between the parties or between the parties litigating under some titles.
# The former suit should have been decided by competent court which can try subsequent suit also.
# Any matter, which might and ought to have been made a ground of defence or attack in such former suit shall be deemed to have been a matter directly and substantially in issue in each suit.
The onus of proof lies on the party relying on the theory of res judicata.
NATURE & SCOPE OF DOCTRINE OF
The doctrine of res judicata is based on the following three maxims:
· Nemo debet lis vaxari pro una eteadem which means none should be vexed twice for the same cause;
· Interest reipublicae ut sit finis litium which means that it is in the interest of the state that there should be an end to litigation;
· Res judicata pro veritate occipitur which means that a judicial decision must be accepted as correct,
The first ground is based on private interest whereas the other two take care of public policy and larger interest of the society.
The doctrine of res judicata is founded on the principles of justice, equity and good conscience. The doctrine applies to all judicial proceedings and equally to all quasi-judicial proceedings before tribunals. Section 11 of CPC operates against both the parties to a suit and not against the defendant alone. The principle of res judicata is an inhibition against the court and is a mixed question of fact and law and has to be specifically pleaded.
`Lis' disposed off on merits by a speaking order even if passed in limine, amounts to a decision which may operate as res judicata in subsequent proceedings. However, whether any order passed in limine operates as res judicata or not would depend on the nature of the particular order passed. At the same time an order passed in a previous case between the parties on the basis of an agreement between the parties would not operate as res judicata.
Also a matter which is collaterally or incidently in issue for the purpose of deciding the matter which is directly in issue in the case cannot be made the basis of plea of res judicata. A decision which has the force of res judicata can make white black, black white; crooked straight, straight crooked, that is, res judicata facit ex elbo nigrum, en nigroalbum, ex-curvo rectum, ex recto currum.
The principle of res judicata is mandatory and the ordinary litigant, claiming under one of the parties to the former suit, can avoid its provisions only by taking advantage of s 44 of the Indian Evidence Act of 1872. The grounds of avoidance under that section are fraud and collusion. Gross negligence is to be differentiated from fraud or collusion. Collusion of one of several defendants with the plaintiff is not enough to avoid the rule of res judicata.
It has been observed by the Supreme Court that like the plea of limitation, the plea of res judicata concerns the jurisdiction of the court and a finding in favour of the party raising it would oust the jurisdiction of that court.
It is immaterial whether the previous decision was right or wrong. The correctness or otherwise of a judicial decision has no bearing upon whether or not it operates as res judicata. Thus, a decision that a gift made by a coparcener is invalid, binds the parties when the same question is in issue in a subsequent litigation between the same parties.
Even an erroneous order passed in the earlier proceeding operates as res judicata, if the other conditions of s 11 are satisfied. In fact, the significance of s 11 lies precisely in the conclusiveness conferred by it on the earlier judgment even if it is wrong.
A judgment may be res judicata, even if it is founded on a view of the law contrary to one subsequently expressed by the Supreme Court in a different case. If the conditions for applicability of res judicata are satisfied in the latter case then the correctness or otherwise of the earlier decision is wholly irrelevant. Where the court decides a question of law, the decision becomes res judicata even though subsequently a different interpretation of law is adopted.
In a Madras case, the situation was peculiar. A subsequent High Court decision did not accept the principle laid down in the earlier decision. The earlier decision had not been given without jurisdiction. Such decision would operate as res judicata, inter-partes, notwithstanding the fact that it was not followed in the subsequent decision.
Inter-partes judgment given by a competent court binds the parties even if it is erroneous. Gifts made by coparcener were held to be invalid under the Hindu law in earlier suit between the coparceners. Such decision would bind the parties to a subsequent suit for petition. Even if erroneous, an inter partes judgment binds the party if the court of competent jurisdiction has decided the lis.
In the execution of a decree for eviction against a tenant in a proceeding under 0 2 I , r 97, the executing court held that the sub-tenant had become a direct tenant ender the landlord, in view of s 20 of the Delhi and Ajmer Rent Control Act 1952. Though the executing court had wrongly relied on s 20, (because it had been repealed), the decision was not challenged by the tenant.
The tenant subsequently sued for the eviction of the sub-tenant. It was held, that the earlier judgment had become final against the tenant and was binding on him and could not be le-agitated. The suit was barred. It was immaterial that the executing court had committed an error of law. It had the jurisdiction to decide that question and its order was not a nullity. In another case, a decree for eviction was passed on the ',round that the party was not a tenant. The said order became final. It was held that I he party could not subsequently challenge it on the ground that he was a tenant during the execution proceedings.
A question of law related to the facts is res judicata. An erroneous decision on (Ile question of law related to the facts of the case becomes res judicata between the parties, but not a decision on a question of law unrelated to facts which gives rise a right .However, the cases must be decided on the basis of the law as it stands when the judgment is pronounced. And if there is a change in the legal position either due to change in statutory law or because of change of judicial interpretation, after an earlier decision, the doctrine of res judicata will not operate.
An issue of fact decided in earlier proceedings by a competent court is binding in subsequent litigation. Further a finding on a mixed issue of fact and law, for example, whether a tenancy is permanent or not or whether a decree is executable, in earlier proceedings also operates as res judicata in subsequent litigation.
In determining the application of the rule of res judicata, the court is not concerned with the correctness or otherwise of the earlier judgment. A wrong decision by a court having jurisdiction is as much binding between the parties as a right one and It way be superseded only by an appeal or revision to a higher court or tribunal or other procedure known to law.
The present section deals with the doctrine of res judicata. The doctrine of resjudicata is very ancient and was accepted by Hindu and Muslim jurists. Under the Roman Law, It was known as exceptio rei judicatae which signifies 'previous judgment’. Under the English law, the principle is interest reipublicae ut sit finis ie, the interest of the State lies in that there should be a limitation to law suits. Countries of the European Continent and also the common law countries have accepted that a matter once brought to trial should not be tried again except by way of appeal. Formerly, the doctrine was known as the plea of former judgment. The leading case on the subject is the Duchess of Kingstone's case.
The following classic passage from the judgment of Sir William de Grey is a statement of the leading principle of res judicata:
“From the variety of cases relative to judgment being given in evidence in civil suits, these two deductions seem to follow as generally true; first that 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; secondly that the judgment of Court of exclusive jurisdiction, directly on 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 Court, of concurrent or exclusive jurisdiction, is evidence of any matter which came collaterally in question, though within their jurisdiction nor of any matter incidentally cognizable, nor of any matter to be inferred by argument from the judgment.”
This passage summarises the law enacted in this section. The rule of res judicata is readily distinguished from the rule in s 10, for the latter relates to a res subjudice that is, a matter which is pending judicial inquiry; while the rule in the present section relates to res judicata, that is, a matter adjudicated upon or a matter on which judgment has been pronounced. Section 10 bars the trial of a suit in which the matter directly and substantially in issue is pending adjudication in a previous suit.
The present section bars the trial of a suit on an issue in which the matter directly and substantially in issue has already been adjudicated upon in a previous suit does not affect the jurisdiction of the court. Thus, if A sues B for damages for breach of contract and the suit is dismissed, a subsequent suit by A against B for damages for breach of the same contract is barred. This is the rule of res judicata stated in its simplest form.
The question of A's right to claim damages from B having been decided in the previous suit becomes res judicata, and it cannot therefore be tried in another suit. It would be useless and vexatious to subject B to another suit for the same cause. Moreover, public policy requires that there should be an end to a litigation.
The question whether the decision is correct or erroneous has no bearing on the question whether it operates or does not operate as res judicata. otherwise, every decision would be impugned as erroneous and there would be no finality. The rule of res judicata may thus be governed by two grounds—one, the hardship to the individual that he should be vexed twice for the same cause and the other, public policy, that it is in the interest of the State that there should be an end to a litigation. Phrasing it differently, it may be said that every suit must be sustained by a cause of action and there is no cause of action to sustain the second suit of A, it being merged in the first.
SECTION 11 – A MANDATORY PROVISION.
The provisions of section 11 of CPC are not directory but mandatory. The judgment in a former suit can be avoided only by taking recourse to section 44 of the Indian Evidence Act 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 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. The above ratio decidendi was laid down in Jallur Venkata Seshayya v. Thadviconda Koteswara Rao and Others .
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 could 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 could 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 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.
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.
General principles cannot be applied in a way making section 11 CPC nugatory. In Sarla Bala Devi v. Shyam Prasad Chatterjee, the Division Bench of Calcutta High Court held:
“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 section 11 CPC 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 can override the conditions specified in section 11 CPC”.
The Calcutta High Court in fact followed an earlier decision of the same court in Abinash Chandra v. Madhusudan Majumdar and another, section 11 does not codify or crystallize the entire law regarding the doctrine res judicata. It deals with some of the circumstances under which a previous decision will operate as res judicata but not with all.
Where circumstances other than provided for in section 11 exists the general principle underlying the rule of res judicata may be invoked in proper cases without recourse to the provision to the provisions of that section. But obviously it does not follow that the provision of section 11 may be flouted or overridden or that the prohibitions or reservation express or implied in that section may be ignored by reference to general principles of res judicata in a case to which section 11 applies.
The general principles of res judicata cannot be invoked in a case when the court which tried the first suit had no jurisdiction to try the subsequent suit in as much as section 11 is explicit on this point and hence a former decision by court of small causes will not operate res judicata. The decision on an issue by a court of inferior jurisdiction does not operate as a bar to the trial of the issue by a court of superior jurisdiction in a subsequent suit but the correctness of this view is doubtful now in view of the Amending Act of 1976.
In this case the majority of their Lordships of the supreme Court held that the provisions of section 11 CPC 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 section 11 CPC and also apply to cases not coming within the four corners of the section but if the case fails within the terms of section 11 CPC conditions of the section 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 section 11 CPC.
Where the court is dealing with a suit the only ground on which res judicata can be urged against such a suit would be the provisions of Section 11 CPC and no other. Scope of the principle of res judicata is not confined to what is contained in Section 11 but of more general application. The rule of res judicata as contained in Section 11 of the CPC has no doubt some technical aspects for instance the rule of constructive res judicata may be said to be technical but the basis on which the said rule rests is founded on consideration of public policy.
The doctrine of res judicata is a doctrine of wide import and Section 11 of CPC is not exhaustive of it and there is high authority for the view that the principle of res judicata may apply apart from the limited provisions of CPC. Section 11 is not exhaustive of the general principles of res judicata. It is however exhaustive in respect of the cases which directly come within its ambit in those cases if Section 11 does not strictly apply the court cannot invoke the general principles of res judicata.
The principle of conclusiveness of judgment is much wider and is a part of the general principles of res judicata and those principles have been held by authorities to be good principles apart from the provisions of CPC. Section 11 is not exhaustive of the circumstances in which an issue may be res judicata. A decision in order to constitute res judicata need not necessarily have been given in a prior suit.
The principle which prevents the same cause being twice litigated is of general application and is not limited by the specific words of Section 11 CPC in this respect though a proceeding for scaling down a debt under the Madras Agriculturists Relief Act is an original proceeding and not a suit the decision of the Court scaling down the decree as regards the amount payable under it would be res judicata between the parties in subsequent proceedings. Section 11 is not exhaustive of the circumstances in which the principles of res judicata may be applied but when a case falls within the purview of Section 11 CPC all the requirements are to be satisfied.
The principle of Res judicata has been held to be of wider application on the basis of the wider principle of the finality of decision by Courts of law and a decision under Section 12 of the U.P. Agriculturists Relief Act of 1934 was held to operate as Res judicata Section 11 CPC which embodies the principle of Res judicata has been held to be not exhaustive and even though a matter may not be directly covered by the provisions of that section the matter may still be Res Judicata on general principles.
Section 11 is not exhaustive statement of doctrine of Res Judicata and the principle has a wider application than in warranted by strict language of the section. The Division Bench of the Madras High Court in Arikapudi Balakotayya v. Yadlapalli Nagayyaheld as follows :
“It is undoubtedly the law that the Doctrine of Res Judicata 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 a proceedings other than a suit may still 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 section 84(2) Madras Hindu Religious Endowments Act, cannot 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 section 84(2) is of a summary nature.”
The decision of the District Judge therefore, operates as Res Judicata in a subsequent proceedings between the same parties.
Though Section 11 of CPC is largely modified even then it is not exhaustive. The plea of res judicata still remains apart from the separate provisions of CPC. The statement of doctrine of res judicata contained in Section 11 of CPC is not exhaustive and there fore 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 section 11 are not to be regarded as exhaustive. The binding force of a judgement in probate proceedings depends upon the section 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 application of the rule of res judicata therefore by the Courts in India should be included by no technical consideration of form but by matter of substance within the limit allowed by law.
DOCTRINE OF RES JUDICATA
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 tom illegal mining, subsequent public interest litigation to protect environment is not barred. 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.
Undoubtedly, the Environment (Protection) Act, 1986 has come into force with effect from 19tyh November, 1986. Under this Act 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 Act came into force.
This Court appointed several expert committees, received there their reports and on the basis of materials placed before it, made directions, partly final and partly interlocutory, in regard to certain mines in the area. Several directions from time to time have been made by this court. As many as four reportable orders have been given.
The several parties and their counsel have been heard for days together on different issues during the three and a quarter years of the pendency of the proceedings. This Act does not purport to and perhaps could not take away the jurisdiction of this court to deal with a case of this type. In consideration of these facts, we do not think there is any justification to decline the exercise of jurisdiction at this stage.
Ordinarily the court would not entertain a dispute for the adjudication of which a special provision has been made by law but that rule is not attracted in the present in the present situation in these cases.
The concept of Public Interest Litigation, an innovation of the judicial activism of India during that has indeed proved to be a boon to the downtrodden, oppressed and exploited sections of society for providing them with easy access to justice.
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.
RES JUDICATA :
DIFFERENCE FROM OTHER DOCTRINES.
v Distinction between Res judicata and Estoppel.
Res judicata is sometimes treated as part of the doctrine of estoppel, but the two are essentially different. The following are the points of distinction between the two doctrines-:
(1) Res judicata is the result of a decision of a Court of law, whereas estoppel is the result of the act of parties;
(2) The object of the rule of res judicata is to bring an end to the litigation whereas the object of the rule of estoppel is to prevent a person who by his conduct induced another to alter his position to his disadvantage;
(3) The jurisdiction of the Court is ousted by res judicala, whereas estoppel is only a rule of evidence;
(4) The plea of res judicata presupposes the truth of the decision in the former suit whereas the rule of estoppel simply prevents a person from denying what. he has once called the truth.
The shortest way to describe the difference between the res judicata and estoppel, is to say that while the former prohibits the Court from entering into an inquiry as to a matter already adjudicated upon, the latter prohibits a party, after the inquiry has already been entered upon, from providing anything which would contradict his own previous declaration or act to the prejudice of another party, who, relying upon those declarations or acts, has altered his position.
In other words, res judicata prohibits an inquiry in liniine, whilst an estoppel is only a piece of evidence.
A decision of a tribunal is challenged on a pure question of law depending upon the interpretation of a constitutional provision. On being upheld it would make the decision of the tribunal as having been given by an authority suffering from inherent lack of jurisdiction. The decision cannot be sustained by invoking the doctrine either of res judicata or of estoppel.
Res Judicata creates a different kind of estoppel namely, estoppel by accord.
v Distinction between Res judicata and Lis pendens
In case where there is a conflict between res judicata and lis pendens (which means that a transferee during the pendency of the suit is bound by the result of litigation) /is pendens gives way and the principle of res judicata will prevail.
Res judicala means a matter adjudicated upon or a matter on which decision has been made, whereas lis pendens is an action pending litigation.
v Distinction between Res judicata and Subjudice
1. Res judicata relates to a matter already decided, i.e. a matter on which judgment has been pronounced, whereas res. subjudice (laid down in Section 10) relates to matter which is pending for judicial enquiry.
2. Res subjudice bars the trial of a suit in which the matter directly and substantially in issue is pending judicial decision, in a previously instituted suit by staying the trial of the latter suit, whereas res judicata bars altogether the trial of a suit or an issue in which the matter directly and substantially in issue has already been adjudicated upon in a previous suit.
3. The object of res subjudice is to prevent Courts of a concurrent jurisdiction
from simultaneously entertaining and adjudicating upon two parallel litigations in
:elute cause of action, same subject-matter and same relief whereas the object of Res judicata is that there should be an end to litigation and that no man should be taxed twice over for the same cause.
APPLICATION & NON-APPLICATION
DOCTRINE OF RES JUDICATA
APPLICATION OF DOCTRINE OF RES JUDICATA:
That if the revenue authorities had the requisite jurisdiction to determine a question then the issues which could and ought to have been raised in the proceedings but not raised, would be barred by the principles of constructive res judicata.
Where a levy assessment order was challenged but the appeal was dismissed and no further appeal was filed, a subsequent Civil suit challenging the levy was held to be barred by the principle of res judicata as the assessment order had attained finality.
Where an issue regarding genuineness of agreement and whether there was interpolation was settled and judicially determined finally in. a suit between the parties, and also party gave undertaking that she would not raise issue of interpolation, the party could not be allowed to raise same issue again in differed suit between same parties and regarding the same subject matter. The principle of res judicata and estoppel would apply.
If the issue of future interest has been raised and decided then the respondents are barred by yes judicata from reopening it. A decision in arbitration suit, holding that there is an arbitration agreement between the parties, is binding on the parties and it would operate as res judicata in matter of enforcement of foreign award.
A Hindu widow in the year 1967, after the death of her husband adopted a son. In an earlier suit in which she was a party, the Court had recorded finding that she was entitled to maintenance only and she was not a member of the HUF of her father-in- law. The said finding in a subsequent suit filed by her son for possession of the property will operate as res judicata.
In an execution of decree for possession the occupier of the property made an objection which he had already raised and was dismissed by trial Court. The(hereon had become final, then such objection is to be dismissed on ground of Res judicata.
A seniority list was not challenged before the tribunal on the ground that there
provision for carrying forward vacancies. The said plea cannot be raised
ho Supreme Court being barred by constructive res judicata. Where a certificate declaring promotion of the promotees to be temporary was not produced or proceedings before tribunal, it cannot be agitated in proceedings before Supreme Court as barred by constructive res judicata.
Where the finding of the lower Court that the property in dispute was wakf property was confirmed by the Supreme Court, subsequent suit by the defendants for decleration that the appellants have no right over the property is barred by principle of Res judicata.
The principle of constructive res judicata can be invoked even inter se respondents. Before any plea by contesting respondents could be said to be barred by constructive res judicata in future proceedings inter se such contesting respondents, it must be shown that such a claim was required to be raised by the contesting respondent to meet the claim of the appellant in such proceedings.
The bar of constructive res judicata is to apply only if a party omits to include one
of the several causes of action arising out of the same set of facts, and not when
different and independent causes of action arise out of altogether different set of facts.
Where dismissal of the suit was on account of extinguishment of the cause of action or any other similar cause, a decision made in the suit on a vital issue involved therein would operate as res judicata in a subsequent suit, between the same parties. If the defendant chose not to appeal against the decision then it would avert the bar of res judicata.
NON APPLICATION OF DOCTRINE OF RES JUDICATA:
The principle of resjudicata was not applied where the first writ petition was filed on the ground of 6t tided bias and was dismissed as withdrawn and the second petition was filed on the ground of apprehended bias and was dismissed as withdrawn and the second petition was filed on the allegation of actual bias. The subject-matter was also different. Principle of res judicata u/s. 11 is attracted where issues directly and substantially involved between the same parties in the previous and subsequent suit, are the same. If it may be that in the previous suit only part of property was involved whereas in the subsequent suit, the whole property is involved.
If a review petition is filed before High Court and during its pendency a special leave petition against main judgment is also filed before Supreme Court. The SLP is dismissed without assigning any reason. The main judgment of the High Court would not get merged with this order of the Supreme Court. Subsequently if the review petition is dismissed by the High Court then another SLP against this dismissal order rejecting review petition will not be barred by res judicata.
The defendant died during pendency of appeal filed by him. When appeal was placed for hearing, an advocate addressed letter to deceased defendant the legal representatives of the defendant appellants promptly approached advocate and filed, application for substitution. It was rejected on ground that no separate applications were filed for substitution, sitting aside abatement of appeal and condonation of delay. Appellants thereafter, filed three separate applications.
There was no inaction or negligence on part of appellants. The Appellate Court ought to have granted prayer for substitution. The rejection of said applications, being barred by res judicata was illegal. The doctrine of res Judicata would not apply where Court felt. That applications were not maintainable.
A judgment restraining recovery of tax based on cause of action arising out of assessment for a particular year and holding the party not liable for payment of tax would not constitute res judicata for liability to pay tax or assessment for subsequent years.
The judgment/order which is without jurisdiction, or is non-speaking, does not operate as res judicata. The principles of res judicata also do not apply in a case involving pure question of law. Where a plea is raised that the decree passed in earlier proceedings was collusive, it would not operate as res judicata. If earlier suit was based on lease and the subsequent suit is based on title then res judicata will not apply.
The decision in a suit for injunction is not binding on a latter suit or proceeding on question of title, where title is directly in question, even though issue on title was framed in that suit and incidental finding on question of title was given. The finding given on an application for grant of succession certificate are not final and do not operate as res judicata.
No party can be permitted to raise an issue inter se where such an issue has been decided in an early proceeding. Even if res judicata in its strict sense may not apply but its principle would be applicable. Dismissal of earlier SLP was not by any reasoned order. Point raised before the Supreme Court was neither raised nor decided in that SLP. As the question was I likely to come in future the Supreme Court thou ht it fit to decide and settle it. The plea of bar of res judicata was not maintainable.
Where a Civil suit for determination of status of tenancy of party between the parties is pending on or before coming into force of an amending Act, Civil Court's jurisdiction is not barred, the tribunal under amending Act issued purchase certificate to a party, without jurisdiction and hence nullity, no question of res judicata arises in such cases. A decision of Court or tribunal which is without jurisdiction cannot operate as res judicata in subsequent proceedings.
The finding in an earlier occupation of the premises will not operate as res judicata in a subsequent eviction proceeding after the issue of notice of termination of the lease. An inter party judgment given by competent Court binds the parties, even if it is erroneous. The gifts made by coparcener were held invalid under Hindu law in an earlier suit between coparceners. Such decision would bind parties to subsequent suit for partition. Question of applying rule of estopple on ground that there was family arrangement between coparceners did not arise.
Where in the previous decree in respect of same property the plaintiff member given 5/6th share in property, it would not bind other member being collusive decree. Mereso when other member was not party in the said proceedings. If a special leave petition is dismissed without speaking order then it will not constitute res judicata.
where a review petition was filed much prior to filing of special leave petition against main judgment of High Court, leave to appeal, if granted, cannot be revoked. A SLP against main judgment of High Court was dismissed as withdrawn then a review petition was filed during pendency of SLP. It was also dismissed by the High court taking view that there was no error apparent on record. Another SLP was filed thereafter challenging said judgment of the High Court passed in review petition. It would not be barred on ground of res judicata.
If the former suit is dismissed without any adjudication on the matter in issue merely on a technical ground of non-joinder then that cannot operate as res judicata. The bar under this section applies only if the matter directly and substantially in issue in the former suit, has been heard and finally decided by a Court competent to try such suit. Meaning thereby on the matter or issue in question there has been an application of the judicial mind and a final adjudication made.
Tha question of correctness or validity of the judgment passed on a writ petition cannot be raised in a contempt proceedings. No question of res judicata arises in such a cases.
There can also be no question of res judicata in the case where signs of fraud oil collusion are transparently pregnant or apparent from the facts on record. Where a suit was dismissed in favour of the defendant but there was an advermi finding against him, that decision cannot operate as res judicata in subsequent proceeding, because he had no occasion to go further in appeal against the adversti finding. (per R.M. SALIAL J. Minority view)
Where an earlier suit for injunction was dismissed on technical ground, the subsequent suit for declaration of title and recovery of possession is not barred l res judicata because the question of status of the plaintiff as lessee was not decided in earlier suit. The subsequent suit is also not barred by Rule 2(3) of Order 2 sin0 causes of action are different.
The plaintiff is the lessee of land. He starts a mill thereon which the defendant; subsequent assignee of the mill. In a suit for possession of land and building the plea) by the defendant that he is a tenant is not barred on the ground that it was not raised in earlier suit between parties when earlier suit was confined to mill. It was treated as movable property independent of land and building in which mill was installed.
The word 'revised' under Section 44(1) of the WB Estate Acquisition Act, 1954 indicates that the State Government or its officers shall be entitled to revise from. time to time the Records of Rights and to make necessary entries or corrections in the relevant columns in the settlement operations or as per exigency envisaged under the Act and the rules made thereunder. The order under Section 44(3) becomes final as long as there is no revision effected. The question of res judicata does not arise.
An observation made off the mark which was also unnecessary would not operate as res judicata in a subsequent proceeding. According to the Scheme of AP (Andhra Area) Estates (Abolition and Conversion in Ryotwari) Act, 1948, the Estates Abolition Tribunal was to be expected first to, give directions with regard to the payment of the principal amounts and defer the payment of interest to a future date. The issue with regard to the claim for interest in the subsequent application was not barred by res judicata."\
A writ petition was filed before maturity of the claim under the policy directing the LIC to make a statement on oath under Section 226(3)(vi) of the Income-tax Act. A second writ petition for the payment of policy amount with interest was withdrawn as a result of withdrawal of notice by the ITO. The third writ petition raising question of LICI's liability to pay interest on the principal amount is not barred by res judicata."
The previous suit against B as trespasser for eviction and .delivery of possessionr was decreed. B's contention that the property was reserved for sadhu saints and religious mandicants' and he as a sadhu was entitled to reside therein was negatived. Subsequent proceedings for determination whether the property was held in nubile trust or a religious or charitable character is not barred by res judicata as B was not sued in the former proceedings in the representative capacity on behalf of the beneficiary.
1). Federated Dept. Stores v. Moitie, 452 U.S. 394 (1981):
The res judicata consequences of a final, unappealed judgment on the merits are not altered by the fact that the judgment may have been wrong or rested on a legal principle subsequently overruled in another case. An erroneous conclusion reached by the court in the first suit does not deprive the defendants in the second action of their right to rely upon the plea of res judicata.
I.e., a judgment need not be right to preclude further litigation, it need only be final and on the merits.
2). Bernhard v. Bank of America 19 Cal.2d 807, 122 P.2d 892 (1942):
It is the case thought to be the turning point that brought about the demise of mutuality. (Wright, sec.100A) In Bernhard, Mrs. Bernhard claimed that certain funds held by Cook, the executor of an estate, belonged to the estate. Cook claimed they were a gift to him from the decedent, which he need not include in the assets of the estate. Bernhard challenged Cook's claim in a probate proceeding during the course of the settlement of the estate, and the court held the funds were a gift to Cook. Bernhard then sued the bank that had been holding the funds and paid them to Cook, alleging again that the funds were assets of the estate that should have been paid to the estate rather than to Cook.
The bank pleaded collateral estoppel, arguing that Bernhard had already adjudicated the right to the funds in the probate proceeding, had lost, and should be precluded from relitigating the issue against the bank. The court concluded that it was not improper to allow a new party to take advantage of findings in an earlier suit to estop a party who had litigated the issue in the prior action. Bernhard had been a party to the first action and had a full and fair opportunity to litigate the issue there. The court saw no reason to allow her to relitigate the same issue by simply switching defendants. Bernhard holds that collateral estoppel runs against anyone who has fully and fairly litigated an issue in an earlier action.
3). Parklane Hosiery Co v. Shore, 439 U.S. 322 (1979):
The general rule should be that in cases where a plaintiff could easily have joined in the earlier action or where, for other reasons the application of offensive estoppel would be unfair to a defendant, a trial judge should not allow the use of offensive collateral estoppel.
A nonparty may assert collateral estoppel offensively against someone who was a defendant in a prior action. Under Parklane the court must evaluate on a case by case basis whether it is necessary to allow what appears to be duplicative litigation to ensure the reliability and fairness of a judgment. No precise rules can be formulated. The Parklane standard is applicable only to the federal courts. (Friedenthal, ¬ß14.14) "Offensive" use of issue preclusion involves a plaintiff who is seeking to prevent a defendant from relitigating issues that the defendant had previously litigated and lost against another plaintiff.
4). Blonder-Tongue Laboratories, Inc. v. University of Illinois Foundation, 402 U.S. 313 (1971):
The University of Illinois Foundation sued the defendant for infringing a patent but lost on the ground that its patent was invalid. It then brought a subsequent suit against another defendant for infringement of the same patent. The Supreme Court reversed its long standing rule allowing such relitigation and approved the use of nonmutual collateral estoppel against the Foundation on the issue of the validity of the patent. The Court noted the unfairness and waste of judicial resources that flows from allowing repeated litigation of the same issue as long as plaintiff is able to locate new defendants to sue. Note that preclusion is only appropriate if the precluded party had a full and fair opportunity to litigate the issue in the first action.
5). Durfee v. Duke, 375 U.S. 106 (1963):
Full faith and credit requires that judicial proceedings shall have the same full faith and credit in every court within the U.S. as they have by law or usage in the courts of such state from which they are taken. It requires every state to give a judgment at least the res judicata effect which the judgment would be accorded in the state which rendered it.
6). State v. Hutton, 100 Ohio St. 3d 176 :
"The doctrine of res judicata does not apply to bar a claim of ineffective assistance of appellate counsel not previously raised in an appeal where the defendant was represented on that appeal by the same attorney who allegedly had provided the ineffective assistance, even where the defendant was also represented on that appeal by another attorney who had not represented the defendant at the time of the alleged ineffective assistance."
7). State v. Ramirez, 153 Ohio App. 3d 477, 2003-Ohio-4107 :
A restitution order must be appealed at the time it is put on. Defendant waited until he was sanctioned for community control violations. Claimed error in failure to determine ability to pay was barred by res judicata.
8). State v. Dick (2000), 137 Ohio App. 3d 260:
Inmate faced sexual predator classification hearing, but Court of Appeals found the statute unconstitutional. Proceedings in the trial court were dismissed and state took no appeal. Even though the Supreme Court later upheld the statute, further proceedings were barred by res judicata. At p. 265: "The fact that the trial court's decision was based on what was ultimately determined to be an incorrect statement of the law is of no consequence, as the Supreme Court has held that 'there is no exception in the doctrine of res judicata for merely erroneous judgments.' LaBarbera v. Batsch (1967), 10 Ohio St.2d 106, 110."
9). State v. Carter 93 Ohio St. 3d 581, 2001-Ohio-1614:
Consideration of new claims in a second App. R. 26(B) application for reopening barred by res judicata. Previous counsel's failure to appeal denial of first application to the Supreme Court was not ineffective assistance of counsel.
10). State v. Longmire, Portage App. No. 2001-P-0014, 2002-Ohio-7153:
Court denied motion to modify sentences from consecutive to concurrent based on good behavior in prison and events subsequent to sentencing. Res judicata did not bar reconsideration, however, once sentence was executed court was without authority to modify the terms.
11). State v. Pasqualone (2000), 140 Ohio App. 3d 650:
Denial of a motion to vacate court costs on the basis of indigency is not a final appealable order. Even if it were, res judicata would ban consideration of any claim which could have been raised in an appeal from the initial judgment.
12). State v. Aponte (2001), 145 Ohio App. 3d 607:
"Defendant's agreement" provided for the defendant to plead guilty to first degree felonies, then if he fulfilled his obligations the pleas could be withdrawn and pleas entered to less serious offenses. Since the court, not the prosecutor, had the authority to permit withdrawal of guilty pleas, the plea bargain was illusory and unenforceable. Pleas were voidable. Trial and appellate counsel were ineffective. Application of res judicata would be unjust.
13). State v. Childs (2001), 141 Ohio App. 3d 767 :
On reversal and remand from the Supreme Court defendant was not entitled to a further evidentiary hearing on the suppression motion at issue. Also see State v. Lilly (2000), 139 Ohio App. 3d 560 -- The trial court was without authority to impose a lesser sentence following reversal and remand on an issue not related to sentencing. State v. Lentz, Lucas App. No. L-01-1461, 2003-Ohio-1038 -- Prior ruling on motion to quash a subpoena for defense counsel's fee agreement and billing records held res judicata
14). Bach v. Crawford, Montgomery App. No. 19531, 2003-Ohio-1255 :
Warren County denied application for domestic violence protection order. Res judicata bars consideration of those same events in a subsequent application in Montgomery County. (But shouldn't the court be able to weigh such prior events in determining whether the entire course of conduct warrants issuance of a protection order?
15). State v. McNeil (2000), 137 Ohio App. 3d 34:
A trial court may summarily dismiss claims in a postconviction petition that are baseless, such as claims barred by res judicata. However, it may not dismiss claims based on matters beyond the record without a review of the actual record. When the record is in the possession of an appellate court, the trial court must wait until the record is returned before determining whether such claims may disposed of without a hearing.
16). State v. Hay, 169 Ohio App. 3d 59, 2006-Ohio-5126 :
Defendant was charged with furnishing alcohol to a minor, contributing to the delinquency of a minor and acting in a way tending to cause a child to become delinquent. All were premised on furnishing alcohol to a minor. Applying res judicata, dismissal of the furnishing charge required dismissal of the other charges based on the same allegation.
17). State v. Cordle (January 8, 1985), Franklin Co. App. No. 84AP-484:
When a minor misdemeanor is tried to the bench at the same time more serious charges are tried to the jury, the doctrine of res judicata bars the judge from convicting the defendant when acquittal by the jury means a common element has been resolved in the defendant's favor. Also see State v. Armstrong (July 16, 1991), Franklin Co. App. No. 90AP-690 (1991 Opinions 3262); State v. Capaniro (March 21, 1995), Franklin Co. App. No. 94APC09-1377, unreported (1995 Opinions 1129); Beacon Theaters v. Westover (1959), 359 U.S. 500.
18). State v. Roberts, Wood App. Nos. WD-03-001. WD-02-66, 2003-Ohio-5689 :
“when a motion for new trial is granted, we conclude that it is within the trial court's discretion whether or not to reopen factual determinations which have already been fully litigated."
19). State v. Brown, 167 Ohio App. 3d 239, 2006-Ohio-3266:
Drawing a parallel to Civil Rule 60(B) two of three judges think res judicata is relevant in reviewing postsentence motions to withdraw guilty pleas. See concurring opinion for the better view.
20). State v. Getsy (1998), 84 Ohio St. 3d 180, 184-185:
During a death penalty trial, the presiding judge attended a party with the prosecutor, then was charged with OMVI after being involved in an auto accident on the way home. The Chief Justice denied an affidavit of disqualification. This ruling is res judicata as to an assignment of error challenging the judge's failure to recuse himself or declare a mistrial.
21). State v. Lentz (1994), 70 Ohio St. 3d 527 :
"When a criminal defendant is represented by two different attorneys from the same public defender's office at trial and on direct appeal, res judicata bars a claim of ineffective assistance of trial counsel raised for the first time in a petition for postconviction relief when such claim could have been made on direct appeal without resort to evidence beyond the record, unless the defendant proves that an actual conflict of interest enjoined appellate counsel from raising ineffective assistance of trial counsel on direct appeal."
22). State v. Szefcyk (1996), 77 Ohio St. 3d 93 :
"Under the doctrine of res judicata, a final judgment of conviction bars a convicted defendant who was represented by counsel from raising and litigating in any proceeding, except an appeal from that judgment, any defense or any claimed lack of due process that was raised or could have been raised by the defendant at the trial, which resulted in that judgment of conviction, or on an appeal from that judgment. (State v. Perry , 10 Ohio St. 2d 175...paragraph nine of the syllabus, approved and followed; State v. Westfall , 71 Ohio St. 3d 565...disapproved.)" On direct appeal, defendant lost on the claim that a minor misdemeanor could not be the basis for an involuntary manslaughter conviction. Subsequently, in another case, the Supreme Court of Ohio held otherwise. A post conviction action successfully secured defendant's release. [State v. Szefcyk (1995), 104 Ohio App. 3d 118.] Ohio Supreme Court reversed.
23). Freeman v. Tate (1992), 65 Ohio St. 3d 440 :
The doctrine of res judicata applies to successive habeas corpus petitions. Also see Hudlin v. Alexander (1992), 63 Ohio St. 3d 153.
24). State v. Apanovitch (1995), 107 Ohio App. 3d 82, 89:
"Res judicata is an affirmative defense which must be raised in a responsive pleading or it is waived.
25). State v. Bolds (1994), 96 Ohio App. 3d 483, 485:
"Where a defendant fails to raise questions about the constitutionality of a statute or ordinance, and such questions are subsequently decided in a case brought by another individual, the defendant is barred by the doctrine of res judicata from raising such questions in a postconviction proceeding."
INDIAN CASE LAWS:-
1). Jallur Venkata Seshayya vs. Thadviconda Koteswara Rao
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 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.
2). 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.
3).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.
4). 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.
5).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 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.
6).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.
7).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.
8). Joint Family of Udayan Chinubhai vs. Commissioner of Income Tax
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.
9). Dwarkadas Kesardeo Morarka vs. Commissioner of Income Tax
It was held that earlier decision in assessee’s 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 assessee’s 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.
10). Commissioner of Income Tax vs. P. Krishna Warrier
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 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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 Issabella v. Susai (1991) 1 SCC 494.
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  63 ITR 416 (SC).
  44 ITR 529 (SC
  208 ITR 823 (Ker).
Tags :Civil Law