Table of Contents

ABSTRACT.................................................................................................................................................. 2
SYNOPSIS .................................................................................................................................................... 3
Statement of Problem ................................................................................................................................ 3
INTRODUCTION ........................................................................................................................................ 5
HISTORY OF THE DOCTRINE ............................................................................................................. 6
RATIONALE BEHIND THE DOCTRINE .............................................................................................. 6
EXPLANATIONS I – VIII TO SECTION 11, CODE OF CIVIL PROCEDURE, 1908............................. 7
APPLICABILITY OF RES JUDICATA ...................................................................................................... 8
ESSENTIALS OF RES JUDICATA ............................................................................................................ 9
MATTER DIRECTLY AND SUBSTANTIALLY IN ISSUE ................................................................... 10
FORMER SUIT .......................................................................................................................................... 10
SUIT BETWEEN SAME PARTIES .......................................................................................................... 11
 IFTIKHAR AHMED V. SYED MEHERBAN ALI : ................................................................................... 11
MATTER TO BE DECIDED BY A COMPETENT COURT ................................................................... 12
THE MATTER SHOULD BE HEARD AND FINALLY DECIDED ................................................... 12
RES JUDICATA AND WRIT PETITIONS ............................................................................................... 12
 DARYAO V. STATE OF U.P ........................................................................................................ 13
 ABSTRACT

Laws of every land are based on principles. These principles govern the entire realm of
jurisprudence in a country. These principles guide legislation, give legitimacy to judicial
decisions and protect the citizens of a nation. The judiciary incorporates these principles in
deciding cases and ensures conformity by the legislature and executive to such principles.

Res judicata is one such principle, whose origin cannot be sufficiently traced. It is an all
pervading concept present in all jurisdictions of the world. Res judicata is based on public policy
and has universal application. India, has adopted the principle of res judicata in S.11 of the Code
of Civil Procedure, 1908 (hereinafter referred to as “C.P.C.").

Modern day society is filled with disputes and litigations. The courts are flooded with frivolous,
slow and cumbersome cases. The embodiment of a principle like res judicata, is but one of
necessity in our country. In order to bring finality to litigation and prevent a person from being
dragged to court again and again, res judicata is essential in any society.

This paper essentially focuses on S.11 of the C.P.C. The scope of this project covers an overview
of the doctrine of res judicata in general providing a background to this paper. This paper seeks
to analyze theory of the doctrine and its application in the form of case laws. One part deals with
res judicata in general, seeking to provide the reader with a background of the doctrine in general
na other deals with the essentials for application of res judicata.
KEYWORDS: Principles, Legislation, Judicial, Res judicata

SYNOPSIS

Statement of Problem
Laws of every land are based on principles. These principles govern the entire realm of
jurisprudence in a country. These principles guide legislation, give legitimacy to judicial
decisions and protect the citizens of a nation. The judiciary incorporates these principles in
deciding cases and ensures conformity by the legislature and executive to such principles.

Res judicata is one such principle, whose origin cannot be sufficiently traced. It is an all
pervading concept present in all jurisdictions of the world. Res judicata is based on public policy
and has universal application. India, has adopted the principle of res judicata in S.11 of the Code
of Civil Procedure, 1908 (hereinafter referred to as “C.P.C.").

Once a final judgment has been handed down in a lawsuit, subsequent judges who are confronted
with a suit that is identical to or substantially the same as the earlier one will apply the res
judicata doctrine to preserve the effect of the first judgment. The principle of res judicata is not
the creature of any statute or the handiwork of any code of law. It is the gift of public policy.

Research Methodology
The project is basically based on the doctrinal method of research as no field work is done on
this topic.

Aims & Objectives

To do an in depth analysis of the concept of Res Judicata. To know what the theory states and
whether an how it is applicable in the courts of India. Also, to know about the grounds upon
which it is being used on the cases. Further, the Aim of this project is to what implications it
carry and contributions in the cases and courts
Sources of Data
The whole project is made with the use of secondary source. The following secondary sources of
data have been used in the project-
1. Books

2. Websites

Mode of Citation
The researcher has followed a uniform mode of citation throughout the course of this research
paper.

Type of Study
For this topic, the researcher has opted for Descriptive and Explanatory type of study as in this
topic, the researcher is providing the descriptions of the existing facts.
 INTRODUCTION

The principle of res judicata while founded on ancient precedent, is dictated by a wisdom which
is for all time"

Sir Lawrence Jenkins:

Res judicata is a judicial creation with roots in the Latin phrase “Res judicata pro veritate
accipitur," “a matter adjudged is taken for truth". Res judicata is, in both civil law and common
law systems, a case in which there has been a final judgment and is no longer subject to appeal.
The term is also used to refer to the doctrine meant to bar re-litigation of such cases between the
same parties, which is different between the two legal systems. Once a final judgment has been
handed down in a lawsuit, subsequent judges who are confronted with a suit that is identical to or
substantially the same as the earlier one will apply the res judicata doctrine to preserve the effect
of the first judgment. The principle of res judicata is not the creature of any statute or the
handiwork of any code of law. It is the gift of public policy.

Res judicata is one such principle, whose origin cannot be sufficiently traced. It is an all
pervading concept present in all jurisdictions of the world. Res judicata is based on public policy
and has universal application. India, has adopted the principle of res judicata in S.11 of the Code
of Civil Procedure, 1908 (hereinafter referred to as “C.P.C.").
 HISTORY OF THE DOCTRINE
The doctrine of res judicata, in its essence, has an ancient history, although it is difficult to say
definitively whether or not the doctrine as it stands now was formulated before
1776. Understood in the distant past by both Hindu lawyers and Muslim jurists, it was known to
ancient Hindu Law as “Purva Nyaya" or “former judgement" . Under Roman Law, it was
recognised by the doctrine of exception rei judicatae which also meant “previous judgment".
Under English law, the principle is embodied in the maxim interest reipublicae ut sit finis litium,
which means the interest of the State lies in that there should be a limitation to law suits. Now,
all the countries of the Commonwealth and those of the European Continent accept that once a
matter has been brought to trial once, it should not be tried again except by way of appeal.

In order for the bar of res judicata to be applicable, it must be shown that the cause of action in
both the suits is the same as well as that the plaintiff had an opportunity to get the relief that is
now being claimed in the subsequent suit, in the former proceeding itself. Res judicata bars the
opening of final, un-appealed judgments on the merits, even where the judgment may have been
wrong or based on a legal principal subsequently overruled.

RATIONALE BEHIND THE DOCTRINE

The essence of the doctrine of res judicata is the judicially formulated proposition that a matter
which has been adjudicated in a prior action cannot be litigated a second time. The policies
which res judicata is designed to serve include the public interest in decreasing litigation,
protection of the individual from the harassment of having to litigate the same cause of action or
issue against the same adversary or his privy more than once, and facilitation of reliance on
judgments.

Essentially, the doctrine of res judicata in general is based on the three following maxims :

 nemo debet lis vexari pro una et eadem casua meaning that no man should be vexed
twice for the same cause,
  interest republicae ut sit finis litium or that it is in the interest of the State that there
should be an end to litigation, and
 res judicata pro veritate occipitur meaning that a judicial decision must be accepted as
correct.

The principle itself is founded upon the principles of justice equity and good conscience, and
applies to various civil suits, criminal proceedings, writs, execution proceedings etc. The
underlying purpose for this judicially created doctrine was to instill finality into litigation and to
provide for sound economic use of judicial resources.

EXPLANATIONS I – VIII TO SECTION 11, CODE

OF CIVIL PROCEDURE, 1908

Explanation I to S.11 states that res judicata depends upon the decision unlike S. 10, wherein
res sub judice hinges upon the institution of a suit.

Explanation II to S. 11 lays down that the finality of such a decision does not depend upon the
existence of a right to appeal. The decision is taken as final regardless of whether the right to
appeal exists.

Explanation III deals with matters that are actually in issue, vis-à-vis constructively in issue (as
in Explanation IV), inasmuch as there is a dispute, where one party alleges something and the
other party either denies it or admits it.

Explanation IV embodies the doctrine of constructive res judicata.

Explanation V declares that if multiple reliefs are sought in the plaint, those which are not
granted expressly by the Court are deemed to have been refused. So, if the Court does not make
reference to some or any reliefs which are claimed, the law deems them to have been refused by
the Court.
Explanation VI provides that if one or more persons file a suit on behalf of many others, who
also have a right to file such a suit, then the decision in such a suit will be binding upon those
who file the suit, as well as all those people on whose behalf such a suit is filed/who are
represented by the persons who actually file the suit.

Explanation VII, as explained earlier, indicates that the doctrine of res judicata as provided for
by S. 11 applies to execution proceedings as well. However, it is important to note that different
petitions may be filed asking for different reliefs. E.g. While a civil arrest may be sought only
once, attachment of property, immovable or movable, may be sought numerous times, since the
defendant may acquire new property. Hence, res judicata will not apply, as in each case the
property is different.

Explanation VIII declares that res judicata will apply to a subsequent suit even where the Court
which decided the former suit is not competent to try the subsequent one, provided that it was
competent to try the former suit, wherein the decision was given.

APPLICABILITY OF RES JUDICATA

Res judicata is a principle of universal application. It applies to civil suits, criminal proceedings,
writ petitions, execution suits etc. This doctrine is however, neither applicable to summary
dismissal nor to compromise and consent decrees. The doctrine of res judicata is not confined to
the limits prescribed in Section 11, Civil Procedure Code. The underlying principle of that
doctrine is that there should be finality in litigation and that a person should not be vexed twice
over in respect of the same matter. The essential condition for the applicability is that the
subsequent suit or proceeding is founded on the same cause of action on which the former suit
was founded. It is a debatable point whether the doctrine of res judicata should be interpreted
liberally or strictly. However, keeping in view its basis and objective, which is based on public
policy, it can be reasonably asserted that the doctrine of res judicata should be interpreted
liberally.
 ESSENTIALS OF RES JUDICATA
Res judicata has universal application. In jurisdictions world over the essentials of res judicata
are that: once a court with competent personal and subject matter jurisdiction over the parties
renders a final judgment, that judgment should conclude the matter between the parties. These
principles provide the foundation for the doctrine of res judicata. As a general rule, in order for
the doctrine of res judicata to apply to future litigation, four elements must be present. First, the
court must have competent jurisdiction over both the subject matter in dispute and the parties
involved in the litigation. Second, the judgment must have been “on the merits." If the plaintiff
received judgment in her favour, there is no question that the judgment was on the merits. If the
defendant received judgment in her favour, then the judgment “may or may not be upon the
merits." As a general rule, when a plaintiff's claim is dismissed based on procedure, the
judgment is not on the merits. However, if a court's ruling in favour of a defendant was not
based on procedural grounds, then the judgment will generally be on the merits. Third, the
second case must be based on the same cause of action as the first action. Finally, the parties in
the second action must have been involved in the initial litigation. Moreover, when the doctrine
of res judicata applies to a second suit involving the same parties and the same cause of action,
the first judgment is conclusive not only on the matters that were “actually litigated, but on all
matters which could have been litigated." Res judicata bars the opening of final, unappealed
judgments on the merits, even where the judgment may have been wrong or based on a legal
principal subsequently overruled. The underlying purpose for this judicially created doctrine
was to instill finality into litigation and to provide for sound economic use of judicial resources.

Under the Code of Civil Procedure, 1908 the conditions for res judicata to apply are :

 The matter which is directly and substantially in issue in the subsequent suit or issue must
be the same matter which was directly and substantially in issue, either actually or
constructively in the former suit. This applies to execution proceedings as well.
 It is necessary that the parties to the subsequent suit be the same parties as were in the
former suit, or are parties who are claiming under the parties to the former suit.
 The parties should have been litigating under the same title, i.e. in the same capacity as
the former suit.
In order for the bar of res judicata to apply to the subsequent suit, or the issues therein, the same
(matters directly and substantially in issue) should have been heard and decided by a Court in the
former suit. It is important to note that the Court which decided the former suit should have been
competent to decide such former suit, and had done so on merits.

Earlier, it was required that the Court which decided the former suit must be competent to decide
the subsequent suit as well. However, now, with the insertion of Explanation VIII into the
section, such a requirement has been done away with.

MATTER DIRECTLY AND SUBSTANTIALLY IN

ISSUE
The words in S.11 use the phrase “matter directly and substantially in issue". Thus, for res
judicata to operate the former suit and the subsequent suit should have matter which was
“directly and substantially in issue".

The test to decide whether a matter was directly and substantially in issue in the earlier
proceedings is to see if it was necessary for that issue to be decided in order for an adjudication
upon the principal issue.

Where there are findings on several issues or where the court rests its decision on more than one
point, the findings on all the issues or points will be res judicata. However, no objective test can
be laid down to definitively determine which matters are directly and substantially in issue in
every case and it depends on the facts and circumstances of each case.

FORMER SUIT
The most important condition that needs to be satisfied is that the matter in issue in the
subsequent suit was in issue, directly and substantially, in a former suit.
The expression “former suit" denotes a suit that has been decided earlier in time than the suit in
question, i.e. the subsequent suit, regardless of whether such a suit which was decided earlier
was instituted subsequently to the suit in question or not. If two suits are instituted one after the
other, and both relate to the same question in controversy, the bar of res judicata will apply even
in cases where the subsequently instituted suit is decided first.

SUIT BETWEEN SAME PARTIES

A ‘party’ is a person whose name appears on the record at the time of the decision. A party may
be the plaintiff or defendant. The condition recognizes the general principle of law that
judgments and decrees bind the parties and privies. Once the matter is heard and decided in one
suit, the same cannot be agitated again by the same parties, their legal representatives or
successors. Res judicata binds in a subsequent suit, the same parties to the former suit, the legal
representatives of such parties or anyone claiming under such parties. Further, even if a
subsequent suit is brought about in a different form or under a different guise, but seeking to
agitate the same matter as was decided in the former suit, it will be barred by res judicata.

 IFTIKHAR AHMED V. SYED MEHERBAN ALI :

There was a dispute as to title to some land. The appellant sought to challenge the decision of the
High Court, which was to the effect that the respondents also had some title to the land in
question. Initially, the dispute between the parties was referred to an arbitrator by the Civil
Judge. The holding of the arbitrator was that that the respondents had no title and sole title
belonged to the appellant. The decision of the arbitrator was based upon a judgment of the High
Court in an earlier judgement, wherein both the present appellant and respondents were co-
plaintiffs in a suit against another person, again in respect of title to the land. Such a decision of
the High Court was considered by the arbitrator to operate as res judicata, and hence held in
favour of the appellants.
 MATTER TO BE DECIDED BY A COMPETENT
COURT
It is essentially for res judicata to operate against the subsequent, that the former suit should have
been decided by a court “competent to try" the subsequent suit. The expression “competent to
try" means “competent to try the subsequent suit if brought at the time the first suit was
brought". Before Explanation VIII was added to S. 11, the position was that the Court which
decided the former suit must have been competent to decide the subsequent suit as well, and if it
was not, then res judicata would not apply. However, with the insertion of Explanation VIII,
even if the Court which decided the former suit is not competent to decide the subsequent suit,
res judicata will still be applicable provided that the former suit was decided by a competent
Court.

THE MATTER SHOULD BE HEARD AND

FINALLY DECIDED
For res judicata to be applied, it is necessary that that the matter should have been heard and
finally decided in the former suit, and whether such decision be right or wrong is of
consequence. If an opinion is expressed on issues not material to the decision, then res judicata
will not apply. The matters which are directly and substantially in issue in the subsequent suit
must have been heard by the Court in the former suit and a final decision on the same must have
been delivered. In such cases, res judicata will apply to the subsequent suit. Such a provision also
applies to former suits that were disposed of ex parte, provided that notifications were suitably
issued to the party in question. But if a suit is dismissed on a technical ground, such a non-
joinder of necessary party, it would not operate as res judicata.

RES JUDICATA AND WRIT PETITIONS

It was debatable whether the term ‘suit’ would include writs and whether the principle of res
judicata would apply to writ petitions.
  DARYAO V. STATE OF U.P

Six writ petitions were presented before the Supreme Court entertaining this question. One of the
writ petitions was examined in detail by the court.

Facts - The relevant facts are that the petitioners were tenants in the lands of which the
respondents were proprietors. The petitioners had to leave the lands for some period owing to
communal disturbances. When the petitioners returned, they found that the respondents were in
unlawful possession of the land. The petitioners then filed ejectment suits under S. 180 of the
U.P. Tenancy Act, 1939, and obtained a decree in their favour, which was confirmed in appeal,
and thereby obtained possession of the said lands through Court.

The respondents preferred a second appeal before the Board of Revenue under S. 267 of the Act
of 1939, wherein the Board allowed the appeal and held that the respondents were entitled to the
possession of the lands in question.

High Court: The petitioners filed a writ petition under A. 226 before the High Court. However,
before the petition was filed, the Allahabad High Court had interpreted a particular section of the
U.P. Land Reforms Act, and such an interpretation was against the interests of the petitioners.
Hence, in consequence of such interpretation, the petitioners could not press their petition, and it
was consequently was dismissed. The same section of the said Act was later amended, in
consequence of which the petitioners approached the Supreme Court via writ petition under A.
32.