Sec 11 of Code of Civil Procedure states that- [i]“ 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 the 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”.
Sec 11 does not deal with the question of jurisdiction, because it does not affect the cognizability of suits but only bars their trials.
[ii]The doctrine of Res Judicata has been originated from three roman latin maxims:
- Interest republicaeut sit finis litium – It means that it is in the interest of the state that there should be an end of litigation;
- Re judicata pro veritate occipitur – Decision of the court should be adjudged as true;
- Nemo debet lis vaxari pro eadem causa – It means that no person should be vexed, annoyed, harassed or vexed two times for the same cause.
The doctrine of res judicata is not a merely technical doctrine. It is based on public policy as well as private justice : Interest republicaeut sit finis litium i.e it is to the interest of the state that there should be an end to litigation; Nemo debet lis vexari pro uno eteaden causa i.e no one shall be vexed twice over for the same cause of action. [iii]Under the Roman Law, “ex captio res judicata” which means “one suit and one decision is enough for any single dispute”. The doctrine has been accepted in all the civilized system. It is a fundamental doctrine which is based upon the principle of finality of the judgment and the litigation. It does not depend on the correctness and incorrectness of the previous judgment. In simple term res means thing and judicata means decided.[iv] This doctrine operates as a bar to the trial of a subsequent suit on the same cause of action between the same parties. In India, it’s governed under Section 11 of Civil Procedure Code, 1908 which provides that after a matter is finally decided by a competent court, no party are often permitted to reopen it in an exceedingly subsequent litigation.
The principle of res judicata is founded on the ancient Indian Principle of prang-nyaya which means (previous judgment). The principle is stated in Brihaspati Samiti : “If a person who has been defeated in a suit according to law files the plaint once again he must be told that he has been defeated already; this is called as plea of prang-nyaya”.
The following conditions must be satisfied to constitute bar of Res Judicata –
- The former suit must have between the same parties or persons claiming under them,
- The question directly and substantially in issue in the subsequent suit should have been hear and finally decided in the prior suit.
- Such parties must have litigated under the same title in the former suit,
- The Court which determined the earlier suit must be competent to try the later suit (subject to the provisions contained in Explanation VIII, added by 1976 Amendment),
- The matter must be directly and substantially in issue of the two suits,
It is the “matter in issue” and not the subject matter of the suit that forms the essential test of res judicata. The rule of res judicata requiring the identity of the matter in issue will apply even when it is the subject matter, the object, the relief and the cause of action are different.
Rule of Res Judicata would apply to all judicial proceedings. It equally applies to all quasi-judicial proceedings of the tribunals, it has always been accepted as a plea of defence. The onus to prove that particular issue raised in a subsequent suit is res judicata is always upon the defendant who takes the plea.
Loopholes in the doctrine as applied under section 11 of CPC
1. The doctrine of subject isn’t applied in appeals.
2. Rule of subject restricts the method of delivering justice.
3. Sometimes subject is applied to the Judgments which is contrary to law.
4. There are limited exceptions to the doctrine of subject
5. Cases selected the plea of subject are often re-litigated
Res Judicta and Writs
The doctrine of Res Judicata also applies to writ proceedings under Article 32 of the Indian Constitution. A writ petition under Article 226 is filed before the judicature i.e High Court, challenging the detention of a person thatis dismissed. A writ petition under Article 32 is filed before the Hon’ble Supreme Court.
In the case of Daryao v State of Uttar Pradesh (AIR 1961 SC 1475) the Hon’ble Supreme Court observed : “The rule of res judicata as indicated in Sec 11 of the code of Civil Procedure has no doubt it has some technical aspects but for further instance, the rule of constructive res judicata may be said to be technical; but the basis on which the said rule is founded on consideration of public policy”.
This case has extensively dealt with the question of applicability of the principle of res judicata in writ proceedings and laid down certain principles . They are-
- [v]When a petition under Article 226 is considered, contested on merits and is dismissed, the decision would continue to bind the parties unless it is otherwise modified or reversed by appeal or other appropriate proceedings as prescribed under the Constitution.
- It would not be open to a party to ignore the said judgement and more the Supreme Court under Article 32 by an original petition made on the same facts and for obtaining the same or similar orders or writs.
- A dismissal of writ petition under Article 226 by any High Court not on merit but due to laches of the petitioner or when the party have an alternative remedy available with them, the dismissal for the writ petition would not constitute a bar to a subsequent petition under Article 32.
- Such a dismissal may, however, constitute a bar to a subsequent application under Article 32 where and if the facts thus found by the High Court by themselves relevant even under Article 32.
- Whether the writ petition would constitute a bar would depend upon the nature of the order. There will no bar if the order is on merits.
- If the petition is dismissed in the timeline without a speaking order, such dismissal cannot be treated as creating a bar of res judicata.
“The views of the authors are personal“
[i]Universal Law Series Code of Civil Procedure,1908 (Bare Act)