appeal reference and revision under crpc

This article has been written by Yogesh Sharma and Arpit Sarangi.

Origin of the doctrine of Res Judicata

The doctrine of the Rest Judicata is one of the oldest doctrines in the history of the world. Res judicata “is as old as the law itself”[1]. “Res judicata pro veritate accipitur” is the Latin maxim for the doctrine of the Res Judicata. Roots of the doctrine of Res Judicata can be found in the various ancient legal systems. Starting from the issue preclusion in the Germanic estoppel to the latter on the Roman res judicata which was instigating the truth by looking into the judgmental effect[2]. Romanic view changes the evolution of res judicata from issue preclusion to claim preclusion.

In the early days of England, courts were disorganized and underdeveloped and there was no existence of concept like res judicata. But after this doctrine of Res Judicata has been emerged in England. At the initial stages, courts in England was using foreign analogies but after court revised and drafted their own doctrine of the Res Judicata.

Indian Legal system adopted the doctrine of Res Judicata from the common law. The principle of res judicata was included in Section 11 of the Civil Procedure Code. After the Civil Procedure code, Administrative Law accepted the applicability of the res judicata. Afterward, it was accepted by other statutes and acts and the doctrine of res judicata started growing in the Indian Legal System.

The doctrine of Res Judicata is originated from 3 Roman maxims:

  1. 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;
  2. Interest republicae ut sit finis litium – It means that it is in  the interest of the state that there should be an end of litigation; and
  3. Re judicata pro veritate occipitur – Decision of the court should be adjudged as true.

Res Judicata under Section 11 Civil Procedure Code, 1908

The doctrine of Res Judicata has been defined in Section 11 of the Civil Procedure Code. The doctrine of the Res Judicata means the matter is already judged. It means that no court will have the power to try any fresh suit or issues which has been already settled in the former suit between the same parties. Also, the court will not try the suits and issue between those parties under whom the same parties are litigating under the same title and matter are already been judged and decided by the competent court. When the court finds any suits or issues which has been already decided by the court and there is no appeal pending before in any court, the court has the power to dispose of the case by granting a decree of Res  Judicata. This doctrine is based on the premises that if the matter is already decided by the competent court then no one has rights to reopen it with the subsequent suit. It also enacts the conclusiveness of the judgments as to the points decided, in every subsequent suit between the same parties[3]. The doctrine of Res Judicata is applied by the court where issues directly and substantially involved between the same parties in the former and present suit, are same. For eg, It may be that in former suit only part of the property was involved whereas in present or subsequent suit whole property of the parties is involved Than court will grant a decree of Res Judicata.

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The Explanation of the pre-conditions

What is a Suit?

The term “suit” has not been explicitly defined in the CPC. However, Section 26 of CPC provides that every suit shall be constituted by the presentation of a plaint or in any other manner prescribed. Order VI provides that pleading means plaint and written statement. The particulars of the plaint are contained in Order VII.  Further, in the case of Hansraj Gupta and others v. Dehradun Mussoorie Electric Tramway Company Ltd. the term “suit” was explained by the Privy Council to mean a civil proceeding instituted by the presentation of a plaint.

What is an Issue?

Order XIV of the Code of Civil Procedure deals with the framing of “issues” to be decided upon and their further determination on issues of law. Rule 1 deals with the framing of issues as follows:  The court may frame the issues from all or any of the following materials”:—(a) accusation made on oath by the parties or made by the lawyers of such parties; (b) accusation made in the pleadings or in answers to interrogatories delivered in the suit; (c) the information from documents produced by either party.”

Further, after an issue is framed it could be an issue of fact, issue of law, or mixed issue of fact and law. In the case of Mathura Prasad Bajoo Jaiswal and Ors. v. Dossibai N.B. Jeejeebhoy the Court has held that “the matter in issue” in Section 11 CPC means the right litigated between the parties i.e. the facts on which the right is claimed or repudiated and the law applicable for the settlement of that issue. 

An issue of fact or an issue of mixed law and fact decided by a competent court is finally determined between the parties and cannot be re-opened between them in another proceeding. However, a decision on an issue of law will be as res judicata in a subsequent proceeding between the same parties only if:

  1. The cause of action of the subsequent proceeding be the same as in the previous proceeding
  2. When the law has since the earlier decision not been altered by a competent authority, 
  3. When the decision doesn’t relate to the jurisdiction of the Court to try the earlier proceeding, 
  4. The earlier decision doesn’t declare valid a transaction which is prohibited by law.

When is the matter directly and substantially in issue between the same parties?

The wording of Section 11 provides that the issue must have been substantially in issue in a former suit. However, difficulty may arise in determining whether an issue is substantial or collateral in the former suit. The Allahabad High Court in the case of Vasudevanand Saraswati v. Jagat Guru Shankarcharya cited the “The Doctrine of Res Judicata” authored by “Spencer Bower and Turner” to understand the distinction. It held that one has to inquire whether the determination upon which it is sought to find estoppel so fundamental to the substantive decision that the later cannot stand without the former. Moreover, this inquiry has to pass another test i.e. whether the determination is the “immediate foundation” of the decision as opposed to merely “a proposition collateral or subsidiary only”. Therefore, what is required to be ascertained is whether the issue was necessary to be decided for adjudicating on the principle issue, and, was decided.  Further, in the case of Ragho Prasad Gupta v. Krishna Poddar the Supreme Court held that a mere expression of opinion on a question not in issue cannot operate as res judicata. 

What if the circumstances around the issue change?

The Kerala High Court in the case of Mavelikkara Ex-Servicemen’s Multipurpose Co-operative Society v. Parvathy Amma Rajamma held that the identity of the subject matter under Res-Judicata is not only to identity the subject matter in a physical sense but also in a juridical sense.

In the case of Krishan Kumar v. Vimala Sehgal, the Delhi High Court held that when the circumstances are changed, a second petition can be filed for own occupation even if the earlier application of the landlord is rejected by the Rent Controller. It further observed:-

The needs of the landlord when he filed the first petition in 1961 were limited. His son had not come from England. His children were quite young. All of them are now grown up. He himself is a man of 64 years of age. He has retired. It would not, therefore, be right to say that the decision in the first petition operates as a res’ judicata, Obviously, the circumstances have changed. In changed circumstances, a petition can always be made.

What is meant by between the same parties, or between parties under whom they or any of them claim, litigating under the same title?

The Allahabad High Court in the case of Vasudevanand Saraswati v. Jagat Guru Shankaracharya observed that “same title” means same capacity. The test is whether the party litigating is in law the same or a different person. If the same person is a party in a different character, the decision in the former suit does not operate as res judicata. Similarly, if the rights claimed are different, the subsequent suit will not be res judicata simply because the property is identical. Hence, the title refers not to cause of action but to the interest or capacity of the party suing or being sued.

The Allahabad High Court in the case of Muneesh Kumar Agnihotri and others v. Lalli Prasad Gupta held that the doctrine of res judicata will apply only when an issue was directly and substantially in issue in the former suit between the same parties or between the parties under whom they or any of them claim to litigate under the same title. In the above case the issue remained the same, however, the title of parties differed. In the former suit, claim to the business was made through their father but on the subsequent suit the claim was that the business was started with the aid of the joint family funds and, therefore, the appellants were entitled to the said business and to the property acquired from such joint family business funds. Therefore, the argument of res-judicata wasn’t accepted even if the issues were same.

What is meant by any Court capable to determine such further suit?

Section 11 of CPC provide that the Court, which decided the former suit must have been a Court competent to try the subsequent suit or the suit in which such issue has been subsequently raised. However, in the case of Raj Lakshmi Dasi and Ors v. Banamali Sen and Ors. the Supreme Court held that when a plea of res judicata is founded on general principles of law, all that is necessary to establish is that the Court that heard and decided the former case was a Court of competent jurisdiction. It is not necessary in such cases to further prove that it has jurisdiction to hear the later suit.

Scope of the doctrine of Res Judicata

The scope of the Res Judicata is not restricted to Section 11. Res Judicata is the principle which is also applied to Administrative Law, constitutional law & Criminals matters. It is applicable to other legislation and acts too. In the case of the Sheoprasad Singh v. Ramnandan  Prasad Singh[4], Sir Lawerence Jenkins observed the rule of Res Judicata as “the rule..while finding on ancient precedent is dictated by a wisdom which is for all time.” In the case of Daryao vs. the State of UP[5], the court stated that for this rule there would be no end to litigation and no security for any person; the rights of the person is involved in the endless confusion and great injustice done under the cover of the law.  The doctrine of the Res Judicata is based on the Public policy and this principle is intended not only to prevent a new decision but also to prevent a new investigation so that the same person cannot be harassed again and again in various suits upon the same question.

Essentials of Res Judicata under Section 11 CPC

Before granting a decree of Red Judicata following conditions should be satisfied first:

  1. There must be two suits one former (previously decided)  suit and the other subsequent suit.
  2. Parties of the former and subsequent suit or the parties under whom they or any of them claim should be the same.
  3. The subject matter of the subsequent suit should be identical or related to the Former suit either actually or constructively.
  4. The case must be finally decided between the parties.
  5. The former suit should be decided by the court of competent jurisdictions.
  6. Parties in the former as well as in Subsequent suit must have litigated under the same title.

Exceptions to the Plea of Res Judicata

  1. Judgment in original suit obtained by the fraud – if a court thinks that the judgment of former suit is obtained by the fraud, then the doctrine of the res judicata is not applied.
  2. When previous SLP is dismissed – When special leave petition is dismissed without adjudication or decision then res judicata should not be applied. For obtaining  Doctrine of Res Judicata, the formal suit should be decided finally by the competent court.
  3. A different cause of action – Section 11 will not be applied when there is a different cause of action in the subsequent suits. The court cannot bar a subsequent suit if it contains the different cause of action.
  4. When there is Interlocutory Order – Interlocutory order is the interim order, decree or sentence passed by the court.  A principle of the Res Judicata will be not applied when an interlocutory order is passed on the former suit. It is because in Interlocutory order immediate relief is given to the parties and it can be altered by subsequent application and there is no finality of the decision.
  5. Waiver of a decree of Res Judicata –  Decree of Res Judicata is a plea in the bar which party must waive. If a party did not raise the plea of res judicata then the matter will be decided against him. It is the duty of an opposite party to make the court aware about the adjudication of matter in former suit. If a party fails to do so, the matter is decided against him.
  6. Court not competent to decide – When the former suit is decided by the court who has no jurisdiction to decide the matter then the doctrine of res judicata is not applied to the subsequent suit.
  7. When there is a change in Law –  When there is a change in the law and new laws bring new rights to the parties then such rights are not barred by Section 11.

When the court fails to apply Res Judicata

If the court fails to apply for the res judicata and orders a contradictory decision on the same issue and Afterwards matter is listed to the third court then the third court will apply res judicata on the basis of the decision on the previous suit. Thus it is the duty and responsibility of the parties to the suit to bring the earlier case to the attention of the court and Judge will decide on whether a plea of Res judicata should be granted or not.

Does the doctrine of Res Judicata is applied to the Writ Proceedings?

A writ has been defined in Article 32 and Article 226 of the Constitution of India. Article 32 has given power to Supreme court to issue writs whereas same power is granted to High courts in Article 226. There are 5 types of writs – Certiorari, Mandamus, Habeas Corpus, Prohibition & Quo Warranto.

The question that whether the doctrine of Res Judicata applies to the writ proceedings is still disputable. If we study the explanations of section 141 of the Civil Procedure Code, 1908 we can find that Section 11 is not applicable to the proceedings under Article 226 of the constitution. But the doctrine or the principle of Res Judicata can be applied to the writ proceedings when there is no applicability of Section 11 of the code6.  Once the question which has been decided by the Writ Petition cannot be reopened by subsequent appeal[7]. It is settled law that the doctrine of Res Judicata is applied in the Writ proceedings but there is one exception to this is that plea of Res Judicata should not violate any fundamental rights of the citizen[8]. The court can apply the principle of Res Judicata in the writ petition but it is necessary for the court to pass a speaking order[9]. The court should give proper reasoning while applying the res judicata. For the writ of the Habeas corpus, the doctrine of constructive Res Judicata would not apply. If the petition is dismissed as withdrawn it cannot be a bar to a subsequent petition under Article 32, because in such a case there has been no decision on the merits by the Court[10].

Does the doctrine of Res Judicata can be applied to the PIL, Arbitration and Awards and Income tax Proceedings?

  1. In the case of Rural Litigation & Entitlement Kendra v. the State of U.P.[11], the court held that the doctrine of the res judicata cannot be applied in the cases of Public Interest Litigation.
  2. In the case of K.V. George v. Secretary to Govt[12]., the court held that plea of Res Judicata cannot be raised in the cases of Arbitration and Rewards.
  3. The doctrine of Res Judicata is not been applied in the income tax proceedings. In the case of B.S.N.L vs. Union of India[13], the court held that the decision given for one assessment year does not operate as res judicata in the Subsequent year.

Res Judicata between Co-plaintiffs

Conditions required for a decision to become res judicata between co-plaintiff are the same conditions which require for the co-defendant. They are:

  1. The must be a conflict of interest between the defendants concerned.
  2. It must be necessary to decide the conflict in order to plaintiff relief he claims
  3. The co-defendants must be necessary or proper parties to the suit.
  4. The question between the defendant must have been finally decided between them.

Loopholes in the doctrine of res judicata as applied under section 11 of CPC

  1. The doctrine of Res Judicata is not applied in appeals.
  2. Rule of Res Judicata restricts the process of delivering justice.
  3. Sometimes Res Judicata is applied to the Judgments which is contrary to law.
  4. There are limited exceptions to the doctrine of Res Judicata.
  5. Cases decided on the plea of res judicata can be re-litigated.

Conclusion

Res Judicata is the concept which is prevalent in all the Jurisdictions of the world. The doctrine of Res Judicata has become one of an important part of Indian Legal System.  Section 11 of Civil Procedure Court, 1908 states that court can apply Res Judicata when he thinks that matter is already decided by the former suit. This doctrine is not only applied to the Civil courts but also to the administrative law and other legislation in India. The principle of finality on which plea of res judicata lies is the matter of public policy. The doctrine of Res Judicata is to prevent multiple judgments and protects the rights of the other party by restricting the plaintiff to recover the damages twice from the defendant on the same injury.

Endnotes

  1. Marsh v. Pier, 4 Rawle 273, 288 (Pa. 1833).
  2. Kevin M. Charmont, Res Judicata as Requisite of Justice, https://scholarship.law.cornell.edu/cgi/viewcontent.cgi?article=2599&context=facpub
  3.  Satyadhyan Ghosal v. Deorajin Devi, AIR 1960 SC 941 : (1960) 3 SCR 590.
  4. AIR 1916 PC 78.
  5. AIR 1961 SC 1457 : (1962) 1 SCR 574 : (1962) 2 MLJ (SC) 6
  6. Amalgamated Coalfields v. Janapada Sabha, AIR 1964 SC. 1013.
  7. State of Gujarat v. Bhater Devi Ramniwas Sanwalram (2002) 7 SCC 500
  8. Ashok Kumar Srivastava v. National Insurance Company Ltd. (1998) 4  SCC
  9. Rabindra Nath Biswas v. General manager, N.F. Rly AIR 1988 Pat 138.
  10. Daryao v. The State of U.P. AIR 1961 SC 1457
  11. AIR 1988 SC 2187 (2195) : 1989 Supp (1) SCC 504.
  12. AIR 1990 SC 53(59)
  13. AIR 2006 SC 1383 (1390)

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  1. […] cannot be amended 15. Petitions to the Supreme Court under Article 32 are subject to the rule of Res judicata except(A) Certiorari(B) Habeas corpus(C) Prohibition(D) Quo warranto 16. Right to freedom of […]

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