Introduction Res judicata is a Latin term which stand for ‘the thing has been judged’, meaning the issue before the court has already been decided by another court, between the same parties. Therefore, the court will dismiss the case before it as being useless. Res Judicata is, in both civil law and common law legal 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. This is to prevent in justice 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 may not recover damages from the defendant twice for the same injury. Res judicata is intended to strike a balance between competing interests. On one hand, it assures an efficient judicial system that renders final judgments with certainty and prevents the inequity of a defendant having to defend the same claim or issue of law repeatedly. On the other hand, it protects the plaintiff’s interest in having issues and claims fully and fairly litigated.
Transcript
Introduction
Res judicata is a Latin term which stand for ‘the thing has been judged’, meaning the issue before the court has already been decided by another court, between the same parties. Therefore, the court will dismiss the case before it as being useless.
Res Judicata is, in both civil law and common law legal 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. This is to prevent in justice 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 may not recover damages from the defendant twice for the same injury.
Res judicata is intended to strike a balance between competing interests. On one hand, it assures an efficient judicial system that renders final judgments with certainty and prevents the inequity of a defendant having to defend the same claim or issue of law repeatedly. On the other hand, it protects the plaintiff’s interest in having issues and claims fully and fairly litigated.
RES JUDICATA: AN OVERVIEW
SCOPE
Res judicata includes two related concepts: claim preclusion, and issue preclusion (also called collateral estoppels), 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 or sometimes those in privity with a party. Issue preclusion bars the re-litigation of factual issues that have already been necessarily determined by a judge as part of an earlier claim. It is often difficult to determine which, if either, of these applies to later lawsuits that are seemingly related, because many causes of action may 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 it 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.
RATIONALE
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 it 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. In addition, in cases involving due process, cases that appear to be res judicata may be re-litigated. An instance would be the establishment of a right to counsel. People who have had their liberty taken away (that is, imprisoned) may be allowed to be re-tried with a counselor as a matter of fairness.
CIVIL LAW
The doctrine of res judicata in nations that have a civil law legal system is much narrower in scope than in common law nations. In order for a second suit to be dismissed on a motion of res judicata in a civilian jurisdiction, the trial must be identical to the first trial in the following manner:
(1) identical parties;
(2) identical theories of recovery; and
(3) identical demands in both trials.
In other words, the issue preclusion or collateral estoppels found in the common law doctrine of res judicata is not present in the civilian doctrine. In addition if all else is equal between the two cases, minus the relief sought, there will be no dismissal based on res judicata in a civil law jurisdiction. While most civilian jurisdictions have slightly broadened the doctrine through multiple exceptions to these three requirements, there is no consensus on which exceptions ought to be allowed. 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.
INDIAN SCENARIO
Das Gupta, J. said that ‘the principle of res judicata is based on the need of giving finality to the judicial decisions’. What it says is that once a res is judicata, it will 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. The Code of Civil Procedure, 1908, s. 11 of 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 defense or attack in such former suit, shall be deemed to have been a matter directly and substantially in issue in such suit.
Explanation V - any relief claimed in the plaint, which is not expressly granted by the decree, shall, for the purposes of this section, be deemed to have been refused.
Explanation VI - where persons litigate bona fide in respect of 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 CODE OF CIVIL PROCEDURE, 1908, S. 11 IS MANDATORY
The provisions of the Code of Civil Procedure, 1908, s. 11 are not directory but mandatory. The judgment in a former suit may be avoided only by taking recourse to the Indian Evidence Act, 1872, s. 44 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 s. 11 are mandatory and the ordinary litigant who claims less than one of the parties to the former suit may only avoid its provisions by taking advantage of the Indian Evidence Act, 1872, s. 44, 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.
The Three Maxims
The doctrine of res judicata is based on three maxims:
(1) Nemo debet lis vaxari pro eadem causa (no man should be vexed twice for the same cause)
(2) Interest republicae ut sit finis litium (it is in the interest of the state that there should be an end to a litigation); and
(3) 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 Case1 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.
Code of Civil Procedure, 1908, s. 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 provision 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
Juris2, it has been stated that 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 must be an end to litigation; the other, the hardship to the individual that he
must 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 that every litigation must come to an end. It therefore, applies to civil suits,
administrative orders, interim orders, criminal proceedings, etc. 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:
1 SMITH’S L.C., (13th edn.) (644-645).2 Corpus Juris Secundum, vol. 34, Thompson West, 743.
(1) Matter which was directly and substantially in issue in former suit must be directly and substantially issue in the subsequent suit also.
(2) Both the former and subsequent suit must have been between the parties or between the parties litigating under some titles.
(3) The former suit must have been decided by competent court, which may try subsequent suit also.
(4) Any matter, which might and ought to have been made a ground of defense or attack in such former suit, will be deemed to have been a matter directly and substantially in issue in each suit.
(5) The onus of proof lies on the party relying on the theory of res judicata.
CONSTRUCTIVE RES JUDICATA
DOCTRINE OF CONSTRUCTIVE RES JUDICATA:-
Constructive res judicata is a part of Res Judicata Principle. The matter directly and substantially in issue is of two kinds. As already stated it may be actually in issue or constructive in issue or constructively in issue. It is dealt in Explanation IV of the C.P.C.
“…….any matter, which might and ought to have been made ground of defense or attack in such former suit, shall be deemed to have been a matter directly and substantially in issue in such suit.”
ACTUALLY IN ISSUE:-A matter is said to be actually in issue when it has been alleged by one party and denied or admitted, either expressly or impliedly by the other. See Explanation III to section 11.In other words a matter is actually in issue where it was made the ground of attack by the plaintiff or ground of defense by the defendant .In other words ,a matter is actually in issue when it is an issue directly and substantially and a competent court decides it on merits.3
CONSTRUCTIVELY IN ISSUE:-A matter is said to be constructively in issue when it might and ought to have been a ground of attack or defense in the former suit. This is supported by Explanation IV to section 11. Explanation IV says:
“Any matter which might and ought to have been a made ground of defense or attack in such former suit shall be deemed to have been a matter directly and substantially in issue.”
Thus, it is clear from above provision that for the purposes of section 11 there is no difference between matter actually in issue and matter substantially in issue.
3 Lonakutty v.Thomman, AIR 1976 SC 1645
“Above view further supported by the supreme court of India. If held: when any matter which might and ought to have been a ground of defense or attack in a former proceeding but was not so made, thus such a matter in the eye of law, to avoid multiplicity of litigation and to bring about finality in it is deemed to have been constructively in issue and, therefore, is taken as decided.”4
When this matter is actually in issue the same is heard and decided but when it is constructively in issue from its very nature it could not be heard and decided for this was a matter which might and ought to have been deemed to have heard and decided against the party omitting to allege it.5
Explaining the principle of constructive res judicata the supreme court of India ,basing its decision on Devilal Modi v. Sales Tax officer, Ratlam,6 held that on considerations of public policy to prevent multifariousness of legal proceedings between the same parties ,the rule of constructive res judicata postulates that if a plea could have been taken by a party in a proceeding between him and his opponent he could not be permitted to take that plea against the same party in a subsequent proceeding which is based on the same cause of action.7
The test is whether the a parties had an opportunity of controverting it and, if they had the matter will be treated as actually controverted and decided8 in order to bring the case within the rule of constructive res judicata it is not only necessary that the defendant could have raised the defense in reply to the formal suit, but he was bound to do so.9Further, it has to been show had the ground of attack on defense taken there in was as such as could covalently have been raised in the form of suit and that to without leading to an confusion at the trial and without the risk of destroying the evidence laid the support of mean allegation.
The words “might” and “ought” used in Explanation IV to section 11 is of wider amplitude. “Might” conveys the idea of desirability of joining all ground of attack or defense, where as “ought” carries the idea of prosperity of so joining .Therefore, both desirability or property demanded that a party must raised all the conceivable in a formal suit or proceeding to saved a party from being vexed again the same cause.
ILLUSTRATION:
1. A sues B to recover damages for breach of contract and obtains a decree. B cannot subsequently sue for setting aside the contract aside the contract on the ground that it did not fully represent the agreement between the parties. This was a matter which easily might and ought to have been made ground of defense in the former in the former suit.
2. Where in a writ petition the high court found that some of the ballot papers were rejected because the returning officer was influenced by the opinion of Naib-Tehsildar .It ordered for
4 Workmen C.P.Trust v. Board of Trustees, AIR 1978 SC 1283.5 Forward Construction Co. v. Prabhat Mandal,AIR 1986 SC 3916 AIR 1965 SC 11507 State of U.P. v. Nawab Hussain ,AIR 1977 SC 1680.8 BIhari lal v.ram swarup,air 1949 All 2659 Chtar singh v.sorhan sigh ,AIR 1946 Nag 277
recounting ,and against this order special leave to appeal was sought for which was rejected after hearing both the parties ,there the order of recounting by the high court became final and according to the principle of constructive res judicata ,the question of recounting by the returned candidate could not be re-agitated in appeal (under section 116 of representation of peoples act)to the supreme court of India, against the decision of the high court.10
3. Where writ petition challenging refusal to grant license for Dealership of Liquefied Petroleum Gas (LPG) was filed, no challenge was made in same as to validity of Rajasthan petroleum products order, 1990 under which license was claimed, there as held by Rajasthan,11 a subsequent petition by same petitioner challenging basis of aforesaid order is barred on principles of constructive res judicata.
4. A files a suit for declaration that he is entitled to certain lands as heir to X .The suit is dismissed. He cannot in a later suit, claim title to properties by adverse possession (Dhaniram v. Ruttam Das)12 .In connection with constructive res judicata this should however be remembered that failure to put forward an alternative ground of the right operates as res judicata, but failure to raise an alternative plea, which is inconsistent with the main plea would not operate as res judicata.13
The rule of constructive res judicata enacted in Explanation IV to section 11 is a special and artificial form of res judicata.14It is in reality an aspect or implication of general principle of res judicata.15The general principal of res judicata as been explained by the supreme court of India16in the following words:
“It is the cause of action which gives raise to action and that is why it is necessary for the courts to recognize that a cause of action which results in the judgment must lose its identity and vitality and merge in the judgments when pronounced. It cannot therefore survive the judgments or give rise to another cause of action on the same facts. That is what is known as general principle of res judicata.”
The doctrine of res judicata of constructive res judicata applies to execution proceedings, writ proceedings, under section 144 of the code 17(restitution) as also to ex-parte decree.18As regards ex-parte decree it was held that a finding recorded in the same proceeding on the principles of res judicata in the absence of an appeal against that finding.19
10 .Bhagmal v.Prabhu Ram,AIR 1985 SC15011 AIR 1994 NOC 186(Raj)12 AIR 1961 Punj 563.13 .Dhaniram v.Pritam Singh,AIR 1955 NOC All 1604;14 Devilal Modi v. Sales Tax fficer,Ratlam,AIR 1965 SC 1150;15 .State of Uttar Pradesh v. Nawab Hussain,Supra16 Ibid.17 Dukhi Ganju v.Ramchandra,AIR 1968 Pat 27018 .Ram Sagar v. Yogendra Narain,AIR 1975 Pat 23919 Prahlad Singh v.Sukhdeo Singh,AIR 1987 SC 1145.
THE FOUR RULES
There are four rules on the basis of which concept of constructive res judicata can be discussed –
Where right claimed in both the suits is the same, the subsequent suit will be barred by res judicata, though the right in the subsequent suit is sought to be established by a title different from that in the first suit.
If a matter which forms a ground of attack in the subsequent suit could have been alleged as a ground of defense in the former suit, but was omitted to be so alleged in that suit, it will be deemed to have been directly and substantially in issue in that suit within the meaning of Explanation IV.
Where the right claimed in the subsequent suit is different from that in former suit and it is claimed under a different title, then subsequent suit is not barred by res judicata.
It cannot be said of a relief, which if claimed in the first suit would have made that suit bad for multifariousness, that it ought to have been made a ground of attack in that suit.
CONSTRUCTIVE RES JUDICATA AND EXECUTIVE PROCEEDINGS
The doctrine of constructive res judicata applies to execution proceedings. The doctrines was extended to execution proceeding by virtue of a long catena decisions including supreme court decisions as well .Lahore High court in Karnail Singh v. Viru Mal,20held that constructive res judicata applies to execution proceedings. It will apply to the extent when a judgment debtor fails to raise all his objections to the application for execution of the decree made by the decree holder which he might and ought to have raised and the application has been ordered to proceed, then all such objections will be deemed to have been impliedly decided against the judgments debtor and the judgment debtor thereafter cannot raise the same objections in a subsequent execution of the same decree.21
The question of constructive res judicata in execution proceedings came before the supreme court of India in Mohanlal Goenka v. Benoy Krishna Mukherjee.22 In his decision the supreme court of India held (following the earlier decision of the Privy Council) that the principle of constructive res judicata will be application in execution proceedings. The court ruled that this principle will be applicable apart from lack of inherent jurisdiction of the Court, the rule will operate to preclude a party from relying on a defect of jurisdiction when he has failed to do earlier.23The supreme court followed its earlier decision in Mohanlal Goenka’s case, in Vimal Kumar v. Labour Court Kanpur,24as well.
20 AIR 1943Lah189.21 Dulabib v. Paranand Das,AIR1940 Pat 25122 AIR 1953 SC 6523 Ibid24 AIR 1988 SC 375(384)
In 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.
WRIT PETITIONS AND CONSTRUCTIVE RES JUDICATA
Whether the principle of constructive res judicata applies to writ petitions? The supreme court of India answered the question in Amalgamated Coal Fields Ltd v. Janpada Sabha,25thus;
“In our opinion constructive res judicata which is a special and artificial form of res judicata enacted by section 11 of the civil procedure code should not generally be applied to writ petition filed under section 32 or 226.”
However in Gulabchand Chotalal Parikh v. State of Gujrat,26the supreme court of India left the question open whether to apply the principle of constructive res judicata to writ petitions or not? It observed:
We have not considered whether the principle of constructive res judicata can be invoked by a party to the subsequent suit. But now the principle of law seems to have been well settled that the principle of constructive res judicata applies to writ petition also .The supreme court’s observation in Devilal Modi’s case27that “if the doctrine of constructive res judicata is not applied to writ proceedings, it would be open to the party to take one proceeding, after another and urge new grounds every time; and that plainly is inconsistent with considerations of public policy.”28
Above view has been reaffirmed by the Supreme Court in State of U.P. v. Nawab Husain,29 and Forward Construction Co. v. Prabhat Mandal (Regd.) Andhrei.30In this case the petitioner was dismissed from services .He filed a writ petition for quashing the disciplinary proceedings on the ground that he was not afforded a reasonable opportunity to meet the allegations against him and the action taken against him was malafide. The petition was dismissed thereafter he filed a suit in which he challenge the order of dismissal on the ground inter alia that he had been appointed by the Inspector General of the police and that the
25 AIR 1964 SC 1013.26 AIR 1965 SC 1153;67 Bom LR 75927 AIR 1965 SC 115028 Ibid29 AIR 1977 SC 168030 AIR 1986 SC 391
deputy Inspector General of the police was not competent to dismiss him by virtue of articles 311(1) of the constitution. It was on this point the Supreme Court held that this new plea is not tenable on the principles of constructive res judicata.31
HABEAS CORPUS AND CONSTRUCTIVE RES JUDICATA
The rule of constructive res judicata also does not apply to writ of habeas corpus.32Dealing with the question of constructive res judicata in Gulam Sarwar v. Union of India, the Supreme court observed:
“If the doctrine of constructive res judicata be applied, this court though is enjoined by the constructive to protect the right of a person illegally detained, will become powerless to do so that will be whittling down the wide sweep of the constitutional protection.”33
In other words, the supreme court of India refused to apply constructive res judicata in the instant case. Almost similar view was expressed by the supreme court of India in a latter case of Lallubhai v. Union of India.34The Supreme Court observed:
“The position that emerges from a survey of above decision is that the application of the doctrine of res judicata is confined to civil actions and civil proceedings. This Principle of public policy is entirely inapplicable to illegal detention and does not bar a subsequent petition for a writ of habeas corpus under article 32 of the constitution on fresh grounds, which were not taken on earlier petition for the same relief.”
CONSTRUCTIVE RES JUDICATA AND ARBITRATION PROCEEDINGS
Res judicata and constructive res judicata applies to arbitration proceedings also.35
MATTER IN ISSUE:-MEANING
What is barred by section 11 is not only the trial of a suit but also an issue as section says that” no court shall try any suit or issue.”Either call it issue or ‘matter in issue’ both are the same .A natural question arises what is matter in issue? Kerala high court in Bharathi Amma v. Kumaran Peethambaran,36answered the quarry as follows:
“Matter in issue is the right claimed by one and denied by the other claim of right in its very inception depends upon proved facts and the application of the relevant law”37
31 Ibid.32 Gulam Sarwar v. union of India,AIR 1967 SC 1335;33 See also;Daryao Singh’s Case Supra;34 AIR 1981 SC 728.35 K.V.George v.Secy . to Govt. Water and Power Deptt.Trivendrum,AIR 1990 SC 5536 AIR 1990 Ker 88.37 Ibid
Matter in issue may be an issue of fact, an issue of law or one of mixed fact and law .An issue of fact decided by a competent court however, erroneous it may be constructed a res judicata as it is finally decided between the parties and cannot be reopened between them in another proceedings 38.A wrong decision rendered with jurisdiction, if not corrected by appeal, revision, review or other methods available by law will have as much binding force as a right decision39 .The characteristic attribute of judicial act or decision is that it binds, whether it be right or wrong.40A mixed issue of law and fact also stands on the same footing (an issue of fact) and therefore decision on such an issue will also operate as res judicata.
What about a question of law? For the purpose of discussion a question of law may be divided into two categories:
(i) a question of law,
(ii) pure question of law
(i) QUESTION OF LAW:-
Where the decision is on a question of law, i.e. the interpretation of a statute it will be res judicata in a subsequent proceeding between the same parties. Where the cause of action is same for the expression “the matter in issue” in section 11, code of civil procedure means the right litigated between the parties, i.e. the facts on which the right is claimed or denied and the law applicable to the determination of that issue. 41 This view has been reiterated by the supreme court of India in Sushil Kumar Mehta v. Gobind Ram Bohra.42Further, a decision on an abstract question of law unrelated o right cannot operate as res judicata. But if a decision of law is related to the fact in issue an erroneous decision on such a question may operates as res judicata between the parties in a subsequent suit or proceeding if the cause of action is the same.43
(ii) PURE QUESTION OF LAW:-
Rule of res judicata or estoppels is not applicable to decision on pure question of law, such as one of the jurisdiction of court.44 When the question is one of purely of law and it relates the jurisdiction of the court sanctioning something which is illegal by resort to the rule of res judicata a party affected by the decision will not be precluded from challenging the validity of that order under the rule of res judicata for a rule of
38 Mathura Prasad v. Dossibai ,AIR 1971 SC 235539 Bharathi Amma’s Case,Supra40 Ibid41 Mathura Prasad Bajoo Jaiswal v. Dossibai N.B.Jeejeebhoy,AIR 1971 SC 2355.42 AIR (1990) 1 SCC 193.43 Supreme Court Employees Welfare Association v. Union of India, AIR 1990 SC 334 44 Isabella Johnson v. M.A Susai,(1991) 1 SCC 494:AIR 1991 SC 993
procedure cannot supersede the law of the land45.This view has been re-affirmed by the supreme court in supreme court Employee’s Case,46 where in it is observed:
“Nor also can decision on the question of jurisdiction be res judicata in subsequent suit or proceedings.”
A question of jurisdiction is a pure question of law observed by SC in Isabella’s case.47 The Court held:
“In our Opinion a court which has no jurisdiction in law cannot be conferred with the jurisdiction applying principle of res judicata. It is well settled that there can be no estoppels on a pure question of law and in the case the question of jurisdiction is pure question of law.
INDUSTRIAL LAW AND CONSTRUCTIVE RE JUDICATA
The Supreme court of India has expressed doubt with regard to the extension of “the sophisticated doctrines of constructive res judicata” to industrial law which is governed by special methodology of conciliation, adjudication and considerations of peaceful industrial relations when collective bargaining and pragmatic justice claims precedence over formalized rules of decision based on individual contests, specific cause of action and findings on particulars issues.48
CONCLUSION
We have often seen lawyers arguing in courts that the suit is struck by the principle of 'res judicata'. If this plea is accepted by the Bench, in principle, the case in question is rejected right at the stage of admission itself.
According to the dictionary meaning, 'res judicata' means a case or suit involving a particular issue between two or more parties already decided by a court. Thereafter, if either of the
45 Mathura Prasad, Supra46 AIR 1990 SC 33447 (1991) 1SCC 49448 AIR 1976 SC 1455
parties approaches the same court for the adjudication of the same issue, the suit will be struck by the law of 'res judicata'. The rule of 'res judicata' is based on the conditions of public policy. It envisages that finality should attach to the binding decisions of the court so that the individuals should not be made to face the same litigation twice.
In cases involving income tax or sales tax, the general trend is not to apply the doctrine of 'res judicata'. As explained by the Supreme Court in Installment Supply (Pvt) Ltd, Vs Union of India49, 'each year's assessment is final only for that year and does not govern later years, because it determines only the tax for a particular period. However, it doesn't mean that tax authorities can reopen arbitrarily a question previously settled.
The principle of 'res judicata' has been held to apply to industrial adjudication when a matter in dispute in a subsequent case had earlier been directly and substantially in issue between the same parties and it had been heard and finally decided by the tribunal. The reason for this view is that multiplication of litigation, agitation and re-agitation of the same dispute between the same parties is not conducive to industrial pace. However, in applying this principle, extreme technical considerations, usually invoked in civil proceedings, may not be allowed to outweigh substantial justice to the parties in industrial adjudication.50
This rule of law has been made applicable even to writ proceedings as well. The position, therefore, is that when once a writ petition has been moved in a high court or Supreme Court SC), and has been rejected there on merits, then a subsequent writ cannot be moved in the same court on the same cause of action.51 If the petitioner seeks to urge some new grounds which he has failed to do before in the earlier petition, the matter cannot be agitated in a subsequent petition because of 'constructive res judicata'. In case, this rule is not applied to such proceedings, a party can go on filing one writ petition after another urging one or two new grounds each time, thus causing hardship to the opponent. What operates as 'res judicata' is the decision and not the reasons advanced by the court in support of its decision. 52
It, however, needs mention that 'constructive res judicata' apply to civil proceedings and not to habeas corpus petitions.
A subsequent petition under this writ jurisdiction can be filed on fresh grounds not pleaded earlier for the same relief53. Even the Supreme Court can still entertain a petition under Article 32, whether or not new grounds are raised, in view of the importance of personal freedom. But, when a writ petition is withdrawn by the petitioner conceding the futility of the case as a ground for withdrawal and court allows it on the plea, a second petition will be barred by 'res judicata'54. A fresh petition is possible only if the court gives liberty for doing
49 AIR 1976 SC 5350 AIR 1974 SC 1132.51 M S M Sharma Vs Sinha, AIR 1960 SC 118652 AIR 1968 SC 1370.
53 AIR 1982 S C 53.54 AIR 1975 Guj 183.
so.
There is some confusion on the point whether 'res judicata' applies when a writ petition is dismissed without the court making a speaking order. The apex court has held in a case that this doctrine should not operate in such a case. In Hoshnak Singh Vs India, the SC has ruled clearly that 'where a petition under Article 226 is dismissed in limine without a speaking order', such a dismissal would not constitute a bar to a subsequent petition. A high court can only review a decision where some mistake or error apparent on the face of the record is found. But, this power of review may not be exercised on the ground that the earlier decision was erroneous on merits.
If a person goes first to a high court under Article 226 and his petition is dismissed on merits, he cannot approach the SC under Article 32 because of 'res judicata'. He can reach the SC only by way of appeal. If, however, high court dismisses his or her writ petition not on merits, then 'res judicata' does not apply and petitioner can move the SC.
Thus, Doctrine of Constructive Res Judicata is very wide prevalent doctrine and the scope of its applicability is large which makes it very important doctrine. It is consistent with public policy as it lightens the burden of cases of the Judiciary.
