RES JUDICATA - I

Sasi K.G.

01. INTRODUCTION

Doctrine of res judicata teaches that a thing adjudicated is received as the truth. A judicial decision is conclusive until reversed, and its verity (truth, quality of being true or in accordance with fact) cannot be contradicted. Res judicata presupposes that there are two opposing parties, that there is a definite issue between them, that there is a tribunal competent to decide the issue, and that within its competence, the tribunal has done so. Once a matter or issue between parties has been litigated and decided, it cannot be raised again between the same parties, but other parties are not so bound.

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.

Section 11 of the Code of Civil Procedure, 1908 embodies the doctrine of res judicata or the rule of conclusiveness of a judgment, 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.[i] This doctrine has been accepted in all civilized legal systems. Under the Roman Law, a defendant could successfully contest a suit filed by a plaintiff on the plea of "ex captio res judicata". It was said: "one suit and one decision is enough for any single dispute". In the words of Spencer Bower, res judicata means "a final judicial decision pronounced by a judicial tribunal having competent jurisdiction over the cause or matter in litigation, and over the parties thereto". The doctrine of res judicata has been explained in the simplest possible manner by Das Gupta, J. in the case of Sathyadhyan Ghosal v Deorajin Debi[ii] in the following words:

"The principle of res judicata is based on the need of giving a finality to judicial decisions. What it says is that once a res is 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 canvass the matter again." [iii]  

The Principles of “Res judicata pro veritate accipitur” (a thing adjudged must be taken as truth) is the full maxim which has, over the years, shrunk to mere “ res judicata”.[iv] Res judicata is a branch of English doctrine of estoppel. Primarily this maxim 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.

This principle operates as a bar to try the same issue once over. The Apex Court in the case of Sulochana Amma vs. Narayanan Nair[v] held that this principle aims to prevent multiplicity of proceedings and accords finality to an issue, which directly and substantially had arisen in the former suit between the same parties or their privies, decided and became final, so that parties are not vexed twice over; vexatious litigation would be put to an end and the valuable time of the Court is saved. It is based on public policy as well as private justice. Res Judicata does not merely prevents 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.

02. ETYMOLOGY AND HISTORY OF RES JUDICATA

01. Etymology of Res Judicata

Res judicata is often termed as res adjudicate. As per The Law Lexicon “Res adjudicata” means “A matter adjudged; a thing judicially acted upon or decided; a thing or matter settled by judgment; a thing definitely settled by judicial decision, the thing adjudged”.

The word ‘Res Judicata’ is derived from Latin.

Res means a thing or a matter. Adjudicata means adjudicated. Thus res adjudicate means a matter adjudicated or a thing adjudged.

Res judicata is the shrunk form of the Latin maxim "Res Judicata pro veritate accipitur"

Here,

Res                          = a matter or a thing

Judicata = adjudged or adjudicated

pro                          = for

veritate = truth

accipitur = accepted

Thus "Res Judicata pro veritate accipitur" means a matter adjudged (should be) accepted for truth.

It is a rule that says a final judgment on the merits by a court having jurisdiction is conclusive between the parties to a suit as to all matters that were litigated or that could have been litigated in that suit. The principle of Res Judicata, in the eye of law, is that if on any facts and/or law, a particular decision is made, then subsequently if any suit on similar facts and/or law is to be decided between the same parties, it should be same as made earlier.

02. History of Res Judicata

01. Origin and growth of Res Judicata

The concept of Res Judicata finds its evolvement from the English Common Law system, being derived from the overriding concept of judicial economy, consistency, and finality. The rule of Res Judicata has a very ancient history it was accepted by the Romans, Hindu jurists, Mohammedan jurists and by common wealth countries. It was known to Romans as ‘one suit and one decision was enough for any single dispute’. To the Hindu jurists res Judicata was known as ‘Purva Nyaya’ (former judgment).

The plea has been illustrated in the text of Katyayan thus "If a person though at law sues again, he should be answered, you were defended formerly". Under the Roman law, a defendant would repeal the plaintiff's claim by means of execeptio res judicata or a plea of previous judgment. It was recognized that ―One suit and one decision was enough for any single dispute and that ―a matter once brought to trial should not be tried accept, of course, by way of appeal. Julian defined the principle thus ―And generally the plea of former judgment is a bar whenever the same question of right is renewed between the same parties by whatever form of the action. The doctrine has been adopted by the countries of the European continent which had modelled their civil law on the Roman pattern. The principle of preclusion of re-litigation, or conclusiveness of judgment, has struck deep roots in Anglo American Jurisprudence and is equally well known in the Commonwealth country[vi] which have drawn upon the rules of Common Law.

It is from the common law, it got included in the Code of Civil Procedure and which was later as a whole was adopted by the Indian legal system.

From the Civil Procedure Code, the Administrative Law witnessed its applicability. Then, slowly but steadily the other acts and statutes also started to admit the concept of Res Judicata within its ambit.

02. History

The doctrine of res judicata was first formulated in the familiar Duchess of Kingston's Case[vii], in terms which would not necessarily involve the introduction of the principle of estoppel. "The judgment of a court of concurrent jurisdiction directly upon the point, is as a plea, a bar, or as evidence, conclusive between the parties, upon the same matter, directly in question in another court." That res judicata is an estoppel is asserted in Cheney v. Selman,[viii] and by Chief Justice Shaw in Sawyer v. Woodbury[ix]. A typical definition of estoppel to include res judicata is found in Burlen v. Shannon,[x]  where the court said, "Estoppel is an admission or determination under circumstances of such solemnity that the law will not allow the fact so admitted or established to be afterwards drawn in question between the same parties or their privies." Sometimes the distinction has been taken that the judgment is a bar to further proceedings upon the same cause of action, but that the adjudication upon a particular fact or matter is an estoppel. See Burt v. Sternburgh,[xi]; Caperton v. Schmidt.[xii] In Magistrates of Dingwall v. M’Kenzie,[xiii] it is stated that “Circumstances under which it was held (affirming the judgment of the Court of Session), that a decree in 1725, and another in 1778, constituted res judicata as to a right of fishing in the river Conon: And, in interpreting these decrees, certain boundaries laid down as marking the extent within which the parties had a right of fishing.”

The doctrine had long been recognized in India even prior to enactment of the Code of civil procedure, 1859. At times, the rule worked harshly on individuals. For instants when the former decision obviously was erroneous. But its working was justified on the great principle of public policy, which required that there must be an end to every litigation. The basis of the doctrine of res judicata is public interest and not absolute justice. The argument ab inconvnienti might be admissible if the meaning of statute is ambiguous or obscure, but if the language is clear and explicit, its consequences are for the Legislature and not for the Courts to consider. In that event, as was remarked by Coleridge, J. in Garland v Carlisie,[xiv] "the suffering must appeal to the law-giver and not to the lawyer."

In the celebrated decision in Sheoparsan Singh v. Rammandan Singh,[xv] Sir Lawrence Jenkins stated, “Though the rule of the Code may be traced to an English source, it embodies a doctrine in no way opposed to the spirit of the law as expounded by the Hindu Commentators. Thus, from the common law, it got included in the Code of Civil Procedure, 1908 and which was later as a whole was adopted by the Indian legal system. From the Civil Procedure Code, the Administrative Law witnesses its applicability. Then, slowly but steadily the other acts and statutes also started to admit the concept of Res Judicata within its ambit.”

At times, the rule worked harshly on individuals. For instance, when the former decision was obviously erroneous. But its working was justified on the great principle of public policy, which required that there must be an end to every litigation. In the event of a wrong decision, "the suffering citizen must appeal to the law-giver and not to the lawyer".[xvi] 

The section does not affect the jurisdiction of the court but operates as a bar 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 Smt. Raj Lakshmi Dasi & Ors. v. Banamali Sen & Ors[xvii], the apex Court while dealing with the doctrine of res judicata referred to and relied upon the judgment in Sheoparsan Singh v. Ramnandan Singh[xviii] , wherein it had been observed as under:

“…….. the rule of res judicata, while founded on ancient precedents, is dictated by a wisdom which is for all time….. Though the rule of the Code may be traced to an English source, it embodies a doctrine in no way opposed to the spirit of the law as expounded by the Hindu commentators.

Vijnanesvara and Nilakantha include the plea of a former judgment among those allowed by law, each citing for this purpose the text of Katyayana, who describes the plea thus:

'If a person though defeated at law, sue again, he should be answered, ‘‘you were defeated formerly". This is called the plea of former judgment.’...

And so the application of the rule by the courts in India should be influenced by no technical considerations of form, but by matter of substance within the limits allowed by law’’

03. Estoppel by record

While administering of justice, courts may sometimes have to deviate from the rigor of common law when It is manifest that Implementation of common law will result in injustice rather than promoting justice. Equitable relief will have to be granted to the aggrieved persons under such circumstances. One such equitable relief thus granted has resulted in the “Estoppel by record" which is principally evolved by the courts basing on the final judgment of a competent court. It arises from earlier Judgments and is mainly concerned with admissibility in evidence of any matter concluded by such earlier judgments. "Estoppel by record" as known In English Law is substantially the same as res Judicata in Indian Law.

The development of Estoppel by record can be traced from 19th century. Lockyer v. Ferryman[xix] was a leading case in 1876. In that case a suit for declaration of marriage was brought against a lady in 1841, but after trial, it was dismissed in 1846. In 1875, after the death of the lady, a second suit was brought for the declaration of the same marriage as valid. In 1876, the second suit was dismissed on the plea of res judicata and the House of Lords confirmed this decision, on appeal. While delivering the judgment, different reasons were stated by their lordships as under:

Lord Chancellor: "Appellant has not alleged any new matter so as to entitle him to get rid of the former proceedings. The former decision is binding on him and a subsequent suit in respect of the same matter is not maintainable."

Lord Hatterli :- "l do not apprehend that we need go further to say that this gentleman, who had the opportunity of having his case fairly heard 30 years ago cannot now, after the death of the person principally concerned, be in a position to ask that the principles of res judicata shall not be pressed to its fullest and furtherest results."

Lord Selbourne :- “When there is res judicata, the original cause of action, if permitted to be raised again, would be destructive of all certainties in the administration of law. In the status of families and the enjoyment of the rights. it is incumbent on anyone to get rid of solemn judgment to show that he comes forward within reasonable promptitude and diligence".

Lord Blackburne:- “The rule of res judicata is always be on two grounds:

(a) Public policy that there should be an end to litigation; and

(b) Hardship to the individual. He should not be vexed twice for the same cause".

Lord Cardon :- “It would not be maintainable under the Law of Scotland with reference to Marriage for a person to come forward again after a lapse of 30 years and ask for a new trial with reference to matters which must have been within his knowledge when the cause of action was earlier tried."

The above reasons are given by Their Lordships upholding the object behind the principle of res Judicata i.e. the preventing of repetition of a cause which has already been settled between the same parties by a competent court having jurisdiction. This view is the basis of estoppel by record, the principle being that when there has been a judicial determination of a cause adjudicated between the real parties upon which real Interest has been settled, the decision operates as a bar to re-litigation of the same matter. This principle was followed in Workington Harbor and Dock Board v. Trade Indemnity Company Limited[xx] In this case a firm of contractors agreed to construct a new and enlarged dock. The Defendant Company gave the Dock Board a sum of 50,000 pounds as guarantee for the purpose of the contract. The contractors defaulted and the Dock Board brought an action against the Defendant Company. They relied upon engineers' certificate showing that the contractors owed them 78,000 pounds, which they had failed to pay. The said action was dismissed. The Dock Board then started a second action, claiming damages caused by the delay, owing to the contractors not having proceeded with duo diligence and expedition. The second action was also dismissed because the basis of the second action was precisely the same breaches as those in the first action. The claim for damages supported by different evidence was barred by res judicata. Plaintiffs were prevented from re-adjudicating the matter since the earlier decision was binding on them. But this decision does not contemplate a situation where the earlier decision, if patently illegal will preclude the party from raising the correct proposition. Further, the loss sustained by the party was not decided in the earlier judgment. Under these circumstances, the dismissal of the second suit will cause great injustice to the plaintiff as the relevant aspect for the second suit was entirely different from the matters considered in the earlier proceedings. Therefore, this judgment could not be considered as precedent.

However, the second suit was dismissed on technicalities instead of considering the contentions of the parties. But the plaintiff did not choose to proceed with the matter further may be for his own reasons.

The same principle was followed in Megovern v. state of Victoria[xxi]· In this case the owner of a fishing boat was convicted by a Magistrate for an offence under Fisheries Act, 1968 and eventually an order was passed in the County Court that the said boat was to be forfeited to the Crown. However, in between the two proceedings, the original owner sold the boat and the boat changed hands prior to its seizure. At the time the appellant bought the boat, he was unaware of the order and accordingly brought proceedings for declaration that the boat was his property, an injunction restraining the respondent from disposing of it for delivery of the boat to him and for damages. But the court basing on estoppel by record did not allow his claim. This was because, the forfeiture order already passed operated as an order in rem and hence the appellant could not contend that he was not bound by the order of forfeiture. Thus the claim was defeated relying on the earlier judgment.

The principle behind estoppel by record is that when there has been a judicial determination of a case adjudicated between real parties upon which real interest has been settled, the decision operates as a bar to re-litigation of the same matter. The effect is that matters settled in record by the judiciary or legislature cannot be subsequently unsettled. The difference between res judicata and estoppel is mainly depending on their applicability. Res judicata prohibits a re-litigation of the same subject matter between the same parties, while Estoppel by record does not prohibit re-litigation.

It prohibits only a departure or deviation from the earlier decision. A judgment made earlier shall be binding on the parties and the parties may not be permitted to deviate or depart from the earlier decisions. The finality in respect of a particular matter is necessary to prevent miscarriage of justice. That is why, res judicata stands on the same footing as that of estoppel by record.

 03. LEGAL MAXIMS RELATING TO RES JUDICATA

The doctrine of res judicata is based on three maxims-

(a) nemo debet lis vexari pro una et 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) res judicata pro veritate occipitur (a judicial decision must be accepted as correct).

As observed by Sir Lawrence Jenkins[xxii], "the rule of res judicata, while founded on account of precedent, is dictated by a wisdom which is for all times".

Res judicata applies on the cases, which have been decided. However the legal maxim ‘ex turpi causa non oritur action’ meaning no case against immorality is maintainable. An action does not arise from a base cause, e.g., an illegal contract is void. Thus in cases of decrees obtained through immoral means res judicata cannot be said to be applicable.

The spirit of the doctrine of res judicata is succinctly expressed in the well-known common law maxim debet bis vexari pro una et eadem causa (no one ought to be twice vexed for one and the same cause). The principle has been recognized in all civilized societies. Lord Coke declared: “it has well been said interest republicae ut sit finis litium (interest of the state is that there should be limit of law suits), otherwise great oppression might be done under colour and pretence of law.” As observed by the Privy Council in Soorojomonee v Suddanund[xxiii], the rule has been enunciated in England.

Thus, the doctrine of res judicata is the combined result of public policy reflected in maxims (b) and (c) and private justice expressed in maxim (a); and they apply to all judicial proceedings whether civil or criminal. But for this rule there would be no end to litigation and no security for any person, the rights of persons would be involved in endless confusion and great injustice done under the cover of law.[xxiv] The principle is founded on justice, equity and good conscience.[xxv] The leading case on the doctrine of res judicata is the Duchess of Kingstone case[xxvi], wherein Sir William de Grey made the following remarkable observations: "From the variety of cases relative to judgments being given in evidence in civil suits, these two deductions seem to follow as generally true; firstly, that 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 a 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.”[xxvii]

In CORPUS JURIS[xxviii] also 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.”[xxix]

Illustration

A sues B for damages for breach of contract. The suit is dismissed. A subsequent suit by A against B for damages for breach of the same contract is barred. A's right to claim damages from B for breach of contract having been decided in the previous suit, it becomes res judicata, and cannot therefore be tried in the subsequent suit. B cannot be vexed twice over for the same cause (breach of contract). Moreover, public policy also requires that there should be an end to a litigation and for that reason, the previous decision must be accepted as correct, lest every decision would be challenged on the ground that it was an erroneous decision and there would be no finality.

04. RES JUDICATA AND THE CONSTITUTION OF INDIA

01. Article 20 of Constitution of India and Doctrine of Double Jeopardy

Article 20 has taken care to safeguard the rights of persons accused of crimes. Persons here means the citizens, non-citizens as well as corporations. Article 20 cannot be suspended even during an emergency in operation under article 359. Article 20 also constitutes the limitation on the legislative powers of the Union and State legislatures.

01. Ex-Post facto Law

Article 20 (1) says that no person shall be convicted of any offence except for violation of a law in force at the time of the commission of the Act charged as an offence, nor be subjected to a penalty greater than that which might have been inflicted under the law in force at the time of the commission of the offence. This is called Ex-Post facto Law. It means that legislature cannot make a law which provides for punishment of acts which were committed prior to the date when it came into force. This means that a new law cannot punish an old act.

02. Doctrine of Double Jeopardy

Article 20(2) says that no person shall be prosecuted and punished for the same offence more than once. This is called Doctrine of Double Jeopardy. The objective of this article is to avoid harassment, which must be caused for successive criminal proceedings, where the person has committed only one crime. There is a law maxim related to this – nemo debet bis vexari. This means that no man shall be put twice in peril for the same offence.

There are two aspects of Doctrine of Jeopardy viz. autrefois convict and autrefois acquit. Autrefois convict means that the person has been previously convicted in respect of the same offence. The autrefois acquit means that the person has been acquitted on a same charge on which he is being prosecuted.

Constitution bars double punishment for the same offence. The conviction for such offence does not bar for subsequent trial and conviction for another offence and it does not matter the some ingredients of these two offences are common.

The word Jeopardy refers to the “danger” of conviction that an accused person is subjected to when one trial for a criminal offence. However, if it happens twice, it becomes double jeopardy and that is what is unconstitutional i.e. if a person is prosecuted or convicted ones cannot be punished again for that criminal act. The person gets the defense of Double Jeopardy if he is tried for the same offence in the court.

Even before the constitution of India was framed and passed after independence, the Double Jeopardy principle existed in the country in the form of section 26 which states that provision as to offences punishable under two or more enactments where an act or omission constitutes an offence under two or more enactments, then the offender shall be liable to be prosecuted or punished under either or any of those enactments. However, the law clarified that he shall not be liable to be punished twice for the same offence.

Later on the Constitution of India also incorporated the maxim of Double Jeopardy under Article 20(2) and considered it as one of fundamental rights. As most of the fundamental rights have been borrowed from the US Constitution, the concept of Double Jeopardy also came from them. In the US Constitution the principle of Double Jeopardy was brought in by the Fifth Amendment, which says that “no person shall be twice put in Jeopardy of life or limb.” In similar language, the article 20(2) says that “no person shall be prosecuted or punished for the same offence more than once.”

Case laws on double jeopardy

The first case involving the issue came in 1954 wherein the Supreme Court of India hearing the S.A. Venkataraman v. The Union of India And Another[xxx] observed that the scope and meaning of the guarantee implied in Article 20(2) of the Constitution has been indicated with sufficient fullness in the pronouncement of this court in Maqbool Hussain v. the State of Bombay[xxxi]. The judges observed that the roots of the principle, which this clause enacts, are to be found in the well established rule of English law which finds expression in the maxim “Nemo debet bis vexari”-a man must not be put twice in peril for the same offence. The court cited various cases and laws in practice in the US and the UK to give weight to the provision in India.

In Leo Roy v. Superintendent District Jail[xxxii] the Supreme Court of India held that it has to be marked that the defense of Double Jeopardy under Article 20 (2) will applicable only where punishment is for the same offence and if the offences are distinct the rule of Double Jeopardy will not apply. The court had observed that where a person was prosecuted and punished under sea customs act, but, later on prosecuted under the Indian Penal Code for criminal conspiracy, the second prosecution was not barred by the principle of Double Jeopardy. It was alright for the court to try the accused for the offense as it was not the same offense.

In the State of Bombay v. S.L. Apte and another[xxxiii] Constitution Bench of the Supreme Court while dealing with the issue of double jeopardy under Article 20(2), had held that to operate as a bar the second prosecution and the consequential punishment there under, must be for “the same offence”. The bench made it clear that the crucial requirement therefore for attracting the Article was that the offences are the same i.e. they should be identical. In situation the two offences are distinct, then notwithstanding that the allegations of facts in the two complaints might be substantially similar, the benefit of the ban cannot be invoked.

03. Self Incrimination Law

Article 20(3) of the constitution says that no person accused of any offence shall be compelled to be a witness against himself. This is based upon a legal maxim which means that ‘No man is bound to accuse himself.’ The accused is presumed to be innocent till his guilt is proved. It is the duty of the prosecution to establish his guilt.

05. RES JUDICATA UNDER CPC

01. General

Section 11 of the Code of Civil Procedure reads thus:

"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 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 a 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.

[xxxiv][Explanation VII.- The provisions of this section shall apply to a proceeding for the execution of a decree and references in this section to any suit, issue or former suit shall be construed as references, respectively, to a proceeding for the execution of the decree, question arising in such proceeding and 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 a 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.]”

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. The doctrine has been explained in the simplest possible manner by Das Gupta, J. in the case of Satyadhan Ghosal v. Deorjin Debi[xxxv] in the following words: “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 contains the rule of conclusiveness of the judgment which 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.

Here, the expression ‘matter in issue’ means the rights litigated between the parties, i.e., the facts on which the right is claimed and the law applicable to the determination of that issue. The term ‘Directly’ means directly, at once, immediately, without intervention. The term has been used in contradistinction to ‘collaterally or incidentally’, and the term ‘substantially’ means essentially, materially or in a substantial manner. It is something short of certainty but indeed more than mere suspicion. It means ‘in effect though not in express terms’.[xxxvi] The question whether or not a matter is ‘directly and substantially in issue’ would depend upon whether a decision on such an issue would materially affect the decision of the suit. Also for the term ‘Former suit’, it is not the date on which the suit is filed that matters but the date on which the suit is decided; so that even if the suit was filed later, it will be a former suit if it has been decided earlier.

The term ‘Party’ means a person whose name appears on the record at the time of the decision. Also, here, persons other than parties would include privies, persons represented by parties, and the principle of Res Judicata would bind them too. The term ‘same title’ means same capacity.[xxxvii] Title refers to the capacity or interest of a party, that is to say, whether he sues or is sued for himself in his own interest or for himself as representing the interest of another or as representing the interest of others along with himself and it has nothing to do with the particular cause of action on which he sues or is sued. Litigating under the same title means that the demand should be of the same quality in the second suit as was in the first suit.

The expression ‘competent to try’ means ‘competent to try the subsequent suit if brought at the time the first suit was brought’.[xxxviii] In other words, the relevant point of time for deciding the question of competence of the court is the date when the former suit was brought and not the date when the subsequent suit was filed. The section 11 requires that there should be a final decision on which the court must have exercised its judicial mind. In other words, the expression ‘heard and finally decided’ means a matter on which the court has exercised its judicial mind and has after argument and consideration came to a decision on a contested matter. It is essential that it should have been heard and finally decided.[xxxix]

The essential ingredients of Res Judicata are to be considered while deciding whether a particular judgment operated as res judicata or not be postulated as follows:

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 should have been between the parties or between the parties litigating under some titles.

3. The former suit should have been decided by competent court which can 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 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.

02. Section 11 of CPC is mandatory

Section 11 is mandatory. The plea of res judicata is a plea of law which touches the jurisdiction of a court to try the proceedings. A finding on that plea would oust the jurisdiction of a court. If the requirements of Section 11 are fulfilled, the doctrine of res judicata will apply and even a concession made by an advocate will not bind a party.[xl] 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. 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.

In Beliram & Brothers and Others v. Chaudari Mohammed Afzal and Others[xli] 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[xlii], 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. 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, 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. 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.

A decision in order to constitute res judicata need not necessarily have been given in a prior suit. 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. 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 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 section 11 are not to be regarded as exhaustive. The binding force of a judgment 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.

03. Res judicata and splitting of claims

Order 2, Rule 2 of CPC which prohibits splitting of claims reads as under:

"(1) Every suit shall include the whole of the claim which the plaintiff is entitled to make in respect of the cause of action; but a plaintiff may relinquish any portion of his claim in order to bring the suit within the jurisdiction of any court.

(2) Where a plaintiff omits to sue in respect of, or intentionally relinquishes, any portion of his claim, he shall not afterwards sue in respect of the portion so omitted or relinquished.

(3) A person entitled to more than one relief in respect of the same cause of action may sue for all or any of such reliefs; but if he omits, except with the leave of the Court, to sue for all such reliefs, he shall not afterwards sue for any relief so omitted".

The doctrine of res judicata also differs from Order 2, Rule 2 of the Code; firstly, the former refers to a plaintiff’s duty to bring forward all the grounds of attack in support of his claim, while the latter only requires a plaintiff to claim all reliefs flowing from the same cause of action. Secondly, while the former rule refers to both the parties, plaintiff as well as defendant, and precludes a suit as well as a defence, the latter refers only to a plaintiff and bars a suit.[xliii]

04. Res judicata whether technical

The rule of res judicata has some technical aspects. For instance, the rule of constructive res judicata is really technical in nature. Similarly, pecuniary or subject-wise competence of the earlier forum to adjudicate the subject-matter or grant reliefs sought in subsequent litigation can be said to be technical. But the principle on which the doctrine is founded rests on public policy and public interest.[xliv]

05. Section 11 whether exhaustive

It is well established that the doctrine of res judicata codified in Section 11 of the Code of Civil Procedure is not exhaustive.[xlv] Section 11 applies to civil suits.  But apart from the letter of the law, the doctrine has been extended and applied since long in various other kinds of proceedings and situations by courts in England, India and other countries.[xlvi]

In the case of Lal Chand v. Radha Kishan[xlvii], Chandrachud, J. (as he then was) observed:

'The fact that Section 11 of Code of Civil Procedure cannot apply on its terms, the earlier proceeding before the competent authority not being a suit, is no answer to the extension of the principle underlying that section to the instant case. Section 11, it is long since settled, is not exhaustive and the principle which motivates that section can be extended to cases which do not fall strictly within the letter of the law .... The principle of res judicata is conceived in the larger public interest which requires that all litigation must, sooner than later, come to an end. "[xlviii]

06. Interpretation of Res Judicata

The doctrine of res judicata should be interpreted and applied liberally. Since the rule is founded on high public policy and upon the need of giving finality to judicial decisions, a strict and technical construction should not be adopted. In deciding whether the doctrine would apply, its substance and not the form should be considered. [xlix]

07.  Waiver of Res Judicata

The plea of res judicata is not one which affects the jurisdiction of the court.

The doctrine of res judicata belongs to the domain of procedure and the party may waive the plea of res judicata.[l] Similarly, the court may decline to go into the question of res judicata on the ground that it has not been properly raised in the proceedings or in issues.[li] The plea is one which could be waived.

06. INGREDIENTS OF RES JUDICATA

The pre-requisites which are necessary for Res Judicata are:

1) There must be a final judgment;

2) The judgment must be on the merits;

3) The claims must be the same in the first and second suits;

4) The parties in the second action must be the same as those in the first, or have been represented by a party to the prior action .

The provisions of Section 11 are not at all exhaustive even though it has very wide and enlarged amplitude.

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, then they are not competent i.e. they become barred to try the subsequent suit in which such issue has been raised.

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.

01. Conditions

It is not every matter decided in a former suit that will operate as res judicata in a subsequent suit. To constitute a matter as res judicata under Section 11, the following conditions must be satisfied:[lii]

(I) The matter 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 (Explanation III) or constructively (Explanation IV) in the former suit (Explanation I). (Explanation VII is to be read with this condition.)

To constitute res judicata it is necessary that the matter must have been directly and substantially in issue in a former suit. A matter cannot be said to have been ‘directly and substantially’ in issue in a suit unless it was alleged by one party and denied or admitted, either expressly or by necessary implication by the other. If it was not directly and substantially in issue in a former suit it will not operate by way of res judicata in a subsequent suit. The question whether a matter has been directly and substantially in issue in a former suit is one of facts to be decided with reference to the circumstances of each particular case.

(II) The former suit must have been a suit between the same parties or between parties under whom they or any of them claim. (Explanation VI is to be read with this condition.)

“Res-inter alies acta alios acta alteri nocere non-debet” − Things done between strangers ought not to injure a party, or “Res-inter alies judicata nxullem inter allios predicum facit” − Matters decided between third parties do not affect strangers or any but themselves. An adjudication is binding upon the parties to a suit or persons claiming under on represented by them but upon those only.

(III) Such parties must have been litigating under the same title in the former suit.

It means that question must have been raised and decided in the same right that is to say in the right of the parties to the second and not in the right of any other person. A suit by a person representing the public is not barred by a decision in a previous (Suit) by the same plaintiff in their individual and private capacity.

(IV) The court which decided the former suit must be a court competent to try the subsequent suit or the suit in which such issue is subsequently raised."[liii] (Explanations II and VIII are to be read with this condition.)

(V) The matter directly and substantially in issue in the subsequent suit must have been heard and finally decided by the court in the former suit.[liv]

(Explanation V is to be read with this condition.)

02. Matter in issue

01. Meaning

The expression "matter in issue" means the rights litigated between the parties, i.e., the facts on which the right is claimed and the law applicable to the determination of that issue." Such issue may be an issue of fact, issue of law or mixed issue of law and fact.

02. Classification

Matters in issue may be classified as under:

Matters in issue
Matters directly and substantially in issue		Matters collaterally or incidentally in issue
Actually in issue	Constructively in issue

03. Matter directly and substantially in issue: Explanation III

A matter directly and substantially in issue in a former suit will operate as res judicata in a subsequent suit. "Directly" means directly, at once, immediately, without intervention. The term has been used in contradistinction to "collaterally or incidentally". A fact cannot be said to be directly in issue if the judgment stands whether that fact exists or does not exist. No hard and fast rule can be laid down as to when a matter can be said to be directly in issue and it depends upon the facts and circumstances of each case.[lv]

"Substantially" means essentially, materially or in a substantial manner. It is something short of certainty but indeed more than mere suspicion. It means "in effect though not in express terms".[lvi]

A matter can be said to be substantially in issue if it is of importance for the decision of a case. No rule of universal application can be laid down as to when a matter can be said to be substantial except when the parties by their conduct treated it as a substantial one.[lvii]

Illustrations

1. A sues B for rent due. The defence of B is that no rent is due. Here the claim for rent is the matter in respect of which the relief is claimed. The claim of rent is, therefore, a matter directly and substantially in issue. ,

2. A sues B for possession of certain properties on the basis of a sale deed in his favour. B impugns the deed as fictitious. The plea is upheld and the suit is dismissed. A subsequent suit for some other properties on the basis of the same sale deed is barred as the issue about the fictitious nature of the sale deed was actually in issue in the former suit directly and substantially.

The question whether or not a matter is "directly and substantially in issue" would depend upon whether a decision on such an issue would materially affect the decision of the suit. The question has to be determined with reference to the plaint, written statement, issues and judgment. No rule of universal application can be laid down and the question should be decided on the facts of each case.

When 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. The Supreme Court has rightly observed[lviii]: "It is well settled that if the final decision in any matter at issue between the parties is based by a court on its decisions on more than one point - each of which by itself be sufficient for the ultimate decision – the decision on each of these points operates as res judicata between the parties."[lix]

Illustrations

1. A sues B (i) for a declaration of title to certain lands; and (ii) for the rent of those lands. B denies A's title to the lands and also contends that no rent is due. In this case, there are two matters in respect of which relief is claimed, viz. (i) the title to the lands; and (ii) the claim for rent. Both these matters are, therefore, directly and substantially in issue.

2. A sues B for rent for the year 1989-90 alleging that B· was liable to pay it. B applied for time to file the written statement, which was refused. The only issue raised by the court was regarding the amount of rent and the suit was decreed. A files another suit against B for rent for the year 1990-91.  B contends that he is not liable to pay rent. The question about B's liability for all years was not alleged and decided in the previous suit and the point was, therefore, not directly and substantially in issue in the previous suit. The defence is, therefore, not barred by res judicata.

04. Matter actually in issue

A matter is actually in issue when it is in issue directly and substantially and a competent court decides it on merits.[lx]

05. Matter constructively in issue: Explanation IV

A matter can be said to be constructively in issue when it "might and ought" to have been made a ground of defence or attack in the former suit.[lxi] A matter directly and substantially in issue may again be so either actually or constructively. A matter is actually in issue when it is alleged by one party and denied or admitted by the other (Explanation III). It is constructively in issue when it might and ought to have been made a ground of attack or defence in the former suit (Explanation IV). Explanation IV to Section 11 by a deeming provision lays down that any matter which might and ought to have been made a ground of defence or attack in the former suit, but which has not been made a ground of attack or defence, shall be deemed to have been a matter directly and substantially in issue in such suit.

The principle underlying Explanation IV is that where the parties have had an opportunity of controverting a matter, that should be taken to be the same thing as if the matter had been actually controverted and decided. The object of Explanation IV is to compel the plaintiff or the defendant to take all the grounds of attack or defence which were open to him. In other words, all the grounds of attack and defence must be taken in the suit. A party is bound to bring forward his whole case in respect of the matter in issue and cannot abstain from relying or giving up any round which is in controversy and for consideration before a Court and afterwards take it a cause of action for a fresh suit.[lxii]

06. Matter collaterally or incidentally in issue

The words "directly and substantially in issue" have been used in Section 11 in contradistinction to the words "collaterally or incidentally in issue". Decisions on matters collateral or incidental to the main issues in a case will not operate as res judicata. A collateral or incidental issue means an issue which is ancillary to the direct and substantive issue. It refers to a matter in respect of which no relief is claimed and yet it is put in issue to enable a court to adjudicate upon the matter which is directly and substantially in issue. The expression "collaterally or incidentally in issue" implies that there is another matter which is "directly and substantially in issue".[lxiii]

Illustration

A sues B for the rent due. B pleads abatement of rent on the ground that the actual area of the land is less than that mentioned in the lease deed. The court, however, finds the area greater than that shown in the lease deed. The finding as to the excess area, being ancillary and incidentally to the direct and substantial issue, is not res judicata.

Thus, in Gangabai v. Chhabubai[lxiv], a regular civil suit was filed by A against B for a declaration that she was the owner of the property and the so-called sale deed said to have been executed by her in favour of B was not real and genuine, and also for possession of property on the ground of title. B contended that he had become the owner of the property and the decree for arrears of rent had been previously passed by the Court of Small Causes in his favour, negativing the contention of A that she was the owner. She had been held to be the tenant. The subsequent suit, it was contended, was, therefore, barred by the doctrine of res judicata. Negativing the contention, the Supreme Court observed:

"It seems to us that when a finding as to title as to immovable property is rendered by a Court of Small Causes, res judicata cannot be pleaded as a bar in a subsequent regular civil suit for the determination or enforcement of any right or interest in immovable property. In order to operate as res judicata the finding must be one disposing of a matter directly and substantially in issue in the former suit and the issue should have been heard and finally decided by the court trying such suit. A matter which is collaterally or incidentally in issue for the purpose of deciding the matter which is directly in issue in the case cannot be made the basis of a plea of res judicata.”[lxv]

Accordingly, the Supreme Court held that the finding rendered by the Court of Small Causes in the suit filed by B that the document executed by A was a sale deed cannot operate as res judicata in the subsequent suit (suit filed by A against B on the basis of title).

07."Matter directly and substantially in issue" and "matter collaterally or incidentally in issue": Difference

In order to operate res judicata, a matter must have been directly and substantially in issue in a former suit and not merely collaterally or incidentally in issue therein. It is, therefore, necessary to draw a distinction between a matter "directly and substantially in issue" and a matter "collaterally or incidentally in issue".

A matter is "directly and substantially in issue" if it is necessary to decide it in order to adjudicate the principal issue and if the judgment is based upon that decision.[lxvi]

A matter is "collaterally or incidentally in issue" if it is necessary to decide it in order to grant relief to a plaintiff or to a defendant and the decision on such issue either way does not affect the final judgment.[lxvii]

Whether a matter was directly and substantially in issue or merely collaterally or incidentally in issue has to be determined with reference to plaint, written statement, issues and judgment in the suit. Such question must be decided on the facts of each case and no 'cut and dried' test can be laid down. [lxviii]

08. 'Suit': Meaning

The expression "suit" has not been defined in the Code, but it is a proceeding which is commenced by presentation of a plaint. [lxix] In Hansraj Gupta V Debra Dun - Mussoorie Electric Tramway Co. Ltd.[lxx], their Lordships of the Privy Council have defined the expression thus: "The word 'suit' ordinarily means and, apart from some context, must be taken to mean a civil proceeding instituted by the presentation of a plaint." _

In Pandurang v. Shantibai [lxxi], the Supreme Court has stated: "In its comprehensive sense the word 'suit' is understood to apply to any proceeding in a court of justice by which an individual pursues that remedy which the law affords. The modes of proceedings may be various but that if a right is litigated between the parties in a court of justice the proceeding by which the decision of the court is sought may be a suit." Formerly, looking to the legislative background of Section 11, the expression "suit" was construed literally and grammatically including the whole of the suit and not a part thereof or a material issue arising therein. But by the Amendment Act of 1976, a more extensive meaning is given to the connotation "suit" and now the mode of a proceeding is not material. At the same time, however, if the proceeding is of a summary nature not falling within the definition of a suit, it may not be so treated for the purpose of Section 11. Again, the word "suit" in Section 11 means proceedings in a court of first instance as distinguished from proceedings in an appellate court, though the general principles of res judicata apply to appellate proceedings also.[lxxii]

09. Former suit: Explanation I

Section 11 provides that no court shall try any suit or issue in which the matter has been directly and substantially in issue in a former suit between the same parties and has been heard and finally decided. Explanation I to Section 11 provides that 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.[lxxiii] It is not the date on which the suit is filed that matters but the date on which the suit is decided; so that even if a suit was filed later, it will be a former suit within the meaning of Explanation I if it has been decided earlier.[lxxiv]

10. 'Issue': Meaning

Section 11 bars trial of any suit as well as an issue which had been decided in a former suit. Issues are of three kinds: (i) Issues of fact; (ii) Issues of law; and (iii) Mixed issues of law and fact. A decision on an issue of fact, however erroneous it may be, constitutes res judicata between the parties to the previous suit, and cannot be reagitated in collateral proceedings.[lxxv] A mixed issue of law and fact also, for the same reasons, operates as res judicata.[lxxvi] But there were conflicting views on the question as to how far a decision on a question of law would operate as res judicata.[lxxvii] But the conflict was set at rest by the powerful pronouncement of the Supreme Court in the case of Mathura Prasad v. Dossibai[lxxviii], wherein after considering the case-law on the point, the court held that generally a decision of a competent court even on a point of law operates as res judicata.[lxxix] However, a pure question of law unrelated to facts which gives rise to a right does not operate as res judicata. Thus, when the cause of action is different, or when the law has since the earlier decision been altered by a competent authority, or when the decision relates to the jurisdiction of a Court to try the earlier proceeding, or where the earlier decision declared valid a transaction which is prohibited by law, the decision does not operate as res judicata in a subsequent proceeding.

A reference may be made to Avtar Singh v. Jagjit Singh[lxxx], wherein a peculiar problem arose. In a suit filed by A in a civil court, a preliminary contention regarding jurisdiction of the Court was taken by B. The objection was upheld and the plaint was returned to the plaintiff for presentation to the Revenue Court. When A approached the Revenue Court, it returned the petition holding that the Revenue Court had no jurisdiction. Once again, A filed a civil suit in a civil court. It was contended by B that the suit was barred by res judicata. The Court, though it sympathized with the dilemma wherein the plaintiff was placed and was driven from pillar to post, dismissed the suit upholding the contention of the defendant. The Court stated: "If defendant does not appear and the Court on its own returns the plaint on the ground of lack of jurisdiction the order in a subsequent suit may not operate as res judicata but if the defendant appears and an issue is raised and decided then the decision on the question of jurisdiction will operate as res judicata in a subsequent suit although the reasons for its decisions may not be so."[lxxxi]

It is submitted that the view taken by the Supreme Court in Avtar Singh[lxxxii] is erroneous and does not lay down correct law. As stated above, a pure question of law unrelated to the facts and touching the jurisdiction of a court, does not operate as res judicata between the same parties in a subsequent suit. Avtar Singh[lxxxiii] was decided by a Division Bench of two Judges. Unfortunately, Mathura Prasad'" which was decided earlier and that too by a Division Bench of three Judges was not brought to the notice of the Court. Thus, Avtar Singh[lxxxiv] was decided per incurium and cannot be said to be good law.[lxxxv]

It is submitted that the view taken by the Supreme Court in Mathura Prasad v. Dossibai[lxxxvi] is correct. The following observations of Shah, J. (as he then was) lay down the correct principle of law and are, therefore, worth quoting:

"The matter in issue, if it is one purely of fact, decided in the earlier proceeding by a competent court must in a subsequent litigation between the same parties be regarded as finally decided and cannot be reopened. A mixed question of law and fact determined in the earlier proceeding between the same parties may not, for the same reason, be questioned in a subsequent proceeding between the same parties. But, 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 the same, for the expression '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 denied and the law applicable to the determination of that issue. Where, however, the question is one purely of law and it relates to the jurisdiction of the court or a decision 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 procedure cannot supersede the law of the land."[lxxxvii]

11. Same parties

01. General

The second condition of res judicata is that the former suit must have been a suit between the same parties or between the parties under whom they or any of them claim. This condition recognises the general principle of law that judgments and decrees bind the parties and privies.[lxxxviii] Therefore, when the parties in the subsequent suit are different from the former suit, there is no res judicata.

Illustrations

1. A sues B for rent. B contends that A is not the landlord, and the suit is dismissed. A subsequent suit either by A or by X claiming through A is barred by res judicata.

2. A sues B for rent. B contends that C and not A is the landlord. A fails to prove his title and the suit is dismissed. A then sues Band C for a declaration of his title to the property. The suit is not barred as the parties in both the suits are not the same.

02. Party: Meaning

A 'party' is a person whose name appears on the record at the time of the decision. Thus, a person who has intervened in the suit is a party, but a party to the suit whose name is struck off, or who is discharged from the suit or who dies pending the suit but whose name continues on record erroneously is not a party. A party may be a plaintiff or a defendant.

03. Res judicata between co-defendants

As a matter may be res judicata between a plaintiff and a defendant, similarly, it may be res judicata between co-defendants and co-plaintiffs also. An adjudication will operate as res judicata between co-defendants if the following conditions are satisfied:

(1) There must be a conflict of interest between co-defendants;

(2) It must be necessary to decide that conflict in order to give relief to the plaintiff;

(3) The question between co-defendants must have been finally decided; and

(4) The co-defendants were necessary or proper parties in the former suit.

If these conditions are satisfied, the adjudication will operate as res judicata between co-defendants.[lxxxix]

Illustration

A sues B, C and D and in order to decide the claim of A. the Court has to interpret a will. The decision regarding the construction of the will on rival claims of the defendants will operate as res judicata in any subsequent suit by any of the defendants against the rest.

04. Test of Res Judicata

The test for res judicata between co-defendants has been laid down in the case of Cottingham v. Earl of Shrewsbury[xc] in the following words:

"If a plaintiff cannot get at his right without trying and deciding a case between co-defendants, the Court will try and decide the case, and the co-defendants will be bound. But if the relief given to the plaintiff does not require or involve a decision of any case between co-defendants, the co-defendants will not be bound as between each other by any proceeding which may be necessary only to the decree the plaintiff obtains." [xci]

In Mahboob Sahab v. Syed Ismail[xcii], the Supreme Court added a word of caution while applying the doctrine of res judicata between co-defendants by stating: "The doctrine of res judicata would apply even though the party, against whom it is sought to be enforced, was not eo nomine made a party nor entered appearance nor did he contest the question. The doctrine of res judicata must, however, be applied to co-defendants with great caution. The reason is that fraud is an extrinsic collateral act, which vitiates the most solemn proceedings of courts of justice. If a party obtains a decree from the court by practising fraud or collusion, he cannot be allowed to say that the matter is res judicata and cannot be reopened. "[xciii]

05. Res judicata between co-plaintiffs

Just as a matter may be res judicata between co-defendants, so also it may be res judicata between co-plaintiffs. If there is a conflict of interest between plaintiffs and it is necessary to resolve the same by a court in order to give relief to a defendant, and the matter is in fact decided, it will operate as res judicata between co-plaintiffs in the subsequent suit.[xciv]

06. Pro forma defendant

A defendant to a suit against whom no relief is claimed is called a pro forma defendant. A person may be added as a pro forma defendant in a suit merely because his presence is necessary for a complete and final decision of the questions involved in the suit.[xcv] In such a case since no relief is sought against him, a finding does not operate as res judicata in a subsequent suit against him.[xcvi] On the other hand, the fact that the party is described as a pro forma defendant or that no relief is claimed against him is, by itself, not sufficient to avoid the bar of res judicata if other conditions laid down in the section are satisfied.[xcvii]

Illustrations

I. A sues B for possession of property contending that he is tenant of C. C is joined as pro forma defendant and no relief is claimed against him. The suit is dismissed as the Court finds B to be the owner. C then sues B for possession on the basis of title. B's contention that the issue regarding ownership of property is res judicata must fail as the issue was decided in the former suit between A and B and not between C and B as C was only a pro forma defendant.

2. A sues B for rent claiming to be a sole shebait. B contends that X was also a co-shebait and the suit filed by A alone was, therefore, not maintainable. X was joined as pro forma defendant and no relief was claimed against him. A finding by the Court that A was the sole shebait would operate as res judicata in a subsequent suit between X and A on the question of co-shebaitship as the decision in the previous suit was necessary for granting relief in favour of A.

07. Parties under whom they or any of them claim

As stated above, the doctrine of res judicata operates not only against parties but their privies also, i.e., persons claiming under parties to the decision. The object underlying the doctrine of res judicata is that if a proceeding originally instituted is proper, the decision given therein is binding on all persons on whom a right or interest may devolve.

"Parties under whom they or any of them claim" comprise two classes of persons:

(i) Parties actually present in the former suit;

(ii) Parties claiming under the parties to the suit (privies); and

(iii) Persons represented by a party in the former suit (Explanation VI).

Illustration

A sues B for a declaration of title to the property and obtains a decree. Thereafter A sues C for possession of that property. C contends that B is the owner and that he is in possession as B's tenant. The defence is barred inasmuch as C claims through B.

12. Representative suits: Explanation VI

01. General

Explanation VI to Section 11 deals with representative suits, i.e., suits instituted by or against a person in his representative, as distinguished from individual, capacity. This Explanation provides that where persons litigate bona fide in respect of a public right or of a private right claimed in common for themselves and others, and all persons interested in such right shall, for the purposes of Section II, be deemed to claim under the persons so litigating.[xcviii] Explanation VI, thus illustrates one aspect of constructive res judicata. Thus, where a representative suit is brought under Section 92 of the Code and a decree is passed in such a suit, law assumes that all persons who have the same interest as the plaintiffs in the representative suit were represented by the said plaintiffs and, therefore, are constructively barred by res judicata from reagitating the matters directly and substantially in issue in the former suit.

The underlying principle is that if the very issue is litigated in the former suit and is decided, there is no good reason why the others making the same claim cannot be held to be claiming a right "in common for themselves and others" under Explanation VI. If that view is not taken, it would necessarily mean that there would be two inconsistent decrees and one of the tests in deciding whether the doctrine of res judicata applies to a particular case or not is to determine whether two inconsistent decrees will come into existence if it is not applied.[xcix]

02. Conditions

The following conditions must be satisfied before a decision may operate as res judicata under Explanation VI:

(i) There must be a right claimed by one or more persons in common for themselves and others not expressly named in the suit;

(ii) the parties not expressly named in the suit must be interested in such right;

(iii) the litigation must have been conducted bona fide and on behalf of all parties interested; and

(iv) if the suit is under Order I, Rule 8, all conditions laid down therein must have been strictly complied with.

It is only when the above conditions are satisfied that a decision may operate as res judicata in the subsequent suit.[c] Thus, where a party claims a right for himself alone which happens to be common to him and others, it cannot be said that he was litigating on behalf of others and Explanation VI does not apply.[ci] Similarly, if the earlier proceeding was not a bona fide public interest litigation, the subsequent proceeding would not be barred. The possibility of litigation to foreclose any further inquiry into a matter in which an enquiry is necessary in the interest of public cannot be overlooked.[cii]

03. Public interest litigation

If the object of Explanation VI of Section 11 is considered, there is no good reason why it cannot apply to a bona fide public interest litigation. If the previous litigation was a bona fide public interest litigation in respect of a right which was common and was agitated in common with others, the decision in previous litigation would operate as res judicata in a subsequent litigation. But if the earlier proceeding was not a bona fide public interest litigation, the subsequent proceeding would not be barred.

13. Same Title

01. General

The third condition of res judicata is that the parties to the subsequent suit must have litigated under the same title as in the former suit.

02. Meaning

Same title means same capacity.[ciii] Title refers to the capacity or interest of a party, that is to say, whether he sues or is sued for himself in his own interest or for himself as representing the interest of another or as representing the interest of others along with himself and it has nothing to do with the particular cause of action on which he sues or is sued. Litigating under the same title means that the demand should be of the same quality in the second suit as was in the first suit. It has nothing to do with the cause of action on which he sues or is sued.

illustrations

1. A sues B for title to the property as an heir of C under the customary law. The suit is dismissed. The subsequent suit for title to the property as an heir of C under the personal law is barred.

2. A sues B for possession of property as an owner basing his claim on title. The suit is dismissed. A subsequent suit for possession of property on the ground of adverse possession is barred.

3. A sues B for possession of property as an owner basing his claim on title. The suit is dismissed. A subsequent suit by A against B for possession of the same property as mortgagor is not barred.

4. A sues for possession of math property as an heir of Mahant. The suit is dismissed. A subsequent suit by A against B as the manager of the math is not barred.

03. Test for same title

The test for res judicata is the identity of title in the two litigations and not the identity of the subject-matter involved in the two cases.[civ] The crucial test for determining whether the parties are litigating in a suit under the same title as in the previous suit is of the capacity in which they sued or were sued. The term “same Title” has nothing to do either with the cause of action or with the subject-matter of two suits. Where the right claimed in both the suits is the same, the subsequent suit will be barred even though the right in the subsequent suit is sought to be established on a ground different from the one in the former suit.[cv]

14. Competent court

01. General

The fourth condition of res judicata is that the court which decided the former suit must have been a court competent to try the subsequent suit.[cvi] Thus, the decision in a previous suit by a court, not competent to try the subsequent suit, will not operate as res judicata.[cvii]

02. Competent court: Meaning

The expression "competent to try" means "competent to try the subsequent suit if brought at the time the first suit was brought".[cviii] In other words, the relevant point of time for deciding the question of competence of the court is the date when the former suit was brought and not the date when the subsequent suit was filed.[cix]

03. Types of courts

In order that a decision in a former suit may operate as res judicata, the court which decided that suit must have been either-

(a) a Court of exclusive jurisdiction; or

(b) a court of limited jurisdiction; or

(c) a court of concurrent jurisdiction.

(A) Court of exclusive jurisdiction

A plea of res judicata can successfully be taken in respect of judgments of courts of exclusive jurisdiction, like Revenue Courts, Land Acquisition Courts, Administration Courts, etc. If a matter directly and substantially in issue in a former suit has been adjudicated upon by a court of exclusive jurisdiction, such adjudication will bar the trial of the same matter in a subsequent suit in an ordinary civil court.[cx]

(B) Court of limited jurisdiction

A decision on an issue heard and finally decided by a court of limited jurisdiction will also operate as res judicata in a subsequent suit irrespective of the fact that such court of limited jurisdiction was not competent to try the subsequent suit.[cxi]

The expression "court of limited jurisdiction" has been interpreted differently by different High Courts. In Nabin Majhi v. Tela Majhi[cxii], the High Court of Calcutta held that courts of limited jurisdiction are courts other than ordinary civil courts, such as Revenue Courts, Land Acquisition Courts, Insolvency Courts, etc. A Court of limited pecuniary jurisdiction cannot be said to be a court of limited jurisdiction. Reading Explanation VIII along with Section II, it is clear that if the former court is unable to try the subsequent suit as beyond its pecuniary jurisdiction, the decision of the former court will not operate as res judicata in the subsequent suit.

On the other hand, in Devoki Amma v. Kunhi Raman[cxiii], the High Court of Kerala did not agree with the Calcutta view in Nabin Majhi case[cxiv] and observed that the term "a court of limited jurisdiction" is wide enough to include a court whose jurisdiction is subject to a pecuniary jurisdiction and it will not be right to interpret the said expression as connoting only courts other than ordinary civil courts. Such a narrow and restricted interpretation is not warranted by the words used by Parliament.

(C) Court of concurrent jurisdiction

Where the court which decided the former suit was a court of concurrent jurisdiction having competence to try the subsequent suit, the decision given by it would operate as res judicata in a subsequent suit.[cxv] Concurrent jurisdiction means concurrent as regards the pecuniary limit as well as the subject matter of the suit. 'Competency' in Section 11 has no reference to territorial jurisdiction of the court.[cxvi]

As seen above, the ambit and scope of Explanation VIII has been interpreted differently by different High Courts. In Nabin Majhi v. Tela Majhi[cxvii], it was contended that a court of Munsif by reason of its limited pecuniary jurisdiction can be said to be a court of limited jurisdiction and hence, its decision would operate as res judicata in a subsequent suit instituted in the court of a subordinate judge.

Negativing the contention and interpreting Explanation VIII in the light of the substantive provision (Section 11), the Court observed: "[O)ne of the conditions for the applicability of Section 11 is that the Court in which the former suit was instituted must be competent to try the subsequent suit. If the former Court is unable to try the subsequent suit as it is beyond its pecuniary jurisdiction, the decision of the former court will not be res judicata in the subsequent suit. If the legislature had really intended to remove the condition retaining to the competency of the former Court, in that case it would have removed the same from the section itself. In the face of the provision of Section II, retaining the said condition for the applicability of res judicata, that the former Court must be competent to try the subsequent suit, it is difficult for us to accept the interpretation of Explanation VIII as suggested on behalf of the appellant.”

The High Court of Kerala, however, took a contrary view in Devoki Amma v. Kunhi Raman[cxviii]. Disagreeing with the ratio laid down in Nabin Majhi and keeping in mind the object of enacting Explanation VIII, the Court concluded: "In our opinion, the expression 'a Court of limited jurisdiction' is wide enough to include a Court whose jurisdiction is subject to a pecuniary limitation and it will not be right to interpret the said expression as connoting only Courts other than ordinary civil courts. Such a narrow and restricted interpretation is not warranted by the words used by Parliament. The Statement of Objects and Reasons for the Bill which was subsequently enacted as Amending Act 104 of 1976 and the report of the Joint Select Committee, which effected some substantial changes in the Bill as originally drafted, make it abundantly clear that the intention underlying the introduction of Explanation VIII was that the decisions of the Courts of limited jurisdiction should operate as res judicata in a subsequent suit although the Court of limited jurisdiction may not be competent to try such subsequent suit .... " In our opinion the object and purpose underlying the introduction of Explanation VIII was much wider, namely, to render the principle of res judicata fully effective so that issues heard and finally decided between the parties to an action by any Court competent to decide such issues should not be allowed to be reagitated by such parties or persons claiming through them in a subsequent litigation.”[cxix]

A special reference may be made to a decision of the Supreme Court in Sulochana Amma v. Narayanan Nair[cxx]. In that case, A by a deed of settlement gave life estate to B, and the remainder to C. After the death of A, B alienated the property to D. C filed a suit against B in the Munsif's court restraining B from alienating the property and committing acts of waste. During the pendency of the suit, D sold the property to E. C's suit against B was decreed and it was held that B had no right to alienate property and permanent injunction was also granted. B's appeal was also dismissed. D, who was not a party to the earlier suit was committing acts of waste. C, therefore, filed another suit against Band D for permanent injunction. That suit was also decreed. But the question of D's title was left open. C filed a third suit against E in the court of the Subordinate Judge for declaration of his title which was decreed. It was confirmed up to the High Court. E approached the Supreme Court.

Considering the purpose of the amendment and insertion of Explanation VIII, the Supreme Court stated: "No doubt main body of Section 11 was not amended, yet the expression 'the court of limited jurisdiction' in Explanation VIII is wide enough to include a court whose jurisdiction is subject to pecuniary limitation and other cognate expressions analogous thereto. Therefore, Section 11 is to be read in combination and harmony with Explanation VIII. The result that would flow is that an order or an issue which had arisen directly and substantially between the parties or their privies and decided finally by a competent court or tribunal, though of limited special jurisdiction, which includes pecuniary jurisdiction, will operate as res judicata in a subsequent suit or proceeding, notwithstanding the fact that such court of limited or special jurisdiction was not a competent court to try the subsequent suit .... The technical aspect, for instance, pecuniary or subjectwise competence of earlier forum to adjudicate the subject-matter or to grant reliefs sought in the subsequent litigation, should be immaterial when the general doctrine of res judicata is to be invoked. Explanation VIlI, inserted by the Amending Act of 1976, was intended to serve this purpose and to clarify this position."[cxxi]

Overruling the 'very narrow view' of the High Court of Calcutta[cxxii] and approving the 'broader view' of the High Courts of Kerala[cxxiii] Orissa[cxxiv] and Madras[cxxv] the Court went on to observe:

"[I]f the scope of Explanation VIII is confined to the order and decree of an Insolvency Court, the scope of Explanation VIII would be defeated and the decree of civil courts of limited pecuniary jurisdiction shall stand excluded, while that of the former would be attracted. Such an anomalous situation must be avoided. The Tribunal whose decisions were not operating as res judicata, would be brought within the ambit of Section 11, while the decree of the civil court of limited pecuniary jurisdiction which is accustomed to the doctrine of res judicata, shall stand excluded from its operation. Take for instance, now the decree of a Rent Controller shall operate as res judicata, but a decree of a District Munsif (Civil Judge), Junior Division, according to the stand of the appellant, will not operate as res judicata, though the same officer might have decided both the cases. To keep the litigation unending, successive suits could be filed in the first instance in the court of limited pecuniary jurisdiction and then in a court of higher jurisdiction and the same issue shall be subject of trial again, leading to conflict of decisions. 1t is obvious from the objects underlying Explanation VIII, that by operation of the non obstante clause finality is attached to a decree of civil court of Limited pecuniary jurisdiction also to put an end to the vexatious Litigation and to conclusiveness to the issue tried by a competent court, when the same issue is directly and substantially in issue in a later suit between the same parties or their privies by operation of Section 11. The parties are precluded from raising once over the same issue for trial."[cxxvi]

In Church of South India Trust Assn. v. Telugu Church Council[cxxvii], it was contended that lack of territorial jurisdiction goes to the root of the competence of a court trying a suit and a decision rendered by a court lacking territorial jurisdiction would not operate as res judicata in a subsequent suit.

Negativing the contention and referring to leading decisions on the point, the Supreme Court stated: "We are, therefore, of the opinion that Section 11 of the present Code (excluding Explanation VIII) envisages that the judgment in a former suit would operate as a res judicata, if the court which decided the said suit was competent to try the same by virtue of its pecuniary jurisdiction and the subject matter to try the sub6equent suit and that it is not necessary that the said court should have had territorial jurisdiction to decide the subsequent suit.”[cxxviii]

15. Right of appeal

01. Position prior to Explanation II

Under the Code of 1882, it was held by the High Courts of Bombay, Madras and Punjab that a prior decision in which no second appeal lay, such as suits of a nature cognizable by a Court of Small Causes when the amount of subject-matter does not exceed five hundred rupees, could not operate as res judicata in a subsequent suit in which such appeal was maintainable. The High Court of Calcutta, on the other hand, had taken a contrary view and held that such decision would operate as res judicata, notwithstanding that no second appeal was allowed by law in the former suit. Explanation II as inserted in the present Code affirms the Calcutta view and clarifies that the competence of a court does not depend on the right of appeal from a decision from such Court.[cxxix] The fact that no second appeal lay in the previous suit is no longer a valid ground for holding that the decision in the previous suit would not operate as res judicata.

02. Position after Explanation II

Explanation II to Section 11 makes it clear that for the purpose of res judicata, the competence of the court shall be determined irrespective of any provision as to a right of appeal from the decision of such court. No doubt, one of the tests for application of the doctrine of res judicata is to ascertain whether a party aggrieved could challenge the finding by filing an appeal. But the question whether there is a bar of res judicata does not depend on the existence of a right of appeal but on the question whether the same issue, under the circumstances mentioned in Section 11 of the Code, has been heard and finally decided.[cxxx] Though the Law Commission recommended to confer a right of appeal to a successful party against whom a finding has been recorded, the recommendation has not been accepted and a party cannot file an appeal against a finding recorded against him by a court if the decree is in his favour.[cxxxi]

16. Heard and finally decided

01. General

The fifth and the final condition of res judicata is that the matter directly and substantially in issue in the subsequent suit must have been heard and finally decided by a court in the former suit.[cxxxii] In the words of Lord Romilly[cxxxiii] : "Res judicata by its very words means a matter upon which the court has exercised its judicial mind and has come to the conclusion that one side is right and has pronounced a decision accordingly." The section requires that there should be a final decision on which the court must have exercised its judicial mind.[cxxxiv] In other words, the expression "heard and finally decided" means a matter on which the court has exercised its judicial mind and has after argument and consideration come to a decision on a contested matter. It is essential that it should have been heard and finally decided.[cxxxv]

02. Ambit and scope

A matter can be said to have been heard and finally decided notwithstanding that the former suit was disposed of (i) ex parte; or (ii) by failure to produce evidence (Order 17, Rule 3); or (iii) by a decree on an award; or (iv) by oath tendered under the Indian Oaths Act, 1873. But if the suit is dismissed on a technical ground, such as non-joinder of necessary party, it would not operate as res judicata.[cxxxvi]

17. Decision on merits

In order that a matter may be said to have been heard and finally decided, the decision in the former suit must have been on merits.[cxxxvii] Thus, if the former suit was dismissed by a court for want of jurisdiction, or for default of plaintiff s appearance, or on the ground of non-joinder or misjoinder of parties, or on the ground that the suit was not properly framed, or that it was premature, or that there was a technical defect, the decision not being on merits, would not operate as res judicata in a subsequent suit.[cxxxviii]

Illustration

A, a partnership firm, filed a suit against B to recover Rs 50,000. The suit was dismissed on the ground that it was not maintainable since the partnership firm was not registered as required by the provisions of the Indian Partnership Act, 1932. Thereafter, the firm was registered and the subsequent suit was filed on the same cause of action. The suit is not barred by res judicata.

01. Necessity of decision

In order to operate as res judicata, a finding of a court must have been necessary for the determination of a suit. If a finding is not necessary, it will not operate as res judicata. "It is fairly settled that the finding on an issue in the earlier suit to operate as res judicata should not have been only directly and substantially in issue but it should have been necessary to be decided as well."[cxxxix] What operates as res judicata is the ratio of what is fundamental to the decision. It cannot, however, be ramified or expanded by logical extension.[cxl] And a finding on an issue cannot be said to be necessary to the decision of a suit unless the decision was based upon such finding.[cxli] Again, a decision cannot be said to have been based upon a finding unless an appeal can lie against such finding. The underlying principle is that "everything that should have the authority of res judicata is, and ought to be, subject to appeal, and reciprocally an appeal is not admissible on any point not having the authority of res judicata”[cxlii]  It is the right of appeal which indicates whether the finding was necessary or merely incidental.[cxliii]

02. Finding on more than one issue

When a finding is recorded by a court on more than one issue, the legal position is as under:

(1) If the plaintiff's suit is wholly dismissed, no issue decided against the defendant can operate as res judicata against him in a subsequent suit, for he cannot appeal from a finding on any such issue, the decree being wholly in his favour. But every issue decided against the plaintiff may operate as res judicata against him in a subsequent suit, for he can appeal from a finding on such issue, the decree being against him.

(2) If the plaintiff's suit is wholly decreed, no issue decided against him can operate as res judicata for he cannot appeal from a finding on any such issue, the decree being wholly in his favour. But every issue decided against the defendant is res judicata for he can appeal from a finding on such issue, the decree being against him.

(3) No appeal lies against a mere finding, for the simple reason that the Code does not provide for filing of any such appeal.[cxliv] It may, however, be stated that a person aggrieved by a finding in the judgment may file cross-objections, even though the decree might have been passed in his favour.[cxlv]

03. Right of appeal

A decision cannot be said to have been based upon a finding unless an appeal lies against such finding. As a general rule, "everything that should have authority of res judicata is, and ought to be, subject to appeal, and reciprocally, an appeal is not competent on any point not having the authority of res judicata.[cxlvi] It is the right of appeal which indicates whether the finding was necessary or merely incidental. The position is, however, substantially changed by the Amendment Act of 1976.

04. Relief claimed but not granted: Explanation V

Explanation V to Section 11 provides that if a relief is claimed in a suit, but is not expressly granted in the decree, it will be deemed to have been refused and the matter in respect of which the relief is claimed will be res judicata.[cxlvii] But this explanation applies only when the relief claimed is (i) substantial relief; and (ii) the court is bound to grant it.

05. Execution proceedings: Explanation VII

Prior to the addition of Explanation VII to Section 11 by the Amendment Act of 1976 in the Code of Civil Procedure, 1908, the provisions thereof did not, in terms apply to execution proceedings, but the general principles of res judicata were held to be applicable even to execution proceedings.[cxlviii]

Section 11 has now been amended by Act 104 of 1976. Explanation VII specifically provides that the provisions of Section 11 will directly apply to execution proceedings also.

18. Industrial adjudication

Though Section 11 of the Code speaks about civil suits only, the general principles underlying the doctrine of res judicata apply even to an industrial adjudication.[cxlix] Thus, an award pronounced by the Industrial Tribunal operates as res judicata between the same parties and the Payment of Wages Authority has no jurisdiction to entertain the said claim again. Similarly, if in an earlier case, the Labour Court had decided that A was not a 'workman' under the Industrial Disputes Act, 1947, the said finding operates as res judicata in subsequent proceedings also. And there are good reasons why this principle should be extended and applied to industrial adjudication also. Legislation regulating the relation between capital and labour has two objects in view. It seeks to ensure to the workmen, who have not the capacity to combat capital on equal terms, fair returns for their labour. It also seeks to prevent disputes between employers and employees, so that production might not be adversely affected and the larger interests of society might not suffer. Thus, where an award was passed in earlier proceedings, it was held that the said award was binding on the parties and the subsequent proceedings initiated by the employees were barred.

In Bombay Gas Co. v. Jagannath Pandurang[cl], the Supreme Court observed:

"The doctrine of res judicata is wholesome one which is applicable not merely to matters governed by the provisions of the Code of Civil Procedure but to all litigations. It proceeds on the principle that there should be no unnecessary litigation and whatever claims and defences are open to parties should all be put forward at the same time, provided no confusion is likely to arise by so putting forward all such claims."[cli]

In other words, the principle underlying Section 11, expressed in the maxim "interest rei publicae ut sit finis litium" (it is in the interest of the State that there should be an end to litigation) is founded on sound public policy and is of universal application, otherwise great injustice might be done under colour and pretence of law.[clii] The rule of res judicata is dictated by a wisdom which is for all times.[cliii]

However, the technical rule of res judicata cannot apply to industrial adjudication, since it is meant and suited for ordinary civil litigation.[cliv] Principles analogous to res judicata can be availed of to scuttle any attempt at raising industrial disputes repeatedly in defiance of operative settlements and awards. But this highly-technical concept of civil justice must be kept within precise, confined limits in the field of industrial adjudication which must as far as possible be kept free from such technicalities which thwart resolution of industrial disputes. Therefore, the principle res judicata should be applied with caution to industrial adjudication. Thus, even where conditions of service had been changed only a few years before, industrial adjudication has allowed fresh changes when convinced of the necessity and justification for the same. Similarly, wage structure, revision of pay scales, etc., can be examined on the merits of each individual case and technical considerations of res judicata should not be allowed to hamper the discretion of industrial adjudication.

It is, however, observed by Gajendragadkar, J. (as he then was) in the case of Trichinopoly Mills v. Workers' Union[clv] lay down correct law on the point and require to be quoted:

"It is not denied that the principles of res judicata cannot be strictly involved in the decisions of such points though it is equally true that industrial tribunals would not be justified in changing the amounts of rehabilitation from year to year without sufficient cause."[clvi]

19. Interlocutory orders

The doctrine of res judicata applies also to different stages of the same suit or proceeding. If any interlocutory order decides a controversy in part between parties, such decision would bind the parties and operate as res judicata at all subsequent stages of the suit and a court will not permit the party to "set the clock back" during the pendency of the proceeding.[clvii] For instance, orders regarding impleadment of parties, maintainability of a suit, jurisdiction of the Court, etc., once passed cannot be reopened in the same proceedings. It is, however, open to the party to challenge the correctness of such order later on in regular appeals or other appropriate proceedings arising out of the final judgment of the court.[clviii]

07. RES JUDICATA UNDER CR.P.C.

01. Estoppel in Criminal Proceedings

Estoppel is concerned with the judicial exposition of a proposition of law or fact between the parties. It depends upon the principle which prohibits re-litigation of issues which are already settled in prior litigation. The doctrine is applicable in criminal proceedings as much as in civil proceedings. Sombasivan v. Public Prosecutor[clix]. The rule of issue estoppel in criminal cases is that where an issue of fact had been tried by a competent court on a former occasion and finding has been reached in favour of an accused, that finding will constitute an estoppel against the prosecution. The principle of issue estoppel has been invoked in criminal cases in order to cover cases where a plea of double jeopardy will not be available because the crime with which the accused is charged in the latter proceedings may not be the same crime of which he was acquitted earlier.[clx]

The prosecution is estopped from making a subsequent trial against the same person in respect of the same offence. In other words, the earlier decision has become final and will operate as a bar for any subsequent proceedings in respect of the same cause of action. This is equally applicable to an accused as well. An accused, who has taken a stand in a particular criminal proceeding is prevented from taking a diametrically opposite stand in a subsequent proceeding. Even if the subsequent proceeding is based on a different cause of action, the accused will be estopped from taking a different stand from what he has already taken in the earlier proceedings.

For the issue estoppel to arise, the same issue must have been distinctly and inevitably decided in the earlier proceedings between the same parties. Thus, any issue between the state and one of the accused persons in a litigation cannot operate as a bar upon the state with regard to the other accused. The rule has no application where parties are not the same as in the previous case.[clxi] Thus, in order to invoke the issue estoppel the facts in issue proved or not in the earlier trial must be identical as what is sought to be re-agitated in the subsequent trial and the parties in both the proceedings are the same. The rule of issue estoppel does not prohibit that evidence given at one trial against the accused cannot be given in another trial for another offence. Thus where the acquittal order of a Magistrate on a minor offence was set aside and the accused committed for trial on a major offence, the principle of issue estoppel will not apply.[clxii] Thus, an issue of fact has been tried by a competent court on a former occasion and a finding has been reached in favour of an accused, such a finding would constitute an estoppel. This is not as a bar to the trial and conviction of the accused for a different or distinct offence, but as precluding the receipt of evidence to disturb that finding of a fact when the accused is tried subsequently even for a different offence which might be permitted by law. It does not introduce any variation in the matter of investigation, inquiry or trial under the Code of Criminal Procedure. It is only related to the admissibility of evidence. It is designed for not to upset a finding of fact reached by a competent court at a trial.

02. Criminal proceedings

The doctrine of res judicata is of universal application. It is a fundamental concept in the organisation to every jural society. The rule, therefore, should apply even to criminal proceedings.[clxiii]

Once a person is acquitted or convicted by a competent criminal court, he cannot, once again, be tried for the same offence. As held by the Supreme Court,[clxiv] the principle of res judicata is applicable to criminal proceedings also.

In Sambasivam v. Public Prosecutor, Federation of Malaya[clxv], Lord MacDermott rightly stated that the maxim 'res judicata pro veritate accipitur' is no less applicable to criminal than to civil proceedings.

Dismissal of complaint u/s 203: Where there is no prima facie offence found under complaint after making inquiry, Magistrate may dismiss the complaint after recording of reasons for so doing.

This dismissal is neither adjudication nor acquittal but merely dismissal in limine. It is satisfaction of Magistrate. Principle of res judicata does not apply in this dismissal. Whenever new facts are discovered, new complaint can be filed or First Information Report can be got registered.

08. NATURE AND SCOPE OF RES JUDICATA

01. The Nature of Res Judicata

The Doctrine of Res Judicata strives to strike a balance between the two largely separated poles. One pit 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. A US Supreme Court Justice explained the need for this legal precept as follows:

The basic point involved in the Nature of the doctrine of Res Judicata is that the doctrine tries to bring in natural and fair justice to the parties and that too by barring the other party to file a multiple number of suits either for justice or for harassing the other party.

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.

Therefore, the nature of the doctrine of Res Judicata is to enable the Courts deliver the justice and then to dismiss or freeze the other active suits which are of the very same nature although is at different stage. Such a role enables the Court to dismiss the matter from its jurisdiction and also the jurisdiction of the other Courts which are at the same level.

Also that 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.

The doctrine of Res Judicata is to enable the Courts deliver the justice and then to dismiss or freeze the other active suits which are of the very same nature although is at different stage. Such a role enables the Court to dismiss the matter from its jurisdiction and also the jurisdiction of the other Courts which are at the same level.

02. Scope of Res Judicata

The Scope of Res Judicata has very well been decided in the case of Gulam Abbas v. State of U.P.[clxvi], where the code embodies the rules of conclusiveness as evidence or bars as a plea of an issue tried in an earlier suit founded on a plaint in which the matter is directly and substantially an issue becomes final. 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.

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.[clxvii] The scope of the principle of Res Judicata is not confined to what is contained in Section 11 but is of more general application. Res Judicata could be as much applicable to different stages of the same suit as to findings on issues in different suits.[clxviii]

In the case of Satyadhyan Ghosal v. Smt. Deorajin Debi[clxix], where the principle of Res Judicata is invoked in the case of the different stages of proceedings in the same suit the nature of the proceedings, the scope of the enquiry which the adjectival law provides for the decision being reached as well as the specific provision made on matters touching such decisions are some of the factors to be considered before the principle is held to be applicable. Order IX Rule 7 does not put an end to the litigation nor does it involve the determination of any issues in controversy in the suit. A decision or direction in an interlocutory proceeding of the type provided for by Order IX Rule 7 is not of the kind which can operate as Res Judicata so as to bar the hearing on the, merits of an application under Order IX Rule 13. The Court observed:

“7. The principle of res judicata is based on the need of giving a finality to judicial decisions. What it says is that once a res is 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 canvass the matter again. This principle of res judicata is embodied in relation to suits in S. 11 of the Code of Civil Procedure; but even where S. 11 does not apply, the principle of res judicata has been applied by courts for the purpose of achieving finality in litigation. The result of this is that the original court as well as any higher court must in any future litigation proceed on the basis that the previous decision was correct.”

03. Extent and applicability

The 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, industrial adjudication, writ petitions, administrative orders, interim orders, criminal proceedings, etc.

04. Basis of doctrine

The basis of res judicata or estoppel by record is the conclusiveness of judgment. This not only prevents a new decision, but also a new inquiry in order to avoid harassment of the same person again and again. Thus, estoppel by record prevents the courts being troubled by their having to decide the same matter again that has already been decided otherwise than by way of appeal. But in order to operate the doctrine of estoppel, the question in issue in subsequent proceedings must be precisely the same as the question in issue in the earlier proceedings. This was made clear by the decision of the House of Lords as early as In 1938 In New Brunswick Railway Company v. British and French Trust Corporation Limited[clxx].

In the case under reference, the court concluded that the default judgment should not operate as estoppel. This was because the judgment of the earlier suit was concerning a single bond whereas the latter suit was concerning 992 bonds involving substantially higher amount. Thus, in order to invoke the principle of estoppel by record the following conditions must be satisfied.

(a) The court which decided the earlier issue should be competent to decide the Issue In the subsequent proceeding.

(b) The matter in issue in the former suit should be directly and substantially the same as in the latter suit.

(c) Both the suits should be between the same parties or parties under whom they claim title.

When an earlier decision is that of a court of record, the resulting estoppel can be called estoppel by record. When the earlier decision is that of any Tribunal, either constituted by agreement of parties or otherwise, the estoppel is said to be a quasi of record. However, there can be no estoppel by record if there is no judgment or decree.[clxxi]

Estoppel by record is not confined to judgment, but extends to all facts involved in it as necessary grounds upon which it must have been founded. A judgment operates by way of estoppel in a subject proceeding as regards all the findings in the earlier judgment. In the absence of a judgment or decree passed in the former suit, the admitted facts cannot take the place of estoppel by record. In other words, estoppel by record rests not on the admission of the party but on the formal finding of the court.

The doctrine of estoppel by record applies to all matters which existed at the time of the judgment and in which the party had an opportunity of proving the same before the court.

However, if there is fresh matter subsequently known and which could not be brought before the court at the time when the earlier judgment was passed, the party is not estopped from raising it. The question as to who will take advantage of the estoppel is governed by the rule that estoppels are to be mutual. The only persons who may take advantage of estoppel by record are those who are bound by it, that is to say, in case of judgment in person, the parties and their privies. It follows that the only persons who may take advantage of an estoppel are those who claim or defend in the latter proceedings in the same manner as they claim or defend earlier.

---

[i] Satyadhyan Ghosal v. Deorajin Debi, AIR 1960 SC 941: (1960) 3 SCR 590; Daryao v. State of U.P., AIR 1961 SC 1457: (1962) 1 SCR 574; Pandurang v. Shantibai, 1989 Supp (2) SCC 627: AIR 1989 SC 2240; Supreme Court Employees' Welfare Assn. v. Union of India, (1989) 4 SCC 187: AIR 1990 SC 334; L.I.C. v. India Automobiles, (1990) 4 SCC 286: AIR 1991 SC 884; Sushil Kumar v. Gobind Ram, (1990) 1 SCC 193; Sulochana Amma v. Narayanan Nair, (1994) 2 SCC 14: AIR 1994 SC 152

[ii] AIR 1960 SC 941: (1960) 3 SCR 590

[iii] Ibid at p. 943 (AIR)

[iv] Kunjan Nair Sivaraman Nair v. Narayanan Nair (2004) 3 SCC 277

[v] 2002-TIOL-292-SC-MISC

[vi] Lachhmi v. Bhulli, AIR 1927 Lah 289 : ILR (1927) 8 Lah 384 : 104 IC 849 (FB) ; Soorjomonee v. Suddanund, (1873) IA Supp 212 (218) (PC)

[vii] 20 How. St. Tr. 538 : (1776) 1 Leach 146

[viii] 71 Ga. 384

[ix] 7 Gray (Mass.) 499

[x] 99 Mass. 200

[xi] 4 Cow. (N. Y.) 562

[xii] 26 Cal. 479

[xiii] Case No. 15 dt.12.04.1834 Cases decided in the House of Lords on appeal from the Courts of Scotland 1833-1834 Volume VII by James Wilson and Patrick Shaw and Charles Hope Maclean published by Thomas Clark, Law Book seller, George’s Street, Edinburgh, 1834

[xiv] 4 Cl&F 693 at p. 705 (HL)

[xv] AIR 1916 PC 78

[xvi] Garland v. Carlasle, 4 CI&F 693 (705) (per Coleridge, J.); see also Seoparsan Singh v. Ramnandan Singh, AIR 1915 PC 78: 43 IA 91

[xvii] AIR 1953 SC 33

[xviii] AIR 1916 PC 78

[xix] Appeal Cases (1876) 2 Page 519

[xx] All English Reporter(1938) 2 Page 101

[xxi] All English Reporter (1984) Page 570

[xxii] Sheoparsan Singh v.Ramnandan Singh, AIR 1916 PC 78 : (1916) 43 IA 91

[xxiii] (1873) IA Supp 212 at p. 218 (PC)

[xxiv] Daryao v. State of U.P., AIR 1961 SC 1457 (1462) : (1962) 1 SCR 574 ; Satyadhyan Ghosal v. Deorajin Debi (supra); Parashuram Pottery v. J.T.D., (1977) 1 SCC 408 : AIR 1977 SC 429 : (1977) 1 SCR 92 ; Radhasoami v. C.I.T., (1992) 1 SCC 659 : AIR 1992 SC 377 ; Sulochana Amma v. Narayanan Nair (supra)

[xxv] Lal Chand v. Radha Kishan, (1977) 2 SCC 88 (98) : AIR 1977 SC 789 (796) : (1977) 2 SCR 522

[xxvi] Smith's Leading cases, 13^th Edn., p. 644

[xxvii] Smith's Leading cases, 13^th Edn., p. 645. See also Daryao v. State of U.P., AIR 1961 SC 1457 (1462) : (1962) 1 SCR 574 ; Gulam Abbas v. State of U.P. ; (1982) 1 SCC 71 (90-93) : AIR 1981 SC 2198 (2212-13

[xxviii] Vol.34, p. 743

[xxix] See also Halsbury's Laws of England, 3^rd Edn., VoI. 15, p.185 ; Daryao v. State of U.P., AIR 1961 SC 1457 (1462) : (1962) 1 SCR 574 ; Gulam Abbas v. State of U.P., (1982) 1 SCC 71 : AIR 1981 SC 2198

[xxx] 1954 AIR 375, 1954 SCR 1150

[xxxi] 1953 AIR 325, 1953 SCR 730

[xxxii] 1958 AIR 119, 1958 SCR 822

[xxxiii] 1961 AIR 578, 1961 SCR (3) 107

[xxxiv] Inserted by Civil Procedure Code (Amendment) Act, 1976, S.6 (w.e.f. 01.02.1977)

[xxxv] AIR 1960 SC 941

[xxxvi] Pandurang ramchandra v. Shantibai Ramchandra, 1989 Supp (2) SCC 627 at p. 639

[xxxvii] Per Broomfield, J. in Mahadevappa Somappa v. Dharmappa Sanna, AIR 1942 Bom 322 at p. 326

[xxxviii] Devendra kumar v. Pramuda Kanta, AIR 1933 Cal 879

[xxxix] Kushal Pal v. Mohan Lal, (1976) 1 SCC 449 at p. 456-57

[xl] Yenkata Seshayya v. Koteswara, AIR 1937 PC 1 : 64 IA 17 ; Pandurang v. Maruti, AIR 1966 SC 153 : (1966) 1 SCR 102

[xli] AIR 1948 PC 168

[xlii] AIR 1953 Cal 765

[xliii] For detailed discussion, see Or. 2, R. 2 (infra); see also Inacio Martins v. Narayan Hari, (1993) 3 SCC 123 : AIR 1993 SC 1756 ; State of Maharashtra v. National Construction Co., (1996) 1 SCC 735 : AIR 1996 SC 2367

[xliv] Daryao v. Slate of U.P., AIR 1961 SC 1457 : (1962) 1 SCR 574

[xlv] Narayanan v. Annamalai, AIR 1959 SC 275 (279) : 1959 Supp (1) SCR 237; Daryao v. State of U.P., AIR 1961 SC 1457 : (1962) 1SCR574 ; Arjun Singh v. Mohindra Kumar, AIR 1964 SC 993 (999) : (1964) 5 SCR 946 ; Gulabchand v. State of Gujarat, AIR 1965 SC 1153 : (1965) 2 SCR 547 ; Union of India v. Nanak Singh, AIR 1968 SC 1370 (1372): (1968) 2 SCR 887; State of Punjab v. B.D. Kaushal, (1970) 3 SCC 656 (657) : AIR 1971 SC 1676 (1677) ; Lal Chand v, Radha Kishan, (1977) 2 SCC 88 (97-98) : AIR 1977 SC 789 (795-96) : (1977) 2 SCR 522 ; State of U.P. v. Nawab Hussain, (1977) 2 SCC 806 : AIR 1977 SC 1680 : (1977) 3 SCR 428 ; Workmen, C.P. Trust v. Board of Trustees, (1978) 3 SCC 119 : AIR 1978 SC 1283 : (1978) 3 SCR 971 ; Gangabai v. Chhabubai, (1982) 1 SCC 4 : AIR 1982 SC 20 : (1982) 1 SCR 1184 ; Gulam Abbas v. Stale of U.P., (1982) 1 SCC 71 (90-93) : AIR 1981 SC 2198 (2212-13) : (1982) 1 SCR 1077 ; Radhasoami v. C.I.T., (1992) I SCC 659 : AIR 1992 SC 377

[xlvi] Halsbury's Laws of England, 3rd Edn., Vol. 15, p. 185; Corpus Juris, Vol. 34, p. 743; Daryao case (supra) ; Gulam Abbas (supra) ; C.P. Trust case (supra)

[xlvii] (1977) 2 SCC 88 : AIR 1977 SC 789 : (1977) 2 SCR 522

[xlviii] Id. at pp. 97-98 (SCC) : 795-96 (AIR)

[xlix] Sheoparsan Singh v. Ramnandan Singh, AIR 1916 PC 78: (1916) 43 IA 91; Lachhmi v. Bhulli, AIR 1927 Lah 289 : ILR (1927) 8 Lah 384: 104 IC 849 (FB) ; Daryao v. State of U.P., AIR 1961 SC 1457 : (1962) 1 SCR 574

[l] Mathura Prasad v. Dossibai, (1970) I SCC 613 (617) : AIR 1971 SC 2355 (2375) : (1970) 3 SCR 830 ; Sushil Kumar v. Gobind Ram, (1990) 1 SCC 193 ; Isabella v. Susai, (1991) 1 SCC 494 : AIR 1991 SC 993

[li] Surayya v. Bala Gangadhara, AIR 1948 PC 3 (7) ; Sheodan Singh v. Daryao Kunwar, AIR 1966 SC 1332 (1335) : (1966) 3 SCR 300 ; Manicka Nadar v. Sellathamai, 1969 SCD 955 (966): AIR 1969 NSC 17;State of Punjab v. B.D. Kaushal, (1970) 3 SCC 656 (657-58) : AIR 1971 SC 1676 (1677-78) ; LI.C. v. India Automobiles, (1990) 4 SCC 286 : AIR 1991 SC 884

[lii] Sheodan Singh v. Daryao Kunwar, AIR 1966 SC 1332 (1334) : (1966) 3 SCR 300; Syed Mohd. v. Mohd. Hanifa, (1976) 4 SCC 780 (790) : AIR 1976 SC 1569 (1576) : (1976) 3 SCR 721 ; Jaswant Singh v. Custodian of Evacuee Property, (1985) 3 SCC 648 (655-56) : AIR 1985 SC 1096 (1101) : 1985 Supp (1) SCR 331

[liii] By newly added Expln. VIII, this condition is now not necessary

[liv] Mathura Prasad v. Dossibai, (1970) 1 SCC 613 (619) : AIR 1971 SC 2355 (2359) : (1970) 3 SCR 830

[lv] Amalgamated Coalfields Ltd. v. Janapada Sabha, AIR 1964 SC 10I3 (1019) : 1963 Supp (1) SCR 172 ; lshar Singh v. Sarwan Singh, AIR 1965 SC 948 (949) ; Lachhman v. Saraswati, AIR 1959 Bom 125

[lvi] Pandurang v. Shantibai, 1989 Supp (2) SCC 627 (639) : AIR 1989 SC 2240 (2248-49) ; Lonankutty v. Thomman, (1976) 3 SCC 528 (533) : AIR 1976 SC 1645 (1649) : 1976 Supp SCR 74

[lvii] Id.; see also Krishna Chandra v. Ramanna, AIR 1932 PC 50

[lviii] Vithal Yeshwant v. Shikandarkhan AIR 1963 SC 385: (1963) 2 SCR 285

[lix] Id. at p. 388 (AIR); see also Pandurang v. Shantibai (supra) ; Ramesh Chandra v. Shiv Charan, 1990 Supp SCC 633 : AIR 1991 SC 264 ; Junior Telecom Officers Forum v. Union of India, 1993 Supp (4) SCC 693 : AIR 1993 SC 787

[lx] Lonankutty v. Thomman, (1976) 3 SCC 528 (533): AIR 1976 SC 1645 (1649): 1976 Supp SCR 74, Mathura Prasad v. Dossibai, (1970) 1 SCC 613 (617): AIR 1971 SC 2355 (2357): (1970) 3 SCR 830

[lxi] See Explanation IV to Section 11

[lxii] Horo v. Jahan Ara, (1973) 2 SCC 189 (192): AIR 1973 SC 1406 (1409); Jaswant singh v. Custodian of Evacuee Property, (1985) 3 SCC 648: AIR 1985 SC 1096: 1985 Supp (I) SCR 331; Forward Construction Co. v. Prabhat Mandal, (1986) 1 SCC 100: AIR 1986 SC 391: 1985 Supp (3) SCR 766. Dirert Recruits Class 1/ Engineering Officers' Assn. v. State of Maharashtra, (1990) 2 SCC 715: AIM 1990 SC 1607; Vijayan v. Kamalakshi, (1994) 4 SCC 53: AIR 1994 SC 2145

[lxiii] Mulla: Civil Procedure Code (1995), Vol. I, pp. 118-19; Kameshwar v. Rajkumari, 19 IA 234: 20 Cal 79 (85) (PC); Shrimut Rajab v. Katama, (1866) 11 IA 50

[lxiv] (1982) 1 SCC 4: AIR 1982 SC 20: (1982) 1 SCR 1184

[lxv] Gangabai v. Chhabubai, (1982) 1 SCC 4: AIR 1982 SC 20: (1982) 1 SCR 1184; see also L.I.C. v. India Automobiles (supra); Rameshwar Dayal v. Banda, (1993) 1 SCC 531

[lxvi] Amalgamated Coalfields Ltd. v. Janapada Sabha, AIR 1964 SC 1013 (1019): 1963 Supp (1) SCR 172

[lxvii] Id.; see also Ishar Singh v. Sarwan Singh, AIR 1965 SC 948 (950)

[lxviii] Ishar Singh v. Sarwan Singh (supra)

[lxix] Section 26

[lxx] AIR 1933 PC 63 (64): 60 IA 13

[lxxi] 1989 Supp (2) SCC 627 (639): AIR 1989 SC 2240 (2248)

[lxxii] Lachhmi v. Bhulli, AIR 1927 Lah 289: ILR (1927) 8 Lah 384: 104 IC 849 (FB)

[lxxiii] Lonankutty v. Thomman, (1976) 3 SCC 528 (533): AIR 1976 SC 1645 (1649): 1976 Supp SCR 74; Narayana Prabhu v. Krishna Prabhu, (1977) 2 SCC 181 (188): AIR 1977 SC 1268 (1273)

[lxxiv] Sheodan Singh v. Daryao Kunwar, AIR 1966 SC 1332 (1334): (1966) 3 SCR 300; Vishwanathan v. Abdul Wajid, AIR 1963 SC 1 (19): (1963) 3 SCR 22

[lxxv] Mathura Prasad v. Dossibai (infra). See also Rajendra Jha v. Labour Court, 1984 Supp SCC 520 (526-27): AIR 1984 SC 1696 (1699-1700)

[lxxvi] Mathura Prasad v. Dossibai (infra); Sushil Kumar v. Gobind Ram, (1990) 1 SCC 193; Supreme Court Employees' Welfare Assn. v. Union of India, (1989) 4 SCC 187: AIR 1990 SC 334

[lxxvii] Id.; see also Mohan Lal Goenka v. Benoy Krishna Mukherjee, AIR 1953 SC 65 (72-73): 1953 SCR 377; State of W.B. v. Hemant Kumar, AIR 1966 SC 1061 (1066): 1963 Supp (2) SCR 542; Avtar Singh v. Jagjit Singh (infra)

[lxxviii] (1970) 1 SCC 613 (617): AIR 1971 SC 2355 (2357-58): (1970) 3 SCR 830

[lxxix] Id. at p. 617 (SCC): 2337 (AIR)

[lxxx] (1979) 4 SCC 83: AIR 1979 SC 1911: (1980) 1 SCR 122

[lxxxi] Id. at p. 84 (SCC): 1912 (AIR)

[lxxxii] (1979) 4 SCC 83: AIR 1979 SC 1911: (1980) 1 SCR 122

[lxxxiii] (1979) 4 SCC 83: AIR 1979 SC 1911: (1980) 1 SCR 122

[lxxxiv] (1979) 4 SCC 83: AIR 1979 SC 1911: (1980) 1 SCR 122

[lxxxv] Sushil Kumar v. Gobind Ram, (1990) 1 SCC 193 (205-06); Isabella v. Susai, (1991) 1 SCC 494 (496): AIR 1991 SC 993 (995)

[lxxxvi] (1970) 1 SCC 613: AIR 1971 SC 2355: (1970) 3 SCR 830

[lxxxvii] Mathura Prasad v. Dossibai, (1970) 1 SCC 613 (629): AIR 1971 SC 2355 (2359): (1970) 3 SCR 830: see also observations of Rankin, C.J. in Tarini Charan v. Kedar Nath, AIR 1928 Cal 777: ILR 56 Cal 723; Chief Justice, A.P. v. Dixitulu, (1979) 2 SCC 34 (42): AIR 1979 SC 193 (198): (1979) 1 SCR 26; Jai Singh v. Maman Chand, (1980) 3 SCC 162 (167-69): AIR 1980 SC 1201; Rajendra Jha case (supra): Kirit Kumar v. Union of India, (1981) 2 SCC 436: AIR 1981 SC 1621: (1981) 2 SCR 718

[lxxxviii] "Res inter alias acta alteri nocere non debet" (Things done between strangers ought not to injure anyone)

[lxxxix] Munni Bibi v. Triloki Nath, AIR 1931 PC 114: 58 IA 158; Iftikhar Ahmed v. Syed Meharban Ali, (1974) 2 SCC 151 (155): AIR 1974 SC 749 (751): (1974) 3 SCR 464; Sheodan Singh v. Daryao Kunwar, AIR 1966 SC 1332: (1966) 3 SCR 300; State of Gujarat v. M.P. Shah Charitable Trust. (1994) 3 SCC 552; Mahboob Sahab v. Syed Ismail. (1995) 3 SCC 693: AIR 1995 SC 1205

[xc] (1843) 3 Hare 627; see also Mahboob Sahab (supra)

[xci] Id. at p. 638. See Munni Bibi v. Triloki Nath. AIR 1931 PC 114 (117): 58 IA 158; Kshiroda v. Debendra Nath. AIR 1957 Cal 200

[xcii] (1995) 3 SCC 693: AIR 1995 SC 1205

[xciii] Supra note 95 at p. 699 (SCC): 1209 (AIR) (per K. Ramaswamy. J.)

[xciv] lftikhar Ahmed v. Syed Meharban Ali, (1974) 2 SCC 151 (155): AIR 1974 SC 749 (751): (1974) 3 SCR 464

[xcv] Order. I. R. 10(2)

[xcvi] Rahimbhoy V. Turner. (1893) 17 Born 341 (348) (PC); Gita Ram v. Prithvi Singh, AIR 1956 Cal 129 (FB); P.N. Rao v. Radhakrishnamacharyulu, AIR 1978 AP 319 (332)(FB)

[xcvii] Munni Bibi v, Triloki Nath, AIR 1931 PC 114 (117): 58 IA 158; Maung Sein v, Ma Pall, AIR 1932 PC 161 (164): 591A 247; Kshiroda v, Debendra Nath, AIR 1957 Cal 200

[xcviii] Ahmed Adam v, Makhri, AIR 1964 SC 107 (113-14): (1964) 2 SCR 647; see also Anandrao v. Shamrao, AIR 1961 SC 1206 (1211): (1961) 3 SCR 930 (940)

[xcix] Narayana Prabhu v, Krishna Prabhu, (1977) 2 SCC 181 (188-89): AIR 1977 SC 1268 (1274)

[c] Forward Construction Co. v. Prabhat Mandal, (1986) 1 SCC 100: AIR 1986 SC 391: 1985 Supp (3) SCR 766

[ci] Sadangope v, Krishnamoorthy, (1907) 30 Mad 185 (190) (PC)

[cii] Forward Construction Co. case (supra), at pp. 112-13 (SCC): p. 398 (AIR)

[ciii] Per Broomfield. J. in Mahadevappa v. Dharamappa, AIR 1942 Bom 322 (326): 44 Bom LR 710

[civ] Ram Gobinda v. Bhakta Bala, (1971) I SCC 387 (394): AIR 1971 SC 664 (670): (1971) 3 SCR 340; Koshal Pal v. Mohan Lal, (1976) I SCC 449 (456-57): AIR 1976 SC 688 (693): (1976) 2 SCR 827

[cv] Sunderbai v. Devaji AIR 1954 SC 82 (84)

[cvi] Raj Lakshml Dasi v. Banamali Sen, AIR 1953 SC 33 (40): 1953 SCR 154; Jeevantha v. Hanumantha, AIR 1954 SC 9 (10); Sheodan Singh v. Daryao Kunwar, AIR 1966 SC 1332 (1335): (1966) 3 SCR 300

[cvii] Pandurang Mahadeo Kavade& Ors v. Annaji Balwant Bokil & Ors (1971) 3 SCC 530: AIR 1971 SC 2228; Chief Justice, A.P. v. Dixitulu, (1979)2 SCC 34 (42): AIR 1979SC 193 (198): (1979) 1 SCR 26; Raj Lakshmi Dasi v, Banamali Sen AIR 1953 SC 33: 1953 SCR 154

[cviii] Devendra Kumar v. Pramuda Kanta, AIR 1933 Cal 879: (1993) 37 Cal WN 810

[cix] Jeevantha v. Hanumantha, AIR 1954 SC 9; Pandurang Mahadeo Kavade& Ors v. Annaji Balwant Bokil & Ors (1971) 3 SCC 530: AIR 1971 SC 2228; Sheodan Singh v. Daryao Kunwar, AIR 1966 SC 1332: (1966) 3 SCR 300

[cx] Raj Lakshmi Dasi v. Banamali Sen, AIR 1953 SC 33 (40): 1953 SCR 154; Bhagwan Dayal v. Reoti Devi, AIR 1962 SC 287 (293-94): (1962) 3 SCR 440

[cxi] Devoki Amma v. Kunhi Raman, AIR 1980 Ker 230; Biro v. Banta Singh, AIR 1980 Punj 164

[cxii] AIR 1978 Cal 440: 82 Cal WN 1097: (1978) 2 Cal LJ 150; see also Promode v. Nirapada, AIR 1980 Cal 181: 82 Cal WN 1097

[cxiii] AIR 1980 Ker 230 (233): 1980 Ker LT 690

[cxiv] AIR 1978 Cal 440: 82 Cal WN 1097: (1978) 2 Cal LJ 150; see also Promode v. Nirapada, AIR 1980 Cal 181: 82 Cal WN 1097

[cxv] Pandurang Mahadeo Kavade& Ors v. Annaji Balwant Bokil & Ors (1971) 3 SCC 530 : AIR 1971 SC 2228

[cxvi] Maqbul v. Amir Hasan, AIR 1916 PC 136

[cxvii] AIR 1978 Cal 440 : 82 Cal WN 1097: (1978) 2 Cal LJ 150

[cxviii] AIR 1980 Ker 230 : 1980 Ker LT 690

[cxix] AIR 1980 Ker 230 (233): 1980 Ker LT 690

[cxx] (1994) 2 SCC 14: AIR 1994 SC 152

[cxxi] Sulochana Amma v. Narayanan Nair (1994) 2 SCC 14: AIR 1994 SC 152 (155-56)

[cxxii] Nabin Majhi v. Tela Majhi, AIR 1978 Cal 440; Promode v. Nirapada, AIR 1980 Cal 181: 82 Cal WN 1097

[cxxiii] Devoki Amma v. Kunhi Raman AIR 1980 Ker 230

[cxxiv] Kumarmoni v.Himachal AIR 1981 Ori 177

[cxxv] Arumugathan v. Muthusami (1991) 2 Mad LJ 538

[cxxvi] Sulochana Amma v. Narayanan Nair, (1994) 2 SCC 14: AIR 1994 SC 152 (156)

[cxxvii] (1996) 2 SCC 520 : AIR 1996 SC 987

[cxxviii] Id. at p. 535 (SCC): 995 (AIR)

[cxxix] Narayana Prabhu v. Krishna Prabhu, (1977) 2 SCC 181: AIR 1977 SC 1268: (1977) 2 SCR 636;

Lonankutty v. Thomman, (1976) 3 SCC 528: AIR 1976 SC 1645: 1976 Supp SCR 74

[cxxx] Ramesh Chandra v. Shiv Charan, 1990 Supp SCC 633 (635); AIR 1991 SC 264 (265); Premier Tyres v. Kerala S.R.T. Corpn., 1993 Supp (2) SCC 146: AIR 1993 SC 1202

[cxxxi] Law Commission's 54th Report, pp. 26-27

[cxxxii] Kewal Singh v. Lajwanti, (1980) 1 SCC 290 (296): AIR 1980 SC 161 (164); Ram Gobinda v. Bhakta Bala, (1971) 1 SCC 387 (395): AIR 1971 SC 664 (671): (1971) 3 SCR 340; Koshal Pal v. Mohan Lal, (1976) 1 SCC 449 (456-57): AIR 1976 SC 688 (693): (1976) 2 SCR 827; Narayana Prabhu case (supra); Gurbax Rai v. Punjab National Bank, (1984) 3 SCC 96: AIR 1984 SC 1012 (1014); Ferro Alloys v. Union of India, (1999) 4 SCC 149 (161): AIR 1999 SC 1236 (1243)

[cxxxiii] Jenkins v. Robertson, (1867) LR 1 HL 117

[cxxxiv] Koshal Pal v. Mohan Lal, (1976) 1 SCC 449 (456-57): AIR 1976 SC 688 (693): (1976) 2 SCR 827

[cxxxv] Pandurang v. Shantibai, 1989 Supp (2) SCC 627 (640): AIR 1989 SC 2240 (2249)

[cxxxvi] State of Maharashtra v. National Construction Co., (1996) 1 SCC 735: AIR 1996 SC 2367

[cxxxvii] Sheodan Singh v. Daryao Kunwar, AIR 1966 SC 1332 (1336): (1966)3 SCR 300; Tilokchand v. Munshi, (1969) 1 SCC 110 (121): AIR 1970 SC 898 (906) (per Bachawat, J.)

[cxxxviii] Shivashankar v. Balkunth Nath, (1969) 1 SCC 718 (721): AIR 1969 SC 971 (973-74); Pujari Bai v. Madan Gopal, (1989) 3 SCC 433: AIR 1989 SC 1764 (1768-69); Pandurang v. Shantibai (supra); Krishan Lal v. State of J&K, (1994) 4 SCC 422; State of Maharashtra v. National Construction Co.(supra)

[cxxxix] P.M.A. Metropolitan v. M.M. Marthoma 1995 Supp (4) SCC 226 (336): AIR 1995 SC 2001 (2034)

[cxl] Pandurang v. Shantibai 1989 Supp (2) SCC 627 (640): AIR 1989 SC 2240 (2249); Ramesh Chandra v. Shiv Charan 1990 Supp SCC 633 (635): AIR 1991 SC 264 (265)

[cxli] Ganga Bai v. Vijay Kumar (1974) 2 SCC 393: AIR 1974 SC 1126: (1974) 3 SCR 882; Patwari v. Hiralal AIR 1950 PC 80; Hayatuddin v. Abdul Gani AIR 1976 Bom 23 (25)

[cxlii] Narain Das v. Faiz Shah (1889) PR No. 157 (FB)

[cxliii] This position is also, now, substantially changed by the Amendment Act of 1976. See Mulla: Code of Civil Procedure (1995), Vol. I, pp. 171-74

[cxliv] Ganga Bai v. Vijay Kumar (1974) 2 SCC 393: AIR 1974 SC 1126

[cxlv] Explanation to Rule 22, Order 41

[cxlvi] Shobag Singh v. Jai Singh AIR 1968 SC 1328 (1332): (1968) 3 SCR 848; Tara Singh v. Shakuntala, AIR 1974 Raj 21

[cxlvii] Mysore State Road Transport Corpn. v. Babajan, Conductor (1977) 2 SCC 354 (360): AIR 1977 SC 1112 (1116): (1977) 2 SCR 925

[cxlviii] Mohan Lal Goenka v. Benoy Krishna Mukherjee AIR 1953 SC 65 (72-73): 1953 SCR 377; Jai Narain v. Kedar Nath AIR 1956 SC 359: 1956 SCR 62; Maqbool Alam v. Khodaija AIR 1966 SC 1194: (1966) 3 SCR 479; Kani Ram v. Smt Kazani (1972) 2 SCC 192: AIR 1972 SC 1427; Prem Lata v. Lakshman Prasad (1970) 3 SCC 440: AIR 1970 SC 1525: (1971) 1 SCR 364

[cxlix] Burn & Co. v. Employees AIR 1957 SC 38 (43): 1956 SCR 781; Bombay Gas Co. v. Shridhar AIR 1961 SC 1196 (1197-98): (1961) 2 LLJ 629; Bombay Gas Co. v. Jagannatli Pandurang (1975) 4 SCC 690; Punjab Coop. Bank Ltd. v. Bhatia (1975) 4 SCC 696 (698): AIR 1975 SC 1898 (1899); Workmen v. Straw Board Mfg. Co. (1974)4 SCC 681 (692-93): AIR 1974 SC 1132 (1140-41): (1974) 3 SCR 703; Workmen v. Hindustan Lever Ltd (1984) 1 SCC 728 (744-48): AIR 1984 SC 516 (526-28); Bharat Barrel & Drum Mfg. Co. v. Employees' Union (1987) 2 SCC 591: AIR 1987 SC 1415; Ghanshyam v. Kamal Singh (1996) 3 SCC 54; Singhal Lal v. Rashtriya Swayam Sevak Sangh (1996) 3 SCC 149: AIR 1996 SC 1211

[cl] (1975) 4 SCC 690: (1975) 2 LLJ 345

[cli] Id. at pp. 695-96 (SCC)

[clii] Per Lord Coke: quoted in Sheoparsan Singh v. Ramnandan Singh AIR 1916 PC 78: (1916) 43 IA 91

[cliii] Per Jenkins, C.J. in Sheoparsan Singh v. Ramnandan Singh (id.)

[cliv] Guest v. Sterling AIR 1959 SC 1279 (1284): (1960) 1 SCR 348; India General Navigation Co. v. Workmen AIR 1960 SC 1286 (1287): (1960) 1 LLJ 561; Workmen v. Balmer Lawrie & Co. Ltd. AIR 1964 SC 728 (731): (1964) 5 SCR 344; Staff Union v. A.C.C. Ltd. AIR 1964 SC 914 (917): (1964) 1 LLJ 12; Saharanpur Rly. Co. v. Workers' Union AIR 1969 SC 513 (521-22): (1969) 2 SCR 131; Agra Electric Supply Co. v. Alladin (1969) 2 SCC 598 (605-06): AIR 1970 SC 512 (517-18); Mumbai Kamgar Sabha v. Abdulbhai (1976) 3 SCC 832 (851-52): AIR 1976 SC 1455 (1469-70); Workmen v. Hindustan Lever Ltd. (1984) 1 SCC 728 (744-48): AIR 1984 SC 516 (526-28)

[clv] AIR 1960 SC 1003: (1960) 2 LLJ 46

[clvi] Id. at p. 1004 (AIR). See also Author's Lectures on Administrative Law (1996), Lecture VII

[clvii] Satyadhyan Ghosal v. Deorajin Debi AIR 1960 SC 941: (1960) 3 SCR 590; Arjun Singh v. Mohindra Kumar AIR 1964 SC 993: (1964) 5 SCR 946; Prahlad Singli v. Sukhdev Singh (1987) 1 SCC 727: AIR 1987 SC 1145; Devidayal Rolling Mills v. Prakash Chimanlal (1993) 2 SCC 470: AIR 1993 SC 1982

[clviii] Supra note 19; see also Jasraj v. Hemraj (1977) 2 SCC 155: AIR 1977 SC 1011: (1977) 2 SCR 973; Sukhrani v. Hari Shanker (1979) 2 SCC 463: AIR 1979 SC 1436: (1979) 3 SCR 671; Devidayal v. Prakash (1993) 2 SCC 470; see also second proviso to Or. 39, R. 4

[clix] AIR 1950 Appeal Cases 458

[clx] Premnathdas v. State of Assam AIR 1969 Assam 61

[clxi] Mohan v. state AIR 1968 SC 1281

[clxii] Ramekbal v. Madan Mohon AIR 1967 SC 1156

[clxiii] Centre of India Trade Unions v. Union of India AIR 1997 Bom 79: (1997) 1 Mah LR 1: (1997) 2 Bom CR 531. For further discussion, see "Same parties", supra.

[clxiv] Bhagat Ram v. State of Rajasthan (1972) 2 SCC 466: AIR 1972 SC 1502: (1972) 3 SCR 503; see also Daryao v. State of U.P. AIR 1961 SC 1457: (1962) 1 SCR 574;  Ramekbal v. Madan Mohan AIR 1967 SC 1156: (1967) 2 SCR 368

[clxv] 1950 AC 458 (463): 66 TLR 254

[clxvi] (1982) 1 SCC 71 at p. 90-93

[clxvii] Daryao v. State of U.P., AIR 1961 SC 1457

[clxviii] Narayan Prabhu Venkateswara v. Narayan Prabhu Krishna (1997) 2 SCC 181

[clxix] 11 AIR 1960 SC 941

[clxx] All English Reporter (1938) 4 Page 747

[clxxi] Pritam Singh v. State of Punjab AIR 1956 SC 415

[clxxii] AIR 1959 SC 163

[clxxiii] Devilal v. S. T. O. AIR 1965 SC 1150: (1965) 1 SCR 686

[clxxiv] State of U.P. v. Nawab Hussain (1977) 2 SCC 806: AIR 1977 SC 1680: (1977) 3 SCR 428

[clxxv] Greenhalgh v. Mallard (1947) 2 All ER 255 (257)

[clxxvi] (1978) 3 SCC 119: AIR 1978 SC 1283: (1978) 3 SCR 971

[clxxvii] Id at pp. 124-25 (SCC) p. 1287 (AIR). See also Ahmedabad Mfg. Co. v. Workmen (1981) 2 SCC 663 : AIR 1981 SC 960

[clxxviii] (1977) 2 SCC 806: AIR 1977 SC 1680: (1977) 3 SCR 428

[clxxix] Horo v. Jahan Ara (1973) 2 SCC 189 (192): AIR 1973 SC 1406 (1409)

[clxxx] (1986) 1 SCC 100: AIR 1986 SC 391: 1985Supp (3) SCR 766

[clxxxi] Id. at p. 112 (SCC): pp. 397-98 (AIR)

[clxxxii] AIR 1965 SC 1150: (1965) 1 SCR 686

[clxxxiii] Supra note 66 at p. 1153(AIR)

[clxxxiv] Id. at p. 1153 (AIR)

[clxxxv] 1925 All ER Rep 56 (62): 1926 AC 155 (PC)

[clxxxvi] Mulla: Civil Procedure Code (1995), Vol. I, pp. 118-19; Kameshwar v. Rajkumari 19 IA 234: 20 Cal 79 (85) (PC); Shrimut Rajab v. Katama (1866) 11 IA 50

[clxxxvii] (1977) 2 SCC 88

[clxxxviii] AIR 1961 SC 1457: (1962) 1 SCR 574

[clxxxix] Supra note 27 at p. 1462 (AIR); see also Sarguja Transport Service v. State Transport Appellate Tribunal (1987) 1 SCC 5: AIR 1987 SC 88; Direct Recruits Class II Engineering Officers' Assn. v. State of Maharashtra (1990) 2 SCC 715 (741): AIR 1990 SC 1607

[cxc] All English Reporter (1952) Page 512

[cxci] All English Reporter(1950) Page 446

[cxcii] (1986) 1 SCC 100: AIR 1986 SC 391: 1985 Supp (3) SCR 766

[cxciii] Ramdas Nayak v. Union of India AIR 1995 Bom 235

[cxciv] Ramdas Nayak v. Union of India AIR 1995 Bom 235

[cxcv] AIR 1986 SC 391

[cxcvi] AIR 1995 Bom 235

[cxcvii] Explanation VI.--Where persons litigate bona fide in respect of a 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.

[cxcviii] 1986 (25) ELT 79

[cxcix] (1956) 30 ITR 618 (Bom)

[cc] (1977) 110 ITR 453 (Mad)

[cci] AIR 1964 SC 1013

[ccii] (1992) 193 ITR 321 (SC)

[cciii] (1965) 56 ITR 67 (74) (SC)

[cciv] Seshasayee Paper and Boards Ltd. v. CIT (2003) 260 ITR 419 (Mad)

[ccv] Broken Hill Proprietor Co. v. Municipal Council 1925 All ER 672: 1926 AC 94; Maharana Mills (P) Ltd. v. I.T.O. AIR 1959 SC 881: 1959 Supp (2) SCR 547; Amalgamated Coalfields Ltd. v. Janapada Sabha, AIR 1964 SC 1013 (1019): 1963 Supp (1) SCR 172; Udayan Chinubhai v. C.I.T., Gujarat AIR 1967 SC 762: (1967) 1 SCR 917; M.M. lpoh v. C.I.T., Madras AIR 1968 SC 317: (1968) 1 SCR M; Radhasoami v. C.I.T., (1992) 1 SCC 659: AIR 1992 SC 377

[ccvi] Amalgamated Coalfields Ltd. v. Janapada Sabha AIR 1964 SC 1013: 1963 Supp (1) SCR 17: Radhasoami v. C.I.T. (1992) 1 SCC 659: AIR 1992 SC 377

[ccvii] Radhasaomi Satsang Saomi Bagh, Agra Messrs v. Commissioner of Income-tax, AIR 1992 SC 1721

[ccviii] AIR 1968 SC 1013

[ccix] AIR 1961 SC 1457

[ccx] AIR 1960 SC 1186: (1961) 1 SCR 96; Amalgamated Coalfields v. Janapada Sabha, AIR 1964 SC 1013: 1963 Supp (1) SCR 172

[ccxi] Daryao v. State of U.P., AIR 1961 SC 1457: (1962) 1 SCR 574

[ccxii] AIR 1961 SC 1457: (1962) 1 SCR 574

[ccxiii] Id. at p. 1462 (AIR); see also Direct Recruits Class II Engineering Officers' Assn. v. State of Maharashtra (1990) 2 SCC 715: AIR 1990 SC 1607

[ccxiv] AIR 1965 SC 1153: (1965) 2 SCR 547

[ccxv] Id. at p. 1167 (AIR)

[ccxvi] Daryao v. State of U.P. AIR 1961 SC 1457: (1962) 1 SCR 574; B.P. Rao v. State of A.P. 1985 Supp SCC 432: 1986 SCC L&S 49: AIR 1986 SC 210: 1985 Lab IC 1545

[ccxvii] Daryao v. State of U.P. (id.) see also Workmen v. C.P. Trust (1978) 3 SCC 119 (125-26): AIR 1978 SC 1283 (1287-88); Ahmedabad Mfg. Co. v. Workmen (1981) 2 SCC 663 (666-67): AIR 1981 SC 960 (962-63)

[ccxviii] Daryao v. State of U.P. (id)

[ccxix] Sarguja Transport Service v. State Transport Appellate Tribunal (1987) 1 SCC 5:AIR 1987 SC 88

[ccxx] AIR 1964 SC 1013: 1963 Supp (1) SCR 172

[ccxxi] Amalgamated Coalfields Ltd. v. Janapada Sabha AIR 1964 SC 1013 (1019) : 1963 Supp (1) SCR 172

[ccxxii] Amalgamated Coalfields Lid. v. Janapada Sabha AIR 1964 SC 1013 (1019) : 1963 Supp (1) SCR 172

[ccxxiii] AIR 1965 SC 1153: (1965) 2 SCR 547

[ccxxiv] AIR 1965 SC 1150: (1965) 1 SCR 686

[ccxxv] Id. at p.1152 (AIR)

[ccxxvi] (1977) 2 SCC 806: AIR 1977 SC 1680: (1977) 3 SCR 428

[ccxxvii] Id. at p. 814 (SCC): 1686 (AIR); see also Workmen v. C.P. Trust, (1978) 3 SCC 119 (124-25)

[ccxxviii] Cox v. Hakes (1890) 15 AC 506; Eshugbayi v. Nigerian Govt. (1928) AC 459; Chapple, ex p, (1950) 66 TLR 932; Hastings (No. 2), In re, (1958) 3 All ER 625; Hastings (No. 3), In re, (1959) 1 All ER 698

[ccxxix] Edward v. Charles (1835) 9 Law Edn. 859; Frank v. Mangum (1915) 237 US 309; Salinger v. Loisel (1923) 265 US 224; Hannon v. James (1941) 86 Law Edn. 1302; U.S. v. Saughnessy (1959) 347 US 260

[ccxxx] AIR 1967 SC 1335: (1967) 2 SCR 271

[ccxxxi] Id. at p. 1338 (AIR) per Subba Rao, C.J. See also Daryao case (supra); Nazul Ali v. State of W.B. (1969) 3 SCC 698: AIR 1969 NSC 182; Niranjan Singh v. State of M.P. (1972) 2 SCC 542: AIR 1972 SC 2215

[ccxxxii] (1981) 2 SCC 427: AIR 1981 SC 728: (1981) 1 SCR 352

[ccxxxiii] Id. at p. 433 (SCC): 731 (AIR); see also Kirit Kumar v. Union of India (1981) 2 SCC 436: AIR 1981 SC 1621: (1981) 2 SCR 718; Sarguja Transport Service v. State Transport Appellate Tribunal (1987) 1 SCC 5: AIR 1987 SC 88

[ccxxxiv] AIR 1961 SC 1457: (1962) 1 SCR 574

[ccxxxv] AIR 1961 SC 1465-66. For detailed discussion, see V.G. Ramachandran, Law of Writs, (1993), pp. 353-70

[ccxxxvi] See 'Constructive res judicata'

[ccxxxvii] See habeas Corpus

[ccxxxviii] Satyadhyan Ghosal v. Deorajin Debi AIR 1960 SC 941: (1960) 3 SCR 590; Arjun Singh v. Mohindra Kumar AIR 1964 SC 993: (1964) 5 SCR 946

[ccxxxix] Daryao v. State of U.P. AIR 1961 SC 1457: (1962) 1 SCR 574; Sarguja Transport Service v. State Transport Appellate Tribunal (1987) 1 SCC 5: AIR 1987 SC 88; Bhagwandas v. Director-General of Police (1996) 1 Guj LR 782: (1996) 1 Guj LH 433: (1996) 1 Guj CD 738

[ccxl] Balkishan v. Kishan Lal ILR (1889) 11 All. 148 (FB)

[ccxli] S. P. A. Annamalay Chetty v. B. A. Thornhill AIR 1931 PC 263

[ccxlii] Canada and Dominion Sugar Co. Ltd. v. Canadian National (West Indies) Steamships Ltd. 1947 AC 46 (56) (PC) ; Yijayalakshmi v. Ramchandra (1981) 2 SCC 646 (649) : AIR 1981 SC 1143 (1144); Daryao v. State of U.P. AIR 1961 SC 1457 : (1962) I SCR 574

[ccxliii] Lachhmi v. Bhulli, AIR 1927 Lah 289: ILR (1927) 8 Lab 384: 104 IC 849 (FB)

[ccxliv] Batul Begam v. Hem Chanda AIR 1960 All 519 (521) ; Mohan Ram v. Sundararamier AIR 1960 Mad 377 (FB)

[ccxlv] Woodroffe and Ameer Ali: Law of Evidence in India, 1981 Edn., Vol.4, p. 2936. See also Sita Ram v. Amir Begam (1886) 8 All 324 (332) ; Casamally v. Currimbhai (1911) 13 BLR 717 (760)

[ccxlvi] Subba Rao v. Jagannadha Rao AIR 1967 SC 591: (1964) 2 SCR 310; Baldevdas v. Filmistan Distributors (1969) 2 SCC 201: AIR 1970 SC 406: (1970) 1 SCR 435

[ccxlvii] Subba Rao (id), at p. 595 (AIR); Baldevdas (id.), at pp. 409-10 (AIR)

[ccxlviii] Shankar Sitaram v. Balkrishna Sitaram AIR 1954 SC 352: (1955) 1 SCR 99; Prithvichand v. Shinde (1993) 3 SCC 271 : AIR 1991 SC 1929

[ccxlix] Sunderbai v. Devaji AIR 1954 SC 82; Sailendra v. State of Orissa AIR 1956 SC 346: 1956 SCR 72 : See also Subha Rao, Baldevdas, Shankar, Prithvichand (supra). For detailed discussion and conflicting decisions see C.K. Thakkar: Code of Civil Procedure (Lawyers' Edn.), Vol. I, pp. 230-34

[ccl] AIR 1956 SC 346

[ccli] AIR 1973 se 554

[cclii] AIR 1972 Mysore 327

[ccliii] Enforcement Directorate v. Sarojkumar Bothika AIR 1978 Cal 65

[ccliv] Sarguja Transport Service v. State Transport Appellate Tribunal (1987) 1 SCC 5: AIR 1987 SC 88

[cclv] Jaswant Singh v. Custodian of Evacuee Property (1985) 3 SCC 648: AIR 1985 SC 1096: 1985 Supp (1) SCR 331

[cclvi] Allahabux Pindok v. Musserwanji & Co. AIR 1936 Sind 99

[cclvii] Dwaraka Prasad Malwar v. Kaidarshan AIR 1922 Pat 322

[cclviii] Arun Kumar v. Union of India AIR 1964 Pat 338

[cclix] Mathura Prasad v. Dossi Bhai 1970 (4) SCC 613

[cclx] P. Dasamuni Reddy v. P. Appa Rao AIR (1974) SC 2089

[cclxi] AIR 1969 Cal 458

[cclxii] AIR 1970 J&K 19

[cclxiii] Balakrishna v. Kishan ILR 11 All 148

[cclxiv] Porthuri Rengayya v. Vallabhaneni Ramayya A1R 1941 Mad 815

[cclxv] NarayananRoy v. Jogesh Chander Dey A1R 1924 Cal 600

[cclxvi] T.C. Bhattacharjee v. K.M. Haldar AIR 1928 Pat 777

[cclxvii] S.M. Narayan Iyengar v. Subramanyan Chettiyar AIR 1937 Mad 254

[cclxviii] AIR 1953 SC 65

[cclxix] (1937) 39 Bom LR 317

[cclxx] (1948) 50 Bom LR 674

[cclxxi] 1985 AIR 652 : 1985 SCR (3) 169

[cclxxii] C. Lalitha v. State of Kerala and others. 1995 AIHC (Ker) 837

[cclxxiii] Mahboob Saheb v. Syed Ismail AIR 1995 SC 1205: 1995 AIR SCW 1956

[cclxxiv] The State of Maharashtra & Anr v. Prabhakar Bhikaji Ingle 1996 (3) Supreme 245

[cclxxv] Mohan v. Anandi & Others. C.A. No: 1994 of J 987  Decided on 12-3-1996: 1996 (3) Supreme 26

[cclxxvi] George C.S. v. Mariamma 1995 AlHC 3522 (Ker)

[cclxxvii] Cheeru & Others v. M. Choyunni & Others 1988 (2) KLJ 658

[cclxxviii] Khalid v. Sulekha and Others ILR 1987 (1) Ker (FB) 111: AIR 1986 (Ker) 251

[cclxxix] Janardhanan v. Chandramathv 1996 (2) KLT 545: ILR 1996 (3) Ker 806 (DB)

[cclxxx] Varkey v. St. Mary's Catholic Church, Mulkkulam 1997 (2) KLT 192: AIR 1997 Ker 337 SN 11

[cclxxxi] Sathyadhyan Ghosal & Ors v. Deorajin Debi & Anr AIR 1960 SC 941

[cclxxxii] Maqbool Alam Khan v. M/s. Khodrija & Ors AIR 1966 SC 1194

[cclxxxiii] Badri Narayan Singh v. Kamdeo Prasad Singh & Anr AIR 1962 SC 338, AIR 1973 SC 1406

[cclxxxiv] Y.E. Pattel v. V.L. Pattel AIR 1977 SC 392

[cclxxxv] Jaswant Singh v. Custodian of Evacaue Property, New Delhi AIR 1985 SC 1096

[cclxxxvi] K. V. George v. Secretary to Govt., Water & Power Dept., Tvm AIR 1990 SC 53

[cclxxxvii] Krishan Lal v. State of J. & K. (1994) 4 SCC 422

[cclxxxviii] George C.S. v. Mariamma 1995 AlHC 3522 (Ker)

[cclxxxix] Subramonial v. Anandanarayanan 1985 KLT 227

[ccxc] Jayalakshmi v. Shanmugham 1987 (2) KLT Case No. 67

[ccxci] Chikkara v. Sugunan 1966 (1) KLT 109

[ccxcii] Cheru v. Choyikutty 1988 (2) KLT 727

[ccxciii] Mohammed Lebba Mythen Kannu v. viyathummol Pathummal Beevi 1989 (1) KLJ 84

[ccxciv] State of Kerala v. Joseph Anchilose 1989 (1) KLJ 688 (DB)

[ccxcv] Bharathi Amma v. Kumaran Peethambaran AIR 1990 Ker 88

[ccxcvi] Bharathi Amma v. Kumaran Peethambaran AIR 1990 Ker 88

[ccxcvii] Puthiyott Kunhava v. Kaniattichalli Mammadkutty AIR 1990 Ker 112

[ccxcviii] Thayyulathil Kunhikannan v. Thayyullathil Kalliani AIR 1990 Ker 226 (DB)

[ccxcix] Isabella Johnson v. Susai 1990 (2) KLT 968 (SC)

[ccc] C. Sarala v. K. Nalinakshan 1991 ILR 362 (DB)

[ccci] Krishna Pillai v. Sreedevi Amma 1987 (1) KLT 648

[cccii] Somana v. Apputty 1988 ILR 212

[ccciii] Guda Vijaya Lekshmi v.Guda Rainachandrasekhara Sastri 1981 (2) SCC 646: 1981 DMC 330: AIR 1981 SC 1143

[ccciv] Ganpat Singh v. Kailash Shanker AIR 1987 SC 1443: (1987) 3 JT 619: (1987) 3 SCC 146: (1987) 2 Land LR 362: (1987) 3 SCJ 363

[cccv] Junior Telecom officer v. Union of India AIR 1993 SC 787: (1992) 5 Serv LR 383: (1993) 1 UJ (SC) 110

[cccvi] Balaur Singh v. State of Punjab AIR 1995 SC 1956

[cccvii] Madhavan Nair and another v. Ramankutty Menon & Ors AIR 1994 Ker 75

[cccviii] Khalid v. Sulekha and others ILR 1987 (1) Ker (FB) 111: AIR 1986 Ker 251

[cccix] Kuttan Sudhakaran v. Padmavathi Amma Laila Bai and Ors. AIR 1987 Ker 94

[cccx] Madhavan Nair & Anr v. Ramankutty Menon AIR 1994 Ker 75

[cccxi] Kunhappa Nair & Anr v. Suresh Kumar AIR 1984 Ker 99: 1984 KLT 330: 1984 (1) Ker 658: 1984 KLJ 473

[cccxii] Pawn Kumar Gupta V. Rochiram Nagdeo 1999 (4) Supreme 249

[cccxiii] State of Maharashtra v. National Construction Company 1996 (1) KLT SN p. 12 (DB) (SC)

[cccxiv] Church of South India T. Association v. Telugu Church Council 1996 (1) KLT SN p. 16 (DB)

[cccxv] Susheela v. Kuttikrishnan 1998 (2) KLT 188

[cccxvi] Krishnan v. United India Insurance Company 1998 (2) KLT 239: 1998 (2) KLJ 188

[cccxvii] Ram Harakh (Dead) By LRs v. Hamid Ahmed Khan (Dead) By LRs. & Ors (1998) 7 SCC 484

[cccxviii] Sayed v. Ummer 2000 (2) KLT SN 82 (SC)

[cccxix] Oriental Insurance Co. Ltd. v. Gopolakrishanan Nair 2000 (1) KLT 91: ILR 2000 (1) Ker 788

[cccxx] Krishna Iyer v. Avvokkar and others 2000 (1) KLJ 557: 2000 (2) KLT 501

[cccxxi] Govinda Bhat and others v. Sham Bhat and others 2000 (1) KLJ (NOC) 2: 2000 (1) KLT 278

[cccxxii] Joginder Paul v. Indian Red Cross Society 2001 (1) KLT SN 1

[cccxxiii] Mathevan Gangadharan v. Vijayan 2001 (2) KLT 576

[cccxxiv] Korin Alias Etwari Devi vs The India Cable Company Ltd. And Ors AIR 1978 SC 312: (1978) 1 SCC 98: 1977 (9) UJ 771 SC

[cccxxv] Hoshnak Singh v. Union of India and others AIR 1979 SC 1328: 1979 (3) SCC 125

[cccxxvi] Narayana Prabhu v. Krishna Prabhu (1977) 2 SCC 181: AIR 1977 SC 1268

[cccxxvii] Avtar Singh v. Jagjit Singh (1979) 4 SCC 83: AIR 1979 SC 1911: (1980) 1 SCR 122

[cccxxviii] Gangabai v. Chhabubai, (1982) 1 SCC 4: AIR 1982 SC 205: (1982) 1 SCR 1184

[cccxxix] Korin Alias Etwari Devi v. The India Cable Company Ltd. and Ors AIR 1978 SC 312: (1978) 1 SCC 98: 1977 (9) UJ 771 SC

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