Sasi K.G.
09. TYPES OF RES JUDICATA
01. Direct Res Judicata
The rule of direct res judicata is limited to a
matter actually in issue alleged by one party and denied by other either
expressly or impliedly.
02. Constructive Res Judicata
Constructive res judicata means that if a plea
could have been taken by a party in a proceeding between him and his opponent,
and if he fails to take that plea, he cannot be allowed to re-litigate the same
matter again upon that plea. In effect, the party impliedly gives up the right
to that plea by not pleading it in the previous suit. This principle is embodied
in Explanation IV of Section 11.
In the case of Kesar Das Rajan Singh v. Parma
Nand Vishan Dass[i],
a peculiar situation arose. In this case the plaintiff had filed a suit on
the basis of a promissory note. However, the plaintiff himself left the country
and in subsequent proceedings since he was unable to provide the promissory
note to his advocate in the foreign country the suit got dismissed. The
plaintiff later on filed another suit in the local courts. The defendant took
the plea that the present suit was barred by res judicata. The Court held that
the judgment on the previous suit since it did not touch upon the merits of the
case, therefore could not be held to be res judicata for the present suit.
The rule of
constructive res judicata en grafted in Explanation IV to Section 11 of
the Code is an 'artificial form of res judicata', and provides that if a
plea could have been taken by a party in a proceeding between him and his
opponent, he should not be permitted to take that plea against the same party
in a subsequent proceeding with reference to the same subject-matter. That
clearly is opposed to considerations of public policy on which the doctrine of res
judicata is based and 'would mean harassment and hardship to the opponent.
Besides, if such a course is allowed to be adopted, the doctrine of finality of
judgments pronounced by courts would also be materially affected.[ii]
Thus, it helps in raising the bar of res judicata by suitably construing
the general principles of subduing a cantankerous litigant. That is why this
rule is called constructive res judicata, which, in reality, is an
aspect or amplification of the general principles of res judicata.[iii]
As rightly observed by SomerveII, L.J.: "I think that ... it would be
accurate to say that res judicata ... is not confined to the issues
which the court is actually asked to decide, but that it covers issues or facts
which are so clearly part of the subject-matter of the litigation and so
clearly could have been raised that it would be an abuse of the process of
the court to allow a new proceeding to be started in respect of them."[iv]
In the case of Workmen, C.P. Trust v. Board of Trustees[v], the Supreme Court explained the principle of constructive res judicata in
the following words:
"If by any judgment or order any matter in issue has been directly and
explicitly decided, the decision operates as res judicata and bars the
trial of an identical issue in a subsequent proceeding between the same
parties. The principle of res judicata also comes into play when by the
judgment and order a decision of a particular issue is implicit in it, that is,
it must be deemed to have been necessarily decided by implication; then also
the principle of res judicata on that issue is directly applicable. When
any matter which might and ought to have been made a ground of defence or
attack in a former proceeding but was not so made, then such a matter in the
eyes of the law, to avoid multiplicity of litigation and to bring about
finality in it, is deemed to have been constructively in issue and, therefore,
is taken as decided.” [vi]
Illustrations
1. A sues B for possession of property on the basis of ownership.
The suit is dismissed. A cannot thereafter claim possession of property as
mortgage as that ground ought to have been taken in the previous suit as a
ground of attack.
2. A files a suit against B for declaration
that he is entitled to certain lands as heir of C. The suit is dismissed. The
subsequent suit, claiming the same property on the ground of adverse
possession, is barred by constructive res judicata.
3.
A files a suit against B to recover money on a pronote. B contends that the promissory note was obtained from him by undue influence.
The objection is overruled and suit is decreed. B cannot challenge the promissory note on the ground of coercion or fraud in
subsequent suit, inasmuch as he ought to have taken that defence in the former
suit.
4. A sues B to recover damages
for a breach of contract and obtains a decree in his favour. B cannot afterwards sue A for recession of contract on the ground that
it did not fully represent the agreement between the parties, since that ground
ought to have been taken by him in the previous suit as a ground of defence.
5. A sues B for possession of certain property
alleging that it has come to his share on partition of joint family property. B's contention that the partition has not taken place is upheld by the court
and the suit is dismissed. A subsequent suit by A against B for partition of joint family property
is not barred.
6. As a mortgagor A sues B for redemption of certain property alleging that he has mortgaged it with
possession to B. The mortgage is not proved and the suit is dismissed. A
files another suit against B for possession of the same property
claiming to be the owner thereof. The suit is not barred.
7. A sues B to recover certain property alleging
that B was holding the property under a lease,
which had expired. The lease is not proved and the suit is dismissed. A
subsequent suit by A against B on the basis of general title is not barred.
8. A sues B for a declaration that he is entitled
to certain property as an heir of X. The suit is dismissed. A files
another suit for injunction on the ground that he had become an owner of the
property by adverse possession. This ground was available to him even at the
time of previous suit but was not taken at that time. The subsequent suit is
barred.
9. A sues B for a declaration that he is the owner of
certain property. The suit is dismissed holding that he is not the owner. At the
time of the suit A is in adverse possession of the property but has not
perfected his title. After the statutory period, A files another suit on
the basis of his title by adverse possession. The suit is not barred.
In State of U.P. v. Nawab
Hussain[vii],
A, a sub-inspector of police, was dismissed from service by the D.I.G. He
challenged the order of dismissal by filing a writ petition in the High Court
on the ground that he was not afforded a reasonable opportunity of being heard
before the passing of the order. The contention was, however, negatived and the
petition was dismissed. He then filed a suit and raised an additional ground
that since he was appointed by the I.G.P., the D.I.G. had no power to dismiss
him. The State contended that the suit was barred by constructive res
judicata. The trial court, the first appellate court as well as the High
Court held that the suit was not barred by res judicata. Allowing the
appeal filed by the State, the Supreme Court held that the suit was barred by
constructive res judicata as the plea was within the knowledge of the
plaintiff and could well have been taken in the earlier writ petition. The same
principle applies to pleas which were taken but not pressed at the time of
hearing.[viii]
Explaining the doctrine in the decision of Forward Construction Co. v.
Prabhat Mandal,[ix] the Supreme Court observed:
"An adjudication is conclusive and final not only as to the actual
matter determined but as to every other matter which the parties might and
ought to have litigated and have had it decided as incidental to or essentially
connected with the subject-matter of the litigation and every matter coming
within the legitimate purview of the original action both in respect of the
matters of claim or defence. 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. It is true that where a matter has been constructively in issue it cannot
be said to have been actually heard and decided. It could only be deemed to
have been heard and decided."[x]
In the leading case of Devilal v. S. T. O.[xi], A challenged the validity of an order of assessment under
Article 226. The person was dismissed on merits. An appeal against that order
was also dismissed by the Supreme Court on merits. A again filed another
writ petition in the same High Court against the same order of assessment by
taking some additional grounds. The High Court dismissed the petition on
merits. On appeal, the Supreme Court held that the petition was barred by the
principle of constructive res judicata. Speaking for the court,
Gajendragadkar, C.J. observed:
"[T]hough the courts dealing with the questions of the infringement of
Fundamental Rights must consistently endeavour to sustain the said rights and
should strike down their unconstitutional invasion, it would not be right to
ignore the principle of res judicata altogether in dealing with writ
petitions filed by citizens alleging the contravention of their Fundamental
Rights. Consideration of public policy cannot be ignored in such cases, and the
basic doctrine that judgments pronounced by this Court are binding and must be
regarded as final between the parties in respect of matters covered by them
must receive due consideration."[xii]
Dealing with the possibility of abuse of process of law, the learned Chief
Justice made the following remarkable observations which are worth quoting:
"[I]n the present case the appellant sought to raise additional points
when he brought his appeal before this Court by special leave: that is to say,
he did not take all the points in the writ petition and thought of taking new
points in appeal. When leave was refused to him by this Court to take those points
in appeal, he filed a new petition in the High Court and took those points,
and, finding that the High Court decided against him on the merits of those
points, he has come to this Court; but that is not all. At the hearing of this
appeal, he has filed another petition asking for leave from this Court to take
some more additional points and that shows that if constructive res judicata
is not applied to such proceedings a party can file as many petitions as he
likes and take one or two points every time. That clearly is opposed to
considerations of public policy on which res judicata is based and would
mean harassment and hardship to the opponent. Besides, if such a course is allowed to be adopted, the doctrine of finality of
judgments pronounced by this Court would also be materially affected."[xiii]
Lord Shaw in Hoystead v. Commissioner
of Taxation[xiv]
has observed; "Parties are not permitted to begin fresh litigation
because of new views they may entertain of the law of the case, or new versions
which they present as to what should be a proper apprehension by the court of
the legal result either of the construction of the documents or weight of
certain circumstances. If this were permitted, litigation would have no end, except
when legal ingenuity is exhausted."
The question whether a matter 'might' have been made a ground of attack or
defence in a former suit rarely presents any difficulty. Whether it 'ought' to
have been made a ground of attack or defence depends upon the facts of each
case. No rigid rule can be laid down in this regard. One of the tests, however,
is to see whether by raising the question the decree which was passed in a
previous suit should have been defeated, varied or in any way affected. If the
question is of such a nature, it must be deemed to be a question which ought to
have been raised in the former suit.[xv]
10. OBJECT AND IMPORTANCE OF RES JUDICATA
01. Object and Importance
In the case of Lal Chand v. Radha Krishan[xvi],
it was said that the principle is founded on justice, equity and good conscience.
Once a final judgment has been announced in a lawsuit, the subsequent judges
who are confronted with a suit that is identical to or substantially the same
as the earlier one, they would apply the Res Judicata doctrine to preserve the
effect of the first judgment. This is to prevent injustice to the parties of a
case supposedly finished, but perhaps mostly to avoid unnecessary waste of
resources and time of the Judicial System.
This shows the importance of the Doctrine of Res Judicata and thus, as per
this, the same case cannot be taken up again either in the same or in the
different Court of India. This is just to prevent them from multiplying
judgments, so a prevailing plaintiff may not recover damages from the defendant
twice for the same injury.
For making Res Judicata binding, several factors must be met up with:
1. Identity in the thing at suit;
2. Identity of the cause at suit;
3. Identity of the parties to the action;
4. Identity in the designation of the parties involved;
5. Whether the judgment was final;
6.
Whether the parties were given full and fair opportunity to be heard on the
issue.
Regarding
designation of the parties involved, a person may be involved in an action
while filling a given office and may subsequently initiate the same action in a
differing capacity. In that case Res Judicata would not be available as a
defense unless the defendant could show that the differing designations were
not legitimate and sufficient.
The
general principle of res judicata is embodied in its different forms in three different Indian major
statutes—Section 11 of the Code of Civil Procedure, Section 300 of the Code
of Criminal Procedure, 1973 and Sections 40 to 43 of the Indian Evidence Act,
yet it is not exhaustive.
02. Res judicata and rule of law
In the historic decision of Daryao v. State of U.P.[xvii]
the Supreme Court has placed the doctrine of res judicata on a still
broader foundation. In that case, the petitioners had filed writ petitions in
the High Court of Allahabad under Article 226 of the Constitution and they were
dismissed. Thereafter, they filed substantive petitions in the Supreme Court
under Article 32 of the Constitution for the same relief and on the same
grounds. The respondents raised a preliminary objection regarding maintainability
of the petition by contending that the prior decision of the High Court would
operate as res judicata to a petition under Article 32. The Supreme
Court upheld the contention and dismissed the petitions. Speaking for the
Constitution Bench, Gajendragadkar, J. (as he then was) observed:
''The binding character of judgments pronounced by courts of competent
jurisdiction is itself an essential part of the rule of law, and the rule of law obviously is the basis of the administration of justice
on which the Constitution lays so much emphasis.[xviii]
The court, in this view of the matter, held that the rule of res
judicata applies also to a petition filed under Article 32 of the
Constitution and if a petition filed by a petitioner in the High Court under
Article 226 of the Constitution is dismissed on merits, such decision would
operate as res judicata so as to bar a similar petition in the Supreme
Court under Article 32 of the Constitution.
11. APPLICABILITY OF RES JUDICATA
01. General
Following conditions must be proved for giving
effect to the principles of res judicata under Section 11—
(i). that the parties are same or litigating
under same title,
(ii). that the matter directly and substantially
in issue in the subsequent suit must be same which was directly and
substantially in issue in the former suit,
(iii). that the matter in issue has been finally
decided earlier, and
(iv). that the matter in issue was decided by a
Court of competent jurisdiction.
If any one or more conditions are not proved, the
principle of res judicata would not apply. Where all the four conditions
are proved, the Court has no jurisdiction to try the suit thereafter as it
becomes not maintainable and liable to be dismissed. For application of
principle of res judicata, existence of decision finally deciding a
right or a claim between parties is necessary.
02. Applicability of the Doctrine
In
order to determine the applicability of doctrine of estoppel by record, the effect of the earlier
judgment has to be considered with reference to the issues involved and
decided. It is important that the judgment of the court must be final by which
the rights of the parties are settled. Thus an interlocutory order does not
give rise to an estoppel. Similarly, the judgment must have been given by a
competent court. Thus a judgment irregularly obtained or obtained by fraud
could not operate as an estoppel. Judgment can be broadly classified into two,
namely, judgment in rem and judgment in personam.
Judgment
in rem is described as judgment of a court of competent jurisdiction
determining the status of a person or thing as against the whole world and
distinguished from determining the particular interest of the parties to the
litigation. The significance of judgment in rem is that they are regarded as
operating against the whole world.
All
judgments, which are not judgment in rem, are referred to as judgment in
personam. The effect of the judgments in personam is to raise an estoppel
between the parties and those who are in privy with them to an action. The
personal rights are determined by analyzing conflicting claims. But conclusions
arrived at on that basis have the effects of binding on the parties and their
privys. In other words, the parties are prohibited from re-agitating the
decision which have already been taken. Thus, judgment in personam decides
rights between the parties only and is not applicable as against the whole
world.
Judgment
in personam can create two types of estoppels namely, cause of action estoppel
and issue estoppel. Cause of action estoppel is relating to the issue in the
case and once it is decided relitigatlon of the same matter is barred. This is
the principle of res judicata as stated in common law. Cause of action estoppel
prohibits further litigation on the same subject matter since it has already
been decided in an earlier proceeding. Even if a
subsequent litigation is filed on the same cause of action, the earlier
decision can be applied for determining the same. It amounts to precedence in
legal parlance. The earlier decision is binding on both the parties and hence
the decision can be used in subsequent suits. Therefore, the restriction is not
in respect of a subsequent suit but only restriction in departure from the earlier
decision. This is the difference between res judicata and cause of action
estoppel. A judicial determination directly involving an issue of fact or of
law decided once for all, cannot afterwards be raised between the same parties
or their previes. This is called, issue estoppel. Two important aspects
are involved in the consideration of any issue estoppel namely, the
identification of the parties and the identification of the issues. There will
be little difficulty in identifying the parties between whom estoppel will
arise or the capacity in which they have acted. But the difficulty arises
regarding the identification of the issues. To illustrate, in Marginson v.
Black Bum Borough Council[xix] the identification of issue came up for consideration. In
that case a mini bus belonging to the Black Burn Borough Council collided with
Marginson’s car while his wife was driving the car. In the accident,
Marginson's wife died and he sustained injuries and two houses were damaged.
The owners of the houses sued for damages against Marginson as well as the
Council. Both the drivers were found negligent and Marginson's wife and the
driver of the mini bus were held equally responsible. Subsequently Marginson
claimed damages from the defendants. Claim was raised on the basis of personal
injuries sustained by him. The Court of Appeal held that Marginson was estopped
from denying his wife’s contributory negligence in relation to his claim in
respect of his personal injuries; but was not estopped in relation to his other
claims. The reason given by the court was that in the second action, the claims
were brought by him in his capacity as his wife's personal representative.
Therefore he is estopped from raising the said contention since in the earlier
judgment contributory negligence was attributed on the part of his wife.
The
identification of issue came up for consideration in Jackson v. Gold
Smith·[xx] Facts of the case were as follows:
White
brought an action for damages for personal injury against Jackson arising out
of a collision between Jackson's motor cycle and Gold Smith's car. White was a
passenger of Jackson's motor cycle. Gold Smith filed a suit against Jackson for
damages to his car. Jackson filed a suit against Gold Smith stating that the
accident occurred due to his negligence. The suit filed by Gold Smith was
dismissed and the suit filed by Jackson was decided in his favour.
The
court held in Jackson's case that the decision in Gold Smith's case did not
determine whether there had been any breach of duty owed to White by Jackson
and therefore, that decision did not estop Jackson from alleging Gold Smith
guilty of breach of duty. In this judgment, it was held that where issue
estoppel is pleaded, any relevant material, particularly the reasons given by
the judgment, must be considered for the purpose of determining what issues
were, in fact, raised and decided between the parties.
The
definition given by Spencer Bower and Truner on res judicata is relevant.
"Where a finding of judicial decision has been pronounced by a judicial
tribunal of competent jurisdiction over the parties and the subject matter of
the litigation, any party or his privy to such litigation, as against the other
party or his privy In the case of a decision in rem, any person whatsoever, as
against any person, is estopped in any subsequent litigation from disputing or
proceeding on the same issue which had been raised in the earlier decision.
Such decision on the merit, whether it be used as the foundation by any action
or re-litigation as bar to any claim. Indictment or complaint or to any
affirmative defense, case or allegation, becomes conclusive, unless the party interested raises the point of estoppel
at the proper time and in the proper manner”. Thus the doctrine of estoppel by
record applies to all matters which existed at the time of giving the judgment
and in which the party had an opportunity of representing before the court.
Since the primary object of res judicata is to bring an end to litigation,
there is no reason not to extend the doctrine to public interest litigation. In
Forward Construction Co. v. Prabhat Mandal[xxi],
the Supreme Court was directly called upon to decide the question. The Apex
Court held that the principle would apply to public interest litigation
provided it was a bona fide litigation. In another case,[xxii]
it was observed: "It is a repetitive litigation on the very same issue
coming up before the courts again and again in the garb of public interest
litigation. It is high time to put an end to the same."[xxiii]
Public Interest Litigation is not defined in any
statute or in any act. It has been interpreted by judges to consider the intent
of public at large. Although, the main and only focus of such litigation is
only "Public Interest". Public interest litigation or social action
litigation is fought with the objective to make good the grievances of public
at large. In Forward Construction Co. v. Prabhat Mandal[xxiv],
the Supreme Court was directly called upon to decide the question. The apex
court held that the principle would apply to public interest litigation
provided it was a bona fide litigation. In another case of Ramdas Nayak v.
Union of India[xxv],
the court observed: It is a repetitive litigation on the very same issue coming
up before the courts again and again in the grab of public interest litigation.
It is high time to put an end to the same. Explanation VI[xxvi]
it cannot be disputed that Sec 11 applies to public interest litigation as well
it must be proved that the previous litigation was the public interest
litigation not by way of private grievance.
04. Res Judicata and Taxation Laws
01. Principle of Res Judicata in tax matters
The
general principle of law is that no one should blow hot and cold on the same
set of facts to reach different conclusions / findings in different years. The
need for consistency is as important for revenue authorities as it is expected
from the assessee. The common understanding is that, notwithstanding the public
policy behind the rule, it has no relevance to tax disputes. It is said that a
finding or an opinion recorded by an authority or even by a court of law for
one assessment year has no binding effect on the issues in subsequent
assessment years.
02. Views of Tribunal
In
the case of Bramec Suri (P) Ltd. v. Collector of Central Excise[xxvii],
the Tribunal had held that issues already concluded in earlier proceedings could
be reopened in subsequent proceedings for another period of time if
emerging fresh materials give a new dimension to the matter.
03. Views of High Court
The
Bombay High Court, in H.A. Shah and Co. v. CIT[xxviii] has
held that “the principle of estoppel or res judicata does not strictly apply to
the Income Tax authorities” and yet declared that “An earlier decision on the
same question cannot be reopened if that decision is not arbitrary or perverse,
if it had been arrived at after due inquiry, if no fresh facts are placed
before the Tribunal giving the later decision and if the Tribunal giving the
earlier decision has taken into consideration all material evidence.”
In CIT
v. L. G. Ramamurthy[xxix], the
court laid down the principle that “…what is relevant is not the personality of
officers presiding over the Tribunal but the Tribunal as an institution. If it
is conceded that simply because of the change in the personnel who manned the
Tribunal, it is open to them to a conclusion totally contradictory to the
conclusion which had been reached by earlier officers manning the tribunal on
same set of facts it will not only shake the confidence of the public in
judicial procedure as such, but it will totally destroy such confidence…….that
will be destructive of the institutional integrity itself”.
04. Views of the Apex Court
The
Supreme Court in Amalgamated Coalfields v. Janapada Sabha[xxx] have
evinced a highly, balanced approach: “In considering this question, it may be
necessary to distinguish between decision on questions of law which directly
and substantially arise in any dispute about the liability for a particular
year, and questions of law which arise incidentally or in a collateral manner …
the effect of legal decisions establishing the law would be a different matter.
If, for instance, the validity of a taxing statute is impeached by an assessee
who is called upon to pay a tax for a particular year and the matter is taken
to the High Court or brought before this Court and it is held that the taxing
statute is valid, it may not be easy to hold that the decision on this basic
and material issue would not operate as res judicata against the assessee for a
subsequent year”.
“So
far as the proposition of law is concerned, it is well settled and needs no
further discussion. In taxation matters, the strict rule of res Judicata as
envisaged by Section 11 of the Code of Civil Procedure, 1908 has no
application. As a general rule, each year's assessment is final only for that
year and does not govern later years, because it determines the tax for a
particular period. It is, therefore, open to the Revenue/Taxing Authority to
consider the position of the assessee every year for the purpose of determining
and computing the liability to pay tax or octroi on that basis in subsequent
years.”
However,
in an interesting comment, the Apex Court said, “We are aware of the fact that
strictly speaking res judicata does not apply to income tax proceedings. Again,
each assessment year being a unit, what is decided in one year may not apply in
the following year but where a fundamental aspect permeating
through the different assessment years has been found as a fact one way or the
other and parties have allowed that position to be sustained by not challenging
the order, it would not be at all appropriate to allow the position to be
changed in a subsequent year”.
05. Not pressing the ground
There
is no estoppel against law. No concession of law is permissible. An appellant
having not pressed an issue before lower authorities, can still raise and
agitate the same before the Tribunal-CIT v. VMRP Firm[xxxii].
06. Conflicting stands by revenue
The
revenue cannot take conflicting stands. It has got the assistance of technical
persons and should be consistent. It cannot discriminate between the assessees.[xxxiii]
From
the above discussion, it is evident that, as a general rule, Res Judicata does
not apply in tax matters, be it direct tax or indirect tax. As apparent, we
come across periodical show cause notices with respect to same assessee on the
same matter. However, the principles of consistency, natural justice and comity
apply. Based on these, the tax payers can be ascertained of certain aspects in
their favour. Further, we can also understand that, the counter for Res
Judicata can be appeal to a higher judicial forum.
07. Other Taxation matters
The liability to pay tax from year to year is a separate, distinct and
independent liability. Each year of assessment is, therefore, a separate unit
and does not apply to subsequent assessments. Consequently, the doctrine of res
judicata has no application in such cases.[xxxiv]
A distinction, however, must be made between a question of fact and pure
question of law. Each assessment year, being an independent unit, a decision
for one year may not operate as res judicata in another year. But if a
pure question of law, e.g. constitutional validity of a statute is decided,
"it may not be easy to hold that the decision on this basic and material
issue would not operate as res judicata against the assessee for a
subsequent year".[xxxv]
It is said that a finding or an opinion recorded
by an authority or even by a court of law for one assessment year has no
binding effect on the issues in subsequent assessment years. Strictly speaking res
judicata does not apply to income-tax proceedings. But each assessment
being a suit, what is decided in one year may not apply in the following years
but where a fundamental aspect permeating through the different assessment year
has been found as a fact one way or the other and parties have allowed that
position to be sustained by not challenging the order, it would not be all appropriate
to allow the position to be changed in a subsequent year.[xxxvi]
In Amalgamated Coalfields Ltd. Janapadha sabha[xxxvii],
the apex Court has said that each assessment year, being an independent unit, a
decision for one year may not operate as res judicata in another year.
But if a pure question of law, e.g. constitutional validity of a statute is
decided, “it may not be easy to hold that the decision on this basic and
material issue would not operate as res judicata against the assessee
for a subsequent year.”
An ex parte decree, unless it is set aside, is a
valid and enforceable decree. However, the real test for res judicata is
whether the case was decided on merits. The real test for deciding whether the
judgment has been given on merits or not is to see whether it was merely
formally passed as a matter of course, or by way of penalty for any conduct of
the defendant, or is based upon a consideration of the truth or falsity of the
plaintiff's claim, notwithstanding the fact that the evidence was led by him in
the absence of the defendant. Thus, a decree may not act as res judicata merely
because it was passed ex parte.
01. General
It has been settled since long that the Section
11 of the Code is not applicable, the general principle of res judicata may
be made applicable in the judicial proceedings. It is settled principle of law
that general principle of res judicata applies to writ petitions.
However, a writ petition dismissed under Article 226 of the Constitution of
India would not ordinarily bar filing of writ petition under Article 32 or a
special leave petition under Art. 136. In the leading case of Darayao v.
State of UP[xxxviii],
the Supreme Court has exhaustively dealt with the question of applicability of
the principle of res judicata in writ proceedings and laid down certain
principles which may be summarized thus:
1. If a petition under Article 226 is considered
on merits as a contested matter and is dismissed, the decision would continue
to bind the parties unless it is otherwise modified or reversed in appeal or
other appropriate proceedings permissible under the Constitution.
2. It would not be open to a party to ignore the
said judgment and move the Supreme Court under Article 32 by an original
petition made on the same facts and for obtaining the same or similar orders or
writs.
3. If the petition under Article 226 in a High
Court is dismissed not on merits but because of laches of the party applying
for the writ or because it is held that the party had an alternative remedy
available to it the dismissal of the writ petition would not constitute a bar
to a subsequent petition under Article 32.
4. Such a dismissal may, however, constitute a
bar to a subsequent application under Article 32 where and if the facts thus
found by the High Court be themselves relevant even under Article 32.
It therefore, applies to civil suits, execution
proceedings, arbitration proceedings, taxation matters, writ petitions,
administrative orders, interim orders, criminal proceedings, etc.
02. Doctrine explained
In Sharma v. Krishna Sinha[xxxix],
for the first time, the Supreme Court held that the general principle of res
judicata applies even to writ petitions filed under Article 32 of the
Constitution of India. Thus, if once the petition filed under Article 32 of the
Constitution is dismissed by the court, subsequent petition is barred.
Similarly, if a writ petition filed by a party under Article 226 is considered on
merits as a contested matter and is dismissed, the decision thus pronounced
would continue to bind the parties unless it is otherwise modified or reversed
in appeal or in other appropriate proceedings permissible under the
Constitution. It would not be open to a party to ignore the said judgment and
again move the High Court under Article 226 or the Supreme Court under Article
32 on the same facts and for obtaining the same or similar orders or writs.[xl]
In the leading case of Daryao v. State of U.P.[xli],
the Supreme Court has placed the doctrine of res judicata on a higher
footing, considering and treating the binding character of judgments pronounced
by competent courts as an essential part of the rule of law. Gajendragadkar, J.
(as he then was) rightly observed:
"It is in the interest of the public at large that a finality should
attach to the binding decisions pronounced by courts of competent jurisdiction,
and it is also in the public interest that individuals should not be vexed
twice over with the same kind of litigation. If these two principles form the
foundation of the general rule of res judicata they cannot be treated as
irrelevant or inadmissible even in dealing with Fundamental Rights in petitions
filed under Article 32 ."[xlii]
Again, there is no good reason to preclude the decisions on matters in
controversy in writ proceedings under Article 226 or 32 of the Constitution
from operating as res judicata in subsequent regular suits on the same
matters in controversy between the same parties and thus to give limited effect
to the principle of the finality of decisions after full contest.
"We are of opinion that the provisions of Section II, CPC are not
exhaustive with respect to an earlier decision operating as res judicata between
the same parties on the same matter in controversy in a subsequent regular suit
and that on the general principle of res judicata, any previous decision
on a matter in 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. It is not
necessary that the court deciding the matter formerly be compete lit to decide
the subsequent suit or that the former proceeding and the subsequent suit have
the same subject-matter. The nature of the former proceeding is immaterial.”[xliv]
03. Summary dismissal
Sometimes a peculiar situation arises. A petition
may be dismissed by the court in limine without admitting it for final
hearing. The question may arise whether such a dismissal of a petition operates
as res judicata. No hard and fast rule can be laid down, and whether or
not such an order of dismissal would constitute a bar would depend upon the
facts and circumstances of each case and upon the nature of the order. If the
order is on merits, it would be a bar; if the order shows that the dismissal
was for the reason that the petitioner was guilty of laches or that he had an
alternative remedy it would not.[xlv]
If the petition is dismissed in limine without passing a speaking order
then such dismissal cannot be treated as creating a bar of res judicata. It
is true that, prima facie, dismissal in limine even without
passing a speaking order in that behalf may strongly suggest that the court
took the view that there was no substance in the petition at all; but in the
absence of a speaking order it would not be easy to decide what factors weighed
in the mind of the court and that makes it difficult and unsafe to hold that
such a summary dismissal is a dismissal on merits and as such constitutes a bar
of res judicata. Summary dismissal does not affect the jurisdiction of
the court to entertain fresh petition. If the petition is dismissed as
withdrawn it cannot be a bar to a subsequent petition under Article 32, because
in such a case there has been no decision on merits by the court.[xlvi]
The reason is that the order of a court has to be read as it is. If the court
intended to dismiss the petition at the threshold, it could have said so
explicitly. In the absence of any indication in the order itself, it would not
be proper to enter into the arena of conjecture and to come to a conclusion on
the basis of extraneous evidence that the court, in fact, intended to dismiss
the petition on merits.[xlvii]
If a non-speaking order of dismissal of a petition cannot operate as res
judicata, obviously, an order permitting the withdrawal of the petition for
the same reasons cannot also operate as res judicata. At the same time,
however, if a petitioner withdraws the petition without permission to file a
fresh petition on the same cause of action, a subsequent petition is not
maintainable.[xlviii]
04. Constructive res judicata in writs
A question sometimes arises as to whether the rule of
constructive res judicata can be applied to writ petitions. This
question arose for the first time before the Supreme Court in the case of Amalgamated
Coalfields Ltd. v. Janapada Sabha[xlix].
In that case, the earlier notices issued by the respondent Sabha against
the companies calling upon them to pay tax were challenged on certain grounds.
At the time of hearing of the petitions, an additional ground was also taken
and the authority of the Sabha to increase the rate of tax was challenged.
However, since there was no pleading, the said point was not allowed to be
argued and the petitions were dismissed. The said decision was upheld even by
the Supreme Court.[l] Thereafter, once again when the notices were
issued in respect of the different period, they were challenged on that
additional ground, which was not permitted to be argued in the previous
litigation. The High Court dismissed the petitions holding that they were
barred by res judicata. Allowing the appeals, the Supreme Court
observed:
"It is significant that the attack against the validity of the notices
in the present proceedings is based on grounds different and distinct from the
grounds raised on the earlier occasion. It is not as if the same ground which
was urged on the earlier occasion is placed before the court in another form.
The grounds now urged are entirely distinct and so, the decision of the High
Court can be upheld only if the principle of constructive res judicata could
be said to apply to writ petitions filed under Article 32 or Article 226. In
our opinion. Constructive res judicata which is a special and artificial form
of res judicata enacted by Section 11 of the Civil Procedure Code should
not generally be applied to writ petitions filed under Article 32 or
Article 226 ."[li]
In Gulabchand v. State of Gujarat[lii]
the Supreme Court did not decide the point whether the principles of
constructive res judicata could be applied to writ petitions and the
said question was left open.
However, now the position appears to be well settled that the principle of
constructive res judicata also applies to writ petitions. In Devilal v.
S. T. O.[liii], discussing the applicability of constructive res judicata, the
Supreme Court observed:
“This rule postulates that if a plea could have been taken by a party in a
proceeding between him and his opponent, he would not be permitted to take that
plea against the same party in a subsequent proceeding which is based on the
same cause of action; but, basically, even this view is founded on the same
considerations of public policy, because if the doctrine of constructive res judicata is not applied to writ
proceedings, it would be open to the party to take one proceeding after another
and urge new grounds every time; and that plainly is inconsistent with
considerations of public policy ....”[liv]
A direct question, however, arose before the Supreme Court in the case of State
of U.P. v. Nawab Hussain[lv],
In that case, a Police S.I. was dismissed from service by the D.I.G.
He challenged the said decision by filing a writ petition in the High Court on
the ground that he was not afforded a reasonable opportunity, but the petition
was dismissed. He then filed a suit and raised an additional plea that he was
appointed by the I.G.P. and D.I.G. was not competent to pass an order against
him. The State contended that the suit was barred by constructive res
judicata. All the courts including the High Court held against the State
and the matter was taken to the Supreme Court. Allowing the appeal and after
considering all the leading cases on the point, the court held that the plea
was clearly barred by the principle of constructive res judicata as such
plea was within the knowledge of the Police S.I. and it could have been taken
in the writ petition but was not taken at that time. The principle of res
judicata comes into play not only when the issue has been directly and
explicitly decided by the court, but also when such issue has been implicitly
and constructively decided. When any matter which might and ought to have been
made a ground of defence or attack in a former proceeding but was not so made,
then such a matter in the eyes of the law, to avoid multiplicity of litigation
and to bring about finality in it is deemed to have been constructively in
issue and, therefore, is taken as decided.[lvi]
05. Habeas corpus petitions
English[lvii]
as well as American[lviii]
courts have taken the view that the principle of res judicata is not
applicable to a writ of habeas corpus. In India also, the doctrine of res
judicata is not made applicable to cases of habeas corpus petitions.
In Ghulam Sarwar v. Union of lndia[lix],
rejecting the plea of application of constructive res judicata, the
Supreme Court observed:
"If the doctrine of constructive res judicata be applied, this
Court, though is enjoined by the Constitution to protect the right of a person
illegally detained, will become powerless to do so. That would be whittling
down the wide sweep of the constitutional protection."[lx]
In Lallubhai Jogibhai Patel v. Union of India[lxi], the petitioner was detained and the petition filed against the said order
was dismissed by the Supreme Court by an order dated May 9, 1980, but the
reasons were given on August 4, 1980. After the order of dismissal but before
the reasons were recorded, the petitioner filed additional grounds on July 21,
1980. However, on July 30, 1980, he was informed that he may, if so advised,
file a fresh petition on those additional grounds, which he did.
The question which arose before the Supreme Court was whether the principle
of constructive res judicata could apply to a writ of habeas corpus. After
considering leading decisions on the point, Sarkaria, J. made the following
remarkable observations, which, it is submitted, lay down correct law:
“The position that emerges from a survey of the above decisions is that the
application of the doctrine of constructive res judicata is confined to
civil actions and civil proceedings. This principle of public policy is
entirely inapplicable to illegal detention and does not bar a subsequent
petition for a writ of habeas corpus under Article 32 of the
Constitution on fresh grounds, which were not taken in the earlier
petition for the same relief.”[lxii]
06. General principles
In the leading case of Daryao v. State of U.P.[lxiii]
the Supreme Court has exhaustively dealt with the question of applicability
of the principle of res judicata in writ proceedings and laid down
certain principles which may be summarised thus:
1. If a petition under Article 226 is considered on merits as a contested
matter and is dismissed, the decision would continue to bind the parties unless
it is otherwise modified or reversed in appeal or other appropriate proceedings
permissible under the Constitution.
2. It would not be open to a party to ignore the said judgment and move the
Supreme Court under Article 32 by an original petition made on the same facts
and for obtaining the same or similar orders or writs.
3. If a petition under Article 226 in a High Court is dismissed not on
merits but because of laches of the party applying for the writ or because it
is held that the- party had an alternative remedy available to it, the
dismissal of the writ petition would not constitute a bar to a subsequent
petition under Article 32.
4. Such a dismissal may, however, constitute a bar to a subsequent
application under Article 32 where and if the facts thus found by the High
Court be themselves relevant even under Article 32.
5. If a writ petition is dismissed in limine and an order is
pronounced in that behalf, whether or not the dismissal would constitute a bar
would depend on the nature of the order. If the order is on merits, it would be
a bar.
6. If a petition is dismissed in limine without a speaking order,
such dismissal cannot be treated as creating a bar of res judicata.
7. If a petition is dismissed as withdrawn, it cannot be a bar to a
subsequent petition under Article 32 because in such a case, there had been no
decision on merits by the Court.[lxiv]
To the above principles, few more may be added:
8. The doctrine of constructive res judicata applies to writ
proceedings and when any point which might and ought to have been
taken but was not taken in an earlier proceeding cannot be taken in a
subsequent proceeding.[lxv]
9. The rule of constructive res judicata however does not apply to a
writ of habeas corpus. Therefore, even after the dismissal of one
petition of habeas corpus, a second petition is maintainable if fresh,
new or additional grounds are available.[lxvi]
10. The general principles of res judicata apply to different stages
of the same suit or proceeding.[lxvii]
11. If a petitioner withdraws the petition without the leave
of the court to institute a fresh petition on the same subject-matter, the
fresh petition is not maintainable.[lxviii]
If an accused is tried on certain
charges and acquitted, it will be clearly unjust and highly oppressive and
amount to an abuse of the process of the Court to permit his repeated
prosecution on identical evidence in respect of identical charges even though
relating to different items.
Filing of
successive writ petition on same cause of action is against the spirit of law
and general principle of res judicata.
01. An Introduction to Administrative Law
Administrative law is an often-misunderstood subject. As the name
suggests, Administrative Law deals with the structure, powers and functions of
the organs of administration, the limits on their powers, the methods and the
procedures followed by them in exercising their powers and functions, the
method by which their powers are controlled.
Administrative law, also known as regulatory law, is created and enforced
by some type of administrative government body from whom the law derives
its power to set and enforce regulations depends on whether the agency is
executive. It applies to all public officials and public agencies.
An Administrative Government body may act through rulemaking, adjudication,
or by enforcing a specific regulatory agenda. Administrative law is technically
considered a branch of public law. Administrative law is that body of law which
applies for hearings before quasi-judicial bodies, boards, commissions or
administrative tribunals supplement the rules of natural justice with their own
detailed rules of procedure.
As distinguished from legislative and judicial authority, administrative
authority entails the power to issue rules and regulations based on statutes,
grant licenses and permits to facilitate the conduct of government
business, initiate investigations of and provide remedies for complaints or
problems, and issue orders directing parties to conform to governing statutes
or rules.
The two basic principles of administrative law are “audi alteram partem”
(no person shall be condemned, punished or have any property right deprived,
unheard) and “nemo judex in parte sua” (no person can judge a case in which he
or she is party or in which he/she has an interest).
The expansion in the administrative powers creates the spectacle of misuse
and abuse of power. Therefore, for the regulation and control of the
administrative powers, Administrative Law began to grow.
It is important to consider two vital factors in dealing with
administrative agencies:
1) the rules and regulations are often special for each agency and are not
usually found in the statutes but in those regulations;
2) a member of the public must "exhaust his/her administrative remedies"
(take every step, including appeals) with the agency and its system before
he/she can challenge the administrative ruling with a lawsuit in court. An
administrative-law judge is a government official with quasi-judicial powers,
including the authority to conduct hearings, makes findings of fact, and
recommends resolution of disputes concerning the agency’s actions
02. Res Judicata under Administrative Law
Basically, the Doctrine of Res Judicata is applicable to the Code of Civil
Procedure. But, at times, in many other statutes there is a use of the
doctrine.
In Administrative Law, the use of this doctrine is that, it administers as
to how well the Judiciary does its work, how efficiently the Judiciary disposes
off the case and the doctrine makes itself applicable where there is more than
one petition filed in the same or in the other court of India.
The parties can file another suit in another court, just to harass and
malign the reputation of the opposite party or can do so for receiving
compensation twice from the different courts. Therefore, just to prevent
such over-loads and extra cases in the court’s kitty, Res Judicata holds a big
responsibility and importance.
A comparison of Res Judicata as a concept in between Administrative Law and
the other laws. In Administrative Law, the doctrine works as a working
principle and has been adopted or taken from Code of Civil Procedure.
Even in International Law which is applicable in The International Court
of Justice, there too Section 38 (1) (c) is dedicated towards the doctrine
of Res Judicata.
The Section reads as follows:
1. The Court, whose function is to decide in accordance with international
law such disputes as are submitted to it, shall apply:
a. international conventions, whether general or particular, establishing
rules expressly recognized by the contesting states;
b. international custom, as evidence of a general practice accepted as law;
c. the general principles of law recognized by civilized nations;
d. subject to the provisions of Article 59, judicial decisions and the
teachings of the most highly qualified publicists of the various nations, as
subsidiary means for the determination of rules of law.
12. RES JUDICATA AND RES SUB JUDICE
The doctrine of res judicata differs from res sub judice in
two aspects:
(i) whereas res judicata applies to a matter adjudicated upon (res
judicatum), res sub judice applies to a matter pending trial (sub
judice); and
(ii) res judicata bars the trial of a suit or an issue
which has been decided in a former suit, res sub judice bars trial of a
suit which is pending decision in a previously instituted suit.
Doctrine of Res Sub-Judice as dealt in Sec 10 of
the Code of Civil procedure, deals with stay of civil suits. It provides that
no court shall proceed with the trial of any suit in which the matter in issue
is also directly and substantially in issue in a previously instituted suit
between the same parties and that the court in which the previous suit is
pending is competent to grant the relief claimed. Wheresas Doctrine of Res
Judicata as dealt in Sec 11, on the other hand, relates to a matter already
adjudicated upon. It bars the trial of a suit or an issue in which the matter
directly and substantially in issue has already been adjudicated upon in a
previous suit.
The object of the rule contained in section 10 is
to prevent courts of concurrent jurisdiction from simultaneously entertaining
and adjudicating upon two parallel litigations in respect of the same cause of action,
the same subject-matter and the same relief. The policy of law is to confine a
plaintiff to one litigation, thus obviating the possibility of two
contradictory verdicts by one and the same court in respect of the same relief.[lxix]
The object of this section is at outset different from that of Sec 11 i.e., of
the Doctrine of Res Judicata, but ultimately the final object of both the
doctrines, i.e., to reduce number and prevent duplicacy of litigations.
The doctrine of Res Sub-judice intends to protect
a person from multiplicity of proceedings and to avoid a conflict of decisions.
It also aims to avert inconvenience to the parties and gives effect to the rule
of Res Judicata.[lxx]
The major difference between these two sections
is that the Doctrine of Res Judicata under Sec.11 bars the institution of suit
concerning same subject matter between same parties but the Doctrine of Res Sub
Judice under sec.10 does not bar the institution of a suit, but only bars a
trial, if certain conditions are fulfilled. The subsequent suit, therefore,
cannot be dismissed by a court, but is required to be stayed whereas in case of
Res Judicata, the subsequent suit is liable to be dismissed.
13. RES JUDICATA AND ESTOPPEL
Section 115 of the Evidence Act, 1872 provides the definition of estoppel
as:
"When one person has, by his declaration, act or omission,
intentionally caused or permitted another person to believe a thing to be true
and to act upon such belief, neither he nor his representative shall be
allowed, in any suit or proceeding between himself and such person or his
representative, to deny the truth of that thing"
There
are differences between res judicata and estoppel. Res judicata ousts the
jurisdiction of the court while estoppel shuts the mouth of a party to say one
thing at one time and opposite of it at another time. The difference between
the plea of res judicata and estoppel is that while the former prohibits a
court entering into inquiry as to a matter already adjudicated, the latter
prohibits a party, after the inquiry has already been entered upon, from
raising anything contradictory to his previous declaration or acts to the
prejudice of another party, who has relied upon those declarations or acts and
has altered his position. In other words, res judicata prohibits an inquiry in
limine, while estoppel comes only after initiating an inquiry. The doctrine of
res judicata differs from estoppel mainly in not rescinding of an act of a
party but from a decision of a court. The plea of res judicata is not merely a
plea of estoppel. It amounts to assertion that the legal rights of the parties
have been determined by the competent court and no other court should proceed
to determine that matter again. The matter once decided becomes conclusive.
What is delivered in judgment must be taken as established facts. It cannot be
reopened by any other court having the same jurisdiction. But in estoppel the
proceedings will be initiated and only contradictory stands are prohibited.
Plea
of res judicata proceeds upon grounds of public policy while estoppel is simply
an application of equitable principle between man and man. The plea of res
judicata is not merely a plea of estoppel. It amounts to assertion that the
legal rights of the parties have been determined by the competent court and no
other court should proceed to determine that matter again. The matter once
decided becomes conclusive. What is delivered in judgment must be taken as
established. It cannot be reopened by any
other court having the same Jurisdiction. But In estoppel the proceedings will
be initiated and only contradictory stands are prohibited. Plea of res judicata
proceeds upon grounds of public policy while estoppel is simply an application
of equitable principle between man and man.
Earlier
the terms like res judicata, issue estoppel, cause of action estoppel, estoppel
by record, were used loosely and distinctions between them were not clear. The
modern tendency is to use res judicata comprehensively to all those estoppel.
Cause of action estoppel is confined to cases where the parties are the same
for the second suit as they are in the first suit. In all cases where the cause
of action Is really the same and has been determined on merits and not on some
ground which ceased to operate when the second action is brought, the plea of
res judicata should succeed.
The
doctrine applies to all matters which existed at the time of giving the
judgment and which the party had an opportunity of bringing before the court.
If, however, there is a matter which cannot be brought before the court, the
party is not estopped from raising it.
Issue
estoppel may arise where a plea of res judicata could not be established
because the cause of action is not the same. Even if the object of the former
and latter actions are different, the finding on a matter which came directly
on an issue in the former action is conclusive between the same parties and
their privys. Where a cause of action is held not to fall within the scope of
issue estoppel it may nevertheless be struck out as vexatious or frivolous. To
re-litigate a question which in substance has already been determined is an
abuse of process.
The doctrine of res judicata is often treated as a branch of the law
of estoppel.[lxxi] Res
judicata is really estoppel by verdict or estoppel by judgment (record.)[lxxii]
The rule of constructive res judicata is nothing else but a rule of
estoppel.[lxxiii]
Even then, the doctrine of res judicata differs in essential particulars
from the doctrine of estoppel.[lxxiv]
(i) Whereas res judicata results from a decision of
the court, estoppel flows from the act of parties.
(ii) The rule of res judicata is based on public
policy, viz., that there should be an end to litigation. Estoppel, on the other
hand, proceeds upon the doctrine of equity, that he who, by his conduct, has
induced another to alter his position to his disadvantage, cannot turn round
and take advantage of such alteration of the other's position. In other words,
while res judicata bars multiplicity of suits, estoppel prevents
multiplicity of representations.
(iii) Res judicata ousts the jurisdiction of a court to
try a case and precludes an enquiry in limine (at the threshold);
estoppel is only a rule of evidence and shuts the mouth of a party.
(iv) Res judicata prohibits a man averring the same thing
twice in successive litigations, while estoppel prevents him from saying one
thing at one time and the opposite at another.
(v) The rule of res judicata presumes conclusively the
truth of the decision in the former suit, while the rule of estoppel prevents a
party from denying what he has once called the truth. In other words, while res
judicata binds both the parties to a litigation, estoppel binds only that
party who made the previous statement or showed the previous conduct.
14. EXCEPTIONS, NON-APPLICATION AND LIMITATIONS TO RES JUDICATA
01. Exceptions to Res Judicata
There are limited exceptions to Res Judicata that allow a party to attack
the validity of the original judgment, even outside of appeals. These
exceptions - usually called collateral attacks – are typically based on
procedural or jurisdictional issues, based not on the wisdom of the earlier
court’s decision but its authority or competence to issue it. A collateral
attack is more likely to be available (and to succeed) in judicial systems with
multiple jurisdictions, such as under federal governments, or when a domestic
court is asked to enforce or recognize the judgment of a foreign court.
In addition, in cases involving due process, cases that appear to be Res
Judicata may be re-litigated. An instance would be the establishment of a right
to counsel. People who have had their liberty taken away (that is, imprisoned)
may be allowed to be re-tried with a counselor as a matter of fairness.
However, there are limited exceptions to Res
Judicata that allow a party to attack the validity of the original judgment,
even outside of appeals. These exceptions - usually called collateral attacks -
are typically based on procedural or jurisdictional issues, based not on the
wisdom of the earlier court‘s decision but its authority or competence to issue
it. A collateral attack is more likely to be available (and to succeed) in
judicial systems with multiple jurisdictions, such as under federal
governments, or when a domestic court is asked to enforce or recognize the judgment
of a foreign court.
In addition, in
cases involving due process, cases that appear to be Res Judicata may be
re-litigated. An instance would be the establishment of a right to counsel.
People who have had their liberty taken away (that is, imprisoned) may be
allowed to be re-tried with a counselor as a matter of fairness.
02. Failure to apply
When a subsequent court fails to apply Res Judicata and renders a
contradictory verdict on the same claim or issue, if a third court is faced
with the same case, it will likely apply a "last in time"
rule, giving effect only to the later judgment, even though the result came out
differently the second time. This situation is not unheard of, as it is
typically the responsibility of the parties to the suit to bring the earlier
case to the judge's attention, and the judge must decide how broadly to apply
it, or whether to recognize it in the first place.
03. Compromise decree
A compromise decree is not a decision by a court. It is the acceptance by a
court of something to which the parties had agreed. A compromise decree merely
sets the seal of a court on the agreement of parties. A court does not decide
anything. Nor can it be said that the decision of a court is implicit in it.[lxxv]
The decisions of courts are not uniform on the question whether the
doctrine of res judicata applies to consent decrees. In some cases, it
has been held that consent decrees operates as res judicata[lxxvi]
whereas in some other cases, a contrary view is taken.[lxxvii]
It is submitted that the correct view is that the doctrine of res
judicata does not apply to a consent decree, as in a consent decree a
matter cannot be said to be 'heard and finally decided' on merits. Such decree,
however, precludes a party from challenging it by a rule of estoppel.[lxxviii]
Whether
estoppel by record can be applied to compromise decree is a matter to be
considered. In the eye of law, compromise decree stands independently of any
order of the court passed thereon. It is settled law that a compromise decree is not a decision of the court as such. When a judgment has
been given in a particular case, then the cause of action merges in the
judgment and no further action can be brought on that cause except an appeal on
that judgment or unless the judgment is set aside due to collusion or
otherwise. What has been decided by that judgment is final and binding on the
parties. In this view of the matter, estoppel is applicable even in compromise
decrees. If a finding is necessary for sustaining the judgment in a particular
case, such finding may operate as an estoppel in the subsequent suit. A
compromise decree creates an estoppel by judgment and a judgment by consent is
as effective an estoppel between the parties as any other judgment where the
court exercised its mind in a contested case.
In
Sailendara Narayan v. State of Orissa[lxxix] the Supreme Court held that a judgment by consent or
default is as effective an estoppel between the parties as a judgment whereby
the court exercises its mind on a contested case. In 1936, the predecessor in
title of the plaintiff brought a suit against the Secretary of State for India
in Council, praying for a declaration that the plaintiff had a good and
indefeasible title to the beds of certain rivers, by express or implied grant
from the East India Company. This issue was found against the plaintiff and the
suit was dismissed by the trial court. In appeal to the Patna High Court, a
compromise decree was passed. The compromise consisted of reciprocal
concessions, those made by the party being the consideration for those made by
the other. Subsequent suit was filed in 1952 by the plaintiff claiming as the
Raja and owner of the river bed. Held on the facts and circumstances of the
case that the compromise decree in the previous suit operates as estoppel and
the plaintiff is precluded from asserting his title to the property in
question.
While
delivering this judgment Supreme Court observed that "a judgment by consent or default is as effective an
estoppel between the parties as a judgment whereby the court exercises its mind
on a contested case". The principle behind this is that, a judgment by
consent is intended to put a stop to litigation between the
parties Just as much as is a judgment which results from
the decision of the court after the matter has been fought out to the end. It
will be very mischievous if one were not to give a fair and reasonable
interpretation to such judgments, and were to allow questions that were really
involved in the action to be fought over again in a subsequent action.
Circumstances
may arise where a compromise may be filed in a court representing a group or
community. Whether such a compromise could operate as an estoppel against all
the members of the community even though they were not parties to the
compromise? This was considered in Gulam Abbas v. Hall Kayum AIi[lxxx]. In
this case a compromise was filed under section 107 of the Code of Criminal
Procedure. The signatory has declared that "there is no apprehension of
breach of peace, as we, Hindus and Muslims, have amicably settled the matter,
normally there will not occur any breach of peace in future. So we, both
parties, having settled the matter amicably, submit this petition and pray that
the case be disposed of in terms of the compromise". It was signed by a
number of persons but there was no statement that they represent two
communities. In this case, the court decided that the persons who signed the
compromise were important persons of the community and it may be true that both
the communities were going according to the compromise made by these important
persons. But, in law, it does not debar the parties asserting their civil
rights in courts. In this judgment, even though estoppel is not made applicable
in respect of persons who were not signatories of the compromise, the court failed
to consider the aspect that the signatories of the compromise were important
persons belonging to and who could represent their respective communities. It
may not be possible for each and every person belonging to the community
becoming signatories to the compromise. In such circumstances, the court could
have adopted the course of establishing estoppel even against the
non-signatories to the compromise. This decision is actually preventing the
representatives of any community to enter into a compromise on behalf of the
community. Once the respectable persons of the community enter into a solemn
understanding on behalf of the community, the same should be respected by all
the members of the community unless the signatories are proved themselves as
not representing the community or acting against its Interests.
In Radhakrishna
Bhaktha v. Ramanna Chetty[lxxxi], a compromise agreement was executed between the parties
in a suit. Nearly 3 months after the execution of the agreement, the defendants
filed a written statement contesting the suit on merits. There was no whisper
about the compromise in the written statement. Both the parties led oral and
documentary evidence in support of their respective contentions and invited the
court to give a decision on merits without requesting the court to record the
compromise and to pass a decree in terms thereof. The Court, after considering
the entire evidence, made a decree in favour of the plaintiff, nearly 2 1/2
years after execution of the compromise. That decree was challenged by the
defendant in appeal. Nearly 6 months after filing of the
appeal, an application was made for the first time by the defendant requesting
the appellate court to record the compromise and to pass a decree in terms
thereof. But the court declined to record the compromise. This is in view of
the conduct of the defendant by which he was precluded by the principle of
estoppel from inviting the court to record the alleged compromise, after
contesting the suit on merits. Thus, whether a compromise decree could operate
as estoppel depends on the facts and circumstances of each case. But it is to
be noted that a compromise decree is also equally binding on the parties as it
is in a contested case. But in such circumstances, the rights of the parties
are mutually agreed upon by the respective parties and not decided by the
courts by applying the principles of law. Hence, the compromise decree in the
strict sense cannot be made use of for applying the principles of estoppel.
Subsequently
he obtained stay of sale on the plea that he would satisfy the decree and also
paid a part of the debt and thus obtained the consent of the decree holder for
adjournment of the sale. It was found that he was estopped to say subsequently
that the decree was not capable of execution against him. It is well settled
that an admission in a proceeding in ignorance of legal rights of a party
creates no estoppel. There is no estoppel against the legality or legal
unforseenability.[lxxxii]
A
person cannot be heard in two courts having jurisdiction to contend in one
court that that court alone had requisite jurisdiction and to contend precisely
the opposite effect in the other court. If the parties have taken a particular
position before the court at one stage of the litigation, it is not open to
them to approbate and reprobate and to resile from that position. The rule of
approbation and reprobation will apply only when there is estoppel in one form
or the other.
04. Withdrawal of suit
A withdrawal of a suit does not operate as res judicata in filing a
subsequent suit for the same cause of action. The basic principle of res
judicata being final adjudication on merits, there can be no bar of res
judicata if the suit is withdrawn. It is true that ordinarily when the
plaintiff or the applicant finds that the court is not likely to grant relief
that he seeks permission to withdraw the suit or application. But since there
is no decision on merits, there cannot be a bar of res judicata in
instituting a fresh suit or application. But such withdrawal would be a bar to
the filing of a fresh suit under Or. 23, R. 1 of the Code.[lxxxiii]
05. Tests for application of Res Judicata
In order to decide the question whether a subsequent proceeding is barred
by res judicata it is necessary to examine the question with reference
to (i) forum or competence of the court; (ii) parties and their
representatives; (iii) matters in issue; (iv) matters which ought to have been made ground for attack or defence in the
former suit; and (v) the final
decision.[lxxxiv]
06. Limitations to Res Judicata
There
are limitations in the operation of estoppel by record. The plea of estoppel is
to be raised at the appropriate time and not at the belated stage in the
proceedings. The defendant participated in a case where all the witnesses were
examined on his side. The plaintiff cross examined the witnesses and the suit
reached the stage of arguments. At this stage, the defendant put an application
for dismissal of the suit on the basis of estoppel. The same was rightly
rejected by the court since the defendant's request was at a belated stage.[lxxxv]
As regards a question of law that could be raised at any stage of the
proceedings including the appellate stage.
Estoppel
by record (Res Judicata) operates as an estoppel to the whole right. The same
cannot operate against a part of the right. The crux of the doctrine is that a
party should not be allowed to litigate for a second time what has already been
decided between himself and the other party. This is in the interest of the
successful party and also the public. The earlier decision should be on a
specific point. Where several grounds have been put forward by a plaintiff, in
the alternative for claiming a particular relief and defendants attempt that
the relief claimed by the plaintiff may be granted without saying anything
more, it becomes defective to come to the firm conclusion as to the finding
that the defendant intended to attempt while giving consent that the relief
prayed be granted. The test for estoppel to be applied in such cases is that
the court could not have passed the judgment without determining that
particular point against the party who is raising that point again. Thus,
estoppel by record cannot be applied for all facts and circumstances. It
depends on the decision as well as the conduct of the parties.
15. RES JUDICATA AND PRECEDENTS
01. Jurisdiction of the Court
In
order to raise an estoppel by record, the competency of the court which passed
the earlier judgment is to be considered. This is because a judgment pronounced
by a court without jurisdiction will have no binding effect. Hence the lack of
jurisdiction of the court deprives the judgment of any effect, whether by way
of estoppel or otherwise.
Jurisdiction
may be defined as the power and authority of a court to pronounce the sentence
of the law or to award a relief as provided by law, upon a set of facts, proved
or admitted, or referred to as subject of-investigation of action by that court
and in favour of or against the persons who present themselves or who are
brought before the court in the same manner sanctioned by law as proper and
sufficient.[lxxxvi]
When a
plea of estoppel is founded on general principles of law, what is necessary to
establish is that the court which heard and decided the former case was a court
of competent jurisdiction. Even a foreign judgment can operate as an estoppel
against a party who submitted or may be deemed to have submitted to the
jurisdiction of that foreign court. Thus, foreign court has jurisdiction only
over persons who have voluntarily submitted to its jurisdiction. Persons who do
not fall in that category can ignore the writ as well as the decree and treat
them as nonest.[lxxxvii]
If the
objection is In relation to the jurisdiction of the court, a party cannot be
estopped from using it if the court had really no jurisdiction. Neither the
rule of res judicata nor that of estoppel will apply in matters relating to
jurisdiction[lxxxviii]. Estoppel cannot give jurisdiction over the matter if the
Act says that the court does not have jurisdiction. If a court has no jurisdiction
to try a suit, the consent or waiver can never give the jurisdiction to that
court. The decision of such a court is faulty and it can be challenged at any
stage of proceeding. A party can raise objection against jurisdiction even at
the appellate stage." [lxxxix]
However,
it is settled principle that objection regarding jurisdiction should be taken
in the earliest possible opportunity or, at any rate, at the early stage of the
proceedings. For example, in Nadia District Bus Owners' Association v. District Magistrate Nadia[xc] the
petitioner surrendered to the jurisdiction of the District Magistrate and
pressed repeatedly for time for shifting of the bus stand from the present
site. Time was granted successively. Thereafter, the petitioners were not
permitted to challenge the jurisdiction of the Magistrate to decide the
question of shifting of the bus stand.
The
petitioner's remedy, if any was clearly barred by estoppel. Similarly in Janak
Singh v. Raji[xci], the
respondent filed an application for dissolution of her marriage in the
sub-court. Janak Singh did not appear in answer to summons issued to him and an
ex-parte decree was passed for dissolution of the marriage. Against the
ex-parte decree, Janak Singh filed an appeal before the
District
Court which set aside the ex-parte decree and remanded the case for fresh
disposal. On remand, Janak Singh filed his objections raising various
contentions regarding the merits of the application and also took an objection
in respect of territorial jurisdiction of the court. The trial court came to
the conclusion that the objection with regard to the jurisdiction of the court
cannot be raised since in the Memorandum of Appeal filed by Janak Singh against
ex-parte decree such a contention was not raised. But the High Court held that
the objection regarding jurisdiction can be raised at any stage of proceeding.
Want of jurisdiction cannot be cured by acquiescence.
02. Correctness of the Judgment – Whether material?
Estoppel
by record can be invoked under various circumstances, but the same can be
applied only if the earlier judgment is relevant to the issue in the subsequent
suit and is binding on the parties. For applying this principle, the
correctness of the earlier judgment is not material. By the production of the
previous judgment, it is not the correctness of the previous decision, but only
the fact and its existence are established. There cannot be a presumption that
the prior judgment is a correct adjudication. The law only says that you cannot
go against the earlier judgment in a certain case on the ground of public
policy. It Is a principle of convenience and not of absolute justice. It does
not compel the court trying the latter suit to hold that the previous decision
as correct, but merely stop the parties from bringing out that previous
decision is wrong. In essence this is the rule of estoppel. A judgment under
appeal is only provisional and not definite and cannot operate as estoppel
during the intervening proceeding of the court[xcii]. A
plea of estoppel was allowed to be raised in the High Court for the first time
in appeal when the judgment of the High Court sought to be pleaded as a bar.
Ordinarily a plea of estoppel is not permissible in the appeal court. But when
the final finding on which plea rests is a decision of the High Court, it may
be permissible to consider the correctness of the judgment even at the
appellate stage[xciii].
Whether
a decision in a previous suit deciding a mixed up fact and law will be binding
as estoppel in a subsequent suit requires consideration. For example, whether
by custom, the right to receive offering on a shrine is allowable or not, is a
mixed question of law and fact. When the existence of certain facts and legal
effect of such facts are both to be found before a question is answered, it is a
mixed question of law and fact. Similarly, whether a tenancy is a permanent one
or not is a mixed question of law and fact. It is settled that a finding on a
mixed question of law and fact stands on the same footing as a decision on a
question of fact and operates as estoppel[xciv].
The decision as to whether an issue is barred
by estoppel or not, the decision on a question of limitation, whether there has
been an eviction of the tenant by land lord, interpretation of the terms of a
will, whether a document is a partition deed or not etc. are mixed questions of
law and fact and attract the principle of estoppel in subsequent suit between
the parties.
As to
whether a decision will operate as estoppel; there is difference of opinion
among various High Courts. The Patna High Court has taken the view that an
erroneous decision on a point of law will constitute estoppel as much as a
correct decision on a question of law or fact or even a mixed question of law
and fact[xcv]. The above view upholds that any erroneous decision on point of law will
constitute estoppel just as a correct decision. But Madras High Court has taken
the view that a decision on a question of law erroneously taken cannot be
allowed to operate as estoppel[xcvi]. But this view is not agreed by the Supreme Court in Mohanlal
Goyanka v. Binoy Krishna Mukherjee[xcvii].
In the
said judgment the Supreme Court upheld the view taken by Patna High Court
solely on the basis that the earlier decision is liable to be followed even if
it was erroneously taken. This opinion was given by the
Supreme Court due to the fact that when there was an apparent error on a
question of law, the same could be rectified by appropriate
proceeding before the same court. Hence once a decision has become final, even
if it is erroneous, that has to be looked into for applying the principle of
estoppel. Bombay High Court went to the extent that a decision on an issue on
law operates as estoppel if the cause of action in the subsequent suit is the
same as in the previous suit. Therefore, whenever a question arises as to
whether a decision passed on a question of law operates as estoppel, the court
must consider the following tests:-
Is it
on a question of law which is disassociated from and unconnected with the right
claimed or denied as between the parties to the litigation?
If it
is disassociated or unconnected, then the question of law does not constitute a
decision which operates as estoppel. If on the other hand the question directly
connected or associated with the rights claimed or denied then the question of
law would operate as estoppel.
Fraud
is an extrinsic collateral act which vitiates the courts' proceedings. A
judgment obtained by fraud or collusion is normally treated as nullity. An
exception to the general principle may be regarding a purchaser of property in
good faith relying on a judgment in rem even if it might have been obtained by
fraud. In order to avoid being estopped, a party to a judgment obtained by
fraud should get it set aside.
Similarly,
where the truth appears in the same record as is relied on has given rise to
estoppel, the question of estoppel can hardly arise. A party is not estopped
from alleging that a particular fact is inconsistent with the records. It is
really another way of saying that a judgment is conclusive only as to the point
decided and not as to matters which were neither in issue nor admitted on the
pleadings.
03. Difference between Res Judicata and Precedents
There
is a distinction between res judicata and
a precedent established by Court. When a Court interprets the law, when it
construes a statute or determines what the position in law is with regard to a
particular matter, that constitutes a precedent set up by that Court and that
Court may well follow that precedent when similar cases come before it where
the same law has to be considered and interpreted. But a decision given by a
Court on a question of law does not bind the same parties when those parties
are litigating with regard to an entirely different right. The decision of law
would only be binding between the same parties as res judicata if the right that a party claimed was the same in
the former suit and in the later suit. If certain facts were determined on an
interpretation of the law and it was held that a party had a certain right or
that he was not entitled to a particular right, then it would not be open to
that he was party in a subsequent suit to challenge the interpretation of the
law and ask the Court to decide that he had the right nor would it be open to
the other party to allege that he did not have the right.
A
previous judgment works as an estoppel not only with reference to the
conclusion arrived at in the previous suit but also with regard to every step
in the process of reasoning on which the said conclusion is founded. “When we
say ‘every step in the reasoning’ we mean the findings on the essential facts
on which the judgment or ultimate conclusion was founded. In other words the
finding which it was necessary to arrive at for the purpose of sustaining the
judgment in the particular case will operate as estoppel by judgment”. A
finding can operate as res judicata only
if it results in a particular decree or order. It is not res judicata if the decree or order is passed in spite of a
finding, as where a finding is recorded against a party who succeeds, or in
favor of a party who fails on other issues. Where a decision rested on two or
more findings all the findings do not necessarily operate as res judicata.
Where
the suit is dismissed on a technical ground, findings recorded on the merits
would normally be obiter dicta similarly, if the Court has itself based the
decision on one or some of the findings recorded by it, or if its decision can
fairly be attributed to that finding or those findings only the other findings
would not operate as res judicata. In
cases where the decision is based on and is attributable to several findings
all those findings would have the force of res judicata.
16. SOME IMPORTANT JUDGMENTS ON RES JUDICATA
In the case
of Talluri Venkata Seshayya vs Thadikonda
Kotiswara Rao[xcviii], a suit was filed
in the Court for the purpose of declaring certain temples public temples and
for setting aside alienation of endowed property by the manager thereof. A
similar suit was dismissed by the Court two years ago and the plaintiffs here
contended that it was the gross negligence on the part of the plaintiffs (of
the previous suit) and hence the doctrine of Res Judicata should not be
applied. But, the Privy Council said that finding of a gross negligence by the
trial court was far from a finding of intentional suppression of the documents,
which would amount, to want of bona fide or collusion on the part of the
plaintiffs in prior suit. There being no evidence in the suit establishing
either want of bona fide of collusion on the part of plaintiffs as res
judicata.
In the case of Beliram and Brothers v. Chaudari Mohammed Afzal[xcix]
it was held that where a 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 the Indian Evidence Act, 1872, s. 44 and does
not operate Res Judicata. The principle of Res Judicata in Code of Civil
Procedure, 1908, s. 11 is modified by the Indian Evidence Act, 1872, s. 44 and
the principles will not apply if any of the three grounds mentioned in s. 44
exists. General principles may not be applied in a way making Code of Civil
Procedure, 1908, s. 11 nugatory.
In the case of Rural Litigation And Entitlement Kendra vs. State of
Uttar Pradesh[c],
it was held that the writ petitions filed in the Supreme Court are not
inter-party disputes and have been raised by way of public interest
litigation and the controversy before the court is as to whether for social
safety and for creating a hazardless environment for the people to live in,
mining in the area must be permitted or stopped. Even if it is said that there
was a final order, in a dispute of this type it would be difficult to entertain
the plea of Res Judicata. The Court was of the view that leaving the question
open for examination in future would lead to unnecessary multiplicity of
proceedings and would be against the interests of the society. It is mete and
proper as also in the interest of the parties that the entire question is taken
into account at this stage. Undoubtedly, the Environment (Protection) Act,
1986has come into force with effect from 19 November 1986. Under this
enactment, power became vested in the Central Government to take measures to
protect and improve the environment. These writ petitions were filed as early
as 1983 more than three years before the enactment came into force. The
principle of Res Judicata does not apply strictly to public interest litigations.
The procedural laws are not fully applicable to public interest litigation
cases. Where the prior public interest relates to illegal mining, subsequent
public interest litigation to protect environment is not barred.
Resjudicata - Applicability - not raised in original suit- Held that where
a petition under Art. 226 is dismissed on merits, wherein the party did not
raise any contention it operates as res judicata and bars afresh writ petition,
assailing judgment in the original writ petition.[ci]
The doctrine of res judicata must be applied to co-defendants with great care and caution. The reason is that
Fraud is an extrinsic collateral act, which vitiates the most solemn
proceedings of court of justice. If a party obtains a decree from the Court by
practicing fraud or collusion, he cannot be allowed to say that the matter is
res judicata and cannot be re-opened.[cii]
Dismissal of SLP without speaking order does not constitute res judicata.
The Principle of res judicata is founded on public policy that parties cannot
be permitted to have the controversy directly on substantially in issue between
the same parties or those claiming under the parties in subsequent stages
cannot be raised once over. It is sound principle of public policy to prevent
vexation. SLP (C) No: 964/96 - Decided on 11-3-1996.[ciii]
Res judicata- Principle of - Applicability. Issue relating to legality,
validity and binding nature of a gift deed- Trial Court, first Appellate Court
and High Court concurrently found that suit was not hit by principles of res
judicata- Appeal - in the light of narration of facts no interference is called
for in this Appeal- This court does not find fault with the conclusion reached
by the High Court- To put an end to this litigation, appropriate order made.[civ]
Two suits between same parties - But all issues excepting one different in
both suits- Also not all parties common- Both suits tried jointly- Appeal
against earlier suit heard jointly with two other appeals against subsequent
suit- Finality of decisions in appeals would not result in two conflicting
decrees- Principles of res Judicata- Not applicable.[cv]
In a suit for injunction the specific issue of title raised by court and a
finding entered on it. Whether it operate as res judicata in subsequent suit
between the parties. Held: By the nature of this suit and on the basis of the
pleadings although the relief sought was confined to injunction, the issue on
title was relevant in so far as the dispute related to a narrow strip of land
lying between properties admittedly in the respective ownership and possession
of the plaintiff and the defendants. Both the parties without protest went to
trial on all the issues, including the issue relating to title. A decision was
rendered on that issue and that decision remained unchallenged. The principle
embodied in Sec. 11 of the C.P.C applied to the
facts of this case. The subsequent suit was thus barred by res judicata. That
in a suit for injunction the issue on title may become relevant is also clear
from Sec. 27 of the Kerala Court Fees and Suits Valuation Act 1959.[cvi]
Decision in earlier suit will be res judicata in subsequent suit even if
the earlier suit was ultimately dismissed as premature or not maintainable.
Held that to press into service the doctrine of res judicata or estoppel by
record it is enough if the parties concerned shows that the parties to both
suits were the same and are persons whose names are on the record at the time
of the decision, even if the party may be a person who got intervened in the
suit. What is required to be proved or established, to hold that there is bar
of res judicata for the subsequent suit, is that in both the suits, the title
of the parties agitated, is identical but not the identity of the actual
properties involved in the two litigations. [cvii]
An appeal filed by a party aggrieved by a final order or judgment passed in
a final decree application in a suit for partition before an executable final
decree is drawn up on stamp papers can be entertained without a certified copy
of the decree treating the order or judgment appealed against itself as a
decree as defined in Section 2(2) of the Code for the purpose of filing the
appeal.[cviii]
It cannot be termed as an initial matter of the church or part of its
internal administration to deny jurisdiction.[cix]
The basic principle of rule of res judicata is, when the cause of action
for the second suit being merged in the judgment of the first, it does not
survive any more. Res judicata ousts jurisdiction of the court while estoppel
is not a rule of substantive law and is a rule of evidence. Principles of res
judicata stated.[cx]
An application under Sec.144 of the Code of Civil Procedure is an
application for execution and principles of res judicata would apply.[cxi]
Principles of res judicata apply to election proceedings.[cxii]
Principles of res judicta can be invoked not only in separate proceedings
but also in subsequent stage of the same proceedings.[cxiii]
When a prayer in respect of a property is dismissed for default under the
then existing law, but subsequently the law is changed by reason of which the
property is vested in the person, then the petitioner can seek appropriate
relief in respect of the very same property and the principles of res judicata
is inapplicable.[cxiv]
Principles of res judicata are applicable to arbitration proceedings as
well as awards under the Act.[cxv]
Principles of res judicata are not applicable where there is no decision on
merits in the earlier proceedings.[cxvi]
The decision of a court on the question
relating to jurisdiction cannot be deemed to have been finally decided by an
erroneous decision of the court and as such, the said decision cannot operate
as res judicata in subsequent proceedings.[cxvii]
Land Reforms Act, 1964 (Kerala), Sec.80B - A decision of the Land Tribunal
would operate as res judicata between the same parties in a subsequent
proceedings. As the decision by the Land Tribunal is not on merits and as there
is no finding with regard to the controversy involved in the original
application as evidenced by the decision would operate as res judicata.
Application as evidenced by the decision would operate as res judicata.[cxviii]
The principle evolved in the doctrine of res judicata in Sec. 11 could be applied not only in independent cases but also between different
stages of same litigation.[cxix]
A reference to the Land Tribunal under Sec. 125(3) of the Kerala Land
Reforms Act may not be necessary in a suit for
injunction for simpliciter where the question of possession alone is material.
However the question of tenancy of Kudikidappu was referred to the Land
Tribunal and the Trial Court passed the decree based on the decision in the
reference. The said decision is binding on the parties and their
representatives and it will operate as res judicata in subsequent proceedings.[cxx]
In an injunction suit, both the parties without protest went to trial on
all the issues, including the issue relating to title. A decision was rendered
on that issue and it remained unchallenged. The subsequent suit is barred by
res judicata.[cxxi]
Plea of re judicata - whether can be raised in second appeal - If a party
rails to raise the plea of res judicata before the first appellate court, he
cannot be permitted to raise the same before the second appellate court.[cxxii]
The principles of res judicata applies to the disputes before the Arbitrators
also. The arbitrator is bound by the ordinary law of the country. The
principles of res judicata, including constructive res judicata, apply as' much
to arbitration proceedings as they do to proceedings in courts.[cxxiii]
Res judicata is a rule of procedure and it cannot change the law of the
land as applicable to specific parties by decision of courts.[cxxiv]
Res judicata is not concerned with the question whether the previous
decision is right or wrong. A wrong decision rendered with jurisdiction, if not
corrected by appeal, revision, review or other methods available by law will
have as such binding force as a right decision.[cxxv]
What S.11 imposes is a bar on the court not to try any suit or issue in
which the matter directly and substantially in issue has already been so in
issue and decided in a previous suit inter parties on certain conditions.[cxxvi]
Where in appeal in execution proceedings to which a defendant and his wife
who substantially represented the estate of the former, were parties it was
decided that there was no revocation of will in question in the manner prescribed by the Succession Act, the
decision would be binding on the heirs of the concerned defendant even though
they were not co-nominee parties to the appeal.[cxxvii]
A decision on the question of jurisdiction of the court or pure question of
law unrelated to the rights of the parties to a previous suit is not res
judicata in the subsequent suit.[cxxviii]
The difference of reliefs claimed is immaterial in the present and past
proceedings. In both proceedings the facts are same - So Sec. 11 res judicata
applies.[cxxix]
Where defendant refuses to appear and fails to raise the necessary plea of
defence cannot be said the order passed thereafter is not one heard and finally
decided - Such order covered by Explanation 4 - Party who had slept over his rights cannot be allowed to raise the same at
a later stage and avoid the earlier decision on the plea of res judicata.[cxxx]
The pendency of the appeal would not in any way disentitle the trial court
in amending the decree to make it in conformity with the judgment.[cxxxi]
The doctrine of res judicata is applicable under Hindu Marriage Act. The
principle of res judicata is a branch of specie of rule of estoppel called
estoppel by record and though estoppel is often described as a rule of evidence,
the whole concept is more correctly viewed in a substantive rule of law.[cxxxii]
Res judicata -- Earlier application for setting aside auction sale rejected
and the order becoming final. Subsequent application for setting aside the sale
would be barred by principles of res judicata.[cxxxiii]
A question directly and substantially in issue decided in special leave
petition by Supreme Court, the same question cannot be agitated in employee's
forum.[cxxxiv]
The doctrine of res judicata must be applied to co-defendants with great care and caution. The reason is that fraud is an extrinsic collateral act, which vitiates the most solemn
proceedings of court of justice. If a party obtains a decree from the court by
practicing fraud or collusion, he cannot be allowed to say that the matter is
res judicata and cannot be re-opened.[cxxxv]
In a suit for partition plea that plaintiff being mortgagee in possession
is entitled to benefit under Sec. 5 of KLR Act not raised at the stage of
passing second preliminary decree – Subsequently such plea cannot be allowed to
be raised at the time of passing of final decree.[cxxxvi]
Decision in earlier suit will be res judicata in subsequent suit
even if the earlier suit was ultimately dismissed as premature or not
maintainable.-
Held, that to press into service the doctrine of res judicata or estoppel
by record it is enough if the parties concerned shows that the parties to both
suits were the same and are persons whose names are on the record at the time
of the decision, even if the party may be a person who got intervened in the
suit. What is required to be proved or established, to hold that there is bar
of res judicata for the subsequent suit, is that in both the suits, the title
of the parties agitated, is identical of the actual properties involved in the
two litigations.[cxxxvii]
Suit contested by one defendant and other remained ex parte and appeal
filed by the contesting defendant -- Second appeal filed only against
contesting defendant - Later suit by non-contesting defendants for declaration
that decision in the second appeal could not be executed against them - Held,
second suit by non-contesting defendant was barred by res judicata.[cxxxviii]
In a suit for partition plea that plaintiff being mortgagee in possession
is entitled to benefit under Sec. 5 of the Kerala Act not raised at the stage
of passing of second preliminary decree- Subsequently, such plea cannot be
allowed to be raised at the time of passing of final decree.[cxxxix]
Proceedings of quasi-judicial tribunal - General principles of res judicata
are applicable to such proceedings -- Where an earlier application for shifting
of Kudikidappu was dismissed by the Land Tribunal on the ground that the land
owner has no right in the alienate site offered either at the time of
requisition of when the application for shifting was filed - Second application
for shifting the same alternate site on the same ground for bona fide
requirement of putting up a house would be barred by res judicata.[cxl]
If dismissal of the prior suit was on a ground affecting the
maintainability of the suit any finding in the judgement adverse to the
defendant would not operate as res judicata in a subsequent suit. But if
dismissal of the suit was in account of extinguishment of the cause of action
or any other similar cause a decision made in the suit on a vital issue
involved there in would operate as res judicata in subsequent suit between the
same parties.[cxli]
If the former suit is dismissed without any adjudication on the matter in
issue merely on a technical ground of non-joinder, that cannot operate as res
judicata.[cxlii]
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 subsequent suit and that it is not necessary that the said court should
have had territorial jurisdiction to decide the subsequent suit.[cxliii]
A decree passed on compromise is not a decision by the court and therefore,
the compromise decree does not operate as res judicata under Section 11 of the Code of Civil Procedure.[cxliv]
Suit for money for repair charges of vehicle. Award passed by the Motor
Accidents claims Tribunal will not operate as res judicata since the tribunal
is not a court.[cxlv]
Res judicata - Failure to raise the question in the Trial Court a new plea
– New plea of res judicata disallowed to be raised before the Supreme Court.[cxlvi]
Resjudicata - If the matter in issue was directly and substantially in a
prior litigation and decided against party then the decision would be res
judicata in subsequent proceeding - Tests to determine.[cxlvii]
Resjudicata - Four original petitions under the Motor Vehicles Act were
tried and decided jointly. The case of the insurance company that the policy is
with limited third party risk coverage was rejected. Appeal preferred only
against two cases. Appeal only against two awards on the grounds that in the
other two cases awards were below the limits prescribed under the policy is
barred by res - judicata.[cxlviii]
Resjudicata - Finding or the court regarding the title will operate as res
judicata in the subsequent suit filed for recovery of possession by the same
plaintiff.[cxlix]
The question of res judicata does not arise in respect of the price of an
article even if in an earlier suit between the parties it had been found that a
particular article did have a particular price.[cl]
Grant of Succession Certificate in probate proceedings - Findings given
therein does not operate as res judicata in a subsequent suit - Civil P.C.
1908, S.11 Expl. VIII[cli]
Suit for redemption not finally disposed of and mortgage right not
extinguished - Second suit filed for
redemption and recovery of possession is not hit by Res Judicata – T.P. Act,
1882, Sn.60[clii]
Res judicata -- Not applicable:--
1) When in second suit nature of interest of defendant changes.[cliii]
2) Dismissal of writ without any
speaking order.[cliv]
3) Decision beyond jurisdiction of Court.[clv]
4) When the plaint is returned.[clvi]
5) When decision by Small
Causes Court.[clvii]
6. No res judicata when
changed circumstances.[clviii]
17. CONCLUSION
The purpose of Res Judicata is to achieve finality of judgment. However
judicial process has a far sacred and important duty of delivering true and
speedy delivery of justice. There should not be a conflict between the two.
Doctrine of Res Judicata can be understood as something which restrains the
either party to “move the clock back” during the pendency of the proceedings.
The extent of Res Judicata is very wide. The doctrine of Res Judicata is
applicable even outside the Code of Civil Procedure and covers a lot of areas
including criminal and administrative judicial disposals. The scope and extend
has only widened with the passage of time and the Courts have largely resorted
to the application of this doctrine to curtail its own workload.
Res Judicata does not restrict the appeals process. Appeals are considered
the appropriate manner by which to challenge a judgment rather than trying to
start anew trial. Once the appeals process is exhausted or waived, Res Judicata
will apply even to a judgment that is contrary to law.
There are limited exceptions to Res Judicata that allow a party to attack
the validity of the original judgment, even outside of appeals. These
exceptions - usually called collateral attacks - are typically based on
procedural or jurisdictional issues, based not on the wisdom of the earlier
court's decision but its authority or on the competence of the earlier court to
issue that decision.
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, writ petitions, administrative orders, interim
orders, criminal proceedings, etc. An ordinary litigation being a party or
claiming under a party of a former suit cannot avoid the applicability of
section 11 of CPC as it is mandatory except on the ground of fraud or collusion
as the case may be.
However, the hardship of a litigant to get the
sanction of the Court to adduce new facts or to prove fraud (many often these
frauds are practiced by the officers of the Court themselves as in the case of
addition, alteration or removal of records such as Commissions or Survey
reports, marked exhibits etc.) is beyond description. Often the Court is fixed
with certain monthly targets wherein Courts do not allow sufficient time to
produce all kinds of evidences. Very often proper evidences are noticed by a
party only in a very later stage or after the pronouncement of the judgment.
These may the necessary evils of the system.
However as the prime goal of speedy delivery of true justice is getting far and
far away, Honourable Judges perusing issues of Res Judicata should exercise
utmost care in considering that the interest of justice was compromised or
denied. Parties’ grievances should be considered beyond mere technicality.
[i] AIR 1959
SC 163
[vi] Id at pp. 124-25 (SCC) p. 1287 (AIR).
See also Ahmedabad Mfg. Co. v. Workmen (1981) 2 SCC 663 : AIR 1981 SC 960
[xv] 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
[xviii] 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
[xxiv] AIR 1986
SC 391
[xxv] AIR 1995
Bom 235
[xxvi]
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] 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
[xxxv] 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
[xxxvi] Radhasaomi
Satsang Saomi Bagh, Agra Messrs v. Commissioner of Income-tax, AIR 1992 SC 1721
[xxxvii] AIR 1968 SC
1013
[xxxviii] AIR 1961
SC 1457
[xxxix] AIR 1960 SC 1186: (1961) 1 SCR 96;
Amalgamated Coalfields v. Janapada Sabha, AIR 1964 SC 1013: 1963 Supp (1) SCR
172
[xlii] 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
[xlv] 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
[xlvi] 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)
[xlviii] Sarguja Transport Service v. State
Transport Appellate Tribunal (1987) 1 SCC 5:AIR 1987 SC 88
[lvii] 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
[lviii] 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
[lx] 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
[lxii] 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
[lxiv] AIR 1961 SC 1465-66. For detailed
discussion, see V.G. Ramachandran, Law of Writs, (1993), pp. 353-70
[lxvii] 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
[lxviii] 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
[lxix] Balkishan
v. Kishan Lal ILR (1889) 11 All. 148 (FB)
[lxx] S. P. A.
Annamalay Chetty v. B. A. Thornhill AIR 1931 PC 263
[lxxi] 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
[lxxiii] Batul Begam v. Hem Chanda AIR 1960 All
519 (521) ; Mohan Ram v. Sundararamier AIR 1960 Mad 377 (FB)
[lxxiv] 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)
[lxxv] 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
[lxxvii] Shankar Sitaram v. Balkrishna Sitaram AIR 1954 SC 352: (1955) 1 SCR
99; Prithvichand v. Shinde (1993) 3 SCC 271 : AIR 1991 SC 1929
[lxxviii] 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
[lxxxiii] Sarguja Transport Service v. State
Transport Appellate Tribunal (1987) 1 SCC 5: AIR 1987 SC 88
[lxxxiv] Jaswant Singh v. Custodian of Evacuee
Property (1985) 3 SCC 648: AIR 1985 SC 1096: 1985 Supp (1) SCR 331
[cxxxii] Guda Vijaya Lekshmi v.Guda
Rainachandrasekhara Sastri 1981 (2) SCC 646: 1981 DMC
330: AIR 1981 SC 1143
[cxxxiii] 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
[cxxxiv] Junior Telecom officer v. Union of India AIR 1993 SC 787: (1992) 5 Serv LR 383:
(1993) 1 UJ (SC) 110
[cxl] Kunhappa Nair & Anr v. Suresh Kumar AIR 1984 Ker 99: 1984 KLT 330: 1984 (1) Ker 658: 1984 KLJ 473
[cliii] 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
[clviii] 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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