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CONCLUSIONS JAND

SUGGESTIONS
 Chapter VII
CONCLUSIONS AND SUGGESTIONS

An abridged account of the study relating to changing

dimensions of the doctrine of res judicata and the Procedure of
the courts is put up in order to deduce some general conclusions
and suggestions. The chapter wise conclusions are submitted as
follows.
This principle was also known to Roman law as ’exceptio
res judicata. Generally the plea of former Judgment is a bar
whenever the same question of right is renewed between the
same parties by whatever form of action. This doctrine was
adopted by the countries on the European continent which had
modelled their civil law on the Roman pattern. In France, the
doctrine is known as ’Chose jugee' ‘thing adjudged’. This
principle of preclusion of re-litigation, or the conclusiveness of
Judgment, has struck deep roots in Anglo-American
jurisprudence and is equally well-known in the Commonwealth
countries which have drawn upon the rules of Common law.
The doctrine of res judicata is recognised as a principle of
universal jurisprudence forming part of the legal systems of all
civilised nations.
The doctrine of res judicata is based on two theories : (1)
the finality and conclusiveness of judicial decisions for the final
termination of disputes in the general interest of community as a
matter of public policy and (ii) the interests of the individual
that he should be protected from multiplication of litigation. It,
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therefore, serves not only a public but also a private purpose by

obstructing the reopening of matters which have once been
adjudicated upon. It is thus not permissible to obtain a second
judgment for the same civil relief on the same cause of action,
for the otherwise the spirit of contentiousness may give rise to
conflicting judgments of equal authority, lead to multiplicity of
actions and bring the administration of justice into disrepute. It
is the cause of action which gives rise to an action, and that is
why it is necessary for the court to recognize that a cause of
action which results in a judgment must lost its identity and
vitality and merge in the judgment when pronounced. It cannot,
therefore, survive the judgment, or give rise to another cause of
action on the same facts. This is what is known as the general
principle of res judicata.
 The rule of res judicata contained in Section 11 of the
Code has some technical aspects, the general doctrine is founded
on considerations of high public policy to achieve two objects
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namely (i) that there must be a finality to litigation and (ii) that
individuals should not be harassed twice over with the same
kind of litigation.
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^00 of the Code of
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Criminal Procedure, 1973 and Sections 40 to 43 of the Indian

Evidence Act, yet it is not exhaustive. Here, we are concerned
only with Section 11 of the Code of Civil Procedure. Following
conditions must be proved for giving effect to the principles of
res judicata under Section 11:
(a) 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,
(b) that the parties are same,
(c) that the parties are litigating under the same title,
(d) that the matter in issue was decided by a Court of
competent jurisdiction
(e) that the matter in issue has been heard and finally decided
earlier,
If any one or more conditions are not proved, the principle
of res judicata would not apply.
Thus, the doctrine of res judicata is a fundamental concept
based on public policy and private interest. It is conceived in the
larger public interest which requires that every litigation must
come to an end. It, therefore, applies to civil suits, execution
proceedings, arbitration proceedings, taxation matters, industrial
adjudication, writ petitions, administrative orders, interim
orders, criminal proceedings, etc.
Chapter -I is introductory. It explains that the doctrine of
res judicata is a common law principle and based on public
policy which aims that the decision of a court should be given
finality for an end to litigation and no person should be vexed
twice for the same cause. Thus, the doctrine of res judicata
intends to protect a person from multiplicity of litigation and
avoid conflicts of decisions.
In Chapter - II it has been discussed that the doctrine of
res judicata is origin of Latin maxim “Res judicata pro verities
accipiter” and evolved from then English common law system
wherefrom it got included in the Civil Procedure. As a whole it
was adopted by the Indian legal system.
Res judicata comprises two words ‘res’ and ‘judicata’; res
means thing and judicata means already decided. Thus Res
judicata means a case or suit which involves a particular issue
between two or more parties, is already decided by a court.
Res Judicata is the Latin term for “a matter already
decided”, any may refer to two things in both civil law and
common law legal systems, firstly, a case in which there has
been a final judgment and is no longer subject to appeal; and the
secondly, the term is also used to refer to the legal doctrine
meant to bar or preclude, continued litigation of such cases
between the same parties, which is different between the two
legal systems. In this latter usage, the term is synonymous with
“preclusion.”
The term is also used to mean as to ‘bar re-litigation’ of
such cases between the same parties, which is different between
the two legal systems. Once a final judgment has been
announced in a suit, 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. And, therefore, 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.
In ancient India, the concept of res judicata is also found
in the name of purvnyay or prangnyay meaning thereby the
previous judgment in the Dharma Shastras. The Indian ancient
jurists had evolved and developed the concept of res judicata
under the title of prangnyay wherein if a person who has been
defeated in a suit according to law files his plaint once again he
must be told that he has been defeated already. Thus, the party
was prevented from re-agitating a dispute which had already
been decided between the parties. Therefore, the doctrine of res
judicata was a judicial concept wherein the court did not allow a
case to be filed in the same or the other court.
The doctrine of res judicata holds that a litigation must be
final and a litigant should not be tried twice over on the same
cause. The doctrine of res judicata is pre-eminently a principle
of equity, good conscience and justice. It would neither be
equitable nor fair nor in accordance with the principle of justice
that the issue concluded earlier ought to be permitted to be
raised later in a different proceeding. Thus, the doctrine of res
judicata comprises rules of equity and justice.
The doctrine of res judicata is based on public policy that
there should be an end to a litigation being accepted as correct
and no one should be vexed twice for the same cause. Therefore
the doctrine of res judicata involves private and public interest
that a decision of a court should be given a finality for an end to
a litigation and protection for life or personal liberty of a person.
Thus, the doctrine of res judicata is a fundamental concept
based on public policy and private interest.
The doctrine of res judicata is the legislative explanation
of the common law maxim, “nemo debet bis vexari pro una
edem causa ”, i.e. no man should be vexed twice for the same
cause or the same offence which as a principle has long been
recognised in India, even before the enactment of the Civil
Procedure, 1859, which tacitly recognised the rule in Section 2
which was held, however, not to exclude operation of general
law relating to res judicata as settled in England. The present
Code of Civil Procedure has adopted the border rule of bar by
verdict, that is to say that a decision of every issue in a suit is res
judicata in every subsequent suit. Thus, the doctrine of res
judicata has been imported almost from the common law system
in this country.
The doctrine of res judicata contained in Section 11 of the
Code of Civil Procedure, 1908 is applicable in areas governed
by the rules of administration of justice, although the letter of
the Code is not applicable in the State of Jammu and Kashmir
and the State of Nagaland and the Tribal areas.
Section 11 of the Code of Civil Procedure, 1908 deals with
this concept. It embodies the doctrine of res judicata or the rule
of conclusiveness of a judgement as to the points decided either
of fact or of law, or of fact and law, in every subsequent suit
between the same parties. It enacts that once a matter in finally
decided by a court, neither the party nor the persons claiming
there under can be allowed to reopen the matters in a subsequent
litigation. Thus, the doctrine of res judicata is applied to
preserve the effect of first judgement so as to prevent injustice
to the parties of a case supposedly finished.
Section 11 does not affect the jurisdiction of the court but
it operates as a bar to trial of the suit or issue, if the matter in the
suit was directly and substantially in issue and finally decided in
the previous suit between the same parties litigating under the
same title in a court which is barred in the subsequent suit
wherein such issue has been raised. Thus, the doctrine of res
judicata is based on finality of judgments.
The doctrine of res judicata is not confined to what is
contained in Section 11 but is of more general application. Res
judicata could be as much applicable to different stages of
proceedings in the same suit as it is applicable to findings or
issues in different suits. Thus, the doctrine of res judicata has
wider application on the basis of wider principle of the finality
of decisions of the courts of law.
The doctrine of res judicata also includes two related
concepts of claim preclusion, and issue preclusion that is also
called collateral estoppels. The claim preclusion bars a suit from
being brought again on a legal cause of action that has already
been finally decided between the parties. Issue preclusion bars
the re- litigation of factual issues that have already been
necessarily determined by a judge as a part of an earlier claim.
Thus, the doctrine of res judicata is applicable to legal well as
factual issues previously decided between the parties by the
competent court.
Chapter - III has contained the matters relating to the
doctrine of res sub judice and the Code of Civil Procedure
wherein the section 10 provides for res sub judice and makes a
bar on the power of the concurrent courts to try a subsequent
suit if the previously instituted suit is pending in the same court.
Thus, the doctrine of res sub judice as contained in Section 10
of the Code of Civil Procedure differs in meaning and scope to
the doctrine of res judicata.
The doctrine of res judicata contained is Section 11 of the
Code has some technical aspects. The general doctrine of res
judicata is founded on considerations of high public policy that
there must be a finality to litigation and the individuals should
not be harassed twice over with the same kind of litigation. The
doctrine of res sub judice or stay of suit as contained in Section
10 of the Code aims to prevent courts of concurrent jurisdiction
from simultaneously trying two parallel suits between the same
parties relating to same matter in issue and to avoid the
conflicting decisions of two competent courts in respect of the
same relief. Thus, the doctrine of res judicata is related to
finality of judicial decisions where as the principle of res sub
judice avoids contradictory judgments of one and the same court
in respect of the same matter in issue.
Chapter- IV has covered the study as to what the Code of
Civil Procedure has provided for the doctrine of res judicata and
the scope of constructive res judicata.
 The doctrine of res judicata contained in Section 11 of the
Code is a rule of procedure and a special rule of estoppel called
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estoppel by record. The previous judgement creates an estoppel
which merely means that what has been decided must be taken
to be established as a fact, that the decided issue cannot be
reopened by those who are bound by the judgment. Hence, such
an estoppel savours of an equity or justice created by actions of
parties, the result of which have become recorded formally
behind which they are not allowed to go. Thus, the doctrine of
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res judicata is a domain of procedural law.

The concept of constructive res judicata has been
incorporated in explanation IV of Section 11 of the Code of
Civil Procedure. 1908. The basis on which the rule of
r
constructive res judicata is founded on consideration of public
policy whereupon the foundation of the general principle of res
judicata is based that the finality should attach to the binding
decisions of the courts. The explanation refers to any matter
which might and ought to have been made a ground of defence
or attack in a former suit shall be deemed to have been a matter
directly and substantially is issue in such suit. The principle
underlying the explanation is that if a party had an opportunity
to raise a matter in a suit that should be considered to have been
raised and decided. Thus, a plea which might and ought to have
been taken in the earlier suit shall be deemed to have been taken
and decided against the person raising the plea in the subsequent
suit, such plea is constructively barred by the doctrine of res
judicata.
Prior to the Amendment Act, 1976 there were conflicting
views whether the provisions of Section 11 of the Code of Civil
Procedure, 1908, is applicable to the execution proceedings.
After insertion of explanation VII to Section 11 in the Code vide
Amendment Act, 1976 it has been made clear in the explanation
Vii that the provisions of the Section 11 are now applicable to a
proceeding for the execution of a decree, and references in the
section to a suit, issue or former suit shall be construed as
references respectively to a proceedings for the execution of a
decree, question arising in such proceedings and former
proceeding for the execution of that decree. Thus, now it is clear
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that not only general principal of res judicata but also
constructive res judicata would apply to execution proceedings.
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For application of the doctrine of res judicata it is essential

that the court which decided the former suit was competent to
try the subsequent suit prior to induction of explanation VIII to
Section 11 of the code, the views of some of the courts were
where the former court was court of limited jurisdiction and was
not competent to try subsequent suit, the finding of the former
court on any issue did not bind the subsequent court on that
issue. This anomaly has been removed by insertion of expiation
VIII to Section 11 by providing that the prior decision rendered
on the issue concerned by a court of limited jurisdiction,
competent to decide such issue shall operate as res judicata in a
subsequent suit, notwithstanding that such court of limited
jurisdiction was not competent to try such subsequent suit Thus,
the determined of res judicata has now been made more
effective by inpegving explanation VII and VIII to Section 11 of
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the Code of Civil Procedure, 1908 and the doctrine of res

judicata is now applicable to changing circumstancesA
Chapter - V refers to various synonymous provisions
contained in other Acts relating to bar the further litigations.
The Constitution of India under Article 20 (2) provides that no
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person shall be prosecuted and punished for the same offence

more that once and, thus, provides protection to an accused
person against double jeopardy known as in Anglo- American
jurisprudence. Article 20 (2) affords protection against a second
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trial after coiwiction of the same offence. This constitutional

guarantee is available only if the accused is convicted or
prosecuted and punished. Thus, if the first prosecution results in
acquittal, the second prosecution is not prohibited under Article
20(2) of the Constitution.
It is necessary to bar further litigation that the proceedings
which have been taken for an offence must constitute a
‘prosecution’, otherwise Article 20(2) will not be attracted if the
proceedings do not constitute a prosecution. Thus, the protection
extended to an accused person under clause (2) of Article 20 of
the Constitution of India is narrower then the American doctrine
of ‘double jeopardy’ as well as the English Common Law rule
whicITcomprises boWautrefbis convict i.e. previous conviction
and autrefois acquit, the previous acquittal.
The Code of Criminal Procedure, 1973 under Section 300
also bars a second trial for the same offence for which a person
who has once been tried by a court of competent jurisdiction for
an offence, convicted or acquitted of such offence and such
conviction or acquittal remains in force. Thus, the rule of
autrefois convict or autrefois acquit has received recognition in
the section 300 of the Code of Criminal Procedure, 1973
whereas the Constitution of India under clause (2) of Article 20
only recognises the counter part of the rule autrefois convict.
Hence the Section 300 of the Code of Criminal Procedure has
widened the protection by debarring a second trial against the
same accused on the same facts, even to the extent that some
more allegations were not made in the first trial.
The similar protection to an offender has also been
provided under Section 26 of the General Clauses Act, 1897
where an act or omission constitute an offence under two or
more enactments, then the offender shall be liable to be
prosecuted and punished under either or only of these
enactments, but shall not be liable to be punished twice for the
same offence.
Section 12 of the Code of Civil Procedure, 1908 also put a
bar to file a further suit where a plaintiff is precluded by rules
from instituting a further suit in respect of any other particular
cause of action and he shall not be entitled to institute a suit in
respect of such cause of action in any court to which this Code
applies. Thus the said Section restricts the institution of further
suit statutorily.
So far as the applicability of the doctrine of .res judicata in
criminal proceedings is concerned, the doctrine of res judicata
says that the verdict of a competent court shall be conclusive
even as between the prosecution and the accused in all
subsequent proceedings. It can not be excluded by the fact that
the rule against double jeopardy has been confide in Section
300 of the Code of Criminal Procedure and also guaranteed by
Article 20 (2) of the Constitution, because the scope of the two
principle is not identical. Since the doctrine of res judicata rests
on the identity of issues at the two trials, the general rule of res
judicata also applies to criminal cases.
In Chapter - VI, the judicial trends relating to the
doctrine of res judicata and comparative aspects in different
laws have been discussed in details. The courts in India have
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recognised the joctrine of res judicata in their various

judgement in positive sense and enlarged the scope of the
doctrine by applying the general rule of res judicata. As the
doctrine of res judicata is wholesome one which is applicable
not merely to matters governed by the provisions of the Code of
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Civil Procedure but to all litigations. The doctrine of res

judicata has been applied by the courts with condition that there
should be no unnecessary litigation and whatever claims and
defences are open to parties shall all be put forward at the same
time so that the finality should attach to the binding decision of
the courts and the individuals should not be vexed twice over
with the same kind of litigation.
 Thus, the doctrine of res judicata under the provisions of
section 11 of the Code of Civil Procedure has its narrower
application than the common law concept of the general rule of
res judicata has also been enlarged and given broader
explanation with pace of time and changing circumstances as
submitted supra.
In the last Chapter- VII, the researcher has made a benign
effort to deduce some conclusions as submitted above and now,
the researcher would like to submit the following suggestions in
the subject relating to changing dimensions of the doctrine of
res judicata and the provisions of Civil Procedure.
1. The scope of section 11 should be extended in the basis of
public policy and not be limited to the decree passed by
the court under the Code of Civil Procedure. As the
doctrine of res judicata has been incorporated under
Section 11 of the Code of Civil Procedure and hence it is a
statutory principle. Where the court is dealing with a suit
the only ground on which res judicata can be urged
against such a suit would be the provisions of Section 11
of the Code and no other any matter in controversy is
decided after full contest or after affording fair opportunity
to the parties to prove their case by a competent court, the
 general principle underlying the rule of res judicata will
operate as res judicata in the subsequent regular suit as the
nature of the former proceeding is immaterial. The
principle of res judicata may not be applied strictly in bar
of a suit as well in appeals arising out of suits, otherwise
great injustice might be done by confining it the four
comers of Section 11 of the Code:
2. The matter or issue decided by the court collaterally, the
doctrine of res judicata should be made applicable so that
there may not be useless litigation between the parties in
dispute. As the doctrine of res judicata has no application
where the matter in suit has not been “directly and
substantially” but only incidentally or collaterally in issue.
The Section 11 not only bars the suit itself but also bars an
issue. It is not necessary to constitute a matter “directly
and substantially” in issue, it is sufficient that the matter
was in issue in substance. The doctrine of res judicata may
be applied where the matter in suit is incidentally or
collaterally in issue being in issue in substance.
3. The section 11 should be given liberal interpretation for
application of general principles of the Common Law
doctrine of res judicata as the doctrine comprises mles of
equity and justice which preclude a litigant to raise the
issue later in different proceedings. It is, undoubtedly
acknowledged that the doctrine of res judicata is wide
import and it has been held in number of cases that the
Section 11 is not exhaustive and the application of the rule
by the courts in India should be influenced by no technical
consideration of forms but by matter of substance within
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the limits allowed by law. The principle of conclusiveness

of judgement is also much wider and is a part of the
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general principles of res judicata. These principles have

been held by the authorities to be good principles apart
from the previsions of Section 11. The Principle which
prevents the same cause being twice litigated is of general
application and it should not be limited to the specific
words of the Code in this respect. Thus, the general
principle ofthe doctrine of res judicata may be applied to
prevent the same cause being twice litigated.
The doctrine of res judicata should be applied in case of
compromise decree if it is passed fraudulently. Even the
doctrine of res judicata under the section 11 is not strictly
applicable to compromise or nsent decrees as the section
applies in terms only to what has been heard and finally
decided by the court. When the parties are intended to
deciding the matter in issue finally and such compromise
or agreement is super added for seal of the court, the same
may be treated as decree finally decided by the court for
the purpose of bar of general rule of res judicata and
giving effect to the provision of Section 89 inserted by the
Amendment Act of 1999 in the Code of Civil Procedure.
The scope of constructive res judicata should be extended
r~v-———------------- -----------------—,

in general proceedings and even to cover decisions in

claim proceedings. The decision in claim proceedings
under Rule 58 of Order XXI becomes conclusive and
operates as res judicata in subsequent proceedings. But it
can be challenged in a suit brought under rule 58 (5), or it
may also be challenged by bringing a regular suit without
taking recourse to the provisions of order XXI, Rule 58.
r .....................

Such suit should be barred by the doctrine of Constructive

res judicata to avoid multiplicity of litigation and to bring
about finality of the decision and also dealing with the
possibility of abuse of process of law that is clearly
opposed to the considerations of public policy on which
the doctrine of res judicata is based.
6. The doctrine of res judicata should be made applicable in
acquittal proceedings also through the principles of
double jeopardy even under Article 20 (2) of the
Constitution of India. The Article 20 (2) bars a subsequent
criminal case if a person in indicted again for the same
offence. It incorporates the principle which in Anglo-
American jurisprudence is known as the principle of
double jeopardy. The constitutional guarantee embodies
the principle only of autrefois convict i.e. previous
conviction and does not include the principle of autrefois
acquit, the previous acquittal. The clause (2) of Article 20
of the Constitution is, thus, narrower than the American
doctrine of double jeopardy as well as the English
common law rule which comprises both autrefois convict
and autrefois acquit. An amendment to Article 20 (2) may
be solicited by substituting term ‘prosecuted and punished’
with the term ‘double jeopardy’ as is in the American
constitution, so as to extend protection of the principle of
autrefois acquit to an- accused already acquitted in
previous proceedings.
7. The scope of section 12 of the Code should explicitly be
extended to the cases covered under rule 2 of Order 2, rule
9 of Order 9, rule 9 of Order 22 and rule 1 of Order 23 of
the Code of Civil Procedure, 1908. As the bar created
under section 12 does not extend to the suits barred under
section 11 of the Code.
The doctrine of res judicata should be applied in case of
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% _________ _____________ ________ ____ ._____________ _

writ petition passed by the High Courts and the Supreme

Court of India. As the doctrine of res judicata is not
confined to the issues which the court is actually asked to
decided but to covers those issues or facts which from so
clearly the part of the subject- matter and they could have
been so clearly raised. It would be an abuse of the process
of the court if such issues or facts are allowed in a new
proceeding and it is also in the public interest that a
decision should be given finality and no one should be
vexed twice over with the same kind of litigation.
The doctrine of res judicata should be applied in the
decisions made in summary proceedings. As it is the law
•s____________________ ______________ _______________
________—_____

that the doctrine of res judicata is not confined to

decisions in a suit and that the doctrine applies even to
decisions rendered in proceedings which are not suits. But
how, far the decision which is render in original
proceedings will bind the parties, depends upon the
 considerations. A decision given in a proceeding other
than a suit may still operate as res judicata if substantial
rights of the parties are determined. But if the decision is
given in a summary proceeding, it does not operate as res
judicata. Thus, the doctrine of res judicata may be
extended to cover decisions in summary proceedings also.
10. The doctrine of res judicata may not only be limited to
the provisions contained in Section 11 of the Code of Civil
Procedure but the general principles of res judicata being
derived from the common law may be given effect to
principle of the finality of decisions, so as to implement
the doctrine of res judicata more effectively.
Thus, the fact of matter is that there is a serious^laying
invited of the doctrine of res judicata as provided underTEe
provisions of Section 11 of the Code of Civil Procedure, 1908.
Such a laci^m^conca^^je removed only with the application

of res judicata, a common law principle wherein generally the

plea of former judgment is a bar whenever the same question of
right is removed between the same parties by whatever form of
action. Doctrine of res judicata should be interpreted and
applied liberally. Since long the doctrine is based on high public
policy and upon the need of giving finality to judicial decisions,
a strict and technical construction would not serve its real
purpose which requires that all litigation must, soever than later,
came to an even centaury ago the Privy Council in Sheoparson
Singh (1916) had held that in deciding whether the doctrine
would apply, its substance and not the form should be
considered.
The doctrine of res judicata has been held to be of winder
application on the basis of the wider principle of the finality of
decision by court of law. The scope of the doctrine of res
judicata is not confined to what is contained in Section 11 but is
of more general application and it includes a lot of things which
even includes public interest litigation. The doctrine should
petition passed by the High Courts and the Supreme Court of
India so as to avoid the abuse of the process of the court. The
scope of the doctrine of res judicata has also been enlarged by
the Amendment Act, 1976 by inserting Explanation VII and
Vm to make the res judicata more effective and extended even
to execution proceeding. But challenging the decision in claim
proceeding in execution by bringing a regular suit is still out of
the scopes of the res judicata. It is clearly approved to the
consideration of public policy on which the doctrine of res
judicata is based.
 In India the Constitutional guarantee embodies the
principle of only of ‘autrefois convict’ and does not include the
principle of ‘autrefois acquit’ wherefrom it reason that this has
been left to be regulated by the general law of the land. The
Supreme Court has also viewed this likewise in its judgements.
It is, therefore, the present clause i.e. Article 20(2) of the out
constitution is narrower than the American doctrine of ‘double
jeopardy’ and the English Common Law rule of ‘autrefois
convict’ and ‘autrefois acquit ’ and also the protection afforded
by Section 300 of the Code of Criminal Procedure. Which
combines both ‘autrefois convict’ and ‘autrefois acquit’. The
constitutional guarantee should be extended by soliciting an
Amendment so Article 20(2) so as to give effect to the general
rule relating to res judicata.
Therefore, with the above discussion and judicial views,
the doctrine of res judicata should be made more effective by
extending its scope to writ petitions, summary proceedings
general and claim proceedings in execution,, consent or
compromise decree, acquittal proceedings and also by giving
liberal interpretation for application of general principles of the
Common Law doctrine of res judicata which is need in the
present setup of the society exist in India.

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