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WORKSHOP - III

KRISHNA DISTRICT

TOPIC - II

RES JUDICATA AND RES SUB

JUDICE, ON PLEADINGS, PLAINTS
AND WRITTEN STATEMENTS

S.No Name of the Officer Page Number

Sri P.R.Rajeev,
Secretary,
1. 1-9
District Legal Services Authority,
Machilipatnam
Sri K.P. Balaji,
2. VII Addl. Senior Civil Judge, 10-20
Vijayawada
G.Chandramowleswari,
3. Senior Civil Judge, 21-33
Nuzvid.
Smt. T.Malleswari,
4. Principal Junior Civil Judge 34-36
Vijayawada
Sri P.Tirumala Rao,
5. III Metropolitan Magistrate, 37-45
Vijayawada
Sri S.Venkateswara Reddy,
6. Prl. Junior Civil Judge, 46-50
Machilipatnam
Smt. M.Satya Kumari
7. Junior Civil Judge, 51-58
Kaikaluru
Sri T.Ramesh Babu
8. I Special Magistrate Court, 59-62
Vijayawada
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RES JUDICATA AND RES SUB JUDICE, ON PLEADINGS, PLAINTS

AND WRITTEN STATEMENTS

Paper presented by

Sri P.R.Rajeev,
Secretary,
District Legal Services Authority,
Machilipatnam.

Res judicata means matter once adjudicated, cannot be re-adjudicated.

The doctrine of res judicata technically means that a matter in issue which
has already been tried by competent court, then another trial between the
same parties in respect of the same matter shall not be allowed. It is a very
important doctrine in civil Justice system, it emphasis that a subject matter
of the suit which has already been decided, is deemed to be decided forever,
and cannot be reopened by the same parties. The doctrine of ―Res-judicata‖,
which also called 'estoppel per rem judicatam', implies that ―a final judicial
decision pronounced by a judicial tribunal having competent jurisdiction over
the cause or matter in litigation and over the parties thereto, disposes once for
all of the matters decided so that they cannot afterwards be rasied for re-
litigation between the same parties.
The doctrine of res judicata is based on the need of giving a finality to
judicial decisions. This principle of res judicata is mainly based on three
maxims:
1. Nemo debet bis vexari pro una et eadem causa, means, no man should
be vexed twice over for the same cause.
2. Interest republicae ut sit finis litium, means, it is in the interest of the
State that there should be an end to a litigation
3. Res judicata pro veritate occipitur, means, a judicial decision must be
accepted as correct.

Section-11 of CPC reads as below:

Res judicata – No Court shall try any suit or issue in which the matter
directly and substntially in issue has been directly and substantially in
issue in a former suit between the same parties, or between parties under
whom they or any of them claim, litigating under the same title, in a court
competent to try such subsequent suit or the suit in which such issue has
been subsequently raised, and has been heard and finally decided by such
court.
Explanation-I – The expression ‗former suit‘ shall denote a suit which has
been decided prior to the suit in question whether or not it was instituted
prior thereto.
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Explanation-II – For the purposes of this section, the competence of a court

shall be determined irrespective of any provisions as to a right of appeal from
the decision of such court.
Explanation-III – The matter above referred to must in the former suit have
been alleged by one party and either denied or admitted, expressly or
impliedly, by the other.
Explanation IV – Any matter which might and ought to have been made
ground of defence or attack in such former suit shall be deemed to have been
a matter directly and substantially in issue in such suit.
Explanation V – Any relief claimed in the plaint, which is not expressly
granted by the decree, shall for the purposes of this section, be deemed to
have been refused.
Explanation VI – Where persons litigate bona fide in respect of a public right
or of a private right claimed in common for themselves and others, all persons
interested in such right shall, for the purposes of this section, be deemed to
claim under the persons so litigating.
Explanation VII – The provisions of this section shall apply to a proceeding for
the execution of a decree and references in this section to any suit, issue or
former suit shall be construed as references, respectively, to a proceeding for
the execution of the decree, question arising in such proceeding and a former
proceeding for the execution of that decree.
Explanation VIII – An issue heard and finally decided by a court of limited
jurisdiction, competent to decide such issue, shall operate as res judicata in a
subsequent suit, not withstanding that such court of limited jurisdiction was
not competent to try such subsequent suit or the suit in which such issue
has been subsequently raised.‖
As per the Judgment of the Hon‘ble High Court of A.P. for the State of
Telangana and A.P. in Senior Regional Manager, Food corporation of India,
Hyderabad VS Y. Thirupalu and another which was reported in
2017(6) ALD 239 (DB) = 2017 (5) ALT 437 in which the Hon‘ble High court
held that in order to constitute res judicata the following, among other,
conditions must be satisfied.
a) There must be two suits – One former suit and the other subsequent
suit;
b) the matter, directly and substantially in issue, must be the same either
actually or constructively in both suits
c) the matter, directly and substantially in issue in the subsequent suit,
must have been heard and finally decided by the court in the former
suit
d) the parties to the suits, or the parties under whom they or any of them
claim must be the same in both the suits; and
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e) the parties, in both the suits, must have litigated under the same title.
By way of eight explanations, the section has been explained
elaborately. The main expressions of the section, interpreted by the courts
are:
Suit or issue :
‗Suit‘ in Section 11 CPC means, proceedings in action in courts of the
first instance as distinguished from proceedings in appellate courts, though
the general principles of res judicata may apply to appellate proceedings -- Mt.
Lachhmi v. Mt. Bhulli AIR 1927 Lah 289 (FB). ‗Suit‘ inthe context of Section
11 CPC must be construed liberally and it denotes the whole of the suit and
not a part of it or a material issue arising in it – Mirza Abid Kazim Hussain v
Mirza Nasir Hussain AIR 1977 All 201. ‗issue‘ means, not only the actual
matter determined but every other matter which the parties might and ought
to have litigated and have had 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 matters
of claim or defence - AIR 1972Punj 1 (FB).
Matter directly and substantially in issue :
Explanation-III clarifies that the ‗matter‘ referred in the section must in
the former suit have been alleged by one party and either denied or admitted,
expressly or impliedly, by the other. Explanation-IV clarifies that any matter
which might and ought to have been made ground of defence or attack in
such former suit shall be deemed to have been a matter directly and
substantially in issue in such suit. If the matter is not in issue either directly
or substantially in the previous suit it will not be res judicata in the
subsequent suit -- Lonan Kutty v.Thomman & others AIR 1976 SC 1645. The
matter in issue may be one of fact or of law or one of mixed law and fact (
related to the parties and subject matter of the suit)-- Mata Din v.
A.Narayanan AIR 1970 SC 1953 . The test to determine whether an issue
was directly and substantially in issue in earlier proceedings or collateral or
incidental is that, if the issue was necessary to be decided for adjudicating on
the principal issue and was decided, it would have to be treated as directly
and substantially in issue and if it is clear that the judgement was in fact
based upon that decision, then it would be res judicata in a latter case --
Sajjada Nashin v. Musa AIR 2000SC 1238
Former suit :
Explanation-I clarifies the expresion ‗former suit’ as given in the section,
means the suit which has been decided prior to the suit in question whether
or not it was instituted prior thereto.
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Same parties :

A ‗party‘ is a person whose name appears on the record at the time of the
decision. A person who applied to be made a party but whose application was
refused, is not a party to the litigation -- Kala chand Banerjee v. Jagannath
Marwari AIR 1927 PC 108.
Court competent to try –
Means a court of concurrent jurisdiction as regards pecuniary limit as
well as the subject matter AIR 1917 Nag 107 (DB), competency in section 11
CPC has no reference to territorial jurisdiction so far as courts in India are
concerned – Narayan Rao v.State ofA.P AIR 1957 AP 992; Shiv Ram v. State
of Rajasthan AIR 2000 Raj 228. It is the competency of the original court
that determines res judicata, irrespective of any provision as to a right of
appeal from the decision of such court –Surjit Singh v. Alembic Glass India
Ltd., AIR 1987 All 319 (Explanation-II). If the court which tried the first suit
was competent to try the subsequent suit at the time when the first suit was
brought, the decsion of such court would be conclusive, although on a
subsequent date the said court ceased to be the proper court to take
cognizance of the suit relating to that matter – Jeevantha v. Hanumatha AIR
1954 SC 9.
Heard and finally decided :

A decision on an abstract question of law unrelated to facts which give

rise to a right cannot operate as res judicata. Nor also can a decision on the
question of jurisdiction be res judicata in a subsequent suit or proceeding –
Supreme court employees Welfare Association v.Union of India
AIR 1990 SC 334. In order to support a plea of res judicata, it is not enough
that the parties are the same and that the same matter is in issue, it must
also be shown that the matter was heard and finally decided – Greater Cochin
Development Authority v. Leelamma Valson AIR 2002 SC 952.
General principles applicable to res judicata :

One of the tests in deciding whether the doctrine of res judicata applies
to a particular case or not is to determine whether two inconsistent decrees
will come into existence if the doctrine is not applied – K. Krishnan v. Tirumala
Tirupathi Devasthanams 1995(2) ALT 122 (DB) The foundation of plea of res
judicata must be laid in the pleadings. If this is not done, no party would be
permitted to raise it for the first time at the stage of appeal – ITC Ltd.,
v.Commissioner of Central Excise, New Delhi (2004) 7 SCJ 237 The
rule of res judicata does not apply to question of jurisdiction, or, a pure
question of law unrelated to the rights of the parties (2001) 1 Ker LJ 564.
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When an order is passed without jurisdiction, the same becomes a nullity.

When an order is a nullity, it cannot be supported by invoking the procedures
principles like, estoppel, waiver or res judicata – Ashok Leyland v. State of
Tamilnadu 2004 AIR SCW 1001. Finding about title given incidentally or
collaterally in injunction suit does not operate as res judicata in title suit –
K.Lakshminarasimha chari v. K. Satyanarayana 2002(2) ALD 753. Decision of
civil court in a suit for injunction cannot operate as res judicata in a later suit
between the same parties for declaration of title and recovery of possession
RVS Vara prasad v. Dr.V Ramdas 2003 (3) ALT 716.
Res judicata and interlocutory orders :
The principles of res judicata can be invoked not only in separate
subsequent proceedings but they also get attracted in subsequent stage of the
same proceedings-- Erach Boman Khowar v. Tukaram Sridhar Bhat AIR
2014 SC 544. Interim orders passed in suit operate as res judicata only
during the trial of that suit, as such an interlocutory order in previous suit
does not bar the court from passing interim order in a later comprehensive
suit – Abhi Prasad v. Pushpa Doshi AIR 1984 Cal. 250.
Res judicata between co- defendants and co-plaintiffs :

Res judicata applies not only to the parties to the suit i.e., plaintiff,
defendant as well as their privies but also it applies between codefendants.The
conditions are;

(a) There must be a conflict of interest between the defendants

(b) it must be necessary to decide the conflict in order to give the reliefs
which the plaintiff claims
(c) The question between the defendants must have been finally decided;
and
(d) The co-defendants were necessary and proper parties inthe former suit.
If there is conflict of interest between co-plaintiffs and it is necessary to decide
that conflict in order to give relief against the defendants and the matter is
decided, then it will operate as res judicata between the co-plaintiffs.
Similarly, an adjudication between co-defendants will operate as res judicata
if there is a conflict of interest between the defendants concerned, it is
necessary to decide the conflict in order to give the relief which the plaintiff
claims, the question between the defendants has been finally decided, and the
co defendants are necessary or proper parties in the former suit -- Iftikhar
Ahmed v. Syed Meherban Ali AIR 1974 SC 749.

Execution proceedings :

Explanation-VII to Sec. 11 CPC clarifies that the provisions of the

section apply to the execution proceedings also. When a matter, which
directly and substantially arises for decision in an execution proceeding, is
heard and decided either actually or constructively by a competent court in
that proceeding such decision is final between the parties and operates as res
judicata in a subsequent execution proceedings – Ramachandra Nahaka v. V.
Bharat Rana AIR 1960 Orissa 197 (FB). The principles of constuctive res