Notes Res Judicata

The principle of res judicata is founded on three principles which are non-negotiable in any
civilised version of jurisprudence, namely:

(1) no man should be vexed twice for the same cause,
(2) it is in the interest of State that there should be an end to a litigation,
(3) a judicial decision must be accepted as correct. [ Gangai Yinayagar Temple v Meenakshi
Ammal, (2009) 9 SCC 757 (769).]
Res judicata means "a thing adjudicated" that is, an issue that is finally settled by judicial
decision. The plea of res judicata is a restraint on the right of a plaintiff to have an
adjudication of his claim.
An order passed without jurisdiction is nullity. It would not attract principle of res judicata.
[Ashok Layland Ltd v State of TN, AIR 2004 SC 2836 (2861) ]
The rule of res judicata is not applicable to decisions on pure question of law such as one are
jurisdiction of the Court. [ Isabella Johnson v MA Susai, AIR 1991 SC 993 ]
It is well-settled that in order to decide whether a decision in an earlier litigation operates as
res judicata, the Court must look at the nature of the litigation, what were the issues raised
therein, and what was decided in it. [ Mysore SE Board v Bangalore WC & S Mills, AIR 1963
SC 1128 (1134) : 1963 Supp (2) SCR 127 ]
Conditions of res judicata.—

In order to constitute a matter as res judicata, the following conditions must be there:
(i) There must be two suits one former suit and the other subsequent suit;
(ii) The Court which decided the former suit must be competent to try the subsequent suit;
(iii) The matter directly and substantially in issue must be the same either actually or
constructively in both the suits;
(iv) 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;
(v) The parties to the suits or the parties under whom they or any of them claim must be the
same in both the suits;
(vi) The parties in both the suits must have litigated under the same title.
Former suit-
Supreme Court has held in Venkataswara Prabhu v Krishna Prabhu, AIR 1977 SC 1268 :
(1977) 2 SCC 181 that "The expression "former suit", according to Explanation I of section
11, Civil Procedure Code, 1908, makes it clear that if a decision is given before the institution
of the proceeding which is sought to be barred by res judicata, and that decision is allowed to
become final or becomes final by operation of law, a bar of res judicata would emerge".
Former court to be competent to try subsequent suit

Under section 11, it is necessary that the Court trying the former suit should have been
competent to try the subsequent suit itself. [ Mylavarapu C Sanyasi Prasad Rao v Runku
Lakshamayya, AIR 1977 AP 143 ]
The plain and grammatical meaning of the word "suit" occurring in clause "in a Court
competent to try such subsequent suit or the suit in which such issue has been subsequently
raised" of section 11 of Code of Civil Procedure, 1908 includes the whole of the suit and not
a part of the suit. It is whole of the suit which should be within the competence of the Court
at the earlier time and not a part of it. [Gulab Bai v Manphool Bai, AIR 1962 SC 214 (218)]
Explanation VIII was inserted by the Amending Act of 1976 in order to ensure that the
decisions of the Courts of limited jurisdiction, in so far such decisions are within the
competence of the Courts of limited jurisdiction, must operate as res judicata in a subsequent
suit, although the Courts of limited jurisdiction may not be competent to try such subsequent
suit.
Matter directly and substantially in issue.—

According to Mulla, the matters in issue may be classified in two broad heads—
(1) matters directly and substantially in issue and
(2) matters collaterally or incidentally in issue.
(a) Matters directly and substantially in issue.—Matters directly and substantially in

issue have further been sub-divided into: (A) Actually in issue and (B)
Constructively in issue.
(A) Actually in issue.—The question whether a matter was directly and substantially in issue
in the former suit has to be decided (a) on the pleadings in the former suit; (b) the issue struck
therein and; (c) the decision in the suit.
Further, it depends upon whether a decision on such an issue will materially affect the
decision of the suit. [ Isher Singh v Sarwan Singh, AIR 1965 SC 948 ]
If an issue was "necessary" to be decided for adjudicating on the principal issue and was
decided. Then it would have to be treated as directly and substantially in issue and if it is
clear that the judgment was in fact based upon that decision then it would be res judicata in a
latter case. The expression "Collaterally and incidentally" in issue implies that there is
another matter which is "directly and substantially" in issue. [ Ajjadnashin Syed Md BE Edr v
Musa Dadabhai Ummer, AIR 2000 SC 1238 ]
Questions raised and decided at the express request of the parties must be taken to have been
directly and substantially in issue. [Benaras Ice Factory v Amar Chand Vadnagar, AIR 1961
Cal 422]
The "matter cannot be directly in issue" unless it has been alleged by one party and either
denied or admitted expressly or impliedly by the other (Explanation III). It is not enough that
the matter was alleged by one party.
At the same time it is not necessary that a distinct issue should have actually been framed.
[Narayani v Durgalal, AIR 1968 Raj 94]
A matter must be held to be directly and substantially in issue if the Court considers the
adjudication of the issue to be material and essential for its decision. [ Laxman v Saraswathi,
AIR 1959 Bom 125 ]
Even an erroneous decision on a question of law operates as res judicata between the parties
to it. The correctness or otherwise of a judicial decision has no bearing upon the question
whether or not it operates as res judicata.
It follows that the rule of res judicata does not depend on the identity of subject-matter but on
the identity of issue.[ Nanda Lal Roy v Pramatha Nath Roy, AIR 1933 Cal 222]
Matter in issue thus is distinct from the subject-matter and the object of the suit and also from
the relief that may be asked for in the suit and the cause of action on which the suit is based
and therefore, even if in a case where a subject-matter, the object, the relief claimed and the
cause of action are different, the rule of res judicata can apply. [Abdul Gani v Nabendra
Kishore Roy, AIR 1930 Cal 47]
(B) Constructively in issue (Explanation IV)—(Constructive Res Judicata).—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.[ Alluri China Bapanna v Sri Mutangi Jaggiah, AIR 1939 Mad
818]
An adjudication is conclusive and final not only as to the actual matters determined but as to
every other matter which the parties might have litigated and have had decided as incidental
to or essentially connected with the subject-matter of the litigation.
Explanation V to section 11 of the Code provides that any relief claimed in the plaint which
is not expressly granted by the decree, shall be deemed to have been refused.
The doctrine of constructive res judicata embodied in Explanation IV will apply to execution
proceedings. The doctrine of constructive res judicata will apply to execution proceedings to
the extent where a judgment-debtor fails to raise all his objections to the application for
execution of the decree made by the decree-holder which he might and ought to have raised
and the application has been ordered to proceed, then all such objections will be deemed to
have been impliedly decided against the judgment-debtor and the judgment-debtor thereafter
cannot raise the same objections in a subsequent execution of the same decree. [Dulabibi v
Parmanand Das, AIR 1940 Pat 251]
(b) Matters collaterally or incidentally in issue.—Decisions on matters not alleged and
denied or admitted within the meaning of Explanation III are decisions on matters
incidental and collateral to the main issue in the case and will not operate as res
judicata in a subsequent suit.
Finally Heard and Decided

where in the judgment and decree in the former suit it is stated that it is to be subject to a
decision of Higher Court, the decision is not a final one.
Similarly, when the former suit is dismissed on the ground of limitation the question of title
raised therein cannot be said to have been finally decided. [Har Swarup v Anand Swarup,
AIR 1942 All 410]
It has been held by the Supreme Court in Kewal Singh v Lajwanti, AIR 1980 SC 161 : (1980)
1 SCC 290 as follows: It is well settled that one of the essential conditions of res judicata is
that there must be a formal adjudication between the parties after full hearing. In other words,
the matter must be finally decided between the parties. Here also at a time when the plaintiff
relinquished her first cause of action the defendant was nowhere in the picture, and there
being no adjudication between the parties, the doctrine of res judicata does not apply.
Where an appeal is preferred against only a part of the decree covering one lot of property,
the decree covering rest of the property becomes final.
The following conditions must be fulfilled before any matter is said to have been "heard
and finally decided":
The decision in the former suit must have been on merits.—In order that a matter may be said
to have been "heard and finally decided", the decision in the former suit must have been on
the merits. Hence, it could not be said to be heard and finally decided, if the former suit was
dismissed:
(i) for want of jurisdiction, or
(ii) for default of plaintiff's appearance under O IX, rule 8, or
(iii) on the ground of non-joinder of parties, or misjoinder of parties, or
(iv) for failure to furnish security for costs, or
(v) for want of a cause of action, or
(vi) for want of notice, or
(vii) on the ground that it is premature, etc.
Two suits having common issues were decided by the trial Court on merits. Then two appeals
were filed therefrom. One of them was dismissed on the ground of limitation or default in
printing with the result the trial Court's decision stood confirmed. The decision of the appeal
Court would be res judicata. The appeal Court must be deemed to have heard and finally
decided the matter. In such a case the result of the decision of the appeal Court is to confirm
the decision of the trial Court, given on merits, and if that is so, the decision of the appeal
Court would be res judicata. [Sheodan Singh v Daryao Kunwar, AIR 1966 SC 1332 (1339)]
The decision in the former suit must have been necessary to the determination of that suit.—It
has been held by the Privy Council that finding on an unnecessary or irrelevant issue cannot
operate as res judicata. A finding on an issue cannot be said to be necessary to the decision of
a suit unless the decision was based upon that finding.[ Sheodan Singh v Daryao Kunwar,
AIR 1966 SC 1332 (1339)]
Same parties or parties under whom any of them claim.—This condition is based on the
well-known principle that judgments and decrees bind only parties and privies.
If the parties in two suits are the same and the subject matter is also the same. But the issues
and cause of action are different. In such a case, in the absence of pleadings issues and
finding on those issues, the rule of res judicata cannot be invoked.[ Deva Ram v Ishwar
Chand, AIR 1996 SC 378 (382)]
Omission of party's name in the formal order by oversight will not deprive him of his
character of a party.[ Kalipada De v Dwijapad Dass, AIR 1930 PC 22] Similarly, persons
whose names are introduced on record by fraud and without their knowledge are not parties.[
J Kotamma v Sinhachalam, AIR 1969 AP 76 (DB)] Likewise, persons wrongly made parties
in execution proceedings are not parties. A person merely interested in litigation is not a
party.
The Supreme Court also has considered the effect of Explanation VI of section 11 and held
thus: The principle of representation of the interest of a person, not impleaded by name in a
judicial proceeding, through a named party is not unknown. A karta of Joint Hindu Family
has always been recognised as a representative of the other members of Joint Hindu Family,
and so has been a trusty. In cases where the provisions of O I, rule 8 of Code of Civil
Procedure are attracted a named party in a suit represents the other persons interested in the
litigation, and likewise a receiver appointed in one case represents the interest of the litigating
parties in another case against a stranger. [Surayya Begum v Mohd Usman, (1991) 3 SCC
114]
Similarly, the real owner is entitled to the benefits under a decree obtained by his benamidar
against a stranger and at the same time is also bound by the decision. Examples can be
multiplied.
An entire body of persons having common interest in the trust is barred by constructive res
judicata, from reagitating matters directly and substantially in issue in earlier suit under
section 92 of the Code.

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The principle of res judicata is founded on three principles which are non-negotiable in any

civilised version of jurisprudence, namely:

Conditions of res judicata.—

Former court to be competent to try subsequent suit

Matter directly and substantially in issue.—

(a) Matters directly and substantially in issue.—Matters directly and substantially in

(B) Constructively in issue (Explanation IV)—(Constructive Res Judicata).—The principle

Finally Heard and Decided

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