RES JUDICATA: SECTION 11
Explain the doctrine of Res Judicata. Write a short note on: Doctrine of res judicata.
MEANING OF RES JUDICATA
Section 11 of the Code of Civil Procedure embodies the doctrine of res judicata or the rule of conclusiveness of a judgment as to the points decided either of fact, or of law, or of fact and law, in every subsequent suit between the same parties.
It enacts that once a matter is finally decided by a competent court, no party can be permitted to reopen it in a subsequent litigation.
In the absence of such a rule there will be no end to litigation and the parties would be put to constant trouble, harassment and expenses.
SATYADHYAN GHOSAL V. DEORJIN DEBI [AIR 1960 SC 941: (1960) 3 SCR 590
The doctrine of res judicata has been explained by Das Gupta, J. in the case. 'The principle of res judicata is based on the need of giving a finality to judicial decisions. What it says is that once res is judicata, it shall not be adjudged again.
ILLUSTRATIONS
A sues B for damages for breach of contract. The suit is dismissed.
A subsequent suit by A against B for damages for breach of the same contract is barred.
A's right to claim damages from B for breach of contract having been decided in the previous suit, it becomes res judicata, and cannot therefore be tried in the subsequent suit.
B cannot be vexed twice over for the same cause (breach of contract).
Moreover, public policy also requires that there should be an end to a litigation and for that reason, the previous decision must be accepted as correct, lest every decision would be challenged on the ground that it was an erroneous decision and there would be no finality.
A files a petition in a High Court under Article 226 of the Constitution for reinstatement in service and consequential benefits contending that an order of dismissal passed against him is illegal. The petition is dismissed.
A cannot thereafter file a fresh petition in the Supreme Court under Article 32 of the Constitution nor can institute a suit in a civil court as such petition or suit would be barred by res judicata.
SECTION 11
"No Court shall try any suit or issue in which the matter directly and substantially in issue has been directly and substantially in issue in a former suit between the same parties, or between parties under whom they or any of them claim, litigating under the same title, in a Court competent to try such subsequent suit or the suit in which such issue has been subsequently raised, and has been heard and finally decided by such Court.
EXPLANATION I
The expression 'former suit' shall denote a suit which has been decided prior to the suit in question whether or not it was instituted prior thereto.
EXPLANATION II
For the purposes of this section, the competence of 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,
notwithstanding that such Court of limited jurisdiction was not competent to try such subsequent suit in which such issue has been subsequently raised."
CONDITIONS OF RES JUDICATA
It is to be noted that it is not every matter decided in a former suit that can be pleaded as res judicatain a subsequent suit. Keeping in mind the provisions of S.11 and its eight Explanations, it can be said that, to constitute a matter res judicata, the following five conditions must be present: -
CONDITION I
The matter directly and substantially in issue in the subsequent suit must be the same matter which was directly and substantially in issue, either actually or constructively, the former suit. (Explanation IV)
CONDITION II
The former suit must have been a suit between the same parties or between parties under whom they (or any of them) claim. (Explanation VI is also to be borne in mind when considering this condition.)
CONDITION III
In the former suit, the parties must have litigated under the same title.
CONDITION IV
The court which decided the former suit must have been a court which is competent to try the subsequent suit. (Explanation II is also relevant in this connection.)
CONDITION V
The matter which is directly and substantially in issue in the subsequent suit must have been heard and finally decided by the court in the former suit. (Explanation Vis also to be read with this condition.)
STATE OF KAMATAKAV. ALL INDIA MANUFACTURERS ORGANIZATION, AIR 2006 SC 1846: 2006 (4) KAR LJ 369: 2006 (4) SCALE 398: (2006) 4 SCC 683
the Supreme Court observed that, the doctrine of res judicata is based upon the three known maxims-
1. Nemo debet bis vexari pro uno et eadem causa. -Noman should be vexed twice for the same cause.
2. Interest republiceut sit finislitium. - It is in the interest of the state that there should be an end to a litigation.
3. Res judicata pro veritateacipiture. - A judicial decision must be accepted as correct.
Thus, the doctrine of res judicata is the combined result of public policy reflected in maxims (b) and (c) and private justice expressed in maxim (a); and they apply to all judicial proceedings whether civil or criminal.
HISTORY
The rule of res judicata has a very ancient history. It was well understood by Hindu lawyers and Mohammedan jurists.
It was known to ancient Hindu Law as Purva Nyaya (former judgment).
Under the Roman Law, it was recognised that "one suit and one decision was enough for any single dispute" The doctrine was accepted in the European continent and in the Commonwealth countries.
EXTENT AND APPLICABILITY
The doctrine of res judicata is a fundamental concept based on public policy and private interest. It is conceived in the larger public interest which requires that every litigation must come to an end.
It, therefore, applies to civil suits, execution proceedings, arbitration proceedings, taxation matters, industrial adjudication, writ petitions, administrative orders, interim orders, criminal proceedings, etc.
RES JUDICATA AND RULE OF LAW
DARYAOV. STATE OF UP. [AIR 1961 SC1457: (1962) 1 SCR 574
The doctrine of res judicata is of universal application. 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'’
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.
RES JUDICATA AND RES SUB JUDICE
The doctrine of res judicata differs from res sub judice in two aspects:
1. whereas res judicata applies to a matter adjudicated upon (res judicatum), res sub judice applies to a matter pending trial (sub judice) and
2. res judicata bars the trial of a suit or an issue which has been decided in a former suit, res sub judicebars trial of a suit which is pending decision in a previously instituted suit.
RES JUDICATA AND ESTOPPELS
SECTION.115 OF THE EVIDENCE ACT, 1872 PROVIDES:
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".
The doctrine of res judicata is often treated as a branch of the law of estoppel. Res judicata is really estoppel by verdict or estoppel by judgment (record). The rule of constructive res judicata is nothing else but a rule of estoppel. Even then, the doctrine of res judicata differs in essential particulars from the doctrine of estoppel.
Whereas res judicata results from a decision of the court,
The rule of res judicata is based on public policy, viz., that there should be an end to litigation.
While res judicata bars multiplicity of suits,
Res judicata ousts the jurisdiction of a court to try a case and precludes an enquiry in limine(at the threshold);
Res judicata prohibits a man averring the same thing twice in successive litigations,
The rule of res judicata presumes conclusively the truth of the decision in the former suit,
While res judicata binds both the parties to a litigation,
Estoppel flows from the act of parties.
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.
Estoppel prevents multiplicity of representations.
Estoppel is only a rule of evidence and shuts the mouth of a party.
While estoppel prevents him from saying one thing at one time and the opposite at another,
While the rule of estoppel prevents a party from denying what he has once called the truth.
Estoppel binds only that party who made the previous statement or showed the previous conduct.
RES JUDICATA AND STARE DECISIS
Res judicata and stare decisis are members of the same family. Both relate to adjudication of matters.
Both deal with final determination of contested questions and have the binding effect in future litigation.
Both the doctrines are the result of decisions of a competent court of law and based on public policy. There is, however, distinction between the two.
Whereas res judicata is based upon conclusiveness of judgment and adjudication of prior findings, stare decisis rests on legal principles.
Res judicata binds parties and privies, while stare decisis operates between strangers also and binds courts from taking a contrary view on the point of law al- ready decided.
Res judicata relates to a specific controversy, stare decisis touches legal principle.
Res judicata presupposes judicial finding upon the same facts s involved in subsequent litigation between the same parties. Stare decisis applies to same principle of law to all parties.
RES JUDICATA AND SPLITTING OF CLAIMS
OR. 2 R. 2 WHICH PROHIBITS SPLITTING OF CLAIMS READS AS UNDER:
1. "Every suit shall include the whole of the claim which the plaintiff is entitled to make in respect of the cause of action; but a plaintiff may relinquish any portion of his claim in order to bring the suit within the jurisdiction of any court.
2. Where a plaintiff omits to sue in respect of, or intentionally relinquishes, any portion of his claim, he shall not afterwards sue in respect of the portion so omitted or relinquished.
3. A person entitled to more than one relief in respect of the same cause of action may sue for all or any of such reliefs; but if he omits, except with the leave of the Court, to sue for all such reliefs, he shall not afterwards sue for any relief so omitted".
THE DOCTRINE OF RES JUDICATA ALSO DIFFERS FROM ORDER 2 RULE 2 OF THE CODE
Firstly, the former refers to a plaintiff's duty to bring forward all the grounds of attack in support of his claim,
Secondly, while the former rule refers to both the parties, plaintiff as well as defendant, and precludes a suit as well as a defence,
while the latter only requires a plaintiff to claim all reliefs flowing from the same cause of action.
the latter refers only to a plaintiff and bars a suit.
MATTER DIRECTLY AND SUBSTANTIALLY IN ISSUE: EXPLANATION III
To constitute a matter res judicata, it is essential that it must have been directly and substantially in issue, as distinguished from collaterally or incidentally in issue, in the former suit.
A matter cannot be said to have been directly and substantially in issue in a suit, unless it was alleged by one party and denied or admitted, either expressly or by necessary implication, by the other.
Every suit involves matters in respect of which relief is claimed by the plaintiff. Such matters are necessarily matters which are “directly and substantially in issue”.
The latter class of matters would be collaterally or incidentally in issue, and, therefore, not covered by S. 11.
ILLUSTRATIONS
1. A sues B for the rent of certain lands for the year 2015. B’ defence is that no rent is due. Here, the claim for rent is a matter in respect of which relief is claimed. It is, therefore, a matter which is directly and substantially in issue.
2. A sues B (i) for a declaration of title to certain lands, and (ii) for the rent of those lands for the year 2015. B denies A’ stitle to the lands and contends that no rent is due. In this case, there are two mattersin respect of which relief is claimed, viz., the title to the lands and the claim for rent. Both these matters are, therefore, directly and substantially in issue.
3. A sues B for rent. B pleads that lesser rent is payable, because the actual area of the land is lesser than what is mentioned in the lease-deed. The court, however, finds that the actual area is greater than the one shown in the lease. This finding as to excess area is not res judicata, because this issue was only collaterally or incidentally in issue.
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.
A matter directly and substantially in issue may again be so either actually or constructively.
MATTER ACTUALLY IN ISSUE EXPLANATION III
A matter is actually in issue when it is alleged by one party and denied or admitted by the other (Explanation III).
MATTER CONSTRUCTIVELY IN ISSUE: EXPLANATION IV
A matter can be said to be constructively in issue when it "might and ought" to have been made a ground of defence or attack in the former suit. Explanation. IV to Section 11
CONSTRUCTIVE RES JUDICATA (EXPLANATION. IV)
Explanation IV draws no distinction between a claim that was actually made in a suit and a claim which might and ought to have been made. If the parties had an opportunity to controverting it, it is the same thing as if the matter had been actually controverted and decided.
Thus, X, a Hindu, dies leaving a widow. The widow makes a gift to her broth r, B, of certain property belonging to her husband. After the death of the widow, A, alleging that he and X were members of a joint family, sues B for a declaration that he is entitled to the property by right of survivorship.
The court finds that A and X were separate, and A's suit is dismissed. Subsequently, A sues B for the recovery of the same property, alleging that as the nearest reversionary heir of X, he became entitled to the property on the death of the widow, and that the alienation made by her in favour of B was not binding upon him.
The suit is barred as res judicata. A might and ought to have set up the title by heirship as a ground of attack in the former suit.
The matter will, therefore, pe deemed to have been “directly and substantially in issue” in that suit, and it will also be deemed to have been “heard and finally decided” against A. Gundappav. Tilrappa, (1901) 245 Bom. 189)
Thus, the rule of res judicata is not limited to matters actually alleged by one party and either denied or admitted, expressly or impliedly by the other. It goes further and bars the trial of a subsequent suit on the ground that the natters directly and substantially in issue therein might and ought to have been made a ground of attack or defence in a former suit which has been decided between the same parties. This is what is meant by constructive res judicata. (Explanation IV to S. 11)
Execution proceedings: While it is true that the doctrine of constructive res judicata is applicable to execution proceedings (Explanation VII) the court should be cautious in such application.
Issue of law: The section provides that no court shall try any suitor issue. Now, issues may be of fact or law or both. Hence, an issue of law can also be res judicata.
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.
Section 11 by a deeming provision lays down that any matter which might and ought to have been made a ground of defence or attack in the former suit, but which has not been made a ground of attack or defence, shall be deemed to have been a matter directly and substantially in issue in such suit.
The principle underlying Explanation IV is that where the parties have had an opportunity of controverting a matter, that should be taken to be the same thing as if the matter had been actually controverted and decided.
The object of Explanation IV is to compel the plaintiff or the defendant to take all the grounds of attack or defence which were open to him.
In other words, all the grounds of attack and defence must be taken in the suit.
DIRECT RES JUDICATA
The rule of direct res judicata is limited to a matter actually in issue alleged by one party and either denied or admitted by the other party expressly or impliedly.
CONSTRUCTIVE RES JUDICATA
But the rule of constructive res judicata engraft- ed 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 y 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.
Workmen v. Board of Trustees, Cochin Port Trust, [(1978) 3 SCC 119: AIR 1978 SC 1283
The Supreme Court explained the principle of constructive res judicata.
ILLUSTRATIONS
A sues B for possession of property on the basis of ownership. The suit is dismissed. A cannot thereafter claim possession of property as mortgagee as that ground ought to have been taken in the previous suit as a ground of attack.
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.
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.
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.
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
As a mortgagor A sues B for redemption of certain property alleging hat 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.
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.
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.
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.
STATE OF U.P. V. NAWAB HUSSAIN [(1977) 2 SCC 806: AIR 1977 SC 1680
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.F., the D.I.G. had no power to dismiss him. The State contended at 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.
NIRMAL EMM V. JAHAN AM, (1973) 2 SCC189 AT P. 192: AIR 1973 SC1406 AT P. 1409
The same principle applies to pleas which were taken but not pressed at the time of hearing.
FORWARD CONSTRUCTION CO, V. PRABHAT MANDAL REGD., (1986)1 SCC 100: AIR 1986 SC 391
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 the matter has been constructive in issue it cannot be said to have been actually heard and decided. It could only be deemed to have been heard and decided.’'
DEVILAL MODI V. STO AIR 1965 SC 1150: (1965) 1 SCR 686
A challenged the validity of an order of assessment under Article 226. The petition 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, CJ. observed, Though the courts dealing with the question of the infringement of fundamental rights must consistently endeavor 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. Considerations of public policy cannot be ignored in such cases, and the basic doctrine that judgment pronounced by this Supreme Court are binding and must be regarded as final between the parties in respect of matters covered by them must receive due consideration.
MIGHT AND OUGHT
The expression "might" and “ought” to be of wide import. The word "might" presuppose the party affected had knowledge of the ground of attack or defence at the time of the previous suit. “Ought” to compel the party to take such ground. The word "and" between the terms "might" and "ought" must be read as conjunctive (and) and not disjunctive (or). And unless it is proved that the matter might and ought to have been raised in the previous litigation, there is no constructive res judicata.
MATTER COLLATERALLY OR INCIDENTALLY IN ISSUE
The words "directly and substantially in issue" have been used in Section 11 in contradistinction to the words "collaterally or incidentally in issue".
Decisions on matters collateral or incidental to the main issues in a case will not operate as res judicata.
A collateral or incidental issue means an issue which is ancillary to the direct and substantive issue. It refers to a matter in respect of which no relief is claimed and yet it is put in issue to enable a court to adjudicate upon the matter which is directly and substantially in issue.
The expression "collaterally or incidentally in issue" implies that there is another matter which is "directly and substantially in issue".
ILLUSTRATION
A sues B for the rent due. B pleads abatement of rent on the ground that the actual area of the land is less than that mentioned in the lease deed. The court, however, finds the area greater than that shown in the lease deed. The finding as to the excess area, being ancillary and incidentally to the direct and substantial issue, is not res judicata.
Thus, in Gangabaiv. Chhabubai [ (1982) 1 SCC 4: AIR 1982 SC 20.]a regular civil suit was filed by A against B for a declaration that she was the owner of the property and the so- called sale deed said to have been executed by her in favour of B was not real and genuine, and also for possession of property on the ground of title.
B contended that he had become the owner of the property and the decree for arrears of rent had been previously passed by the Court of Small Causes in his favour, negativing the contention of A that she was the owner.
She had been held to be the tenant. The subsequent suit, it was contended, was, therefore, barred by the doctrine of res judicata.
NEGATIVING THE CONTENTION, THE SUPREME COURT OBSERVED:
"It seems to us that when a finding as to title to immovable property is rendered by a Court of Small Causes, res judicata cannot be pleaded as a bar in a subsequent regular civil suit for the determination or enforcement of any right or interest of immovable property.
In order to operate as res judicata the finding must be one disposing of a matter directly and substantially in issue in the former suit and the issue should have been heard and finally decided by the court trying such suit,
GANGABAIV. CHHABUBAI, (1982) 1 SCC 4: AIR 1982 SC 20; SEE ALSO SUPRA, L1C V. INDIA AUTOMOBILES & CO. SUPRA; RAMESHWAR DAYALV. BANDA, (1993) 1 SCC 531
Accordingly, the Supreme Court held that the finding rendered by the Court of Small Causes in the suit filed by B that the document executed by A was a sale deed cannot operate as res judicata in the subsequent suit (suit filed by A against B on the basis of title.)
"MATTER DIRECTLY AND SUBSTANTIALLY IN ISSUE" AND "MATTER COLLATERALLY OR INCIDENTALLY IN ISSUE": DISTINCTION
In order to operate res judicata, a matter must have been directly and substantially in issue in a former suit and not merely collaterally or incidentally in issue therein. It is, therefore, necessary to draw a distinction between a matter "directly and substantially in issue" and a matter "collaterally or incidentally in issue’’.
AMALGAMATED COALFIELDS LTD. V. JANAPADA SABHA, AIR 1964 SC 1013 AT P. 1019:1963 SUPP (1) SCR 172
A matter is "directly and substantially in issue" if it is necessary to decide it in order to adjudicate the principal issue and if the judgment is based upon that decision.
ISHER SINGH V. SARWAN SINGH, AIR 1965 SC 948
A matter is "collaterally or incidentally in issue" if it is necessary to decide it in order to grant relief to a plaintiff or to a defendant and the decision on such issue either way does not affect the final judgment.
ISHAR SINGH V. SARWAN SINGH, SUPRA
Whether a matter was directly and substantially in issue or merely collaterally or incidentally in issue has to be determined with reference to plaint, written statement, issues and judgment in the suit. Such question must be decided on the facts of each case and no "cut and dried" test can be laid down.
FINDINGS ON SEVERAL ISSUES
Where there are findings on several issues or where the court rests its decision on more than one point, the findings on all the issues will operate as res judicata.
FINDINGS ON MATTER NOT IN ISSUE
If a finding is recorded by a court in a former suit on a question not in issue between the parties, it will not operate as res judicata.
The same result will follow if the matter is not dealt with by the court or merely an opinion has been expressed over a question which did not directly arise in the suit.
"SUIT": MEANING
HANSRAJ GUPTA V. OFFICIAL LIQUIDATORS OF THE DEHRA DUN-MUSSOORIE ELECTRIC TRAMWAY CO. LTD. [AIR 1933 PC 63 AT P. 64: (1932-33) 60 IA 13.88.]
The expression "suit" has not been defined in the Code, but it is a proceeding which is commenced by presentation of a plaint.
FORMER SUIT: EXPLANATION I
Section 11 provides that no court shall try any suit or issue in which the matter has been directly and substantially in issue in a former suit between the same parties and has been heard and finally decided. Explanation I to Section 11 provides that the expression "former suit" shall denote a suit which has been decided prior to the suit in question whether or not it was instituted prior thereto. It is not the date on which the suit is filed that matters but the date on which the suit is decided; so that even if a suit was filed later, it will be a former suit within the meaning of Explanation I if it has been decided earlier.
"ISSUE": MEANING
Section 11 bars trial of any suit as well as an issue which had been decided in a former suit. Issues are of three kinds: -
i. Issues of fact
ii. Issues of law &
iii. Mixed issues of law and fact
A decision on an issue of fact, however erroneous it may be, constitutes res judicata between the parties to the previous suit, and cannot be reagitated in collateral proceedings.
A mixed issue of law and fact also, for the same reasons, operates as res judicata
But there were conflicting views on the question as to how far a decision on a question of law would operate as res judicata.
But the conflict was set at rest by the powerful pronouncement of the Supreme Court in the case of
Mathura Prasad v. Dossibai N.B. Jeejeebhoy [(1970) 1 SCC 613 at p. 617
where in after considering the case-law on the point, the court held that generally a decision of a competent court even on a point of law operates as res judicata. The following observations of Shah, J. (as he then was) lay down the correct principle of law and are, therefore, worth quoting:
"The matter in issue, if it is one purely of fact, decided in the earlier proceeding by a competent court must in a subsequent litigation between the same parties be regarded as finally decided and cannot be reopened
A mixed question of law and fact determined in the earlier proceeding between the same parties may not, for the same reason, be questioned in a subsequent proceeding between the same parties.
But, where the decision is on a question of law, i.e., the interpretation of a statute, it will be res judicata in a subsequent proceeding between the same parties where the cause of action is the same, for the expression 'the matter in issue' in Section 11 of the Code of Civil Procedure means the right litigated between the parties, i.e., the facts on which the right is claimed or denied and the law applicable to the determi nation of that issue.
Where, however, the question is one purely of law and it relates to the jurisdiction of the court or a decision of the court sanctioning something which is illegal, by resort to the rule of res judicata a party affected by the decision will not be precluded from challenging the validity of that order under the rule of res judicata, for a rule of procedure cannot s persede the law of the land.
A pure question of law unrelated to facts which gives rise to a right does not operate as res judicata.
Thus, when the cause of action is different, or when the law has since the earlier decision been altered by a competent authority, or when the decision relates to the jurisdiction of a Court to try the earlier proceeding, or where the earlier decision declared valid a transaction which is prohibited by law, the decision does not operate as res judicata in a subsequent proceeding.
