SAME PARTIES
The second condition of res judicata is that the former suit must have been a suit between the same parties or between the parties under whom they or any of them claim.
This condition recognises the general principle of law that judgments and decree bind the parties and privies.["Res inter alios acta alteri nocere non debet" (Things done between strangers ought not to injure anyone).
Therefore, when the parties in the subsequent suit are different from the former suit, there is no res judicata.
ILLUSTRATIONS
A sues B for rent. B contends that A is not the landlord, and the suit is dismissed. A sub equent suit either by A or by X claiming through A is barred by res judicata
A sues B for rent. B contends that C and not A is the landlord. A fails to prove his title and the suit is dismissed. A then sues B and C for a declaration of his title to the property. The suit is not barred as the parties in both the suits are not the same
PARTY: MEANING
A "party" is a person whose name appears on the record at the time of the decision.
Thus, a person who has intervened in the suit is a party, but a party to the suit whose name is struck off, or who is discharged from the suit or who dies pending the suit but whose name continues on record erroneously is not a party. A party may be a plaintiff or a defendant.
RES JUDICATA BETWEEN CO-DEFENDANTS
As a matter may be res judicata between a plaintiff and a defendant, similarly, it may be res judicata between co-defendants and co-plain-tiffs also.
An adjudication will operate as res judicata between co-defendants if the following conditions are satisfied:
1. There must be a conflict of interest between co-defendants;
2. It must be necessary to decide that conflict in order to give relief to the plaintiff;
3. The question between co-defendants must have been finally decided; and
4. The co-defendants were necessary or proper parties in the former suit.
If these conditions are satisfied, the adjudication will operate as res judicata between co-defendants
ILLUSTRATION
§ A sues B, C and D and in order to decide the claim of A, the Court has to interpret a will. The decision regarding the construction of the will on rival claims of the defendants will operate as res judicata in any subsequent suit by any of the defendants against the rest.
COTTINGHAM V. EARL OF SHREWSBURY
The test for res judicata between co-defendants has been laid down
"If a plaintiff cannot get at his right without trying and deciding a case between co-defendants, the Court will try and decide the case, and the co-defendants will be bound.
But if the relief given to the plaintiff does not require or involve a decision of any case between co- defendants, the co-defendants will not be bound as between each other by any proceeding which may be necessary only to the decree the plaintiff obtains."
MAHBOOB SAHAB V. SYED ISMAILAIR 1995 SC 1205
The Supreme Court added a word of caution while applying the doctrine of res judicata between co-defendants by stating, "The doctrine of res judicata would apply even though the party against whom it is sought to be enforced, was not eonomine made a party nor entered appearance nor did he contest the question. The doctrine of res judicata must, however, be applied to co- defendants with great care and caution.
The reason is that fraud is an extrinsic collateral act, which vitiates the most solemn proceedings of courts of justice. If a party obtains a decree from the court by practicing fraud or collusion, he cannot be allowed to say that the matter is res judicata and cannot be reopened
RES JUDICATA BETWEEN CO-PLAINTIFFS
IFTIKHAR AHMED V. SYED MEHARBAN ALI, AIR 1974 SC 749 AT P. 751
Just as a matter may be res judicata between co-defendants, so also it may be res judicata between co- plaintiffs. If there is a conflict of interest between plaintiffs and it is necessary to resolve the same by a court in order to give relief to a defendant, and the matter is in fact decided, it will operate as res judicata between co-plaintiffs in the subsequent suit.
PRO FORMA DEFENDANT
A defendant to a suit against whom no relief is claimed is called a pro forma defendant. A person may be added as a pro forma defendant in a suit merely because his presence is necessary for a complete and final decision of the questions involved in the suit. [Or. 1 R. 10(2).]
In such a case, since no relief is sought against him, a finding does not operate as res judicata in a subsequent suit against him.
On the other hand, the fact that the party is described as a pro forma defendant or that no relief is claimed against him is, by itself, not sufficient to avoid the bar of res judicata if other conditions laid down in the section are satisfied.
ILLUSTRATIONS
1. A sues B for possession of property contending that he is a tenant of C.C is joined as pro forma defendant and no relief is claimed against him. The suit is dismissed as the Court finds B to be the owner. C then sues B for possession on the basis of title. B's contention that the issue regarding ownership of property is res judicata must fail as the issue was decided in the former suit between A and B and not between C and B as C was only a pro forma defendant
2. A sues B for rent claiming to be a sole she bait. B contends that X was also a co-shebait and the suit filed
by A alone was, therefore, not maintainable. X was joined as pro forma defendant and no relief was claimed against him.
3. A finding by the Court that A was the sole she bait would operate as res judicata in a subsequent suit between X and A on the question of co-she bait ship as the decision in the previous suit was necessary for granting relief in favour of A.
INTERVENERS
An "intervener" is one "who intervenes in a suit in which he was not originally a party", "an affected party who, with the court's permission, participates in a law suit after its inception by either joining with the plaintiff or uniting with the defendant."
A person may intervene in a suit either on his own behalf or on behalf of the parties with the leave of the court. Such intervener is considered to be a party to the suit, once he is permitted to intervene no matter at what stage of the suit he intervenes.
The decision in the suit then will operate as res judicata in a subsequent suit by or against such person (intervener) on the point already decided.
MINORS
§ When a suit is filed against a minor who is duly represented by a guardian or next friend and a decree is passed in such suit the decree binds the minor.
§ But if the decree is obtained against a minor not represented by a guardian or there is fraud, collusion or gross negligence of the guardian, a decree passed in the suit will not operate as res judicata against him (minor) in a subsequent suit.
PARTIES UNDER WHOM THEY OR ANY OF THEM CLAIM
The doctrine of res judicata operates not only against parties but their privies also, i.e., persons claiming under parties to the decision.
The object underlying the doctrine of res judicata is that if a proceeding originally instituted is proper, the decision given therein is binding on all persons on whom a right or interest may devolve.
"PARTIES UNDER WHOM THEY OR ANY OF THEM CLAIM" COMPRISE TWO CLASSES OF PERSONS:
1. Parties actually present in the former suit;
2. Parties claiming under the parties to the suit (privies); and
3. Persons represented by a party in the former suit (Explanation VI).
ILLUSTRATION
A sues B for a declaration of title to the property and obtains a decree. Thereafter A sues C for possession of that property. C contends that B is the owner and that he is in possession as B's tenant. The defence is barred inasmuch as C claims through B.
REPRESENTATIVE SUIT: EXPLANATION VI
Explanation VI to section 11 of the Code of Civil Procedure, 1908 deals with res judicata in
a. Suit against minors
b. Representative suits
c. Indigent suits
d. None of the above
EXPLANATION VI
Section 11 deals with representative suits, i.e., suits instituted by or against a person in his representative, as distinguished from individual capacity.
This Explanation provides that where persons litigate bona fide in respect of a public right or of a private right claimed in common for themselves and others, and all persons interested in such right shall, for the purposes of Section 11, be deemed to claim under the persons so litigating.
Explanation VI, thus illustrates one aspect of constructive res judicata. Thus, where a representative suit is brought under Section 92 of the Code and a decree is passed in such a suit, law assumes that all persons who have the same interest as the plaintiffs in the representative suit were represented by the said plaintiffs and, therefore, are constructively barred by res judicata from reagitating the matters directly and substantially in issue in the former suit.
CONDITIONS
The following conditions must be satisfied before a decision may operate as res judicata under Explanation VI:
1. There must be a right claimed by one or more persons in common for them selves and others not expressly named in the suit;
2. the parties not expressly named in the suit must be interested in such right;
3. the litigation must have been conducted bona fide and on behalf of all parties interested; and
4. if the suit is under Order 1 Rule 8, all conditions laid down therein must have been strictly complied with.
It is only when the above conditions are satisfied that a decision may operate as res judicata in the subsequent suit.
Thus, where a party claims a right for himself alone which happens to be common to him and others, it cannot be said that he was litigating on behalf of others and Explanation VI does not apply.
Similarly, if the earlier proceeding was not a bona fide public interest litigation, the subsequent pro ceding would not be barred.
PUBLIC INTEREST LITIGATION
If the object of Explanation VI of Section 11 is considered, there is no good reason why it cannot apply to a bona fide public interest litigation.
If the previous litigation was a bona fide public interest litigation in respect of a right which was common and was agitated in common with others, the decision in previous litigation would operate as res judicata in a subsequent litigation.
But if the earlier proceeding was not a bona fide public interest litigation, the subsequent proceeding would not be barred.
