1.
INTRODUCTION
The
common Law doctrine of Res Judicata gives respect and finality to the Judicial
decisions: This doctrine has been incorporated in section 11, of C P.C. based
on the general rule, that man shall not be twice vexed, for the same cause. The
bar of Res Judicata contained in section 11 would be fully attracted when
matter involved in second suit was the same as involved in previous litigation
up to High Court.
2.
RELEVANT PROVISIONS
Following
are the relevant provision of C.P.C regarding the topic of Res Judicata.
(I)
Section 11 of C.P.C
(II)
Cross Reference
(i)
Section 151 of C.P.C
(ii)
Section 403 Cr.P.C.
3.
MEANING OF RES JUDICATA
"The
term Res judicata Signifies, that the matter in dispute has been considered and
finally settled, and that the adjudication has a conclusive effect, upon the
rights determined".
4.
DEFINTITION OF RESJUDICATA
(I)
According to Spencer Sower:
Res
judicata means final judicial decision pronounced by a judicial tribunal having
competent jurisdiction over the cause or matter in litigation and over the
parties thereto".
(II)
According to justice Das Gupta
The
doctrine of Res Judicata has been explained in the simplest manner by justice
Das Gupta in the case of satyadhyn vs. Deorjn Debi, in the following words.
"The
principle of Res Judicata is based on the need of giving a finality to judicial
decision".
5. COMMON LAW PRINCIPLE OF RES JUDICATA
The
common Law principle of Res Judicata can be discussed as under.
LEADING
CASE OF DUCHESS OF KINGSTONES'S CASE
In
this case Sir William de Grey summarize the doctrine of res judicata in his
judgment in the following words.
"From
the variety of cases relative to judgments being given in evidence in civil
suit, these two deduction seems to follow as generally true.
Firstly:
Judgment, of a Court of concurrent jurisdiction, directly upon a point is
conclusive between the same parties upon the same matter directly in question
in another Court.
Secondly:
Judgment, of a court of exclusive jurisdiction, directly upon the point is,
conclusive between the same parties upon the same matter, coming incidentally
question, in another Court.
6. BASIS OF PRINCIPLE OF RES JUDICATA
The
rule of res judicata is based on the ground of public policy. If litigations
between parties on the same subject matter involving the same issue are allowed
to proceed there can be no end to litigation.
(I)
Case Law: Bahadur vs. Umar Hayat (PLD 1993)
"Res
Judicata is based on the consideration, that it would result in hardship to
individual, if he were to be vexed twice for the same cause, and it is in the
interest of state, that there should be an end to litigation".
THE
DOCTRINE OF RES-JUDICATA IS BASED ON THREE MAXIMS.
(i)
Namo debt lix Vexari Prouna et eaden causa:
"No
man should be vexed (annoy) twice over for the same cause".
(ii)
Interest republicae ut sit finislitium
"It
is in the interest of the state that there should be an end to a
litigation".
(iii)
Resjudicata Proveritate Occipitur
"A
judicial decision must be accepted as correct".
According
to Sir Lawrence Jenking:
"The
rule of res judicata, while foundation account of precedent is directed by a
wisdom which is for all time".
Thus
the doctrine of Res Judicata is the combined result of public policy reflected
in maxims (ii) and (iii) and private justice: expressed in maxim (i) and they
apply to all judicial proceeding whither- civil or criminal. But this rule
there would be no end to litigation and no security for any person, the rights
of person would be involved -endless confusion and great injustice done under
cover of the law. The principle is founded on justice, equity and good
conscience.
7. REASONS FOR RES JUDICATA
Following
are the reasons for the principle of Res Judicata.
(I)
EFFICIENCY OF COURT
Efficiency
of Court requires, that finality should be given judicial decisions and res
judicata works for this purpose.
(II)
PUBLIC CONVENIENCE
It
is for the public convenience, that having been tried one all litigation about
that cause should be concluded forever between those parties.
(III)
MAINTENANCE OF SOCIETY
The
maintenance of Public order and society requires that, what has been definitely
determined by competent tribunals shall be accepted as legal truth.
(IV)
SECURITY OF RIGHTS
If
the principle of Res Judicata not apply then the most important function of
Government that of. ascertaining and enforcing persons rights, would go
unfulfilled.
8. PRINCIPLE OF RES JUDICATA U/S 11 C.P.C
It
is not every matter decided in a former suit that can be pleaded, as res
judicata in a subsequent suit, but in order to constitute a matter res judicata
the following conditions must be present.
Case
Law: 2002 CLC KAR. 1620
The
principle of Res Judicata is embodied in section 11 of C.P.C. by virtue of
which subsequent Court is barred to try a suit, where the matter, directly and
substantially in issue, is been decided by a Court of competent jurisdiction.
(I) ESSENTIAL INGREDIENTS/CONDITIONS FOR THE APPLICABILITY OF SECTION 11:
To
apply section 11 following essentials ingredients/ conditions must be
fulfilled;
(i)
Same Matter in issue
All
the matter in issue must be same in both the suits. The term matter means
necessary facts, constituting the claim or defense.
Directly
or substantially: Matter in both suits must be directly and substantially
same.
"A
matter shall be directly in issue which have been alleged by one party and
either denied or admitted expressly or impliedly by the other". "A
matter shall be substantially i issue if it is important and valuable for the
decision of the case".
(ii)
Same Parties
Both
the suits must have been between the same, parties or their representatives
under whom they or any of them claim. For the purposes of res judicata a person
can either be;
(i) a party or
(ii) Claim under a party i.e. privy
(iii) or be represented by a party to a
suit, or
(iv) be a complete stranger
Examples:
If A sues B for a declaration of title to a certain land and obtains a decree
and A, then sues C for possession and C contends that B is the owner of the
land and he is in possession as tenant of B the defense is barred by the principle
of Res Judicata.
Ordinarily,
a person whose name appears on the record as a plaintiff or defendant at the
time of the decision of the suit, is a party for the purposes of res judicata,
but where the name is omitted in the formal order by mistake such person will
still be bound. A person who intervenes in a suit will be considered to be a
party. A judgment as such will not operate as res judicata upon some persons,
even though they may have been parties to the suit at same stage.
For
Instance:
(i)
A party whose name is struck off or who is discharged from the suit.
(ii)
A person whose name is born on the record fraudulently and without his
knowledge.
(iii)
A person whose application be made a party has been refused.
(iii)
Same Title
• The parties must be contesting in
both the suits, under the same title;
• The term "Titles" refers
to the legal capacity on interest of a party of legal personality of a party.
In order that a matter be res judicata not only should the parties be the same,
but such parties should litigating under the
same title as in the former suit. The title will be the same in the
following cases.
(i) Former
suit as husband's heir and subsequent suit as claimant for dower.
(ii)
Former suit against firm and subsequent suit against partner thereof.
• A verdict against a man suing in
one capacity will not stop him when he sues in another capacity. Thus where a
suit is brought by a person for possession of math property in the mi capacity
of an heir of the deceased mahant but the suit fails because of his failure to
establish heir ship, he is not debarred to bring another suit in the capacity
of manager of the math property.
• The title of a property has nothing
to do with the subject matter of the suit, or the cause of action. All that is
to be seen that the matters directly and substantially in issue must be the same
in both suits where the parties to the former suit and the subsequent suit are
the same but they are not legitimating under the same title, the decision in
the former suit will not be Res Judicata in the subsequent suit.
(iv)
First suit must be DECIDED
• Such matter in issue in a
subsequent suit must have been heard and finally decided by the Court in the first
suit.
• The term res judicata indicates
that the matter has already been adjudicated upon in a former suit. A matter
will be res judicata only if it has been heard and finally decided.
• There must be final decision of the
matter. It is not sufficient for the applicability of this doctrine that the
matter was directly and substantially in issue. It is of the very essence that
such matter was heard and finally decided. A matter cannot be said to have been
heard and finally decided unless the finding on the issue was necessary for the
determination of the suit and finding cannot be said to be necessary to the
decision unless the appeal lies against the finding.
• A long as a matter is pending
adjudication, a court may very its earlier orders, but the parties cannot be
allowed to reopen such matter, but a court having finally decided a matter,
cannot reopen the same at a large stage of the proceedings.
• If the appeal is withdrawn
dismissed in fault or dismissed on a preliminary point with the appellate court
having discussed the merits of the case, the decision of the lower court
remains intact and will continue to operate as res judicata. Further it is the
decision that creates the bar and not the decree. It is not necessary that the
decision should have been incorporated in the decree.
Illustration:
A sues B to recover certain property belonging to the estate of C alleging that
his father had been adopted by C's brother, D to whom the property decanted on
C's death. The suit is dismissed on the ground that the adoption is not proved.
A then sues B to recover the same property claiming it as C's bandhu. The suit
is barred as res judicata. A ought to have claimed the property in the first
suit in the alternative as C's bandhu.
(v)
Competency of Court
The
Court which decided the former suit, means the suit which has been decided
prior to the suit in question, whether or not it was instituted prior in tame,
must be competent to try the subsequent suit. The effect of this condition is
that the court which tired the former suit and the court trying the subsequent
suit should be courts of concurrent jurisdiction. The term competent as used in
section II refers to competence of the former court to try the whole of the
subsequent suit. It is competence of the former trail court that is to be
established and not that of the appellate court which may have finally
determined the matter.
(II)
BAR TO TRY SUBSEQUENT SUIT
Where
conditions of section 11 are fulfilled, it bars the jurisdiction of a court to
try a subsequent suit.
9.
SCOPE OF RES JUDICATA
Said
principle can be applied to proceedings other than suits viz. constitutional
petitions, rent applications, and cases before the settlement authorities.
[2002 CLC Kar. 1620]
10.
CONSTRUCTIVE RES JUDICATA
The
doctrine of constructive Res Judicata is embodied in explanation IV to sec 11
of C.P.C. [2002 CLC 1620]
(I)
MEANING OF CONSTRUCTIVE RES JUDICATA
Constructive
Res Judicata, refers, that if the parties had an opportunity of asserting a ground,
in support of their claim or defense in a former suit, and have not done so,
they shall be deemed to have raised such grounds in a former suit, and it shall
be further deemed, that these grounds had been heard and decided, as if, these
matters had been actually in issue.
(II)
EXCEPTIONS
Following
are the exceptions to the doctrine of constructive Res Judicata:
(i) Where pleas are barred by law.
(ii) Where pleas need not to be raised in
the former suit:
(iii) The pleas raised but not decided by
the Court.
(iv) Where the matter is not in issue
actually or constructively.
11.
WAIVER OF RES JUDICATA
The
plea of Res Judicata must be raised in the pleadings and if not so raised, it
shall be deemed to have been waived or deemed to have been raised, and decided
against the party not raising it, by virtue of doctrine of constructive Res
Judicata:
12.
SECTION 11 IS NOT EXHAUSTIVE
Section
11 is not exhaustive, and in its terms it applies only to suits but the
principle underlying the rule of Res Judicata can be invoked by virtue of
section 151 of C.P.C.
13.
CASES WHERE BAR OF RES JUDICATA MAY BE AVOIDED
Following
are the cases where bar of Res Judicata may be avoided.
(i)
Judgment obtained by Fraud Collusion or without Jurisdiction
A
party can avoid the bar of Res Judicata by proving that the Judgment has been
obtained by fraud, or collusion or passed by a Court without jurisdiction.
(ii)
Recall of Orders under Section 151
A
court or tribunal may recall its orders, if it is without jurisdiction or is
tainted with fraud or collusion.
14.
ON WHOM RES JUDICATA APPLIES
A
decision will be Res Judicata between the following parties:
(i) Parties on opposite sides
(ii) Parties on the same sides.
(I)
PARTIES ON OPPOSITE SIDES
A
decision will be Res Judicata between the parties on opposite sides i.e.
plaintiff and defendant.
(II)
PARTIES ON SAME SIDES
A
decision will be Res Judicata between the parties on the opposite sides i.e.
plaintiff and defendant. When there is more than one plaintiff involved in a
suit and that suit is properly decided by the court then the principle of Res
Judicata will be applied on all the plaintiffs and .the defendant or the
defendants as the case may, be. But the dismissal of suit under Order XVII,
rule 3 of C.P.C for non production of evidence by some of plaintiffs of the
case could not be made basis of Res Judicata for the other plaintiffs. (2006
CLJ 633)
(i)
Conflict of Interest
There
should have been a conflict of interest between such co-plaintiff and
co-defendants in the former suit.
(ii)
Necessary to decide Such Conflict
It
must have been necessary, to decide such conflict, for granting relief in the
suit.
(iii)
Finally Decided Matter
Such
conflict or matter must have been finally decided.
(iv)
Party in Former Suit
Such
person must have been a necessary or a proper-party, in the former suit.
Illustration:
In a suit for the partition of land by A and B against C and 'D,' all the four
conditions, enumerated above are fulfilled, and a decision given in such suit,
will be Res Judicata between all these four parties.
15.
CONCLUSION
To
conclude that Justice requires that every cause should be once fairly tried and
public tranquility demands that having been tried once all litigation about
that cause should be concluded forever between those parties. Whenever there is
a judgment by a competent court inter-parties, it will prevent a fresh suit
upon the same matter. Res Judicata as inserted under section 11 of C.P.0 is of
great importance, because by applying this doctrine the sanctity and conclusiveness
is given to the decisions of the court, and the law becomes more certain. This
doctrine is applicable only in civil cases, while in criminal law parallel to
this doctrine, is doctrine of dual Jeopardy. The doctrine of res judicata is of
universal application and intact a fundamental concept in the organization of
every judicial system.
0 comments:
Post a Comment