Under Sec 11 of Civil Procedure
Code, 1908 the principle of Res Judicata is embodied. Herein the court is
barred from trying suit or issue which has been previously decided. For
invoking this rule following requirements must be proved:
a) the matter should be directly and substantially in issue in former suit;
b) between same parties or their LR’s litigating under same title;
c) in a court competent to try such
subsequent suit;
d) and has been heard and finally decided by such court
Res Judicata as is known is
legislative avatar of following common law maxims:
“(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 and (3) a judicial decision once it has
attained finality must be accepted as correct between the parties”
[Satyendra Kumar & Ors v Raj Nath Dubey & Ors (May 2016 Supreme Court) ]
First basic requirement in a plea of Res Judicata is that there should be identical Cause of Action in both suits (matter should be directly and substantially in issue in former suit). The congruency between issues is determined on myriad platforms of which Cause of Action is one, the others will be viz, same titles, same parties, same subject-matter.
Cause has been explained in Kunjan Nair v Narayanan Nair [(2004) 3 SCC 277]: "cause of action means the circumstances forming the infraction of the right or the immediate occasion for the action. In the wider sense, it means the necessary conditions for the maintenance of the suit, including not only the infraction of the right, but the infraction coupled with the right itself. Compendiously the expression means every fact which would be necessary for the plaintiff to prove, if traversed, in order to support his right to the judgment of the court. Every fact which is necessary to be proved, as distinguished from every piece of evidence which is necessary to prove each fact, comprises in 'cause of action'."
It is also mandatory to show that there was 'hearing' and court has rendered a 'decision' on such issues. Even a ex-parte hearing could be termed as sufficient for purposes of Sec 11 if due notices were served on defendants and sufficient opportunity for afforded to them to present their case, despite of which they fail to present their case.
·
Whether determination on pure issues of law
could operate as Res Judicata in respect of some other properties which were
not subject to ‘former proceedings’?
No, In Mathura Prasad v Dossibai
JeeJeebhoy [AIR 1971 SC 2355] it
was stated:
“10. It is true that in
determining the application of the rule of res judicata the Court is not
concerned with the correctness or otherwise of
the earlier judgment. 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 determination 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 supersede the law of the land.”
Thus even ‘question of law’ can be
of two types:
(a) Which is related to
‘interpretation of statute’ to any particular fact situation – decision on this
is not subject to change;
(b) Which is related to any ‘formal
defect’ (ex. error in exercise of jurisdiction etc) - decision on this is
not subject to Res Judicata and can be challenged
·
In Saroja
v Chinnusamy (Dead) by Lrs & anr [(2007) 8 SCC 329] following issues emerged:
(1) whether an ex
parte decree could attract res judicata; and
(2) whether the
appellant could be held bound by the judgment in the earlier
suit when he was not a party to the same although she had acquired
title from the person who as a party had suffered the ex parte decree.
Both the issues were decided
against the appellant of that case by holding that an ex parte decree was as
good as a decree passed after contest and such ex parte decree, unless
set aside on the ground of fraud or
collusion will not only bind the
original parties to the former suit but also other parties
who claim under any of them and seek to litigate under the same title.
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·
Test for
determining whether subsequent suit is barred by RJ
In Jaswant Singh v Custodian of
evacuee property [(1985) 3
SCC 648] a simple test was laid to determine whether subsequent suit is barred
by RJ or not: “…In
order that a defence of res judicata may succeed it is
necessary to show that not only the cause of action was the
same but also that the plaintiff had an opportunity of getting
the relief which he is now seeking in the
former proceedings. The test is whether the claim
in the subsequent suit or proceedings is
in fact founded upon the same cause of action which was
the foundation of the former suit or proceedings….”
·
In a court
competent to try such subsequent suit v Exp VIII to Sec 11
Besides other requirements Sec 11
requires that party pleading Res Judicata must show that former court was competent to try subsequent suit. Ex Suit X was
decided by Court 1. In Suit Y before Court 2 a party claims RJ upon
similarity of issues with Suit X. Now as per this requirement it is necessary
to prove that Court 1 is competent to conduct trial of Suit Y.
However Exp VIII limits this
requirement: If Court 1 above is court
of limited jurisdiction and
competent to decide issues under Suit X than such decision shall operate as RJ
notwithstanding that Court 1 is a limited jurisdiction court having no
competency to try Suit Y.
[Court of limited jurisdiction: Such court which is restricted to preside over any particular subject-matter (as Special court under Protection of women under Domestic violence Act) or which is restricted by pecuniary limits]
Thus if Suit X above was between H
& M regarding loan of Rs 20,000 and was decided by Court 1 which has
pecuniary limit of Rs 1,00,000. than merely this limitation would not restrict
application of RJ upon similar issues in Suit Y for loan of Rs 1 crore between
H & M which is before Court 2 having pecuniary limit of Rs 1 crore
This is in furtherance of spirit of
Res Judicata maxims (2) & (3) laid in Satyendra Kumar & Ors v
Raj Nath Dubey & Ors provided
above
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