Written by Astha Priya and Jeet Sinha.

 Introduction to Section 11 of CPC

Section 11 of the Code of Civil Procedure (CPC) laid down the important principle of res judicata. The principle of res judicata is adopted in the legal system to bring finality to litigation. A losing party will always bring a fresh suit on the same grounds just to harass the party and continue the litigation without this principle. The plea of res judicata is taken to adjudge the maintainability of the suits. If a suit is barred by res judicata, no further judicial action can be taken by the party litigating against the same person, same title or same cause of action. 

The provision of section 11 laid down the principle of res judicata with 8 explanations to clarify the principle. In this blog, we will delve with  the principle of res-judicata as holistically as possible. 

i. Purpose and scope

Section 11 of the CPC provides for one of the most important principles which is a universal law and is part of almost every legal system. The term ‘res’ means ‘dispute’ or ‘subject matter’ and the term ‘judicata’ means ‘adjudication’. Therefore, ‘res judicata’ means ‘a matter adjudged’. 

It bars any subsequent suit between the same parties, litigating the same subject matter, based on the same cause of action and praying for the same relief, if the matter has already been adjudicated by a Court of competent jurisdiction. In the case of Satyadhan Ghosal v. Deorjin Debi, it was held that “when the res is judicata, it shall not be adjudged again”. The principle provides for the finality of judgment. 

The principle of res judicata is based on the public policy and public interest.  This principle is based on three maxims:  

1. nemo debet bis vexari pro una et eadem causa i.e.  no man should be vexed twice for the same cause;
2. interest reipublicae ut sit finis litiunm i.e. it is in the interest of the State that there should be an end to a litigation and  
3. res judicata pro veritate occipitur  i.e. a judicial decision must be accepted as correct. 

The first maxim is based on private justice and the other two maxims are based on the principle of public policy and larger public interest.  The purpose of the application of this principle is to prevent the parties from litigating the same subject matter based on the same cause of action and praying for the same relief before the Court with the intention to vex the opposite parties as it would amount to abuse of the process of law.  

In absence of such principle, the parties could come before the Court with the same issue again and again and the litigation would never come to an end. This will create a state of confusion and uncertainty in the justice delivery system and also be a waste of the precious time of the Courts. Moreover, once a matter has been adjudicated by a competent Court and relief has been granted to the parties, such adjudication must be accepted as correct and in case any party feels aggrieved by such adjudication, he has the right to appeal before the higher Courts. 

Therefore, here lies the importance of this doctrine in a legal system. In the case of Sheoparsan Singh v. Ramnandan Singh, Sir Lawrence Jenkins observed that : “rules of res judicata, while founded on precedent, is dictated by wisdom which is for all times”. 

ii. Historical evolution

Res judicata is not a new concept which has been introduced under Section 11 of the Code. The roots of this principle lie in ancient times. In ancient times it was applied by the Judges as ‘purva nyaya’ which meant former judgment. Roman law is the origin of the principle of re judicata. Under Roman law, it is said that one suit and one decision was enough for any single dispute (ex captio res judicata). This doctrine afterwards was accepted in European continent and commonwealth countries.

Text of Section 11: the principle of Res Judicata

11. Res judicata.—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 a 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 attackin 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 or the suit in which such issue has been subsequently raised.

Meaning and essence of Res Judicata

i. Definition 

The term ‘res judicata’ means ‘the matter decided’. According to Spencer Bower, res judicata means “a final judicial decision pronounced by a judicial tribunal having competent jurisdiction over the cause or matter in litigation, and over the parties thereto.” It means that once a matter has been decided by a competent Court, then the same matter between the same parties, for the same subject matter and  for the same relief  must not be litigated before the Court. 

The principle of res judicata was explained in the case of Satyadhan Ghoshal v. Deorajin Debi, by Das Gupta J.. In this case it was held that: “When a matter, whether on a question of fact or a question of law, has been decided between two parties in one suit or proceeding and the decision is final, either because no appeal was taken to a higher court or because the appeal was dismissed, or no appeal lies, neither party will be allowed in a future suit or proceeding between the same parties to canvass the matter again.” 

ii.  Rationale behind the doctrine

The rationale behind the doctrine of res judicata is to prevent the cycle of endless litigation over substantially the same matter between the same parties. The doctrine is to serve the larger public interest and to prevent abuse of the process of law. Moreover, in case of erroneous decisions, the law provides for the appeal of such decisions to the higher Courts. Therefore, the aggrieved party need not to come before the same Court with the same matter again and again. 

The principle also ensures fair administration of justice and rule of law by upholding the binding character of Judgments.

iii. Types of res judicata

There are basically two types of res judicata, based on the classification of the matter in issue. Matter in issue may be ‘directly and substantially in issue’ or ‘collaterally or incidentally in issue’. However, res judicata is applied when the matter which was ‘directly and substantially in issue’ is re litigated in a subsequent suit. This principle does not apply on those matters which were ‘collaterally or incidentally in issue’.

‘Matter directly and substantially in issue’ can be of two types: i. matter which is actually in issue, and ii. Matter which is constructively in issue. Therefore, based on this distinction, res judicata can be direct or constructive.

Direct

The rule of direct res judicata applies when the matter directly and substantially in issue is actually in issue. As provided under explanation III to Section 11 and reiterated in various judgments such as Lonankutty v. Thomman and  Mathura Prasad v. Dossibai N.B. Jeejeebhoy , a matter can be said to be actually in issue if it has been alleged by one party and either denied or admitted (expressly or impliedly) by the other party.  

For instance, A sues B for rent land X (for period of 1991 to 1992). B denies that any rent is due. Therefore, the claim for rent is a matter actually in issue. Now, if the Court finally adjudicates upon the matter and upholds A’s claim, the principle of res judicata will apply and the parties will be barred from litigating the same issue again before the Court.

Constructive res Judicata

Constructive res judicata is the artificial form of res judicata. There are some issues in a suit, which although not been directly raised by the parties and decided by the Court, but are deemed to have been raised and  decided by the Court and act as res judicata in a subsequent suit. The parties must bring the whole case before the Court at once. If the party fails to do so, intentionally or not, it must not be allowed to raise such issues before the Court in a subsequent suit because it will defeat the purpose of the doctrine of res judicata, which is a principle of public policy. 

Explanation IV of section 11 provides that “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”. In simple words, the matters are said to be ‘constructively in issue’ if it ‘might and ought’ to have been raised before the Court in the former suit. 

The Explanation uses the term ‘deemed’, which means that the matter which ‘might and ought’ to have been raised, are ‘deemed’ to have been a matter ‘directly and substantially’ in issue and therefore, the doctrine of res judicata applies to such issues.

The word ‘might’ is used in a sense to denote ‘knowledge’, that is those grounds which were already well within the knowledge of the litigant even at the time of previous suit. And, the term ‘ought’ has been used to denote the fact that the litigant could have raised those grounds in the previous suit. Therefore, the words ‘might and ought’ talks about those grounds which already existed and were well within the knowledge of the parties, but were not raised during the former suit.

The rationale behind extending the principle of res judicata to such issues is to bar the parties to raise those matters which were already in his knowledge during the former suit and he might have raised it during the hearing of such suit, but he failed to raise such matter. As explained by Somervell L.J., in the case of Greenhalgh v. Mallard, res judicata also extends to those matters which are so clearly part of the subject matter of the litigation that it could have been raised and it would be the abuse of the process of law to allow a new proceeding relating to such matters. 

The principle of res judicata applies when in a judgment and order, the decision of a particular issue is implicit. The object of this rule is to avoid multiplicity of litigation and to bring finality to decisions related to matters which were constructively in issue before the Court. The parties should not be permitted to bring those issues before the Court as a fresh suit as an additional ground which would have been raised before the Court in a former suit. As held in the cases of State of UP v. Nawab Hussain and Devilal Modi v. STOconstructive res judicata also applies in case of writ petitions.

Essential ingredients of Section 11 CPC

There are five essential ingredients of res judicata which ensures whether a subsequent suit will be barred by res judicata or not, for application of res judicata all these five principles should be applied simultaneously, we will be discussing one by one each of these five essential ingredients:

i. Matter directly and substantially in issue

For application of res judicata, the matter should be directly and substantially in issue. If the matter is not directly and substantially in the issue, it becomes irrelevant whether it is passed by competent court or not, it won’t be barred by res judicata. In Pandurang v. Shantabai, it was held that a matter in respect of which no relief is claimed cannot become ‘directly and substantially; in issue, even if a decree is passed by competent court. For effective application of res judicata, the matter should be both directly and substantially in issue, it cannot be only directly but should also be substantially in issue.

The word directly refers to immediate adjudication of matter by the competent court on the issue and the word substantially means the issue should be the substance of the dispute and not some collateral or subsidiary issue. If the issue was necessary to be decided for adjudicating on the principal issue and was decided, it would be treated as directly and substantially in issue and if it is clear that judgment was in fact based upon that decision then it would be res judicata in the latter case. One has to examine the plaint, the written statement, the issues and the judgement to find out if the matter was directly and substantially in the issue.

ii. Between the same parties

The matter should be between the same parties in the subsequent suit as it was in the former suit for application of principle of res judicata. The purpose of res judicata is to give finality to the decision, if the same parties continue to fight in the court, there will be perpetuity and the litigation may never come to an end. The doctrine of res judicata is of universal application and it is a part of rule of law. Rule of law prevents any kind of arbitrariness and this doctrine ensures effective application of rule of law.

iii. Same title and capacity

The party must come under the same title. The same title means the same capacity. Herein, the capacity refers to the interest of a party to a particular suit. Suppose, a party sues for title of property which was dismissed. Later, the same party cannot sue as owner of property. However, his rights as a mortgagor are not barred by res judicata.

iv. Competent jurisdiction

For application of res judicata, the court passing the decree should be of competent jurisdiction. Jurisdiction of a civil court provides us with an idea in which court we can institute a suit to have proper determination of rights. The jurisdiction is derived from two Latin terms “juris” and “dicto” which means “I speak by the law”. There are three types of courts on which res judicata applies:

1. A court of exclusive jurisdiction; or
2. A court of limited jurisdiction; or
3. A court of concurrent jurisdiction.

A court of exclusive jurisdiction is a court given specific roles such as revenue matters, land acquisition courts, administrative courts, etc. Whereas a court of limited jurisdiction includes revenue courts, land acquisition courts, insolvency courts and civil courts whose jurisdiction is subject to a pecuniary limitation. Further, a court of concurrent jurisdiction is such a court which decided the former suit and is competent to try the subsequent suit.

Explanation II and VIII of Section 11 is important to be discussed under this heading, as Exp. II confers that even if there is no right of appeal from a decision of court, it will be barred by res judicata. 

Further, Exp. VIII is a tricky one, it contradicts with the text of section 11 itself. The text of sec 11 provides that court in which subsequent suit filed should be of competent jurisdiction. However, in Exp. VIII, it is given that it is irrelevant whether a court of limited jurisdiction is competent to decide the matter or not, res judicata will apply on the matters heard and finally decided by a court of limited jurisdiction. 

This section and explanation created confusion as the High Court were divided into two different opinions. One was of Calcutta High Court and other was that of Kerala High Court. The former said that the court of limited jurisdiction does not include civil court of limited pecuniary jurisdiction, whereas, the latter hold the opposite view. Clarifying the above problem the Hon’ble Supreme Court in Sulochana Amma v. Narayanan Nair, laid down the following observations:

“If the scope of Explanation VIII is confined to the order and decree of the insolvency court, the scope of enlarging Explanation VIII would be defeated and the decree of civil courts of limited pecuniary jurisdiction shall stand excluded, while that of the former would be attracted. Such an anomalous situation must be avoided. The Tribunal whose decisions were not operating as res judicata, would be brought within the ambit of section 11, while the decree of the civil court of limited pecuniary jurisdiction which is accustomed to the doctrine of res judicata, shall stand excluded from its operation.”

  v. Former suit heard and finally decided

The former suit should be heard and finally decided for application of res judicata. It confers that the suit must be contested before the court and after hearing the arguments of both the parties and applying the judicial mind the court finally came to a conclusion that one party is right and one party is wrong. Even if a suit is decided ex parte or by failure to produce evidence (Order 17 Rule 3) or by a decree on an award; or  by oath tendered under the Indian Oaths Act, 1873, doctrine of res judicata will apply. However, if the suit is dismissed on technical ground such as non-joinder of necessary party, it would not operate as res judicata.

Explanation V to section 11 provides that where a relief is claimed in the plaint, which is not expressly granted by a decree shall be deemed to have been refused.

5. Illustration and examples chart/table: Practical scenarios:

The principle of res judicata can be understood through following practical scenarios and illustrations:

i.  Direct res judicata

1. A and B are two parties to a contract. Suppose that A breaches the terms of the contract and hence commits breach of the contract. B files a suit for the breach of the contract in the competent Court. The Court orders damages to B. The decision acts as re judicata and parties cannot go to the Court for the same breach. 
2. A sues B for rent due for the period 2023-24. The Court upheld the claim of B that no rent is due. The decision acts as res judicata in the matter related to rent due during the period of 2022-23, but not during any previous or subsequent period. Suppose that A again sues B for the rent due during the period of 2023-24. Such a suit is not barred by res judicata, as during the former suit, the rent during the period of 2023-24 was not a matter which was actually in issue.
3. A claims a property ‘X’ against B on the basis of a sale deed. The Court held the deed to be fictitious. Now any subsequent suit making any claim over any property based on the same deed is barred by the principle of res judicata as the matter actually in issue.

In the above illustrations, the matters of breach of contract, rent due during the period of 2023-24 and nature of sale deed are the issues actually in issue, therefore, decisions of the court on those issues acts as res judicata.

ii.  Constructive res judicata

1. A filed a suit against B claiming possession of a property based on ownership. The claim A was dismissed in the suit. Now, any subsequent suit claiming possession of property by A is barred by constructive res judicata, as all those grounds were the issues which ‘might and ought’ to have been raised before the Court during the former suit.
2. A sues B for breach of contract on the ground that B failed to deliver the goods to A. the Court held that there has been a breach of contract and ordered damages. Now, B cannot go to the Court claiming that the performance was impossible due to certain reasons, and therefore frustration of Contract occurred and there was no fault on part of B. Subsequent suits on such additional grounds are barred by the principle of constructive res judicata.
3. A files a writ under Article 32 of the Constitution for reiterating him in the service taking the ground that he has been dismissed based on false allegation of fraud. The Court dismissed the suit and upheld his dismissal. Then, he cannot file the suit for the reiteration in the same service, on the ground that he was not given reasonable opportunity of being heard before such dismissal. Such subsequent suits will be barred by the principle of constructive  res judicata. (Application of res judicata on Writs).

Exceptions to the principle of Res Judicata

i. Collateral or incidental issues

The words ‘collaterally or incidentally’ in issue has been used in contradistinction to the words ‘directly and substantially in issue’. Those matters which are not actually in issue before the Court, but are ancillary to the main issues are said to be ‘collaterally or incidentally’ in issue. Decision on such matters does not act as res judicata and can be litigated again in a subsequent suit. These are the matters the decision of which merely aids the Court to decide other issues which are ‘directly and substantially’ in issue.  

The main difference between the matter ‘directly and substantially in issue’ and matter ‘incidentally or collaterally in issue’ is that the former is essential for the adjudication on the principal issue and that the judgment is based upon such decision. However, matters which are ‘collaterally or incidentally’ in issue are those which are necessary to decide in order to grant relief to the plaintiff or defendant but the judgment is not based on decision of such issues. 

For instance, A sues B for the rent due. B pleads abatement of rent on the ground that the area of the land is less than that mentioned in lease deed. However, the Court found that the area was greater than that  mentioned in the lease deed. The finding as to excess area is ancillary to the main issue. Therefore, any subsequent suit litigating the area of the land is not barred by res judicata.

The question whether issues which are ‘collaterally and incidentally in issue’ apply as res judicata in a subsequent suit was raised in the case of Gangabai v. Chhabubai, where the Court held “A matter which is collaterally or incidentally in issue for the purpose of deciding the matter which is directly in issue in the case cannot be made the basis of a plea of res judicata.” 

The Court clarifies in this case that the question of title decided by the Court of Small Causes are regarded as incidental to the main issue and therefore, does not operate as res judicata.

However, there is no straightjacket formula to decide which issues are ‘directly and substantially in issue’ in a suit and which are ‘collaterally or incidentally in issue’. It is decided based on facts of the case.

ii. Writ of habeas corpus

‘Habeas corpus’ means ‘produce the body’. A writ of habeas corpus is issued by the Supreme Court (Article 32) or High Court (Article 226) in order to protect the liberty and freedom of the detainee who has been illegally detained. The detaining authority is asked to produce the detainee before the Court and explain the reason for detention. 

Generally, the principle of res judicata applies on writs as held in the case of M.S.M. Sharma v. Dr. Shree Krishna and  Daryao v. State of UP. However, it must be noted here that if the principle of res judicata is applied on the writ of habeas corpus, the purpose of the writ would fail.

In Ghulam Sarwar v. Union of India the Court observed that if the doctrine of constructive res judicata is applied, then the Court will be powerless to protect the right of a person illegally detained. The Court remarked that  “That would be whittling down the wide sweep of constitutional protection.”.

In the case of Daryao v. State of U.P, the Court spelled out certain guidelines pertaining to application of res judicata in writ proceedings. The Court held that if the writ petition filed under 226 has been dismissed not on merits but due to the laches or due to availability of alternative remedies, such dismissal would not be a bar on any subsequent petition under Article 32. The Court further held that if the petition has been dismissed in limine without a speaking order, such dismissal would not operate as res judicata. Also, if the petition has been dismissed as withdrawn, such dismissal would not operate as res judicata because  the case has not been decided on merits.

iii. Dismissal for default

Dismissal for default is the order of the Court to dismiss the suit as the party failed to act in the required way, for instance, where summons not served in consequence of plaintiff’s failure to pay costs (Rule 3 Order IX) or due to non appearance of the either of the parties (Rule 2 Order IX). such dismissal is not considered as the dismissal on merits and therefore, it does not act as the bar on subsequent suits.  

iv. Dismissal in limine

‘In limine’ means ‘at the threshold’ or ‘pretrial motion’. Dismissal in limine means the dismissal of the suit by the Court at the preliminary stage, even before going into the merits of the case. If a non speaking order is passed, it means the Court has not recorded the reasons for such dismissal. In such a case it is not clear why the suit has been dismissed and what factors the Court has actually considered while such dismissal. Therefore, such dismissal does not operate as res judicata.

The Special Leave Petition dismissed by the Court in limine without a speaking order does not operate as res judicata.  In the case of Workmen v. Board of Trustees, Cochin Port Trust, the Court clarified that in the case of non-speaking order, it can not be assumed that the Supreme Court has decided all the questions raised in the Petition and it would not be rejected to infer that all the grounds of the Special Leave Petition has necessarily been rejected. 

v. Fraudulent decree

A decree which has been obtained from the Court by practising fraud, does not operate as res judicata because such application would lead to the misuse of the process of law.

vi. Change in circumstances

It is a well established rule that res judicata does not operate where the circumstances have changed. For instance, if a divorce petition has been filed by the wife against the husband on the ground of cruelty, and the petition is dismissed by the Court. Such a decision would not operate as res judicata if a subsequent suit is filed for divorce by the husband or wife.

vii- change in law

Where after the decision of the Court, the law changes, such decision would not act as res judicata. 

viii. Pure question of law

In the case of Mathura Prasad v. Dossibai N.B Jeejeebhoy, it was held that where the question is purely of law and is related to the jurisdiction of the Court, or a decision of a Court sanctioning something which is illegal, the party affected by such decision cannot be precluded from challenging the validity of the order on the basis of res judicata, which a rule of the procedure.

The object of the principle of res judicata is to avoid multiplicity of litigation between the parties, however it can not be the tool to close the doors of further interpretation of the laws, which is the one of the primary duties of the Courts. Doing so would lead to injustice and would block the possibilities of progressive interpretations. It must be open to the Courts to correct the errors caused in the previous interpretations. 

Therefore, the law on the point is clear that the decision on pure questions law cannot operate as res judicata. 

ix- Tax matters

In tax matters, there is no application of res judicata as every assessment is a different unit in itself. Therefore, no tax matter is barred by res judicata.

Distinction between res judicata and related doctrines

i. Issue estoppel: In issue estoppel only specific issues are barred whereas in res judicata entire cause of action or claim is barred. Issue estoppel stops parties from contradiction or challenging an issue that has been firmly settled in prior proceeding, thereby protecting the authority of judicial decision and conserving resources of the courts and litigants.

ii. Double jeopardy: Double jeopardy is applicable in criminal law which prohibits trial of the same person of the same offence.

Landmark Judgments related to Res judicata

Some recent landmark judgment related to res judicata:

1. In Yadaiah and Anr. v. State of Telangana and others, The Supreme Court held that only fundamental determinations hit by ‘Res Judicata’, Not incidental or collateral Findings.
2. In S. Ramachandra Rao v. S Nagabhushana Rao and Ravindra Pratap Shahi v. State of U.P., the Supreme Court held that res judicata is attracted not only in separate subsequent proceedings but also at subsequent stages of the same proceedings.
3. In Jamia Masjid v. KV Rudrappa, the Supreme Court held that the Plea of Res Judicata can be determined as a preliminary issue when it only involves adjudication of a question of law.
4. In S.C. Garg v. State of U.P. and Anr., the hon’ble Supreme Court held that res judicata applies in criminal proceedings, findings in one case bind parties in subsequent case.

Conclusion

Res judicata is one of the most important and universal doctrines in any legal system. It is one such doctrine that helps bring litigation to an end. A litigant coming to court expects finality in decision and it is one such doctrine that helps build faith of people in courts. One important thing about res judicata is it prevents honest litigants from continuous harassment.

This article delved into detail every aspect of res judicata in the Indian legal system, and it can be rightly said that the principle not only upholds judicial discipline but also safeguards the sanctity of judgments. It ensures that courts are not burdened with repetitive claims and that parties are not subjected to never-ending disputes. In conclusion, res judicata strikes a balance between the rights of individuals and the larger public interest in maintaining certainty, consistency, and efficiency in the administration of justice.