DOCTRINE OF RES JUDICATA
INTRODUCTION
ONE LINER :: A matter finally decided on its
merits by a court having competent jurisdiction shall not be subject to
litigation again between the same parties, unless fraud, jurisdiction, or
question of law is directly or substantially in issue before the Court.
Res Judicata is the Latin term for ‘a matter judged.’ It
means ‘a thing decided.’ Section 11 of the Civil Procedure Code, 1908, talks
about Res Judicata.
BASED ON THREE MAXIMS - 1. Nemo debet bis
vexari pro una et eadem causa – It means no man shall be punished twice for
the same offence; 2. Interest Reipublicae Ut Sit Finis Litium – It means
it is in the interest of the state that there should be an end to litigation.
Or Litigation must come to an end; AND, 3. Res Judicata Pro Veritate
Accipitur – It means that a judicial decision must be accepted as correct.
WORKS ON TWO DIMENSIONS - CLAIM PRECLUSION AND
ISSUE PRECLUSION – Claim preclusion [works vertically] focuses on baring a suit
from being brought again on a legal cause of action that has already been
finally decided between the parties. Issue preclusion [works horizontally] bars
the re-litigation of factual issues that have already been necessarily
determined by a judge as a part of an earlier claim.
A three Judges bench of the Hon’ble SUPREME COURT,
in the case of Uttar Pradesh State Road Transport Corporation vs. State
of Uttar Pradesh, Judgment dated NOVEMBER 29, 2004 (AIR 2005 SC
446 : 2005 (1) SCC 444) , observed as follows –
Para 11: The principle of res judicata is based
on the need of giving a finality to judicial decisions. The principle which
prevents the same case being twice litigated is of general application and is
not limited by the specific words of Sec. 11 of the Code of Civil Procedure in
this respect. Res judicata applies also as between two stages in the
same litigation to this extent that a court, whether the trial court or a
higher court having at an earlier stage decided a matter in one way will not
allow the parties to reagitate the matter again at a subsequent stage of the
same proceedings.
Yet again, a three Judges Bench of the Hon’ble
SUPREME COURT, in the case of Satyadhyan Ghosal vs. Deorajin Debi,
Judgment dated APRIL 20, 1960, (AIR 1960 SC 941; 1960 (3) SCR
590), observed as under –
Para 7: The principle of res judicata is based
on the need of giving a finality to judicial decisions. What it says is that
once a lis is judicata, it shall not be adjudged again. Primarily
it applies as between past litigation and future litigation. 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. This principle of res
judicata is embodied in relation to suits in sec. 11 of the Code of Civil
Procedure; but even where sec. 11 does not apply, the principle of res
judicata has been applied by courts for the purpose of achieving finality
in litigation. The result of this is that the original court as well as any
higher court must in any future litigation, proceed on the basis that the
previous decision was correct.
WHETHER RES JUDICATA APPLIES TO ARTICLE 32
PETITION?
OR
WHETHER RES JUDICATA APPLIES TO WRIT PETITION
U/A 226?
A Constitution Bench of the SUPREME COURT, in
the case of Daryao vs. State of Uttar Pradesh, Judgment dated
MARCH 27, 1961, (AIR 1961 SC 1457 : 1962 (1) SCR 574),
observed as –
Para 10: In considering the essential elements of res
judicata one inevitably harks back to the Judgement of Sir William B. Hale
in the leading Duchess of Kingston's case, 2 Smith Lead Case.
Said Sir William B. Hale "from the variety of cases relative to
judgments being given in evidence in civil suits, these two deductions seem to
follow as generally true: First, that the Judgement of a court of concurrent
jurisdiction, directly upon the point, is as a plea, a bar, or as evidence,
conclusive between the same parties, upon the same matter, directly in question
in another court; Secondly, that the Judgement of a court of exclusive
jurisdiction, directly upon the point, is in like manner conclusive upon the
same matter, between the same parties, coming incidentally in question in
another court for a different purpose." As has been observed by
Halsbury, "the doctrine of res judicata is not a technical doctrine
applicable only to records; it is a fundamental doctrine of all courts that
there must be an end of litigation" - Halsbury's Laws of England.
Halsbury also adds that the doctrine applies equally in all courts, and it is
immaterial in what court the former proceeding was taken, provided only that it
was a court of competent jurisdiction, or what from the proceeding took,
provided it was really for the same cause" "Res judicata",
it is observed in Corpus Juris, "is a rule of universal law
pervading every well regulated system of jurisprudence, and is put upon two
grounds, embodied in various maxims of the common law; the one, public policy
and necessity, which makes it to the interest of the State that there should be
an end to litigation- interest republiae ut sit finis litium; the other, the
hardship on the individual that he should be vexed twice for the same cause- nemo
debet is vexari pro eaden causa", Corpus Juris. In this sense
the recognised basis of the rule of res judicata is different from that
of technical estoppel. "Estoppel rests on equitable principles and res
judicata rests on maxims which are taken from the Roman Law", .
Therefore, the argument that res judicata is a technical rule and as
such is irrelevant in dealing with petitions under Art. 32 cannot be accepted.
Para 19: We must now proceed to state our conclusion
on the preliminary objection raised by the respondents. We hold that if a writ
petition filed by a party under Art. 226 is considered on the merits as a
contested matter and is dismissed the decision thus pronounced would continue
to bind the parties unless it is otherwise modified or reversed by appeal or
other appropriate proceedings permissible under the Constitution. It would not
be open to a party to ignore the said Judgement and move this Court under Art. 32
by an original petition made on the same facts and for obtaining the same or
similar orders or writs. If the petition filed in the High Court under Art. 226
is dismissed not on the merits but because of the laches of the party applying
for the writ or because it is held that the party had an alternative remedy
available to it, then the dismissal of the writ petition would not constitute a
bar to a subsequent petition under Art. 32, except in cases where and if the
facts thus found by the High Court, may themselves be relevant even under Art.
32. If a writ petition is dismissed in limine and an order is pronounced
in that behalf, whether or not the dismissal would constitute a bar would
depend up on the nature of the order. If the order is on the merits it would
be a bar; if the order shows that the dismissal was for the reason that the
petitioner was guilty of laches or that he had an alternative remedy it would
not be a bar, except in cases which we have already indicated. If the
petition is dismissed in limine without passing a speaking order then
such dismissal cannot be treated as creating a bar of res judicata. It
is true that, prima facie, dismissal in limine even without
passing a speaking order in that behalf may strongly suggest that the Court
took the view that there was no substance in the petition at all, but in the
absence of a speaking order, it would not be easy to decide what factors
weighed in the mind of the Court and that makes it difficult and unsafe to hold
that such a summary dismissal is a dismissal on merits and as such constitutes
a bar of res judicata against a similar petition filed under Art. 32. If
the petition is dismissed as withdrawn it cannot be a bar to a subsequent
petition under Art. 32. Because in such a case there has been no decision on
the merits by the Court. We wish to make it clear that the conclusion thus
reached by us are confined only to the point of res judicata which has
been argued as a preliminary issue in these writ petitions and no other. It is
in the light of this decision that we will now proceed to examine the position
in the six petitions before us.
RES JUDICATA NOT TO BE CONFUSED WITH ACQUIESCENCE
AND WAIVER
[SUBSEQUENT WRIT WHEN NOT MAINTAINABLE]
ORDER 9 RULE 9 - RES JUDICATA - whether applies to
writ proceedings when earlier petition dismissed for default-the principles
underlying Order IX Rules 8 and 9 are based on sound public policy- litigant
who approaches the court should agitate the matter with due diligence and take
a decision on merits-these principles equally apply to writ
proceedings-petitioner, whose first petition was dismissed for default had a
remedy for recalling that order-if petitioner does not choose to avail remedy
provided by Legislature he cannot have any grievance-bar of res judicata
applies to writ proceedings - no discretion on any court to ignore such
principles-writ petition rejected. [D. Sangya Naik vs. DoT ILR
2005 KAR 1874]
When a party engages a Counsel it is his duty
to see that his Counsel is present when the case is called for hearing. Order
IX Rule 9 provides for a remedy to petitioner to file an application to recall
the said order by showing sufficient cause for his absence. When a legislature
provides a remedy for getting the said order set-aside, he has to follow the procedure
prescribed under law. If he does not choose to follow the said procedure and if
chooses to follow the procedure which is not recognized in law, he cannot have
any grievance. Under these circumstances, the bar contained in Order IX Rule 9
CPC which is equally applicable to writ rules is absolute and no discretion is
conferred on any court to ignore the aforesaid statutory provision and
entertain the second writ petition challenging the order which was the subject
matter of earlier proceedings which came to be dismissed for non-prosecution.
Sarguja Transport Service vs. State Transport Appellate
Tribunal, M. P. , Gwalior, 12 Nov 1986
1987 0 AIR(SC) 88; 1987 0 JLJ
142; 1986 1 JT 808; 1986 2 Scale 757; 1987 1 SCC 5; 1987 0
SCC(Cri) 19; 1987 1 SCR 200
Para 8. The question for our consideration is whether
it would or would not advance the cause of justice if the principle underlying
R. 1 of O. XXIII of the Code is adopted in respect of writ petitions filed
under Art. 226/227 of the Constitution also. It is common knowledge that very
often after a writ petition is heard for some time when the petitioner or his
counsel finds that the Court is not likely to pass an order admitting the
petition, request is made by the petitioner or by his counsel, to permit the
petitioner to withdraw from the writ petition without seeking permission to
institute a fresh writ petition. A Court which is unwilling to admit the
petition would not ordinarily grant liberty to file a fresh petition while it
may just agree to permit the withdrawal of the petition. It is plain that when
once a writ petition filed in a High Court is withdrawn by the petitioner
himself he is precluded from filing an appeal against the order passed in the
writ petition because he cannot be considered as a party aggrieved by the order
passed by the High Court. He may as stated in Daryao vs. State of
U.P., (1962) SCR 574: (AIR 1961 SC 1457) in a case involving the question
of enforcement of fundamental rights file a petition before the Supreme Court
under Art. 32 of the Constitution because in. such a case there has been no
decision on the merits by the High Court. The relevant observation of this
Court in Daryao's case (supra) is to be found at page 593 and it is as
follows :
"If
the petition is dismissed as withdrawn it cannot be a bar to a subsequent
petition under Art. 32, because in such a case there has been no decision on
the merits by the Court. We wish to make it clear that the conclusions thus
reached by us are confined only to the point of res judicata which has been
argued as a preliminary issue in these writ petitions and no other."
Para 9.
The point for consideration is whether a petitioner after withdrawing a writ
petition filed by him in the High Court under Art. 226 of the Constitution of
India without the permission to institute a fresh petition can file a fresh
writ petition in the High Court under that Article. On this point the decision
in Daryaos’ case (supra) is of no assistance. But we are of
the view that the principle underlying R. 1 of O. XXIII of the Code
should be extended in the interests of administration of justice to cases of
withdrawal of writ petition also, not on the ground of res judicata but on
the ground of public policy as explained above. It would also discourage
the litigant from indulging in bench-hunting tactics. In any event there is no
justifiable reason in such a case to permit a petitioner to invoke the
extraordinary jurisdiction of the High Court under Art. 226 of the Constitution
once again. While the withdrawal of a writ petition filed in High Court without
permission to file a fresh writ petition may not bar other remedies like a
suit or a petition under Art. 32 of the Constitution since such withdrawal does
not amount to res judicata, the remedy under Art. 226 of the Constitution
should be deemed to have been abandoned by the petitioner in respect of the
cause of action relied on in the writ petition when he withdraws it without
such permission. In the instant case the High Court was right in holding
that a fresh writ petition was not maintainable before it in respect of the
same subject-matter since the earlier writ petition had been withdrawn without
permission to file a fresh petition. We, however, make it clear that whatever
we have stated in this order may not be considered as being applicable to a
writ petition involving the personal liberty of an individual in which the
petitioner prays for the issue of a writ in the nature of habeas corpus or
seeks to enforce the fundamental right guaranteed under Art. 21 of the
Constitution since such a case stands on a different footing altogether. We,
however, leave this question open.
APPLICABILITY OF RES JUDICATA TO INDUSTRIAL ACT
AND LABOR COURTS
A three Judges Bench of the Hon’ble SUPREME
COURT, in the case of Workmen Of The Straw Board Manufacturing Company
Limited vs. Straw Board Manufacturing Company Limited, Judgment
dated MARCH 21, (1974 AIR 1974 SC 1132 : 1974 (4) SCC
681), observed as follows –
Para 25: It is now well established that, although the
entire Civil Procedure Code is not applicable to industrial adjudication, the
principles of res judicata laid down under Section 11 of the Code of
Civil Procedure, however, are applicable, wherever possible, for very good
reasons. This is so since multiplicity of litigation and agitation and
re-agitation of the same dispute at issue between the same employer and his
employees will not be conducive to industrial peace which is the principal
object of all labour legislation bearing on industrial adjudication. But
whether a matter in dispute in a subsequent case had earlier been directly and
substantially in issue between the same parties and the same had been heard and
finally decided by the Tribunal will be of pertinent consideration and will
have to be determined before holding in a particular case that the principles
of res judicata are attracted.
The Hon’ble SUPREME COURT OF INDIA, in the case
of Ishwar Dutt vs. Land Acquisition Collector, Judgment dated
AUGUST 2, 2005, AIR 2005 SC 3165 : 2005 (7) SCC 190), observed–
Para 18: In the Reference Court or for that matter the
High Court exercising its appellate jurisdiction u/s. 54 of the Act could not
have dealt with the said question. The principle of res judicata is
species of the principle of estoppel. When a proceeding based on a particular
cause of action has attained finality, the principle of res judicata
shall fully apply.
Para 29: In Y.B. Patil (supra) it was
held:
"4... It is well settled that
principles of res judicata can be invoked not only in separate subsequent
proceedings, they also get attracted in subsequent stage of the same
proceedings. Once an order made in the course of a proceeding becomes final, it
would be binding at the subsequent stage of that proceeding..."
Para 30: It was further observed:
"In a case of this nature, however, the
doctrine of 'issue estoppel' as also 'cause of action estoppel'
may arise. In Thoday (supra) Lord Diplock held: "..."cause
of action estoppel" is that which prevents a party to an action from
asserting or denying, as against the other party, the existence of a particular
cause of action, the non-existence or existence of which has been determined by
a court of competent jurisdiction in previous litigation between the same
parties. If the cause of action was determined to exist, i.e., Judgement was
given on it, it is said to be merged in the judgment.... If it was determined
not to exist, the unsuccessful plaintiff can no longer assert that it does; he
is estopped per rem judicatam."
The said dicta was followed in Barber vs.
Staffordshire Country Council, 1996 2 AllER 748. A cause of
action estoppel arises where in two different proceedings identical issues are
raised, in which event, the latter proceedings between the same parties shall
be dealt with similarly as was done in the previous proceedings. In such an
event the bar is absolute in relation to all points decided save and except
allegation of fraud and collusion.
EXCEPTIONS TO THE APPLICABILITY OF RES JUDICATA
Raju Ramsing Vasave vs. Mahesh Deorao Bhivapurkar & Ors.
[(2008) 9 SCC 54]
Para 23: Contention of Mr. Savant must be tested on
the premise as to whether the principle of res judicata applies in a
case of this nature.
Principle of res judicata is undoubtedly
a salutary principle. Even a wrong decision would attract the principle of res
judicata. The said principle, however, amongst others, has some exceptions,
e.g., when a judgment is passed without jurisdiction, when the matter involves
a pure question of law or when the judgment has been obtained by committing
fraud on the court.
Para 24: Two legal principles which would govern a
case of this nature, are:
(i) A decision rendered without jurisdiction
being a nullity, the principle of res judicata shall not apply.
ii) If a fraud has been committed on the court,
no benefit therefrom can be claimed on the basis of thereof or otherwise.
Para 25: In support of the first principle, we may at
the outset refer to Chief Justice of Andhra Pradesh and Others vs. L.V.A.
Dixitulu, 1979 2 SCC 34 wherein this Court, while discussing the
effect of Sec. 11 of the Code of Civil Procedure on a pure question of law or a
decision given by a court without jurisdiction, opined:
"Moreover, this is a pure question of
law depending upon the interpretation of Art. 371D. If the argument holds good,
it will make the decision of the Tribunal as having been given by an authority
suffering from inherent lack of jurisdiction. Such a decision cannot be
sustained merely by the doctrine of res judicata or estoppel as urged in this
case."
Ashok Leyland Ltd. vs. State of Tamil Nadu and Anr., 2004
1 JT 289
The principle of res judicata is a
procedural provision. A jurisdictional question if wrongly decided would not
attract the principle of res judicata. When an order is passed without
jurisdiction, the same becomes a nullity. When an order is a nullity, it cannot
be supported by invoking the procedural principles like, estoppel, Waiver or res
judicata."(See also, Dwarka Prasad Agarwal (D) By LRs. and
Anr. vs. B.D. Agarwal and Ors., 2003 6 JT 398, Union of India
vs. Pramod Gupta, 2005 12 SCC 1 and National Institute of Technology
and Ors. vs. Niraj Kumar Singh, 2007 2 SCC 481).
Whether Writ Court order will bar (res judicata
to) civil suit ?
Or
Whether civil suit will bar the writ remedy
under 226 on the grounds of Res Judicata?
Or
Can an issue conclusively determined in a Civil
Suit be re-opened before the writ jurisdiction (parallel proceedings)?
It is a settled proposition of law that a
decision or order given in a summary proceeding, which by an express enactment
is not appealable, and no finality was attached by the Legislature in express
terms to the order and that therefore the decision under that Act (by the
tribunal or the District Judge acting as a Tribunal) did not operate as res
judicata so as to preclude the parties from re-agitating the question in a
subsequent suit. (see, Arikapudi Balakotayya vs. Yadlapalli
Nagayyaheld, 1946 (0) AIR (Mad) 509).
Parallel proceedings is always discouraged as
it amounts to Forum Shopping, but when a substantial issue has not
attained finality because it was not decided on merits then subsequent writ or
civil suit shall not be res judicata.
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