Res Judicata under Section 11 of the Code of Civil Procedure

By Chanchal Kumawat

Introduction

There is a common picture of the Indian Judiciary in the minds of people living in our country. People often threaten each other by saying that either you agree with my terms and conditions or I will go to court. The reason behind this is that the Indian Judiciary has a lot of pending cases and once entered the court of Justice it can even take ten to eleven years to get out of that. Now imagine once your case is decided even after years of hearings and the other party goes to the court and submits the same allegations against you again. You feel this is unfair, this is not done, you just won and now again you have to face all those years. This won’t happen because for preventing such situations we have the Doctrine of Res Judicata. Merian Webster defines Res Judicata as “a matter finally decided on its merits by a court having competent jurisdiction and not subject to litigation again between the same parties”. The concept of this doctrine can be traced back to the English Common Law, from there it came into civil procedure law, and over time the whole judiciary has adopted it. To end the hectic process of litigation once and for all, when the judgment is passed by a capable court of justice, this doctrine came into force.

This particular doctrine has its origin in three legal maxims

1. Nemo in propria causa judex, esse debet

This maxim states that when a case is filed, the accused or the defendant should not be made judge of that case. This maxim prevents biases and is a basic principle of natural justice. In natural justice, there should be a rule against bias and the right to have a fair hearing. This rule cuts the way of those factors which can come in the way of a judge in a case while passing the judgment and favoring one party more than the other, both the parties have the right to be heard and present their case. If a judge is biased we cannot expect fair judgment from him. Bias can be of many types:

1. Personal Bias

As the name clearly suggests this arises out of personal relationships. We always want to hand the case in the favor of our relative or friend. In professional relationships too, one would take the side of the person whom he knows or by giving the judgment in his favor he can expect a promotion or a good image in his profession.

In Baidyanath Mohapatra v. State of Orissa, the person who was the member of the review committee and the one who chaired the tribunal was the same, for this very same ground the order by the tribunal of premature retirement was quashed by the Supreme Court of India. We can determine personal bias by the use of any of the two tests: 

Reasonable Suspicion of Bias, meaning, it is quite visible in the eyes of common people the reason for biases on behalf of the judge, it can be previous engagement with the parties or relationships.

Real Likelihood of Bias: In this particular test the reasons and explanations given by the judgment are evaluated and biasness is proved. How the court evaluates a matter and marks the possibilities. 

Deciding the biasness is difficult because one cannot point the pin on the thoughts of a judge. In the case of Jiwan K. Lohia v. Durga Dutt Lohia , it was seen that when we take help of biases test, we have to note the fact that if the judgment is changed by the judge this doesn’t conclude the very fact that judgment is biased rather when an applicant expects that the final decision is because of him. 

2. Pecuniary Bias

This kind of bias arises when money comes into the picture. A Bribe is a reason for this particular bias. The decisions in pecuniary bias can be quashed only when the interests affect the judgment and not otherwise. Like in, R v. Mulvihill, the judge had invested some of his money in a bank, in which a robbery was carried out by the accused. Unless any kind of risk of illegitimacy is sensed no action will be taken. 

3. Subject- Matter Bias

Here the subject of the case plays a very important role, if the judge first hand or second hand is involved in the subject matter it’s a subject matter bias. In R v. Deal Justices ex p. Curling, the judge, was a member of the society for the prevention of cruelty to animals but he was not dismissed from the chair because this fact does not raise any question on the fairness of the judgment delivered.

4. Departmental Bias

In departmental bias, the judge and the prosecutor have worked in the past in the same department so it can be assumed that the judge has the acquaintance of the party accused. Hari v. Dy. Commr. of Police. In this case, the autonomous nature of duties and the criteria of the same department were understood. The court decided that even though the department that conducted the proceeding and the one that heard and concluded were the same. The plea was dismissed stating that if two different officials are performing a particular duty in the same department then there is no need for concern.

5. Preconceived notion bias

This is a very common bias in the judiciary or anywhere. The judge has a decided image of the parties in his mind and he passes judgment on the basis of those notions. There is no need to prove any relationship or subject matter or financial interest in this bias. It can be difficult to determine this kind of bias so the only way to find it is by going through the rationale of the judgment passed. This bias particularly came into light in a case-law the government resolved in principle to monopolize road transport and constituted a committee to outline the proposal in T. Govindaraja Mudaliar v. State of T.N. This committee now includes the Home Secretary. Later, the recapitalization proposal was finished, disseminated, and the Home Secretary heard objections. The hearing is also said to be corrupted by the pro-government rule since the Secretary had already made up his mind on the issue of nationalization because he was a part of the group that made the policy decision. The case was dismissed by the court on the grounds that the Secretary, as a member of the committee, had not definitively resolved any issue that would have deprived his options. Only his help was taken for the purpose. 

6. Bias by obstinacy 

The literal meaning of obstinacy is being stubborn. Judiciary often has to face such circumstances where the judge couldn’t take “no” for an answer, they think they are superior and any other party should abide by what they say. They forget that they are just human beings doing their job, its law which is superior and followed in any case at hand. We all are students of law and not the law itself. 

2. Interest reipublicae ut sit finis litium 

The interest of the state lies in the fact that as soon as the litigation ends the better the future of the judiciary. What is the meaning even of taking the same case in hand again and again when there are thousands of cases that go unheard in each and every court of our country? In the case law Union of India and Others Vs. Major S. P. Sharma and Others it was held that when a country chooses the power of law, the finality of a judgment becomes imperative and righteousness is attached to that finality, when a party decides to reopen a particular judgment it not only have an adverse effect on the justice system but it is a kind of disrespect and abuse to the law and order. It would also nullify the doctrine of stare decisis, meaning, that decisions passed by the upper court are binding on the lower court in all circumstances, a well-established valuable principle of precedent which cannot be just deceased until and unless such a situation arises. The judgments by the supreme court of India unsettles lightly. 

In a case, it was held that “Once an order attains its finality, that is, it is not challenged in appeal or by way of any procedure established in law, it matters little whether such order was erroneous and bad in law”-Indu Bhusan Jana Vs. Union of India and Ors. Again According to an analysis of the above judgment on the Doctrine of Finality, the Doctrine is focused on different age-old principles: interest reipublicae ut sit finis litium, which means that it is in the interest of the State that litigation be ended, and nemo debet bis vexari, si constat curiae quod sit pro una et eadem causa, which means that no one should be infuriated twice. It is self-evident that when an order has obtained its finality, that seems to be, it has not yet been challenged in an appeal or by any other proven avenue, it makes little difference if the ruling was flawed and incorrect in law. This order between the parties becomes final and is not subject to appeal by any party at a later date. The only exceptions to the Doctrine of Finality are if the previous order’s finding was gained by deception or if the court lacked the authority to issue the order. 

3. Res judicata accipitur pro veritate

If we try to understand this maxim with the help of an example when ‘x’ sued ‘y’ of theft in the court of justice and the matter was concluded by the court of justice. Then again after two years x again sued y in the same court of justice with the same facts, and arguments. Court will dismiss this petition by quoting Res judicata accipitur pro veritate. Satyendra Kumar & Ors. v. Raj Nath Dubey & Ors. The honorable Supreme Court of India contemplated the principle of ‘Res Judicata’. The High Court of Kerala was the first high court to consider this principle in the case law Moosa vs Sub Inspector of Police. Pritam Singh and Anr. Vs the State Of Punjab, in this case, the honorable Supreme Court of India provided the following – 

The maxim ‘res judicata pro veritate accipitur’ is felicitous to criminal proceedings as much as it is to civil cases. 

Explanations are given of res judicata in section 11 of CPC

Explanation 1

“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”. Meaning, that the former suit is not the date when the suit was filed, but the date when the suit was decided by the court. For example, if we file a suit on 9th March 2019 and another on 9th March 2020, the former one is pending in the court while the latter is decided on 1st April 2020. In this case, the suit filed on 9th of march 2020 will be the “former suit” and not the one filed on 9th March 2019. It does not matter if the suit is filed first or last filed, whosoever judgment is delivered will be called a former suit. This was held in the case Sheodan Singh vs Smt. Daryao Kunwar.

Explanation 2

“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”. This explanation mentions the competency of a court that was noticed in Narayana Prabhu Venkateswara … vs Narayan Prabhu Krishna Prabhu.

Explanation 3

“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”. This explanation lays down the possibilities, when one party files a case based on the former suit, another party does either of the two things, admit the issue or deny the issue.

Explanation 4

“Any matter which might and ought to have been made the ground of defense or attack in such a former suit shall be deemed to have been a matter directly and substantially in issue in such a suit”. This explanation deals with the phenomenon of constructive res judicata. In constructive res judicata, when the parties were at the stage of argument in court and there was an issue that might have been raised by the plaintiff but they did not then after the judgment they again raise that same issue. This attracts constructive res judicata, and the issue will be considered heard and raised in the previous judgment only.  Pandurang Ramchandra Mandlik … vs Smt. Shantabai Ramchandra Ghatge it was noticed that there is no universal principle as to determine if the order is substantial in nature, this question can be decided when the reference of a judgment, plea, issue, the written statement comes into action. 

Explanation 5

“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”. Mysore State Road Transport … vs Babajan Conductor & Anr, explanation number five talks about the relief claimed by the judgment. Suppose the plaintiff files four reliefs and only three are mentioned in the decree then the relief on which the court was silent will be deemed to have been refused. 

Explanation 6

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. This explanation provides that res judicata is applicable to representative suits also. For example, if X has created a nuisance and parties A, B, C, and D are the ones who got hurt. In the representative capacity if A files a suit against X then he has to provide a notice of the same to B, C, and D and they will have the right to raise objections against the same. If no objections were raised and final judgment was delivered by the court and then B decides to raise an issue against X, in this case, res judicata will come into play, and a plea by B will be barred. 

Explanation 7

“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, the question arising in such proceeding and a former proceeding for the execution of that decree”. In the case of execution, proceedings suppose A has filed a suit against B, and B was ordered by the court to provide A with 30 lakh rupees. After 3 years A goes to court for the execution of the decree but B proved that all the amount was transferred to A with due course of time. Since for the execution 12 years are provided by the court, taking advantage of this A goes again in the court after four years then res judicata of the previous execution proceeding will be applied and the plea will remain dismissed. 

Explanation 8

“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”. This explanation talks about limited jurisdiction. If the apex court finds that the former court was incompetent to try subsequent suit due to limited pecuniary jurisdiction or due to limited subject matter jurisdiction then res judicata will be applied. Or if otherwise, the court was incompetent then res judicata will not apply.

CONSTRUCTIVE RES JUDICATA

This can be explained by the case law in which it was defined State of Uttar Pradesh v. Nawab Hussain in this case M was a sub-inspector, he has filed a writ petition in the High Court upon his dismissal from the service of Deputy Inspector General of Police. The basis of the writ was that he was not given an opportunity to present his case and an injunction was issued. This argument was rejected so he again filed a petition claiming that his appointment was by the Inspector General of Police and Deputy Inspector General of Police had no authority over his removal. This explains Constructive res judicata, M had the chance and knowledge to raise the issue he raised in petition number two, in petition number one only, but he did not. His plea was dismissed in the second petition for the reason of constructive res judicata. 

RES JUDICATA AND RES SUBJUDICE

Section 10 of the Civil Procedure Code deals with the doctrine of res subjudice. The term “res subjudice” refers to a problem that is pending a judicial review or trial. Res-judicata refers to a case that has already been decided or that has already been adjudicated. The trial of a lawsuit is forbidden by res subjudice. The doctrine of res judicata bars a lawsuit from being filed.

RES JUDICATA AND STARE DECISIS

As per Black’s law dictionary stare decisis refers to standing by decided cases, upholding precedents, or maintaining former adjudications on issues that are similar in nature. The want for consistency and permanence in law gave rise to the doctrine of stare decisis. Res judicata deals with the decision whereas stare decisis deals with the reasoning involved in a dispute. Res judicata binds the parties involved in a dispute while stare decisis binds everyone who comes in front of the court irrespective of the fact whether they have accepted it or not because Res judicata applies in all the courts, whereas in stare decisis there is a hierarchy, the decisions by an upper court only will be binding on the lower court and not the vice versa. A most important difference is timing res judicata come into force when the decision is passed because then only it will be binding on all the courts in the country whereas stare decisis comes into force the moment an appeal is filed.

RES JUDICATA AND ESTOPPEL 

Estoppel is present in sections 115 to 117 of the Indian Evidence Act. This principle prevents a person from doing contrary actions as per the statements or assumed by actions done by him earlier. It is necessary for the other person to rely on the statements made by the person. Differences between both of the doctrines are as follows

1. Res judicata comes from the decision of the court, it is the court that dismisses the appeal on the ground of res judicata whereas estoppel comes from the action of the parties, party one does something by the faith on statements made by party two, and party two denies his actions on the completion of action by party one.
2. Res judicata is based on public policy that came into force to remove the burden of repeated litigation from the public and litigation should end. Estoppel is based on the doctrine of equity, it stops multiplicity of representation.
3. Res judicata removes the jurisdiction of the court. Estoppel shuts the parties and not the courts. If a party said something then they are not obliged to repeat it again and again in front of the court.
4. In the case of res judicata we already know the decision through the precedent, it stops both the parties from filing a litigation suit. In estoppel, one party is responsible for its action of contrary conduct. 

EXCEPTIONS TO THE DOCTRINE OF RES JUDICATA

Res judicata is mentioned in section 11 of the Civil Procedure of the Code, which means it is applicable in all civil cases and in addition to criminal cases too. But what about when it comes to writ petitions, this question was answered by the honorable supreme court of India in the Daryao And Others vs The State Of U. P. And Others, the petitioner filed a writ petition in the Allahabad High Court under article 226 of the Indian Constitution, and again the same appeal was filed by the same petitioner on the same ground in the Supreme Court of India under Article 32 of the Indian Constitution. The Supreme Court quashed the appeal stating the doctrine of res judicata is applicable in writ petitions except in the case where the writ petition is filed under a writ of ‘habeas corpus’, held in Sunil Dutt vs Union Of India. 

Dismissal of Writ Petition in Limine – Pujaril BAL V Madan Gopal: held “Res Judicata not applicable once dismissed in limine or on grounds of laches or availability of alternative remedies”. As  “Matter collaterally and incidentally in issue doesn’t operate as Res Judicata” – Sayed Mhd V. Musa Ummer

It was ruled in Beliram and Brothers v. Chaudhari Mohammed Afzal that a minor’s suit could not be initiated by the minors’ guardian. However, it was brought in collusion with the defendants, and the order acquired was gained via fraud as defined by the Indian Evidence Act of 1872, therefore it is not res judicata.

The doctrine of Res judicata is also not applicable when cases are filed under section 13 of the Hindu Marriage Act, 1955 as several issues in family law, including parenting time orders, child custody orders, support payment, and even spouse maintenance appear to remain unresolved. These are all sections that will be modified if there is a significant change in conditions. In any case, as the number of statutory violations grows, the protection afforded by this principle gets less and less, because the theory only applies when the defendant is put in peril twice for the same conduct. 

The doctrine of res judicata is not applicable in the cases of CCI. The Supreme Court of India in the case law smt ujjam bai vs state of up noticed that the doctrine is only applicable on tribunals that perform judicial performances but CCI’s functions are not just limited to this, hence not applicable. If a section is added to the Competition Act then only it can come into force in the cases related to the Competition Commission of India. This came into notice in the case-law of Amazon V. CCI.

Conclusion

There are around seventy-three thousand cases pending in front of the Supreme Court of India and around forty-four million in the High Courts. People are on the verge of losing faith in the judicial system. Fear of never-ending litigation is stopping people from standing for themselves, their own rights for their own justice. The doctrine of res judicata has great importance in the Indian Judiciary system. Steps like this should be taken in order to prevent repeated case laws and reduce the litigation burden on the courts. This will increase the faith of common people in the judiciary. Possibilities of the addition of res judicata in other acts and amendments should also be listed.