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Published : April 16, 2015 | Author : schoudhary
Category : Constitutional Law | Total Views : 19021 | Rating :

Assistant Professor of Law

Res Sub Judice, Res Judicata and Constructive Res Judicata

The first provisions related to avoiding multiplicity of suit starts with the provision of the concept of Res Sub Judice as provided under,

Section 10: Stay of Suit

"No Court shall proceed with the trial of any suit in which the matter in issue is also directly and substantially in issue in a previously instituted suit between the same parties, or between parties under whom they or any of them claim litigating under the same title where such suit is pending in the same or any other Court in India having jurisdiction to grant the relief claimed, or in any Court beyond the limits of India established or continued by the Central Government and having like jurisdiction, or before the Supreme Court".

Explanation- The pendency of a suit in a foreign Court does not preclude the Courts in India from trying a suit founded on the same cause of action.

As the heading of the section says ‘stay of suit’, means no court should proceed with the trial of any suit in which the matter in issue is directly and substantially in issue with the previously instituted suit between the same parties and the court before which the previously instituted suit is pending is competent to grant the relief sought.

The purpose of the section is to bring finality in the judgment and to avoid the contradictory decision by the two different court, as there is a very good possibility that in case when matter is simultaneously being decided by different courts of concurrent jurisdiction, the courts may come up with different decisions and then it will be very difficult to finalize which decisions to be abided by.

In simple word, the very authority of law will come at stake, there will be no finality of judgment. So, with the objective to prevent courts of concurrent jurisdiction from simultaneously entertaining and adjudicating upon two parallel litigations in respect of same cause of action, the same subject-matter and the same relief, this section is provided in the Code. However, this rule only applies to trial of a suit and not the institution thereof. Although, it does not preclude a court from passing interim orders, but it applies to appeals and revisions.

The policy of law is to confine a plaintiff to one litigation so as to protect a person from multiplicity of proceedings and also to avoid a conflict of decisions by courts in respect of same relief.

However, this section can only be applied if the following condition are satisfied. These are:
# Two suits – Previously Instituted and Subsequently Instituted
# Matter in issue in subsequent suit – directly and substantially in issue in previous suit
# Both suits between same parties or their representatives
# Previous suit must be pending in same or in any other court in India
# The court dealing with previously instituted suit competent to grant relief claimed in subsequent suit
# Parties litigating under the same titles in both the suit.

The word ‘shall’ in the section makes it mandatory and the moment court finds that the above conditions are satisfied, the court will not proceed with the subsequently instituted suit, that is, the court will stay with the proceeding of subsequent suit.

The court have inherent power under section 151 of the Code and using it, the court may stay or consolidate the proceedings, but it is not mandatory and it depends upon the discretion of the court, whereas if the condition so mentioned is satisfied under section 10, the court has to mandatorily stay the subsequent suit.

However, in the light of the explanation to section 10, there is no bar on the power of an Indian court to try a subsequently instituted suit if the previously instituted suit is pending in the pending in a foreign court.

It is further important to remember that a decree passed in contravention of section 10 is not a nullity, and therefore, cannot be disregarded in execution proceedings. Again, as stated above, it is only the trial and not the institution of the subsequent suit which is barred under this section. Thus, it lays down a rule of procedure, pure and simple, which can be waived by a party. Hence, if the parties waive their right and expressly ask the court to proceed with the subsequent suit, they cannot afterwards challenge the validity of the subsequent proceedings.

Res Judicata and Constructive Res Judicata

Section 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 the 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 attack in 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 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 reference in this section to any suit, issue or former suit shall be construed as references, respectively, to proceedings 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 as 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.

Section 11 embodies the rule of conclusiveness of the judgment. It enacts that once a matter is finally decided by the competent court, no party can be permitted to reopen it in subsequent litigation. To bring an end to litigation and to save the parties from constant troubles, harassment and expenses this rule was made in the Code.

To bring the finality of the judgment, such rule is required and this rule is not an exception in Indian law. Almost every civilized legal system have this rule by one name or another, such as, under Roman Law, it is in the name of ‘ex captio res judicata’, that is one suit and one decision is enough for any single dispute. The doctrine of res judicata is conceived in the larger public interest which requires that all litigation must, sooner than later, come to an end. The principle is also founded on justice, equity and good conscience which require that a party who has once succeeded on an issue should not be harassed by multiplicity of proceedings involving the same issue.

The doctrine of res judicata is based on three maxims:

a) Nemo debet lis vaxari pro eadem causa (no man should be vexed twice for the same cause)

b) Interest republicae ut sit finis litium (it is in the interest of the state that there should be an end to a litigation); and

c) Re judicata pro veritate occipitur (a judicial decision must be accepted as correct)

The leading case on the doctrine of res judicata is the Duches of Kingston's Case (2 Smith's L.C. 13th edn. 644, 645.), wherein Sir Williams de Grey made the following remarkable observations:

"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 the judgment of a Court of concurrent jurisdiction, directly upon the points, 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 judgment 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. But neither the judgment of a concurrent or exclusive jurisdiction is evidence of any matter which came collaterally in question, though within their jurisdiction, nor of any matter incidentally cognizable, nor of any matter to be inferred by argument from the judgment."

In CORPUS JURIS (vol. 34, p. 743), it has been stated: Res Judicata 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; the other, the hardship to the individual that he should not be vexed twice for the same cause.

It is not every matter decided in the former suit will operate as res judicata in a subsequent suit. To constitute a matter as res judicata following conditions must be satisfied;
1. The matter directly and substantially in issue in the subsequent suit or issue must be the same matter which was directly and substantially in issue either actually (Explanation III) or constructively (Explanation IV) in the former suit (Explanation I). (Explanation VII is to be read with this condition)

2. The former suit must have been a suit between the same parties or between parties under whom they or any of them claim. (Read with Explanation VI)

3. Such parties must have been litigating under same title in the former suit.

4. The court which decided the former suit must be a court competent to try the subsequent suit or the suit in which such issue is subsequently raised. (Read with Explanation II & VIII)

5. The matter directly and substantially in issue in the subsequent suit must have been heard and finally decided by the court in the former suit. (Read with Explanation V)

Constructive Res Judicata

Rule of constructive res judicata is engrafted under Explanation IV of Section 11 of the Code. It is artificial form of res judicata and provides that if a plea could have been taken by a party in a proceeding between him and his opponent, he should not be permitted to take that plea against the same party in a subsequent proceeding with reference to the same subject-matter. That clearly is opposed to considerations of public policy on which the doctrine of res judicata is based and would mean harassment and hardship to the opponent.Besides, if such a course is allowed to be adopted, the doctrine of finality of judgments pronounced by the courts would also be materially affected.

Thus, it helps in raising the bar of res judicata by suitably construing the general principle of subduing a cantankerous litigant. That is why this rule is called constructive res judicata, which, in reality, is an aspect or amplification of the general principle of res judicata.

State of U.P. V. Nawab Hussain, AIR 1977 SC 1680
A, a sub-inspector of police was dismissed from service by D.I.G. He challenged the order of dismissal by filing a writ petition in the high court on the ground that he was not afforded a reasonable opportunity of being heard before the passing of the order. The contention was, however, negatived and the petition was dismissed. He then filed a suit and raised an additional ground that science he was appointed by the I.G.P., the D.I.G. had no power to dismiss him. The state contended that the suit was barred by constructive res judicata. The trial court, appellate court and the high court held that suit was not barred, but the Supreme Court held that the suit was barred by constructive res judicata as the plea was within the knowledge of the plaintiff and could well have been taken in the earlier writ petition.

Res Judicata and Public Interest Litigation

Even in a public interest litigation procedural law is applicable though not strictly. Hence, the principle of res judicata is also applicable.

Where the prior public interest litigation relates tom illegal mining, subsequent public interest litigation to protect environment is not barred.

In Rural Litigation and Entitlement Kendra v. State of U.P. it was held on this aspect:

The writ petitions before us are not inter-party disputes and have been raised by way of public interest litigation and the controversy before the court is as to whether for social safety and for creating a hazardless environment for the people to live in, mining in the area should be permitted or stopped. We may not be taken to have said that for public interest litigations, procedural laws do not apply. At the same time it has to be remembered that every technicality in the procedural law is not available as a defense when a matter of grave public importance is for consideration before the court.

Writ Petitions and Res Judicata

In M.S.M sharma V. Dr. Shree Krishna, AIR 1960 SC 1186, for the first time Supreme Court held that the general principle of res judicata applies even to writ petition filed under Article 32 of the Constitution of India. Thus, once the petition filed under Article 32 is dismissed by the court, subsequent petition is barred.

Similarly a writ petition filed by a party under Article 226 is considered on merit as a contested matter and is dismissed, the decision thus pronounced would continue to bind unless it is otherwise modified or reversed in appeal or in other appropriate proceedings permissible under the Constitution.

In the leading case of Daryao V. State of U.P., AIR 1961 SC 1457, the Supreme Court has placed the doctrine of res Judicata on a higher footing, considering and treating the binding character of the judgments pronounced by competent courts as an essential part of the rule of law.

Applicability of Constructive res Judicata in Writ Petition

The question arose for the first time before the Supreme Court in Amalgamated Coalfields Ltd. V. Janapada Sabha, AIR 1964 SC 1013, whether the concept of constructive res judicata can be applied in writ petition or not?. In Devilal Modi V. STO, AIR 1965 SC 1153, Supreme Court clarified the stand and said the principle of constructive res judicata also applies in writ petition. A direct question, however arose before the Supreme Court in State of U.P. V. Nawab Hussain, AIR 1977 SC 1680, the Court held that principle of constructive res judicata is applicable.

It should be noted that the principle of res judicata and constructive res judicata are held not applicable in Habeas Corpus Petition by Supreme Court in Ghulam Sarwar V. Union of India, AIR 1967 SC 1335 and in Lallubhai V. Union of India, AIR 1981 SC 728, respectively.


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