Saji Koduvath, Advocate, Kottayam.

Introduction.

‘Res’, in Latin, means a thing or matter; and ‘Judicata’ means decided or judged. Thus, Res Judicata applies when the ‘matter is decided’. It is based on the public policy of finality and conclusiveness of judicial decisions, and private interest of all persons sued; that is, one should not be tried twice for the same cause or a matter that has been directly and substantially in issue in an earlier suit. Sec. 11 of the Code of Civil Procedure, 1908, elucidates this principle.

Doctrine of Res judicata is brought-in in procedural law to bring-forth finality to judicial decisions.  Once a matter is finally decided by a competent court, it shall not be allowed to be adjudicated again.

Classifications of Res Judicata

In law, ‘res judicata’ signifies ‘bar-by-res-judicata’ to subsequent litigation. Based on practical application of bar-by-res-judicata, judicial findings can be broadly classified into 3 categories:

• Res judicata (Bar by actual findings),
• Constructive res judicata (Bar by res judicata, beyond findings), and
• Ineffectual Res Judicata (Findings; but, no bar by res judicata)

Bar by Res-judicata, when Attracted:

1. Same matter in issue: The matter in issue in earlier suit and the subsequent suit must be directly and substantially same. It need not have been considered, actually; a constructive consideration will be sufficient. But, the consideration of the same should not have been ‘incidental or collateral’.
2. Same Parties: Parties to both suits must be same. It includes their privies on whom the concerned right or interest may have devolved.
3. Parties litigating under the same title: Parties must be litigating under the same title, in both suits. It refers to the capacity of persons who are suing or who are sued.  That is, whether the suit is for the benefit of the person named in the suit alone, or whether that person also represents the interest of another or others. A decision on such a suit will be binding on all such persons represented, and it will be independent of any particular cause of action on which one sues or is sued. In Ram Gobinda v. Bhaktabala, AIR 1971 SC 664, it is observed that the test for res judicata is the identity of title in the two litigations and not the identity of the subject matter involved in the two cases. Explanation VI lays down that 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.  It is clear that to attract Explanation VI, all persons who are represented in the representative capacity need not be expressly named in the suit. A suit instituted under Order I, rule 8, CPC will fall under this category.
4. Tried by a competent court: The former suit must have been tried by a competent court. The principle behind this proposition is that the finding of a Court of limited jurisdiction will not be final and binding.  In Explanation II it is clarified that 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.
5. Heard and finally decided: The matter must have been heard and finally decided by the earlier court in the earlier suit. What is material is the date on which the earlier suit was decreed; and not its date of filing..

No Res judicata, Where the former suit was dismissed for:

• want of jurisdiction,
• default of plaintiffs appearance,
• misjoinder or non-joinder of parties,
• the suit was not properly framed,
• suit was premature,
• technical defect whereby the decision would not be on merits

Issue Must Have Been Raised

Sufficient pleading should have been raised by the party (in the subsequent suit) who seeks dismissal on bar by ‘res judicata’ so that an issue must have been raised on the same.  (Kalawati Kotla vs. Shokilal, AIR 2013 Chh. 12)

In Madhukar D. Shende v. Tarabai Aba Shedage, AIR 2002 SC 637, it is observed as under:

 “We are not inclined, in the facts and circumstances of this case, to weight the admissibility and binding efficacy of the decision rendered in the earlier suit on the doctrine of res judicata and holding the earlier decisions as conclusive between the parties. Res judicata is a mixed question of fact and law. We do not find the plea of res judicata having been raised in the plaint. Copies of pleadings and issues framed in the earlier suit have not been tendered in evidence and we do not find any issue on res judicata having been framed and tried between the parties in the present suit. No submission raising the plea of res judicata was made before any of the courts below or the High Court. We do not think such a plea can be permitted to be raised before this Court for the first time and at the hearing.”

Res Judicata Rests Upon Pleadings

Res judicata arises on finding of a matter in an earlier case. But, res judicata always rests upon pleadings; because ‘the matter directly and substantially in issue’ is the decisive factor to determine res judicata.

Referring to earlier decisions, it is pointed out by our Apex Court in V Rajeswari v. T C Saravanabava, 2004-1 SCC 551, that the plea of res judicata is founded on proof of certain facts and then by applying the law to the facts so found; and that it is, therefore, necessary that the foundation for the plea must be laid in the pleadings and then an issue must be framed and tried. It was also emphasised that a plea not properly raised in the pleadings or in issues at the stage of the trial, would not be permitted to be raised for the first time at the stage of appeal.

However, the Apex Court added:

“The view taken by the Privy Council was cited with approval before this Court in State of Punjab v. Bua Das Kaushal. However, an exception was carved out by this Court and the plea was permitted to be raised, though not taken in the pleadings nor covered by any issue, because the necessary facts were present to the mind of the parties and were gone into by the Trial Court. The opposite party had ample opportunity of leading the evidence in rebuttal of the plea. The Court concluded that the point of  res judicata had throughout been in consideration and discussion and so the want of pleadings or plea of waiver of res judicata cannot be allowed to be urged.” (Quoted in Swamy Atmananda Vs. Ramkrishna Tapovanam, AIR 2005 SC 2392)

Necessary to examine plaint, written statement, issues and judgment

For determining res judicata it is necessary to examine the plaint, the written statement, the issues and the judgment to find out if the matter was directly and substantially in issue (Ishwer Singh v. Sarwan Singh AIR 1965 SC 948; Syed Mohd. Salie Labbai v. Mohd. Hanifa, (1976) 4 SCC 780; Nand Ram v. Jagdish Prasad: AIR  2020 SC 1884).

If only finding is “necessary”, then only it is “Directly and Substantially” in issue

In Sajjadanashin Sayed v. Musa Dadabhai Ummer, (2000) 3 SCC 350 the Supreme Court held that to attract res judicata on an earlier finding, the matter must have been directly and substantially in issue and that the finding on an issue came “collaterally or incidentally” would not ordinarily be res judicata. It was pointed out that if only the issue was “necessary” to be decided for adjudicating on the principal issue and had actually been decided, then only it  would have to be treated as “directly and substantially” in issue; and that it is also necessary that the judgment was in fact based upon that decision. Referring Sajjadanashin Sayed it is observed in Nand Ram v. Jagdish Prasad: AIR  2020 SC 1884 that a material test to be applied is whether the court considered the adjudication of the issue material and essential for its decision.

Referring Sajjadanashin Sayed it is observed in Union of India Vs. Vijay Krishna Uniyal, 2017-12 SCALE 704, that one has to examine the plaint, the written statement, the issues and the judgment to find out if the matter was directly and substantially in issue.

Constructive Res-Judicata: For Not Making Whole Pleadings

Explanation IV of Sec. 11 CPC brings-forth the bar on ‘constructive res judicata’. It sounds that the parties to the litigation should bring their whole case before the court in a candid manner. To attract the contention as to bar on constructive res judicata it must be shown that the particular matter in issue or ground must have been a matter which ‘might and ought’ to have raised as a  point in the former suit.

The majority view authored by Justice Untwalia in a full bench decision in Baijnath Prasad Sah vs. Ramphal Sahni (AIR 1962 Pat 72) examined the scope of ‘might and ought’ in the Explanation IV of Sec. 11 CPC and explained as under:

“If a party takes an objection at a certain stage of a proceeding and does not make another objection which it might and ought to have taken at the same stage, it must be deemed the Court has adjudicated upon the other objection also and has held against it. This principle of constructive res judicata has been extended further. If a party has knowledge of a proceeding, and having had an opportunity when it might and ought to have raised an objection, it does not do so, it cannot be allowed to raise that objection subsequently, if the Court passes an order which it could not have passed in case that objection had succeeded, on the ground that it must be deemed to have been raised by the party and decided against it. Though a transaction is void if a certain provision of law applies, it is for the court to decide whether that provision is applicable. Once a competent court has given a decision, holding expressly or by implication, that provision of law is inapplicable and the transaction is not void, that decision operates as res judicata between the parties. So also if an order of the court is deemed to have decided the question, the order is binding upon the parties.” Quoted in: Bhanu Shankar Raikwar Vs. Vijay Shankar Raikwar: 2018-3 MPLJ 569

From the above, it is clear that constructive res judicata is invited in the following two situations:

• Out of wilful act: If a party takes a particular objection on a specific matter or allegation at a certain stage of a proceeding and does not make another objection which it might and ought to have taken at that stage.
• Out of tacit or implicit act: If a party has (i) knowledge of a proceeding, and (ii) having had an opportunity to raise a particular objection, omits to do so; that is, tacitly or implicitly omits when it might and ought to have done.

It is held in Shankara Co-op Housing Society Ltd. v. M. Prabhakar, AIR 2011 SC 2161; (2011) 5 SCC 607, as under:

• “77. In the present case, it is admitted fact that when the contesting Respondents filed W.P. No. 1051 of 1966, the ground of non-compliance of statutory provision was very much available to them, but for the reasons best known to them, they did not raise it as one of the grounds while challenging the notification dated 11.12.1952 issued under the Evacuee Property Act. In the subsequent writ petition filed in the year 1990, initially, they had not questioned the legality of the notification, but raised it by filing an application, which is no doubt true, allowed by the High Court. In our view, the High Court was not justified in permitting the Petitioners therein to raise that ground and answer the same, since the same is hit by the principles analogous to constructive res judicata.”

• See Blog: Pleadings Should be Specific; Why?
• See Blog: Adverse Possession: An Evolving Concept

Res Judicata by Implied Finding

There should be a specific and express finding on a specific issue in the earlier suit, for inviting res judicata. Constructive res judicata is an exception to the general rule.  Explanation IV of S. 11, CPC lays down that res judicata may be deemed, ‘beyond findings’.

Though res judicata may arise on an implied finding, it does not dehors the proposition that pleadings are the decisive factor for res judicata. It is held in Nikunja Behari Das v. Jatindra Nath Kar, AIR 1956 Cal 613, as under :

“A decision by necessary implication is as much res judicata as an express decision. That this is so in the case where Explanation IV of S. 11, Civil Procedure Code, has to be considered, there can be no doubt, but even in other cases where a matter has been raised in the pleadings but there is no express decision but there is a decision by necessary implication, the Courts have always held that the principle of res judicata is applicable.” [Quoted in: Globe Publications Vs. Madan Gopal: AIR 1996 P&H 115]

Referring Greenhalgh v. Mallard (1576 ER 123) the Supreme Court explained in the State of UP v. Nawab Hussain (AIR 1969 SC 1256) that if a person is allowed to choose one cause of action from two or more causes of action from the same set of facts he would not be allowed to choose one at a time and to reserve the other for subsequent litigation. It amounts to abuse of process of the court.

In Forward Construction Co. v. Prabhat Mandal, Andheri (AIR 1986 SC 391) the Supreme Court observed the scope of Explanation IV to Section 11 of CPC as under:

“An adjudication is conclusive and final not only as to the actual matter determined but as to every other matter which the parties might and ought to have litigated and have had it decided as incidental to or essentially connected with the subject matter of the litigation and every matter coming within the legitimate purview of the original action both in respect of the matters of claim or defence. The principle underlying Explanation IV is that where the parties have had an opportunity of controverting a matter that should be taken to be the same thing as if the matter had been actually controverted and decided. It is true that where a matter has been constructively in issue it cannot be said to have been actually heard and decided. It could only be deemed to have been heard and decided.”

No Res judicata, Where suit dismissed on Technical Ground

It is trite law – there will not be res judicata if a suit is dismissed not on merit but on technical ground. (See: Niloufer Siddiqui v. Indian Oil Corporation Ltd., AIR 2008 Patna 5 upheld by the Supreme Court in Indian Oil Corporation Ltd.  v. Niloufer Siddiqui, 2015-16 SCC 125: Referred to in: P. Rajesh v. V. Shanthi, 2015-5 LW 27; 2015-7 MLJ 648)

Therefore, there may not be any bar on the ground of res judicata even if a suit is dismissed on the technical ground of claiming inconsistent pleas of easement.

No Res Judicata, in spite of findings (Ineffectual Res Judicata)

Though there may be a previous decision on a particular issue, it may not bar the trial of subsequent suit as res judicata in the following instances.

1. Former decision was not from a competent court; or order/decree was without jurisdiction. Fatma Bibi Ahmed Patel v. State of Gujarat, (2008) 6 S.C.C. 789.
2. Where ultimate decision in earlier case was on the ground that the suit was not maintainable, findings on merits in such cases do not constitute res judicata.
3. Adverse finding against a party in whose favour the suit or the appeal is ultimately decided. 
4. Former decision was too perverse for no proper reasoning was given.  
5. Pure question of law.  Raju Ramsing Vasave v. Mahesh Deorao Bhivapurkar, (2008) 9 S.C.C. 54.
6. Public interest litigation (M.C. Mehta v. Union of India, (2000) 5 S.C.C. 525).   Principles of res judicata do not strictly apply to public interest writs – under Article 32 and Article 226.
7. Dismissal of earlier suits and writs in limine. Daryao v. State of Uttar Pradesh, A.I.R. 1961 S.C. 1457.
8. Dismissal of earlier suits and writs on technical ground or for want of parties: Ram Gobinda v. Bhaktabala, AIR 1971 SC 664; Shiromani Gurdwara Parbandhak Committee Vs Mahant Harman Singh AIR 2003 SC 3349.
9. Dismissal of earlier suits on a technical ground that they were for a mere declaration without seeking consequential relief: Inacia Martins v. Narayan Hari Naik AIR 1993 SC 756.
10. First suit was dismissed for want of notice: Ramasami v. Thalawasal Marudai Reddi, l.L.R. 47 Mad. 453.
11. First suit was dismissed on the ground of bar by ‘limitation‘. Munishi Chinadandasi v. Munishi Pedda Tatiah, AIR 1921 Mad 279; Krishnan Vs. Perumal Nadar, AIR 1973 Mad 81
12. Dismissal of earlier suit for default of plaintiff or on limitation. Ram Gobinda v. Bhaktabala, AIR 1971 SC 664.
13. In earlier suit, the plaintiff was non-suited on the ground of limitation, res judicata, mis-joinder, insufficient court fees on the plaint, jurisdiction or a like technical and preliminary ground: Venkatasuryanarayana v. Sivasankara-narayana (1914) 17 M.L.T. 85, Rama Krishna Naidu v. Krishnaswami Naidu, 36 M.L.J. 641.
14. If appeal in earlier litigation was dismissed on technical grounds, lower court decision holds the field. Sheodan Singh v. DaryaoKunwar, AIR 1966 SC 1332.
15. Findings on several grounds against a party. In appeal lower court decree confirmed; but, only one ground considered. Res judicata on that one ground alone.
16. Cases where re-litigation is needed.
17. Habeas corpus cases. If one habeas corpus petition is dismissed, then subsequent petition with fresh grounds will not be discarded. Sunil Dutt v. Union of India, A.I.R. 1982 S.C. 53.
18. New laws bring new changes that lead to the filing of a subsequent suit with the same cause of action. 
19. Decision in the former suit has been obtained by fraud (Section 44 of the Indian Evidence Act, 1872 refers to such judgments). Beli Ram v. Chaudri Mohammad Afzal, (1948) 50 Bom.L.R. 674.
20. Different causes of action, as in an injunction suit or in an eviction suit.
21. Intermediate reliefs in interlocutory applications.
22. Taxation cases. Liability to pay tax each year differs is independent of each other.  Broken Hill Proprietary Co. Ltd. v. Broken Hill Municipal Council, 1926 A.C. 94.   Instalment Supply Private Limited v. Union of India, AIR 1962 S.C. 53.

Ultimate Decision – Suit Not Maintainable, NO Res Judicata on findings on Merits

Our Apex Court pointed out in Vithal Yeshwant Jathar v. Shikandar Khan Makhtum Khan, AIR 1963 SC 385, as under:

“It is well settled that if the final decision in any matter at issue between the parties is based by a Court on its decisions on more than one point – each of which by itself would be sufficient for the ultimate decision -the decision on each of these points operates as res judicata between the parties. “ (Quoted in: Commissioner of Endowments Vs. Vittal Rao, AIR 2005 SC 454)

However, where the ultimate decision in the early suit was on a technical or other ground that the suit was not maintainable, there will be no res judicata on findings on merits in other issues of that case.

In PMA Metripolitan v. Moran Mar Marthoma, AIR 1995 SC 2001, it is held as under:

• “In Abdullah Ashgar Ali Khan v. Ganesh Dass AIR 1917 PC 201 the Court while considering the expression, ‘heard and finally decided’ in Section 10 of the British Baluchistan Regulation IX of 1896 held that where the suit was dismissed by two courts on merits but the decree was maintained in second appeal because the suit was not properly constituted then the finality on merits stood destroyed. In Sheosagar Singh & Ors. v. Sitaram Singh ILR 1897 Cal. Vol. XXIV where parentage of defendant was decided in his favour by the Trial Court but the High Court maintained the order as the suit was defective the claim of the defendant in the latter suit that the finding on parentage operated as res judicata was repelled and it was held, that the question of parentage had not been heard and finally decided in the suit of 1885. The appeal in that suit had put an end to any finality in the decision of the first Court, and had not led to a decision on the merits. The rationale of these decisions is founded on the principle that if the suit was disposed of in appeal not on merits but for want of jurisdiction or for being barred by time or for being defectively constituted then the finality of the findings recorded by the Trial Court on merits stands destroyed as the suit having been found to be bad for technical reasons it becomes operative from the date the decision was given by the trial court thus rendering any adjudication on merits impliedly unnecessary.”

In Pawan Kumar Gupta Vs. Rochiram Nagdeo, 1999-4 SCC 243, it is observed as under:

“19. Thus the second legal position is this: If dismissal of the prior suit was on a ground affecting the maintainability of the suit any finding in the judgment adverse to the defendant would not operate as res judicata in a subsequent suit. But if dismissal of the suit was on account of extinguishment of the cause of action or any other similar cause a decision made in the suit on a vital issue involved therein would operate as res judicata in a subsequent suit between the same parties.”[Quoted in: Director, WB Fire Service Vs. Shyam Sundar Kalra: 2018-2 CalLT 389; Mir Shah Zahoor Trustee Vs. Haji Shaik Madhar: 2009-2 ALD 557, 2009-4 ALT 263; Bakerbag Subhanbeg Vs. Shrikant Laxminarayan Zanwar: 2008-3 All MR 656; Mahadu Punjaba Dhage Vs. Prabhakar Trimbak: 1999-4 All MR 381, 2000-2 BCR 817.]

It is pointed out in D. Kandaswamy Naicker v. R. Kumaraswamy (1990-1 MadLJ 166) that where a finding in a judgment is a mere opinion and it is neither an order nor a decree, it can bind none, and it cannot be treated as a judicial and enforceable determination of a matter. (Also see:Rama Shankar v. Hubraji (AIR 1969 All 407) It is held in Pakkran v. Pathuamma, 25 M.L.J. 279, that any decision on a collateral matter would not operate as res judicata. In Rama Krishna Naidu v. Krishnaswami Naidu, (1918) 36 M.L.J. 641, it was held that if the findings rendered were wholly inconsistent with the decree, they would not operate as res judicata.

In Venkata-surya-narayana v. Siva-sankara-narayana, (1914) 17 M.L.T. 85, it was observed that where the plaintiff was non-suited on the ground of limitation, res judicata, mis-joinder, insufficient court fees on the plaint, jurisdiction or a like technical and preliminary grounds, and at the same time the court proceeded to give a finding on the merits against defendants to save a remand by the Appellate Court, such findings on merits would not be res judicata if, on appeal, the appellate Court did not itself think it necessary to give its decision based on such findings on merits, or if in case there was no appeal. It was observed in that case that it was evident that the first Court did not intend its findings on merits to be final.

See also:

Ganeshprasad Badrinarayan Lahoti Vs. Sanjeevprasad, 2004-7 SCC 482,
Karnail Singh Vs. Bhajan Singh, 2005 AIR(P& H) 207,
Phonographic Performance Vs. Union of India: 2015-220 DLT 90.

NO Res Judicata on Adverse Findings, In a Favourable Decree

There will be no res judicata on adverse findings (on other issues) if the suit or appeal is ultimately decided in favour of a party.  In PMA Metripolitan v. Moran Mar Marthoma, AIR 1995 SC 2001, it is observed as under:

“Where a decree is one of dismissal in favour of the defendants, but there is an adverse finding against him, a plea of res judicata cannot be founded upon that decision because the defendant having succeeded on the other plea had no occasion to go further in appeal against the adverse finding recorded against him [see Midnapur Zamindari Company Ltd. vs. Naresh Narayan Roy, AIR 1922 PC 241 ] ….. Similarly, in the decision of the Patna High Court in Arjun Singh v. Tara Das Ghosh, AIR 1974 Pat 1 the primary question was whether a party against whom a finding is recorded has got a right of appeal even though the ultimate decision was in his favour and it was held that there was no bar, but what was necessary was that the finding so recorded should operate as res judicata. On facts it was found that the Appellate Court while maintaining the order of dismissal of the suit on preliminary issue recorded findings on other issues which were against the plaintiff, yet the plaintiff was not entitled to file an appeal as the findings on merits which were adverse to him could not operate as res judicata. In Sham Nath’s case (Sham Nath Madan vs. Mohammad Abdullah, AIR 1967 J&K 85) the learned Single Judge rejected the plea of res judicata raised on behalf of the plaintiff, but while considering the alternative argument, observed that an adverse finding recorded against a defendant in a suit dismissed could not operate as res judicata unless the adverse finding formed a fundamental part of the decree itself.”

In Bakerbag Subhanbeg Vs. Shrikant Laxminarayan Zanwar: 2008-3 All MR 656 it is pointed out that an appeal would lie against only those findings that amount to a ‘decree’ or ‘order’ that falls under Section 96 or Section 100 CPC. Similarly, no appeal lies against an Order under Section 104 read with Order 43, Rule 1. In Bakerbag Subhanbeg earlier decisions were referred to in detail. It includes the following:

Midanpur Zamindari Co. v. Naresh Narayan Roy, AIR 1922 PC 241; 
Run Bahadur Singh v. Lucnokoer,  ILR (1885)11 Cal 301 (PC); 
Pateswari Din v. Mahant Sarjudass, AIR 1938 Oudh 18;
Bansi Lal Ratwa v. Laxminarayan, 1969 2 AWR 246,
Arjun Singh v. Tara Das Ghosh, AIR 1974 Pat 1.

No Res Judicata on a Finding on Title, in an Injunction Suit

In Sulochana Amma Vs. Narayanan Nair [(1994) 2 SCC 14] it is observed as under:

“The decision in earlier case on the issue between the same parties or persons under whom they claim title or litigating under the same title, it operates as a res-judicata. A plea decided even in a suit for injunction touching title between the same parties, would operate as res-judicata. It is a settled law that in a Suit for injunction when title is in issue, for the purpose of granting injunction, the issue directly and substantially arises in that suit between the parties when the same is put in issue in a later suit based on title between the same parties or their privies in a subsequent suit, the decree in injunction suit equally operates as a res-judicata.”

Anathula Sudhakar Vs. P. Buchi Reddy, AIR 2008 SC 2033, the Supreme Court held that where the issue of title involves complicated or complex questions of fact and law, or where court feels that parties had not proceeded on the basis that title was at issue, the court should not decide the issue of title in a suit for injunction. It is clear that findings of title in such suits are redundant so far as res judicata is concerned, The Court proceeded to hold as under:

“Where there are necessary pleadings regarding title, and appropriate issue relating to title on which parties lead evidence, if the matter involved is simple and straight-forward, the court may decide upon the issue regarding title, even in a suit for injunction. But such cases, are the exception to the normal rule that question of title will not be decided in suits for injunction. But persons having clear title and possession suing for injunction, should not be driven to the costlier and more cumbersome remedy of a suit for declaration, merely because some meddler veraciously or wrongfully makes a claim or tries to encroach upon his property. The court should use its discretion carefully to identify cases where it will enquire into title and cases where it will refer to plaintiff to a more comprehensive declaratory suit, depending upon the facts of the case.”

(Both, Sulochana Amma and Anathula are referred to in T. Ravi Vs. B. Chinna Narasimha, 2017-7 SCC 342)

• See Blog: Declaration and Injunction

Appellate Decision Operates As Res Judicata

Decree of a lower court merges with the decree of the appellate court. Hence appellate decree is to be looked into to determine res judicata. In PMA Metripolitan v. Moran Mar Marthoma, AIR 1995 SC 2001, it is observed as under:

“If the ex-communication of Dionysius was invalid for violation of principles of natural justice, as was found by the Bench reviewing the order, then the findings on earlier issues were rendered unnecessary and it is fairly settled that the finding on an issue in the earlier suit to operate as res judicata should not have been only directly and substantially in issue but it should have been necessary to be decided as well. For instance, when a decision is taken in appeal the rule is that it is the appellate decision and not the decision of the Trial Court that operates as res judicata. Consequently where a suit is decided both on merits and on technical grounds by the Trial Court, and the appellate court maintains it on technical ground of limitation or suit being not properly constituted then the decision rendered on merits by the Trial Court ceases to have finality. In Abdullah Ashgar Ali Khan v. Ganesh Dass AIR 1917 PC 201 the Court while considering the expression, `heard and finally decided’ in Section 10 of the British Baluchistan Regulation IX of 1896 held that where the suit was dismissed by two courts on merits but the decree was maintained in second appeal because the suit was not properly constituted then the finality on merits stood destroyed. In Sheosagar Singh & Ors. v. Sitaram Singh ILR 1897 Cal. Vol. XXIV where parentage of defendant was decided in his favour by the Trial Court but the High Court maintained the order as the suit was defective the claim of the defendant in the latter suit that the finding on parentage operated as res judicata was repelled and it was held, that the question of parentage had not been heard and finally decided in the suit of 1885. The appeal in that suit had put an end to any finality in the decision of the first Court, and had not led to a decision on the merits.”

Res Judicata on Ex Parte Decree

An ex-parte decree might also will constitute res judicata if the defendant  had express notice of the pleadings and the prayer that a particular issue or matter would be decided.

• (State of UP v. Jagdish Saran Agrawal: AIR  2008 SC 817;
• Raj Lakshmi Dasi v. Banamali Sen – AIR 1953 SC 33;
• Ram Gobinda Dawan v. Bhaktabala – AIR 1971 SC 664;
• Pandurang v. Shantabai – AIR 1989 SC 2240;
• Thiruvengadam Mammad v. Chathamkara Ammad – AIR 1929 Madras 89;   
• H.R  C.E. Commissioner v. V. Krishnaswami – AIR 1975 Madras 167).

Whether a Consent/Compromise Decree Operates as Res judicata

In Pulavarthi Venkata Subbarao v. Valluri Jagannadha Rao, AIR 1967 SC 591, the Supreme Court observed as under:

• “….,a compromise decree is not a decision by the Court. It is acceptance by the Court of something to which the parties had agreed. The decree merely sets the seal of the Court on the agreement of the parties. The Court does not decide anything. Nor can it be said that the decision of the Court was implicit in it. Only that decision by the Court can be res judicata where the case has been heard and decided on merit . … the statutory prohibition under Sec. 11 of the code of civil procedure or that of constructive res judicata would apply as a matter of public policy ….. Such a decree cannot strictly be regarded as a decision on the matter which was heard and finally decided, and cannot operate as res judicata. ..”. 
• See also: Daryao v. State of UP, 1962- I SCR 574;
• Vidya Sagar v. Sudesh Kumari, 1976-1 SCC 115;

It is held in Baldevdas Shivlal v. Filmistan Distributors (I) P. Ltd., AIR 1970 SC 406, that ‘a matter in contest in a suit may operate as res judicata only if there is an adjudication by the Court’. 

Compromise Decree, Res judicata and ‘estoppel by conduct’

It is pointed out in Pulavarthi Venkata Subbarao v. Valluri Jagannadha Rao, AIR 1967 SC 591 that though a compromise decree cannot be strictly regarded as res judicata, it might create an ‘estoppel by conduct’ between the parties; and that such estoppel must be specially pleaded.

Whether O.I r.8 Decree is Res Judicata 

Order I rule 8 of the Code of Civil Procedure, 1908, enables the plaintiffs to file a suit in a representative capacity for the benefit of a class of (numerous) persons.

Whether the decree in such a suit operates as res judicata against the persons who are represented remains as a controversy.  In any event, by the insertion of Sub-rule (6) to rule 8 of Order I, in 1976, it became legitimate to say that the decree stands as res judicata. Sub-rule (6) lays down that a decree passed in a suit under rule 8 shall be binding on all persons on whose behalf or for whose benefit the suit is instituted or defended.

Therefore, the view taken in Srinivasa Aiyankar v. Aryar Srinivasa Aiyankar, (1910) ILR 33 Mad 483 : 6 IC 229, that the decisions do not bind on those who were not actually (eo nominee)  parties (and hence not res judicata and not enforceable in execution)  does not hold good at present. This view in Srinivasa Aiyankar had been taken in following cases (prior to 1976) also:

• Sahib Thampi v. Hamid, 36 Mad. 414
• Walker v. Sur, 1914-2 KB 930
• Hardie and Lane Limited v. Chiltern, 1928-1 KB 663
• Kodia Goundar v. Velandi Goundar. AIR 1955 Mad 281

It is noteworthy that even when Sub-r. (6) of r. 8 of O. I was not available in the Code, it was observed in Waryam Singha v. Sher Singh, AIR 1942 Lah 136, that the decree for injunction could be executed against any of the persons who were represented under O. 1 r. 8 CPC; because,  all the persons who were represented must be held to be parties as the decree obtained in such a suit was binding on all of them. This view is taken in following cases also:

• Mool Chandra Jain v. Jagdish Chandra Joshi, AIR 1955 All 385
• Abdulla v. Parshotam Singh, AIR  1935 Lah 33
• Jatindra Mohan Banerje v. Kali Charan, AIR 1960 Cal 623

Relying on Shri V. J. Thomas v. Shri Pathrose Abraham, AIR 2008 SC 1503, and Kodia Goundar Vs. Velandi Goundar, AIR 1955 Mad 281, the Kerala High Court has in Narayanan V. Periyadan Narayanan Nair, 2021 (3) KHC 211 (FB) held that execution of a decree is not possible if he was not impleaded as a defendant. The Full Bench overruled James Vs. Mathew (ILR 2012-4 Ker 753, 2012-4 Ker 640, 2012-4 Ker LT 666, 2012-4 KHC 604 ), which held that a decree for injunction obtained in a representative suit is binding on all persons for whose benefit the suit was defended, though they were not eo nomine parties to the suit; and that in case of wilful disobedience of such a decree by those persons for whose benefit the suit was defended, it is enforceable against them under r. 32 of O. XXI of the Code.

See Blog: Decree in OI R8 CPC-Suit & Eo-Nomine Parties

Res Judicata, Order II Rule 2 Bar and Sec. 10 CPC

Sec. 11 CPC and Order II rule 2 CPC bar suit/relief. But, Sec. 10 CPC bars trial only. Because:

• Sec. 11 CPC (Res Judicata) begins as – “No Court shall try any suit or issue”.
• Order II Rule 2 bars to – “sue for any relief omitted“.
• Sec. 10 CPC (Res subjudice) begins as – “No Court shall proceed with the trial of any suit“.

See Blog: Order II, Rule 2 CPC – Not to Vex Defendants Twice for the Same Cause of Action

Change of Law and Res judicata

When the law has been changed, subsequent to a decision rendered by a Court, it is held in Alimunnissa Chowdharani v. Shyam Charan Roy, 1905-1 CLJ 176, that the earlier decision would not operate as res judicata.

In Mathura Prasad Bajoo Jaiswal v. Dossibai N.B. Jeejeebhoy, 1970-1 SCC 613, it is observed that when the law has undergone a change, there would be no question of res judicata or constructive res judicata. It is observed as under:

• “5. But the doctrine of res judicata belongs to the domain of procedure: it cannot be exalted to the status of a legislative direction between the parties so as to determine the question relating to the interpretation of enactment affecting the jurisdiction of a Court finally between them, even though no question of fact or mixed question of law and fact and relating to the right in dispute between the parties has been determined thereby. A decision of a competent Court on a matter in issue may be res judicata in another proceeding between the same parties: the “matter in issue” may be an issue of fact, an issue of law, or one of mixed law and fact. An issue of fact or an issue of mixed law and fact decided by a competent court is finally determined between the parties and cannot be reopened between them in another proceeding. The previous decision on a matter in issue alone is res judicata: the reasons for the decision are not res judicata. A matter in issue between the parties is the right claimed by one party and denied by the other, and the claim of right from its very nature depends upon proof of facts and application of the relevant law thereto. A pure question of law unrelated to facts which give rise to a right, cannot be deemed to be a matter in issue. When it is said that a previous decision is res judicata, it is meant that the right claimed has been adjudicated upon and cannot again be placed in contest between the same parties. A previous decision of a competent Court on facts which are the foundation of the right and the relevant law applicable to the determination of the transaction which is the foundation of the right and the relevant law applicable to the determination of the transactions which is the soured of the right is res judicata. A previous decision on a matter in issue is a composite decision: the decision of law cannot be dissociated from the decision on facts on which the right is founded. A decision on an issue of law will be as res judicata in a subsequent proceeding between the same parties, if the cause of action of the subsequent proceeding be the same as in the previous proceeding, but not when the cause of action is different, nor when the law has since the earlier decision been altered by a competent authority, nor when the decision relates to the jurisdiction of the Court to try the earlier proceeding, nor when the earlier decision declares valid a transaction which is prohibited by law. …….
• 7. Where the law is altered since the earlier decision, the earlier decision will not operate as res judicata between the same, parties: Tarini Charan Bhattacharjee’s case. It is obvious that the matter in issue in a subsequent proceeding is not the same as in the previous proceeding, because the law interpreted is different.”

Can res judicata be raised as a preliminary point/issue

The Kerala High Court in V. Narayana Bhakthan v. The President, Anantha Narayanapuram, 2008-3 Ker LT 840 it is held as under:

• “The question of res judicata can be raised as a preliminary point in certain circumstances. Sub-rule (2) of Rule 2 of Order XIV of the CPC states that where issues, both of law and of fact, arise in the same suit, and the Court is of the opinion that the case or any part thereof may be disposed of on an issue of law only, it may try that issue first if that issue relates to: (a) the jurisdiction of the Court, or (b) a bar to the suit created by law for the time being in force. The said sub-rule also provides that the Court may, if it thinks fit, postpone the settlement of the other issues until after that issue has been determined, and may deal with the suit in accordance with the decision on that issue. In ML Sethi v. RP Kapur, AIR 1972 SC 2379, it was held that it is well settled that a plea of res judicata is a plea of law which concerns the jurisdiction of the court and a finding on the plea in favour of the party raising it would oust the jurisdiction of the court. If the question of res judicata can be decided without reference to the disputed questions of fact and without the necessity of there being any evidence to be adduced, the Court would be justified in dealing with the said contention as a preliminary issue. However, if the Court finds that disputed questions of fact are involved or that the plea of res judicata is a mixed question of law and fact, the Court is not bound to decide the said question as a preliminary issue.”

Effect of failure to raise bar of res judicata as a preliminary issue

In V. Narayana Bhakthan v. The President, Anantha Narayanapuram, 2008-3 Ker LT 840, it is held, further as under:

• Even if a party, who is entitled to request the court to consider the contention of res judicata as a preliminary issue, fails to make a request in that behalf at the appropriate time, that does not operate as a bar for him to raise the contention of res judicata at the final stage of the suit. Such a contention would not be barred by res judicata by his not requesting the same to be considered as a preliminary issue. On the other hand, if such a question is raised as a preliminary issue and a decision is rendered against the party raising it, he would be precluded at a later stage of the same proceeding from raising the very same contention that the suit is barred by res judicata except by challenging the final decision in Appeal.”