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Chapter 1

1.1

INTRODUCTION

Concept of Res Judicata

Res Judicata is defined under section 11 of CPC. It says that no court shall try any suit or issue in which the matter directly and substantially in issue has been directly and subsantially in issue in a former suit between the same parties, or between the parties under whom they or any of them claim, litigating under the same title, in a competent court to try such subsequent suit or the suit or the suit in which such issue has been subsequently raised, and has been heard and finally decided by such court.

Section 11 of CPC states that:

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.
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Electronic copy available at: http://ssrn.com/abstract=2115140

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.<BR>

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.]

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)

Electronic copy available at: http://ssrn.com/abstract=2115140

Concept of Estoppel

Doctrine of estoppel is embodied in S.115 of Indian Evidence Act. Estoppel says that when one person has, by his declaration, act or omission intentionally caused or permitted another to believe a thing to be true and act upon such belief, neither he nor his representative shall be allowed, in any suit or proceeding between himself and such person or his representative, to deny the truth of that thing. Three conditions are to be satisfied to attract estoppel.

1. Representation by a person to another

2. the other shall have acted upon the said representation; and

3. such action shall have detrimental to the interests of the person to whom the representation has been made.1

The doctrine of res judicata is often treated as the branch of the law of estoppel2. Res judicata is really estoppel by verdict or estoppel by judgement.3 Even then, the doctrine of res judicata differs in essential particulars from the doctrine of estoppel.4

1.2

OBJECTIVES OF THE RESEARCH

This research attempts to understand the concept of res judicata and estoppel and analyze the difference between them.

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AIR 1965 SC 1055. Swamy Atmananda v. Sri Ramakrishna Tapovanam, (2005) 10 SCC 51 3 Lachhmi v. Bhulli, AIR 2005 SC 2392 4 Woodroffe and Ameer Ali, Law of Evidence in India (1981 Edn.) Vol. 4

1.3

RESEARCH METHODOLOGY

The research scheme undertaken by the researcher is comprised of doctrinal study of the books available at the library of the Institute of Law and besides that the researcher has also taken the help of the internet to look into some of the distinctions and concepts of res judicata and estoppel.

1.4

HYPOTHESIS

The doctrine of res judicata is often treated as the branch of the law of estoppel. However, the doctrine of res judicata differs in essential particulars from the doctrine of estoppel.

Chapter 2
DISTINCTION BETWEEN RES JUDICATA AND ESTOPPEL.

Though the rule of constructive res judicata is known as the rule of estoppel. The doctrine of res judicata differ in essential particulars from the doctrine of estoppel.

1. Whereas res judicata results from a decision of the court, estoppel flows from the act of the parties. This distinction is based on the basic concept or definition of res judicata and estoppel. 2. The rule of res judicata is based on the public policy,viz., that there should an end to litigation. Estoppel, on te other hand, proceeds upon the doctrine of equity, that he who, by his conduct, has induced another to alter his position to his disadvantage of such alteration of the others position. In other words, while res judicata bars multiplicity of suits, estoppel prevents multiplicity of representations. 3. Res judicata ousts the jurisdiction of a court to try a case and precludes an enquiry in limine; estoppel is only a rule of evidence and shuts the mouth of a party. 4. Res judicata prohibits a man averring the same thing twice in successive litigations, while estoppel prevents him from saying one thing at one time and the opposite at the another. 5. The rule of res judicata presumes conclusively the truth of the decision in the former suit, while the rule of estoppel prevents a party from denying what he has once called the truth. In other words, while res judicata binds both the parties to a litigation, estoppel binds only that party who made the previous statement or showed the previous conduct.

The shortest way to describe the difference between the res judicata and estoppel, is to say that while the former prohibits the Court from entering into an inquiry as to a matter already adjudicated upon, the latter prohibits a party, after the inquiry has already been entered upon, from providing anything which would
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contradict his own previous declaration or act to the prejudice of another party, who, relying upon those declarations or acts, has altered his position.

In other words, res judicata prohibits an inquiry in liniine, whilst an estoppel is only a piece of evidence.

A decision of a tribunal is challenged on a pure question of law depending upon the interpretation of a constitutional provision. On being upheld it would make the decision of the tribunal as having been given by an authority suffering from inherent lack of jurisdiction. The decision cannot be sustained by invoking the doctrine either of res judicata or of estoppel. Res Judicata creates a different kind of estoppel namely, estoppel by accord.5

In Casamally Jairajbhoy Peerbhoy vs Sir Currimbhoy Ebrahim Bart6, J. Beaman said:-

But estoppel and res judicata, as I have so frequently had occasion to say from this bench, are entirely distinct. Put in the most simple and colloquial way, res judicata precludes a man averring the same thing twice over in successive litigations, while estoppel prevents him saying one thing at one time and the opposite at another. And I have never heard of a suit being barred by estoppel except perhaps in the recent case of the Narielwala's Trusts, where, I rather think, the learned Judges in appeal did incline to hold that the plaintiff was stopped from bringing his suit. Similarly, in Ramadhar v. Bhagwandas7, in an earlier proceeding, a clear finding of ownership was recorded in favour of the plaintiff and that the defendant had no claim to ownership, etc. and had the right to occupation only as a tenant. This finding was not challenged. It attained finality. Subsequently when the plaintiff

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Sitaram v. Amir begum, ILR (1886) 8 All 324 (1911) 13 BOMLR 717, 12 Ind Cas 225 7 (2005) 13 SCC 1

filed an eviction suit against the tenant, the latter was not allowed to question the ownership of the plaintiff.

The doctrine of res judicata debars a court from exercising its jurisdiction to determine the lis if it has attained finality between the parties whereas the doctrine of estoppel is invoked against the party. If such an issue is decided against him, he would be stopped from raising the same in the latter proceeding.8

Dr. Avatar Singh, Civil Procedure Code, 4th Edition.

CHAPTER 3
CONCLUSION

From the disitnctions, it is evident that the rule of constructive res judicata is a rule of estoppel. However, the doctrine of res judicata differs in essential particulars from the doctrine of estoppels that have been discussed above. There is a distinction between issue estoppel and res judicata. Res judicata debars a court from exercising its jurisdiction to determine the lis if it has attained finality whereas the doctrine of issue estoppel is invoked against the party. If such issue is decided against him, he would be estopped from raising the same in the latter proceedings. The doctrine of res judicata creats a different kind of estoppel viz. estoppel by Accord.9

Bhanu Kumar Jain v. Archana Kumar, AIR 2005 SC 626.