Res judicata

Section 11, CPC. embodies the rule of Res judicata, which bars the trial of an issue tried in an earlier suit
in which the matter is directly and substantially in issue and has been heard and finally decided by such
Court. In a later suit between the same parties or their representatives in a competent Court to try such
subsequent suit in which the issue has been directly and substantially in issue in the earlier suit and
decided in the judgment and decree in the former suit would operate as res judicata. It aims to prevent
the multiplicity of the proceedings and aims finality to an issue. It is based on public policy, as well as
private justice. They would apply, therefore, to all judicial proceedings whether civil or otherwise. It
equally applies to all quasi-judicial proceedings of the tribunals other than Civil Courts

Writ Petition.- Decision given in writ petition operates as res judicata in subsequent judicial
proceedings.(Ashok Kumar Srivastava v. National Insurance Co. Ltd., AIR 1998 SC 2046)

The question of res judicata is a mixed question of law and fact.

The bar applies only if the matter directly and substantially in issue in the former suit has been heard and
finally decided by a Court competent to try such suit.

Res Judicata and Res Sub-Judice.- The rule of res judicata in section 11 is clearly distinguishable from the
rule of res sub-judice enshrined in section 10. The former relates to a matter already adjudicated upon,
i.e., a matter on which judgement has been pronounced, while the latter relates to a matter which is
pending judicial enquiry. The rule in section 10 bars the trial of a suit in which the matter directly and
substantially in issue is pending judicial decision in a previously instituted suit by staying the trial of the
latter suit; section 11 bars altogether the trial of a suit or an issue in which the matter directly and
substantially in issue has already been adjudicated upon in a previous suit.

Essentials of Res Judicata.- The following conditions must be satisfied to constitute a bar of res judicata,
viz.,

(1) The matter must be directly and substantially in issue in both the suits;
(2) The prior suit must have been between the same parties or persons claiming under them;
(3) Such parties must have litigated under the same title in the former suit;
(4) The Court which determined the earlier suit must be competent to try the later suit or the suit in
which such issue is subsequently raised; and
(5) The question directly and substantially in issue in the subsequent suit should have been heard
and finally decided in the earlier suit.

Constructive Res Judicata.- The matter directly and substantially in issue may either be actually in issue
or constructively in issue, and both the matters constitute res judicata. A matter is actually in issue when
it is alleged by one party and denied by the other. It is constructively in issue when the matter might and
ought to have been made a ground of attack or defence in the former suit. Explanation IV to section 11
says that any matter which might and ought to have been made a 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. It may,
therefore, happen that a matter though not actually in issue directly and substantially may nevertheless
be regarded as having been in issue in a suit when the same might and ought to have been made a ground
of attack or defence. The test is whether the parties had an opportunity of controverting it and, if they
had, the matter will be treated as controverted and decided. It is no answer to a plea of res judicata that
an argument which could be advanced was not advanced in the previous suit.

The doctrine of constructive res judicata has been well explained in State of U.P. v. Nawab Hussain, (AIR
1977 SC 1681) wherein A, a Sub-inspector of police, was dismissed from service by D.I.G. He challenged
the order of dismissal by filling a writ petition in the High Court on the ground that he was not afforded
reasonable opportunity of being heard before passing the order. The contention was, however, negative
and the petition was dismissed. He then filed a suit and raised an additional ground that since he was
appointed by I.G.P., D.I.G. had no power to dismiss him. The State contended that the suit was barred by
constructive res judicata. The trial Court, the first appellate Court as well as the High Court held that the
suit was not barred by res judicata. Allowing the appeal filed by the State, 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 earlier writ petition. It was observed “... When any matter which might and
ought to have been made a ground of defence or attack in a former proceeding but was not so made,
then such a matter in the eye of law, to avoid multiplicity of litigation and to bring about finality in it, is
deemed to have been constructively in issue and, therefore, is taken as decided....”

Res Judicata and Estoppel distinguished.-The doctrine of res judicata can be distinguished from estoppel,
as generally understood, on the following grounds:

The rule of res judicata is based on public policy, i.e., it is to the interest of the State that there should be
an end to litigation, and belongs to the province of procedure. Estoppel, on the other hand is part of the
law of evidence and proceeds on equitable principle, that he who by his conduct has induced another to
alter his position to his disadvantage, cannot turn round and take advantage of such alteration of the
others position.

Res judicata precludes a man from alleging the same thing in successive litigations, while estoppel
prevents a party from saying two contradictory things at different times. Res Judicata, as observed by
Mahmud, J. In Sita Ram v. Amir Begum, prohibits the Court from entering into an enquiry at all as to a
matter already adjudicated upon; estoppel prohibits a party, after the enquiry had already been entered
upon, from proving which would contradict his own previous declaration or acts to the prejudice of
another party who, relying upon those declarations or acts has altered his position.

Res judicata ousts the jurisdiction of the Court to try the case, while estoppel shuts the mouth of a party,
being a rule of evidence.

The doctrine of res judicata results from a decision of the Court, while estoppel results from the conduct
of the parties themselves.

Lastly, the theory of res judicata is to presume conclusively the truth of the former decision while the rule
of estoppel prevents a person setting up what he calls the truth.