Concept of Sub Judicata in CPC

A matter directly and substantially in issue in a former suit will operate as res judicata in a subsequent suit. In the case of  Ragho Prasad Gupta v. Krishna Poddar the Supreme Court held that a mere expression of opinion on a question not in issue cannot operate as res judicata.

Direct and substantial issues are those issues which are necessary to be decided for the proper disposal of the suit. If in any suit some issues are not necessary to be decided but court decides it. Now in subsequent suit if those issues will raise then those issue will decide, res judicata will not apply as obiter dicta is non-binding in nature.

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 talks about direct res judicata. Any issue is said to be necessary issue only when it is raised by any of the parties and admit or deny by the other party. Thus, a matter in respect of which no relief is claimed cannot become directly and substantially in issue even if a decree is passed by a competent court as decided in the case of Pandurang v. Shantibai AIR 1989 SC 2240).

Illustrations: –

1. A sues B for the rent due, B denies, here the claim for rent is the matter in issue in respect of which relief is claimed and thus, a matter directly and substantially in issue. But when A sues B for rent and B claims abatement of rent on the ground that the area is greater than that shown in the lease, the finding as to the excess area is not res judicata for this as it was not the matter directly and substantially in issue but ancillary to it.
2. A sues B for rent due. The defence of B is that no rent is due. Here the claim for rent is the matter in respect of which the relief is claimed. The claim of rent is, therefore, a matter directly and substantially in issue.
3. A sues B for possession of certain properties on the basis of a sale deed in his favour. B impugns the deed as fictitious. The plea is upheld and the suit is dismissed. A subsequent suit for some other properties on the basis of the same sale deed is barred as the issue about the fictitious nature of the sale deed was actually in issue in the former suit directly and substantially.

Matter actually in issue: A matter is actually in issue when it is in issue directly and substantially and a competent court decides it on merits.

• Constructive Res Judicata (Explanation IV) :
  A matter can be said to be constructively in issue when it “might and ought” to have been made a ground of defence or attack in the former suit. A matter directly and substantially in issue may again be so either actually or constructively. A matter is actually in issue when it is alleged by one party and denied or admitted by the other (Explanation III). It is constructively in issue when it might and ought to have been made a ground of attack or defence in the former suit (Explanation IV).
  Explanation IV to Section 11 by a deeming provision lays down that any matter which might and ought to have been made a ground of defence or attack in the former suit, but which has not been made a ground of attack or defence, shall be deemed to have been a matter directly and substantially in issue in such suit.
  Might and Ought: The expression “might” and “ought” are of wide import. The word “might” presupposes the party affected had knowledge of the ground of attack or defence at the time of the previous suit. “Ought” compels the party to take such ground. The word “and” between the terms “might” and “ought” must be read as conjunctive (and) and not disjunctive (or). And unless it is proved that the matter might and ought to have been raised in the previous litigation, there is no constructive res judicata.
  Illustrations:

1. 1. 1. A sues B for possession of property on the basis of ownership. The suit is dismissed. A cannot thereafter claim possession of property as mortgagee as that ground ought to have been taken in the previous suit as a ground of attack.
      2. A files a suit against B for declaration that he is entitled to certain lands as heir of C. The suit is dismissed. The subsequent suit, claiming the same property on the ground of adverse possession, is barred by constructive resjudicata.
      3. A files a suit against B to recover money on a pronote. B contends that the promissory note was obtained from him by undue influence. The objection is overruled and suit is decreed. B cannot challenge the promissory note on the ground of coercion or fraud in subsequent suit, inasmuch as he ought to have taken that defence in the former suit.
      4. A sues B to recover damages for a breach of contract and obtains a decree in his favour. B cannot afterwards sue A for recession of contract on the ground that it did not fully represent the agreement between the parties, since that ground ought to have been taken by him in the previous suit as a ground of defence.
      5. A sues B for possession of certain property alleging that it has come to his share on partition of joint family property. B’s contention that the partition has not taken place is upheld by the court and the suit is dismissed. A subsequent suit by A against B for partition of joint family property is not barred.
      6. As a mortgagor A sues B for redemption of certain property alleging that he has mortgaged it with possession to B. The mortgage is not proved and the suit is dismissed. A files another suit against B for possession of the same property claiming to be the owner thereof. The suit is not barred.
      7. A sues B to recover certain property alleging that B was holding the property under a lease, which had expired. The lease is not proved and the suit is dismissed. A subsequent suit by A against B on the basis of general title is not barred.
      8. A sues B for a declaration that he is entitled to certain property as an heir of X. The suit is dismissed. A files another suit for injunction on the ground that he had become an owner of the property by adverse possession. This ground was available to him even at the time of previous suit but was not taken at that time. The subsequent suit is barred.
      9. A sues B for a declaration that he is the owner of certain property. The suit is dismissed holding that he is not the owner. At the time of the suit A is in adverse possession of the property but has not perfected his title. After the statutory period, A files another suit on the basis of his title by adverse possession. The suit is not barred.
         Case :
         In State of U.P. v. Nawab Hussain, A, a sub-inspector of police, was dismissed from service by the 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 since 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, 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 the earlier writ petition. The same principle applies to pleas which were taken but not pressed at the time of hearing.
         In the leading case of Devilal Modi v. STO, A challenged the validity of an order of assessment under Article 226. The petition was dismissed on merits. An appeal against that order was also dismissed by the Supreme Court on merits. A again filed another writ petition in the same High Court against the same order of by taking some additional grounds. The High Court dismissed the petition on merits. On appeal, the Supreme Court held that the petition was barred by the principle of constructive res judicata.
          Gangabai v. Chhabubat, a regular civil suit was filed by A against B for a declaration that she was the owner of the property and the so-called sale deed said to have been executed by her in favour of B was not real and genuine, and also for possession of property on the ground of title. B contended that he had become the owner of the property and the decree for arrears of rent had been previously passed by the Court of Small Causes in his favour, negativing the contention of A that she was the owner. She had been held to be the tenant. The subsequent suit, it was contended, was, therefore, barred by the doctrine of res judicata.
         Heard and finally decided: – Heard means reasonable opportunity of being heard, hearing on merits, after leading evidence and finally decided means that the matter is now settled. A matter is said to be settled when appeal has not been filed and limitation period is over or if appeal has been filed then the day appeal has been decided whether dismissed or allowed, the decision of appellate court is the final and the matter is said to be finally settled. If appeal is pending in that case sec 10 will apply as appeal is a continuation of 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. The legal effect of this explanation is that of treating the omission to grant the relief asked for in the plaint as equivalent to an express refusal and the claim thereto in a fresh suit as res judicata. If any relief is not given by court that means it was decided by court and denied it. It means you are not entitled to such relief and you cannot say it was not decided.
• Representative suit (Explanation VI):
  Explanation VI to Section 11 deals with representative suits, 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 VI, thus illustrates one aspect of constructive res judicata. Thus, where a representative suit is brought under Section 92 of the Code and a decree is passed in such a suit, law assumes that all persons who have the same interest as the plaintiffs in the representative suit were represented by the said plaintiffs and, therefore, are constructively barred by res judicata from reagitating the matters directly and substantially in issue in the former suit.
  Conditions: The following conditions must be satisfied before a decision may operate as res judicata under Explanation VI: –

1. 1. 1. There must be a right claimed by one or more persons in common for themselves and others not expressly named in the suit;
      2. The parties not expressly named in the suit must be interested in such right;
      3. The litigation must have been conducted bona fide and on behalf of all parties interested; and
      4. If the suit is under Order 1 Rule 8, all conditions laid down therein must have been strictly complied with.

• Execution Proceedings Explanation VII to Sec 11:
  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.
  To understand explanation VII let assume,
  Suit = execution proceedings,
  Issues = question arises,
  Former suit= former execution proceedings.
  Prior to the addition of Explanation VII to Section 11, the provisions did not in terms apply to execution proceedings, but the general principles of res judicata were held to be applicable even to execution proceedings. After the amendment Act 104 of 1976, Explanation VII provides that provisions of Section 11 will directly apply to execution proceedings also.
  For Example : Suppose in any suit decree has been passed, to execute the decree execution petition was filed, questions were framed u/s 47. Now another execution petition was filed regarding same decree whether questions will frame in this execution petition? So, answer to this question is if questions are already decided in previous execution petition, then subsequent execution petition will not be retried.

• Competent court (Explanation VIII):
  The expression “competent to try” means “competent to try the subsequent suit if brought at the time the first suit was brought”.133 In other words, the relevant point of time for deciding the question of competence of the court is he date when the former suit was brought and not the date when the subsequent suit was filed.

Section 11 whether mandatory

Section 11 is mandatory. The plea of res judicata is a plea of law which touches the jurisdiction of a court to try the proceedings. A finding on that plea would oust the jurisdiction of a court. If the requirements of Section 11 are fulfilled, the doctrine of res judicata will apply and even a concession made by an advocate will not bind a party.

Section 11 whether exhaustive

It is well established that the doctrine of res judicata codified in Section 11 of the Code of Civil Procedure is not exhaustive.Section 11 applies to civil suits. But apart from the letter of the law, the doctrine has been extended and applied since long in various other kinds of proceedings and situations by courts in England, India and other countries.

In the case of Lal Chand v. Radha Krishan, Chandrachud, J. (as he then was) observed: The fact that Section 11 of the Code of Civil Procedure cannot apply on its terms, the earlier proceeding before the competent authority not being a suit, is no answer to the extension of the principle underlying that section to the instant case. Section 11, it is long since settled, is not exhaustive and the principle which motivates that section can be extended to cases which do not fall strictly within the letter of the law… . The principle of res judicata is conceived in the larger public interest which requires that all litigation must, sooner than later, come to an end

Res judicata and rule of law :

The doctrine of res judicata is of universal application. In the historic decision of Daryao v. State of U.P, the Supreme Court has placed the doctrine of res judicata on a still broader foundation. In that case, the petitioners had filed writ petitions in the High Court of Allahabad under Article 226 of the Constitution and they were CASE PILOT dismissed. Thereafter, they filed substantive petitions in the Supreme Court under Article 32 of the Constitution for the same relief and on the same grounds. The respondents raised a preliminary objection maintainability of the petition by contending that the prior decision of the High Court would operate as res judicata to a petition under Article 32. The Supreme Court upheld the contention and dismissed the petitions.

Res judicata and res sub judice

 The doctrine of res judicata differs from res sub judice in two aspects:

• Whereas res judicata applies to a matter adjudicated upon (res judicatum), res sub judice applies to a matter pending trial (sub judice); and
• Res judicata bars the trial of a suit or an issue which has been decided in a former suit, res sub judice bars trial of a suit which is pending decision in a previously instituted suit.

Res-judicate and Estoppel

Res-judicata is really estoppel by verdict or estoppel by judgment (record). The rule of constructive res judicate is nothing else but a rule of estoppel. Even then, the doctrine of res judicata differs in essentials particulars from the doctrine of estoppel.

• Origin: It results from a decision of the Court. Estoppel flows from the act of parties.
• Basis: The rule is based upon public policy, viz that there should be an end to litigation. It bars multiplicity of suits. It proceeds upon the doctrine of equity; 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 other’s position.
• Affects the jurisdiction: It ousts the jurisdiction of a court to try a case and precludes an enquiry in limine. In other words, estoppel prevents multiplicity of representations.
  In other words, estoppel prevents multiplicity of representations.

• Stop the Party: It prohibits a man averring the same thing twice in successive litigations. It is only a rule of evidence and shuts the mouth of a party.
• Binding effect on party/parties: This rule presumes conclusively the truth of the decision in the former suit. It binds both the parties to a litigation. Estoppel prevents him from saying one thing at one time and the opposite at another. The rule of estoppel prevents a party from denying what he has once called the truth. i.e. estoppel binds only that party who made the previous statement or showed the previous conduct.

Res judicata and lis pendens

The doctrine of lis pendens is only one aspect of the rule of res judicata. Whereas the principle of lis pendens laid down in Section 52 of the Transfer of Property Act, 1882 is that an alienee pendente lite is bound by the outcome of the litigation, the rule in Section 11 of the Code relates to matters which have passed into rem judicatam. Where a conflict arises between the doctrine of res judicata and lis pendens, the former will prevail over the latter. In other words, once a judgment is duly pronounced by a competent court in regard to the subject-matter of the suit in STATUTE PILOT which the doctrine of lis-pendens applies, the said decision would operate as res judicata and would bind not only the parties thereto but also the transferees pendente lite.

Let us understand this principle by an illustration. A files a suit against B for declaration that he is the owner of the suit property. During the pendency of the suit B transfers property to C. The doctrine of lis pendens will apply to such transfer and if a decree is passed in favour of A, C cannot claim title over A. But if in another suit by C against B regarding the same property, decree is passed in favour of B before the suit filed by A is decided, such decree will operate as res judicata against A notwithstanding the doctrine of lis pendens and transfer in favour of C during the pendency of the suit filed by A against B.

Res judicata and withdrawal of suits

Order 23, Rule 1 deals with withdrawal of suits. It enacts that where the plaintiff withdraws the suit or abandons his claim without the leave of the court, he will be precluded from instituting a fresh suit in respect of the same cause of action. The distinction between res judicata and withdrawal of suit lies in the fact that while in the former the matter is heard and finally decided between the parties, in the latter the plaintiff himself withdraws or abandons his claim before it is adjudicated on merits.

Res judicata and stare decisis :

“Res judicata” means “a thing adjudicated”; “a case already decided”; or “a matter settled by a decision or judgment”.

“Stare decisis” means “to stand by decided cases”, “to uphold precedents”, “to maintain former adjudications”, or “not to disturb settled law”.

“Those things which have been so often adjudged ought to rest in peace.”Resjudicata and stare decisis are members of the same family.

• Both relate to adjudication of matters.
• Both deal with final determination of contested questions and have the binding effect in future litigation.
• Both the doctrines are the result of decisions of a competent court of law and based on public policy.

There is, however, distinction between the two. Whereas res judicata is based upon conclusiveness of judgment and adjudication of prior findings, stare decisis rests on legal principles.

• Res judicata binds parties and privies, while stare decisis operates between strangers also and binds courts from taking a contrary view on the point of law already decided.
• Res judicata relates to a specific controversy, stare decisis touches legal principle.
• Res judicata presupposes judicial finding upon the same facts as involved in subsequent litigation between the same parties. Stare decisis applies to same principle of law to all parties.

Conclusion:
Res Judicata means a final judicial decision pronounced by a
judicial tribunal having competent jurisdiction over the parties thereto.”
It enacts that once a matter is finally decided by a competent court, no party can be permitted to re-open it
in a subsequent litigation.