Commentary On Section 11 CPC

CODE OF CIVIL PROCEDURE, 1908
Section 11 - Res judicata
ANNOTATIONS
Amendments
The Code of Civil Procedure (Amendment) Act, 1976 inserted Explanations VII and VIII after
Explanation VI.
Effective Date
Code of Civil Procedure (Amendment) Act, 1976 w.e.f. 1st February, 1977
Reference/ Relevance within Statute
Order 41 Rule 5 (Stay of proceedings and execution)
Pre 1976 Amendments and Case Cited
1. Deva Ram v. Ishwar Chand MANU/SC/0097/1996: AIR1996SC378; Kunjan Nair Shivaraman Nair v. Narayanan Nair, MANU/SC/0101/2004:
AIR 2004 SC 1761.
2. Raj Lakshmi Dasi v. Banamali Sen, MANU/SC/0063/1952: AIR 1953 Section C. 33; Sheoparsan Singh v. Ramnandan Singh (1916) 43 I.A.
91.
3. Mt. Lachhmi v. Mt. Bhulli AIR 1927 Lah 289.
4. Kunjan Nair Shivaraman Nair v. Narayanan Nair, MANU/SC/0101/2004: AIR 2004 SC 1761; Daryao v. The State of U.P.
MANU/SC/0012/1961: AIR 1961 SC 1457; Ashok Kumar Srivastav v. National Insurance Company Limited MANU/SC/0314/1998: AIR 1998
SC 2046; Narayana Prabhu Venkateswara Prabhu v. Narayana Prabhu Krishna Prabhu MANU/SC/0025/1977: AIR1977SC1268.
5. Sheoparsan Singh v. Ramanandan Prasad Narayan Singh AIR 1916 P.C. 78; Iftikhar Ahmed and Ors. v. Syed Meharban Ali and Ors.;
MANU/SC/0009/1974: AIR 1974 SC 749
6. Management of Indian Aluminium Company Limited v. Sri S. Nagaiah MANU/KA/0064/2009
7. Ram Bhaj v. Ahmad Saidakhtar Khan AIR. 1938 Lah. 571.
8. Swamy Atmananda v. Sri Ramakrishna Tapovanam; MANU/SC/0287/2005: AIR 2005 SC 2392; Kopargaon S.S.K. Ltd. v. State of
Maharashtra (2009) 3 SCC 273; Satish Nambiar v. Union of India 150 (2008) DLT 312; Anatha Shishu Sevashrama v. The State of Karnataka
2008 (1) Kar LJ 551.
9. Mathura Prasad v. Dossibai, MANU/SC/0420/1970: AIR 1971 SC 2355.
10. State of Karnataka v. All India Manufacturers Organization; MANU/SC/2206/2006: AIR 2006 SC 1846.
11. Lal Chand v. Radha Kishan, MANU/SC/0483/1976: AIR 1977 SC 789.
12. Daryao v. State of U.P. MANU/SC/0012/1961; Church of South India Trust Association v. Telugu Church Council; MANU/SC/0262/1996:
(1996) 2 SCC 520.
13. Swamy Atmananda and Ors. v. Sri Ramakrishna Tapovanam MANU/SC/0287/2005; Kopargaon S.S.K. Ltd. v. State of Maharashtra (2009)
3 SCC 273; Satish Nambiar v. Union of India 150 (2008) DLT 312; Anatha Shishu Sevashrama v. The State of Karnataka 2008 (1) Kar LJ
551.
14. Kiran Tandon v. Allahabad Development Authority AIR 2004 SC 2006; Bajranglal Shivchandrai Ruia v. Shashikant N. Ruia (2004) 5 SCC
272.
15. Guda Vijayalakshmi v. Guda Ramachandra Sekhara Sastry MANU/SC/0315/1981: AIR 1981 SC 1143.
16. Ampthill Peerage Case, [1976] 2 All England Law Reports p.411; Maghraj Calla v. Kajodi Mal MANU/RH/0003/1994: AIR 1994 Raj 11.
17. Sheoparsan Singh v. Ramanandan Prasad Narayan Singh AIR 1916 PC 78.
18. Daryao and Ors. v. The State of U.P. MANU/SC/0012/1961: AIR 1961 SC 1457.
19. Kirit Kumar Chaman Lal Kundaliya v. Union of India (UOI) and Kirit Kumar Chaman Lal Kundaliya v. State of Gujarat
MANU/SC/0164/1981: AIR1981SC1621.
20. Satyadhan v. Deorajin Debi, MANU/SC/0295/1960: AIR 1960 SC 941.
21. Sulochana Amma v. Narayanan Nair MANU/SC/0047/1994: AIR1994SC152.
22. Escorts Farms Ltd., Previously known as Escorts Farms (Ramgarh) Ltd. v. The Commissioner, Kumanon Division, Nainital
MANU/SC/0144/2004: AIR 2004 SC 2186
23. Supreme Court Employees Welfare Association v. Union of India, MANU/SC/0582/1989: AIR 1990 SC 334.
24. Lonan Kutty v. Thomman, MANU/SC/0358/1976: AIR 1976 SC 1645.
25. Vishnu Sugar Mills Ltd. v. I.S.P. Trading Co MANU/WB/0056/1984L: AIR 1984 Cal 246
26. Chandu Lal v. Khalilur Rahman A.I.R. I950 P.C. 17.
27. The Managing Director, The Cauveri Neeravari Nigam Ltd. v. Sri Manjegowda MANU/KA/0092/2008.
28. Workmen of Cochin Port Trust v. Board of Trustees of the Cochin Port Trust and Anr. MANU/SC/0291/1978: AIR 1978 SC 1283.
29. Narayana Prabhu Venkateswara Prabhu v. Narayana Prabhu Krishna Prabhu MANU/SC/0025/1977: AIR1977SC1268.
30. Ram Prakash v. Smt. Charan Kaur MANU/SC/0931/1997: AIR1997SC3760; Premier Tyres Limited v. Kerala State Road Transport
Corporation MANU/SC/0176/1993: AIR 1993 SC 1202.
31. Daryao v. State of U.P., MANU/SC/0012/1961: AIR 1961 SC 1457; State of Maharashtra v. M/s. National Construction Company, Bombay
1996 IAD (SC) 458; Sushil Kumar Mehta v. Gobind Ram Bohra; MANU/SC/0593/1989: (1990) 1 SCC 193.
32. Krishnan Nair v. Kambi MANU/TN/0326/1936: AIR 1937 Mad 544.
33. Puthiyottil Kunhava v. K. Mammad Kutty, MANU/KE/0025/1990: AIR 1990 Ker 132.
34. Adi Pherozshah V. H.M. Seervai; MANU/SC/0044/1970: AIR 1971 SC 385.
35. Shakuntla Devi v. Kamla, MANU/SC/0277/2005: (2005) 5 SCC 390.
36. Management of Indian Aluminium Company Limited v. Sri S. Nagaiah MANU/KA/0064/2009.
37. C.V. Rajendran v. N.M. Muhammed Kunhi MANU/SC/0797/2002: AIR 2003 SC 649; Satyadhyan Ghosal v. Deorajin Debi1
MANU/SC/0295/1960: AIR 1960 SC 941; Mitsubishi France v. Neyveli Lignite Corporation Ltd. MANU/TN/0156/1985: AIR 1985 Mad 300;
Sarojini Prabhu v. Pappikutty Adiesiar; MANU/KE/0588/2006: AIR 2007 Ker 44.
38. U.P. State Road Transport Corporation v. State of U.P., MANU/SC/1009/2004: AIR 2005 SC 446.
39. Arjun Singh v. Mohindra Kumar and Ors. [1964] 5 S.C.R. 947; The State of Punjab v. Sri R.P. Kapoor MANU/UP/0086/1976: AIR 1976 All
355.
40. Mahadeo Mahto v. Hiralal Verma MANU/BH/0031/1991: AIR 1991 Pat 235.
41. Kesavan v. Lakshmy Amma, MANU/KE/0041/1968.
42. 'Cottingham v. Earl of Shrewsbury', (1843) 67 E. R. 530 (Dwarka Das v. The Union of India MANU/PH/0046/1953: AIR 1953 P&H 120.
43. Iftikhar Ahmed v. Syed Meherban Ali, MANU/SC/0009/1974: AIR 1974 SC 749.
44. Ram Sagar v. Yogendra, MANU/BH/0055/1975: AIR 1975 Pat 239; Mangu v. Madurai, AIR 1973 AP 256.
45. M/s. Makhija Construction & Engg. Pvt. Ltd. v. Indore Development Authority; MANU/SC/0302/2005: AIR 2005 SC 2499.
46. Iftikhar Ahmed v. Syed Meharban All. MANU/SC/0009/1974: AIR 1974 SC 749; Munni Bibi v. Triloki Nath, MANU/PR/0031/1931: AIR
1931 PC 114; Chandu Lal Agarwalla v. Khalilur Rahman, MANU/PR/0031/1949: AIR 1950 PC 17.
47. Mahboon Sahab v. Syed Ismail MANU/SC/0698/1995: (1995) 3 SCC 693.
48. State Of Gujarat v. Meghji Pethraj Shah Charitable Trust MANU/SC/0691/1994: (1994) 3 SCC 552.
49. Shankar Lal v. Kannie Lal, MANU/OR/0035/1989: AIR 1989 Ori 133.
50. Gopal v. Ram Lal, MANU/RH/0005/1989: AIR 1989 Raj 24.
51. Ram Gita v. Prithvi, MANU/PH/0048/1956: AIR 1956 Punj 129. Also see Hitendra v. Chanda, MANU/GH/0002/1957: AIR 1958 Assam 179.
52. Rajendra Kumar v. Kalyan, MANU/SC/0474/2000: AIR 2000 SC 3335.
53. Prasad v. Balmiki Prasad, MANU/SC/0008/1974: AIR 1975 SC 733.
54. Konda Lakshman Bapuji v. State of Andhra Pradesh MANU/AP/0123/1977: AIR 1977 AP 427.
55. Venkobacharlu v. Radabayamma, MANU/TN/0931/1924: AIR 1924 Mad 858.
56. G.K. Dudani v. S.D. Sharma MANU/SC/0570/1986: AIR1986SC1455.
57. Amalgamated Coalfields v. Janapada Sabha, MANU/SC/0311/1962: AIR 1964 SC 1013.
58. State Of Gujarat v. Bhaterdevi Ramnivs Sanwalram MANU/SC/0809/2002: (2002) 7 SCC 500.
59. Ashok Kumar Srivastav v. National Insurance Company Ltd. MANU/SC/0314/1998: (1998) 4 SCC 361; Bua Das Kaushal v. The State Of
Punjab MANU/SC/0492/1970: AIR 1971 SC 1676.
60. Kirit Kumar Chaman Lal Kundaliya v. State of Gujarat MANU/SC/0164/1981.
61. Sree Narayana Dharamasanghom Trust v. Swami Prakasananda.; MANU/SC/1267/1997: (1997) 6 SCC 78.
62. Ramnik Vallabhdas Madhvani v. Taraben Pravinlal Madhvani MANU/SC/0891/2003: (2004) 1 SCC 497.
63. State of Punjab v. Ram Lubhaya Bagga, MANU/SC/0156/1998: AIR 1998 SC 1703 (1707).
64. Kirit Kumar Chaman Lal Kundaliya v. Union of India (UOI) and Kirit Kumar Chaman Lal Kundaliya v. State of Gujarat:
MANU/SC/0164/1981: AIR1981SC1621.
65. Direct Recruit v. State of Maharashtra, MANU/SC/0291/1990: AIR 1990 SC 1607; Rabindra Nath Biswas v. General Manager, N.F. Rly AIR
1988 Pat 138.
66. Daryao v. The State of U.P. MANU/SC/0012/1961: AIR1961SC1457.
67. Workmen of Cochin Port Trust v. Board of Trustees of the Cochin Port Trust and Anr. MANU/SC/0291/1978.
68. Teja Singh v. Union Territory of Chandigarh (1981) 1 Serv LR 274; Hoshnak Singh v. Union of India MANU/SC/0273/1978.
69. Hoshnak Singh v. Union of India MANU/SC/0273/1978.
70. AIR 1961 SC 1437, Daryao v. State of U.P.
71. Daryao v. The State of U.P. MANU/SC/0012/1961: AIR1961SC1457.
72. The Virudhunagar Steel Rolling Mills' case MANU/SC/0174/1968: AIR 1968 SC 1196.
73. Shri Lallubhai Jogibhai Patel v. Union of India W. P. No. 4349 of 1980, (reported in MANU/SC/0216/1980.
74. Ibid.
75. Dr. (Smt.) Bharti Raj v. Sumesh Sachdeo MANU/UP/0229/1986: AIR 1986 All 259.
76. Ghulam Sarwar v. Union of India, MANU/SC/0062/1966.
77. Ghulam Sarwar v. Union of India, MANU/SC/0062/1966.
78. Union of India v. Nanak Singh MANU/SC/0185/1968.
79. Ferro Alloys Corpn. Ltd. v. U.O.I. MANU/SC/0190/1999: AIR1999SC1236.
80. Pujaribai v. Madan Gopal, MANU/SC/0424/1989.
81. State of U.P. v. Nawab Hussain, MANU/SC/0032/1977; Pondicherry Khadi and Village Industries Board v. P. Kulothangan
MANU/SC/0856/2003: AIR 2003 SC 4701.
82. Federation Of Directly Appointed Officers Indian Railway v. Union of India MANU/SC/0366/1993: AIR 1993 SC 2422.
83. Avinash Nagra v. Navodaya Vidyalaya Samiti: MANU/SC/1058/1997: (1997) 2 SCC 534.
84. Ashok Kumar Srivastava v. National Insurance Co. Ltd., MANU/SC/0314/1998: AIR 1998 SC 2046.
85. Radhaswami Satsang v. Income-tax Commissioner, MANU/SC/0061/1992: AIR 1992 SC 377.
86. Workmen of the Straw Board Manufacturing Co. Ltd. v. Straw Board Manufacturing Co. Ltd., MANU/SC/0305/1974: AIR 1974 SC 1132.
87. K. V. George v. Secretary Water & Power Department, MANU/SC/0253/1989: AIR 1990 SC 53.
88. Smita Conductors Ltd. v. Euro Alloys Ltd., AIR 2001 SC 3730.
89. Koran v. Kamla, MANU/KE/0037/1978: AIR 1978 Ker 172.
90. Balwant v. Mainabai, MANU/MP/0004/1991: AIR 1991 MP 11.
91. Yakubhai v. Imamuddin, MANU/GJ/0192/1991: AIR 1991 Guj 180.
92. L.I.C. of India v. India Automobiles, MANU/SC/0199/1991: AIR 1991 SC 884.
93. R.C. Tiwari v. M.P. State Co-operative Marketing Federation Ltd., MANU/SC/0698/1997: AIR 1997 SC 2652.
94. Sat Pal v. Sudershan Lal MANU/DE/0295/1972: AIR 1972 Delhi 295.
95. Ayodhya Sah v. The Joint Director of Consolidation MANU/BH/0019/1992: AIR1992Pat97; Sulochana Amma v. Narayanan Nair
MANU/SC/0047/1994: AIR1994SC152.
96. Kunhappa Nair and v. Suresh Kumar MANU/KE/0023/1984: AIR 1984 Ker 99.
97. Koran v. Kamala Shetty MANU/KE/0037/1978: AIR 1978 Ker 172 (FB).
98. Burn & Co., Calcutta v. Their Employees MANU/SC/0062/1956: AIR1957SC38; Executive Engineer, ZP Engg. Divn. v. Digambara Rao;
MANU/SC/0825/2004: (2004) 8 SCC 262; M/s. Bharat Barrel and Drum Manufacturing Co. Pvt. Ltd. v. Bharat Barrel Employees Union
MANU/SC/0444/1987: (1987) 2 SCC 591; Pondicherry Khadi & Village Industries Board v. P.Kulothangan MANU/SC/0856/2003: (2004) 1 SCC
68.
99. Nirmal v. Jahanara, MANU/SC/0023/1973: AIR 1973 SC 1406.
100. Nirmaljit Singh v. Harnam Singh; MANU/SC/0576/1996: AIR 1996 SC 2252.
101. Vijayalakshmi v. Ram Chandra, MANU/SC/0315/1981: AIR 1981 SC 1143.
102. Amalgamated Coalfields v. Janapada Sabha, MANU/SC/0311/1962L: AIR 1964 SC 1013.
103. V. N. Mammi Kutty v. Moonam Kutty, AIR 1993 Ker 104.
104. M/s. Radhasoami Satsang Saomi Bagh, Agra v. Commissioner of Income-tax MANU/SC/0061/1992: AIR 1992 SC 377.
105. M.M. Ipoh v. Commissioner of Income-tax MANU/SC/0166/1967: AIR1968SC317.
106. Bharat Sanchar Nigam Ltd. V. Union of India; MANU/SC/1091/2006: AIR 2006 SC 1383.
107. Acharya Jagdishwaranand Avadhuta v. Commissioner Of Police, Calcutta:MANU/SC/0061/1992: (1992) 1 SCC 659.
108. Municipal Corporation of City of Thane v. Vidyut Metallics Ltd. (2007) 8 SCC 688.
109. Administrator of the Shringeri Math, Jagatguru Shringeri Shankaracharya Shri Abhinav Vidyatirth Swamigal v. Charity Commissioner,
Bombay AIR 1967 Bom 19; Secunderabad Cantonment Board V. Mohd. Mohiuddin; MANU/SC/0993/2003: (2003) 12 SCC 315; Y.B. Patil v.
Y.L. Patil, MANU/SC/0035/1976: AIR 1977 SC 392.
110. Mahila Bajrangi v. Badribai; MANU/SC/1187/2002: (2003) 2 SCC 464.
111. Mohd. S. Labbai v. Mohd. Hanifa MANU/SC/0510/1976: AIR 1976 SC 1569.
112. V. Rajeshwari v. T.C. Saravanabava, MANU/SC/1057/2003: (2004) 1 SCC 551.
113. M/s. I.T.C. Ltd. v. Commissioner of Central Excise, New Delhi AIR 2005 SC 1370.
114. Madhukar D. Shende v. Tarabai Aba Shedage, MANU/SC/0016/2002: AIR 2002 SC 637.
115. C. Sarala v. K. Nalinakshan; write name of case MANU/KE/0066/1991: AIR 1991 Ker 362; AIR 1960 SC 941; Lal Chand. v. Radha
Kishan, MANU/SC/0483/1976: AIR 1977 SC 789; Dwarka Das v. The Union of India MANU/PH/0046/1953: AIR 1953 P&H 120; Gulam Abbas
v. State of Uttar Pradesh MANU/SC/0059/1981: AIR 1981 SC 2198.
116. Maghraj Calla v. Kajodi Mal MANU/RH/0003/1994: AIR 1994 Raj11; Ramchandra Sheshgiri Kamath v. Janardan Vishwanath Hegde
MANU/MH/0081/1969: AIR 1969 Bom 111; Rajlakshmi v. Banamali MANU/SC/0063/1952: AIR l953 SC 33.
117. Gulabchand Chhotalal Parikh V. State of Gujarat MANU/SC/0300/1964: AIR 1965 SC 1153.
118. Amarendra Komalam. v. Usha Sinha; MANU/SC/0266/2005: AIR 2005 SC 2758.
119. Mathura Prasad's case MANU/SC/0420/1970: AIR 1971 SC 2355 (The State of Punjab v. Nand Kishore AIR 1974 P&H 303.
120. Comorin Match Industries (Pvt.) Ltd. v. State of Tamil Nadu, MANU/SC/1149/1996: AIR 1996 SC 1916.
121. Abdul Rahman v: Prasony Bai AIR2003SC718; L. M. Das v. M. C. Das, MANU/WB/0044/1991: AIR 1991 Cal 231.
122. Mt. Lachhmi v. Mt. Bhulli AIR 1927 Lah 289.
123. The State of Punjab v. Nand Kishore MANU/PH/0156/1974: AIR1974P&H303; Shakuntla Devi v. Kamla MANU/SC/0277/2005.
124. Director of Settlements, A.P. v. M.R. Appa Rao, MANU/SC/0219/2002: AIR 2002 SC 1598.
125. G.N. Nayak v. Goa University, MANU/SC/0055/2002: AIR 2002 SC 790.

126. M.C. Mehta v. Kamal Nath, MANU/SC/0189/2002: AIR 2002 SC 1515.
127. Durg Rajnandgaon Grameen Bank v. Suresh Kumar Shukla; MANU/SC/0836/1999: (1999) 1 SCC 243.
128. Ampthill Peerage Case, [1976] 2 All England Law Reports 411.
129. Weaver Mills Ltd. v. Balkis Ammal, MANU/TN/0244/1969: AIR 1969 Mad 462.
130. Ibne Hasan v. Hasina Biwi, MANU/UP/0198/1984: AIR 1984 All 216.
131. Weaver Mills Ltd. v. Balkis Ammal, MANU/TN/0244/1969: AIR 1969 Mad 462.
132. K. J. Tradus v. State of Karnataka, MANU/KA/0018/1991: AIR 1991 Kar 63.
133. Nirmaljit Singh v. Harnam Singh (dead) by LR's, MANU/SC/0576/1996: AIR 1996 SC 2252 .
134. Nachhittar Singh v. Jagir Kaur, MANU/PH/0215/1986: AIR 1986 P&H 197.
135. Baboo v. Mt. Kirpa Dai MANU/UP/0194/1950: AIR 1950 All 488.
136. Talluri Venkata Seshayya v. Thadikonda Kotiswara Rao AIR 1937 P.C. I.
137. Janki Gope v. Jangbahadur AIR 1935 Patna 458.
138. Ram Avadh v. Dy. Director Consolidation, MANU/UP/0209/1986: AIR 1986 All 167.
139. Krishna Kumar v. Municipal Corpn., MANU/GJ/0072/1990: AIR 1990 Guj 20.
140. Habibur Rahman v. Vijay Charan Abhay Charan Dubey and Bros, MANU/BH/0008/1959: AIR 1959 Pat 31; Bramhanand Rai v. Dy.
Director of Consolidation, Ghazipur MANU/UP/0156/1987: AIR 1987 All 100.
141. Baldevdas Karsondas Patel v. Mohanlal Bapalal Bahia, MANU/MH/0046/1947: AIR 1948 Bom 232.
142. Gouri Shankar Bajoria v. Ram Banka, MANU/BH/0116/1963: AIR 1963 Pat 398.
143. B. Pochaiah v. G. Akkapalli, MANU/AP/0005/1992: AIR 1992 AP 42.
144. Nand Kishore Kapoor v. Smt. Shanti Kapoor MANU/UP/0249/1982: AIR 1982 All 138.
145. Shailendra v. State, MANU/SC/0081/1956: AIR 1956 SC 346; Kesavan v. Padmanabhan MANU/KE/0052/1971: AIR 1971 Ker 234.
146. Sunderabai w/o Devrao Deshpande v. Devaji Shankar Deshpande MANU/SC/0098/1952: AIR 1954 SC 82.
147. Shankar Sitaram Sontakke and Anr. v. Balkrishna Sitaram Sontakke and Ors. MANU/SC/0130/1954; State of Punjab v. Amar Singh,
MANU/SC/0351/1974: AIR 1974 SC 994.
148. State of Punjab v. Amar Singh, MANU/SC/0351/1974: AIR 1974 SC 994.
149. Byram Pestonji Gariwala v. Union Bank of India MANU/SC/0485/1991: AIR1991SC2234 (Spencer-Bower & Turner in Res Judicata,
Second Edition, page 37).
150. Baldevdas Shivlal v. Filmistan Distributors (India) P. Ltd MANU/SC/0489/1969: AIR 1970 SC 406.
151. Pulavarthi Vankata Subba Rao v. Valluri Jagannadha Rao, MANU/SC/0018/1963: AIR 1967 SC 591; Baldevdas v. Filmistan Distributors,
MANU/SC/0489/1969: AIR 1970 SC 406; Uphras Lapasam v. Ka Esiboll Lyngdoh MANU/GH/0011/1986: AIR 1986 Gau 55.
152. Life Insurance Corpn. of India v. Ganga Dhar V. Ranade, MANU/SC/0031/1990: AIR 1990 SC 185.
153. Syed Mohd. S. Labbai v. Mohd. Hanifa, MANU/SC/0510/1976.
154. M/s. International Woolen Mills v. M/s. Standard Wool (U.K.) Ltd., MANU/SC/0304/2001: AIR 2001 SC 2134.
155. Madhukar D. Shende v. Tarabai Aba Shedage MANU/SC/0016/2002: AIR 2002 SC 637.
156. Balbir Kaur and another v. Gram Panchayat Village Jalabehra and another, 1986 Revenue Law Reporter 112.
157. State of Maharashtra v. M/s. National Construction Co., MANU/SC/0597/1996: AIR 1996 SC 2367.
158. Gulab Bai V. Manphool Bai MANU/SC/0339/1961: AIR 1962 SC 214.
159. Mirza Abid Kazim Husain v. Mirza Nasir Husain MANU/UP/0056/1977: AIR 1977 All 201.
160. Pandurang Ramchandra Mandlik v. Shantibai Ramchandra Ghatge MANU/SC/0406/1989: AIR 1989 SC 2240.
161. Jaljodhan Singh v. Kirpa Singh MANU/PH/0056/1963: AIR 1963 P & H 178.
163. M. Kunhirama Kurup v. Mayyarath Krishnan Kurup AIR1987Ker13; Balkishan v. Kishan Lal (1888) I. L R. 11 All. 148; Beni Madho v.
Inder Shahi (1909) I.L.R. 32 All. 67; Viswanathan v. A. Wazid, MANU/SC/0038/1962: AIR 1963 SC 1.
164. Narayana Prabhu Venkateswara Prabhu v. Narayana Prabhu Krishna Prabhu by LRs MANU/SC/0025/1977: AIR 1977 SC 1268.
166. Jeevantha v. Hanumantha MANU/SC/0055/1950: AIR 1954 SC 9.
167. Tulison Traders, Delhi and Anr. v. Gurdit Singh and Ors. MANU/DE/0036/1974: AIR 1974 Delhi 190.
168. Mst. Lachmi v. Mst. Bhuli A.I.R. 1927 Lah 289.
169. Jai Narain v. Bulaqi, MANU/UP/0093/1969: AIR 1969 All 504.
170. Sheodan v. Daryao MANU/SC/0264/1966: AIR 1966 SC 1332. Also see Pala Narayana v. M. V. V. Samaiah, AIR 1990 AP (NOC) 163.
171. Sardaran v. Shiv Lal AIR 1944 Lah 282 (FB) (C).
172. Ishwar Das v. State of M.P. MANU/SC/0021/1979: AIR 1979 SC 551.
173. Amrit Sagar v. Sudesh Behari, MANU/SC/0484/1969: AIR 1970 SC 5.
174. S. Mohd. Ismail v. S. Anwar Ali, MANU/WB/0074/1991: AIR 1991 Cal 391.
175. Sajjadanashin Sayed v. Musa Dadabhai Ummer, MANU/SC/0122/2000: AIR 2000 SC 1238.
176. Karnataka Power Transmission Corporation Ltd. v. Amalgamated Electricity Co. Ltd., AIR 2001 SC 291.
177. Junior Telecom Officers v. Union of India MANU/SC/0108/1993: AIR 1993 SC 787.
178. Ram Gobinda Dawan v. Smt. Bhaktabala MANU/SC/0586/1971: AIR 1971 SC 664 and Ram Gobinda Dawan v. Sunil Kumar Roy
MANU/SC/0586/1971: AIR 1971 SC 664.
179. Shri Narendra Akash Maharaj Petkar v. Shri Shahaji Baburao Petkar AND The Saraswat Employee Co-op. Hsg. Soc. Ltd. v. Shri Shahaji
Baburao Petkar MANU/MH/0280/2009.
180. Ram Sagar Singh v. Yogendra Narain Pd. Singh MANU/BH/0055/1975: AIR 1975 Pat 239.
181. Mata Din v. A. Narayanan, MANU/SC/0621/1969: AIR 1970 SC 1953.
182. Mathura Prasad Rajoo Jaiswal v. Dossibai N.B. Jeejeebhoy MANU/SC/0420/1970, AIR 1971 SC 2355; The State of Punjab v. Nand
Kishore AIR1974P&H303; Sabitri Dei And v. Sarat Chandra Rout MANU/SC/1117/1996: (1996) 3 SCC 301.
183. Bharathi Amma v. Kumaran Peethambaran MANU/KE/0016/1990: AIR 1990 Ker 88.
184. Abdul Gani v. Nabendra Kishore, MANU/WB/0012/1929: AIR 1930 Cal 47.
185. L. Nem Kumar Agarwal v. Nem Kumar and Anr MANU/UP/0053/1958: AIR 1958 All 207.
186. Poovanigowda v. Vasantha alias Subba Rao, MANU/KA/0034/1992: AIR 1992 Kant 254.
188. Isher Singh v. Sarwan Singh, MANU/SC/0345/1964: AIR 1965 SC 948.
189. Pandit Ishwardas v. State of Madhya Pradesh MANU/SC/0021/1979: (1979) 4 SCC 163.
190. Mathura Prasad Sarjoo Jaiswal v. Dossibai N.B. Jeojeebhoy, MANU/SC/0420/1970: AIR 1971 SC 2355.
191. The Mysore State Electricity Board v. Bangalore Woollen, Cotton and Silk Mills Ltd. MANU/SC/0007/1962: AIR1963SC1128; Mahila
Bajrangi v. Badribai (2003) 2 SCC 464; Bharathi Amma. v. Kumaran Peethambaran MANU/KE/0016/1990: AIR 1990 Ker 88.
192. Bharathi Amma v. Kumaran Peethambaran MANU/KE/0016/1990: AIR 1990 Ker 88.
193. Pawan Kumar Gupta v. Rochiram Nagdeo MANU/SC/1187/1999: AIR 1999 SC 1823; Ganesh Patra v. Banabihari Patra AIR 2004 Ori 23.
194. Madhvi Amma Bhawani Amma and Ors. v. Kunjikutty Pillai Meenakshi Pillai, MANU/SC/0393/2000 AIR 2000 SC 2301.
195. Sushil Kumar Mehta v. Gobind Ram Bohra MANU/SC/0593/1989: (1990) 1 SCC 193.
196. Ajmer Central Co-operative Bank Ltd., Ajmer v. Prescribed Authority, MANU/SC/0753/1996: AIR 1996 SC 2911.
197. Union of India v. Pramod Gupta; MANU/SC/0965/2006: AIR 2006 SC 3708.
198. Maghraj Calla v. Kajodi Mal MANU/RH/0003/1994: AIR 1994 Raj 11.
199. L. Nem Kumar Agarwal v. Nem Kumar and Anr MANU/UP/0053/1958: AIR 1958 All 207.
200. Supreme Court Employees Welfare Association v. Union of India; MANU/SC/0582/1989: AIR 1990 SC 334.
201. Deva Ram v. Ishwar Chand MANU/SC/0097/1996: AIR 1996 SC 378; Sulochana Amma v. Narayanan Nair MANU/SC/0047/1994 (Bhai
Hospital Trust v. Parvinder Singh MANU/DE/0024/2002: AIR 2002 Del 311; Arjun Singh v. Mahindra Kumar, MANU/SC/0013/1963: AIR 1964
SC 993; Yoginder Pal v. Competent Authority, MANU/DE/0241/1969: ILR (1970)1 Delhi 892; Virendra Saigal v. Sumatilal Jamnalal
MANU/DE/0002/1970: AIR 1970 Delhi1 14.
202. Williams v. Lourdusamy MANU/SC/1864/2008: AIR 2008 SC 2212.
203. Isher Singh v. Sarwan Singh MANU/SC/0345/1964: AIR 1965 SC 948.
204. Sajjadanashin Sayed v. Musa Dadabhai Ummer, MANU/SC/0122/2000: AIR 2000 SC 1238.
205. Ganga Bai v. Chhabubai, MANU/SC/0385/1981: AIR 1982 SC 20.
206. State of U.P. v. Rup Lal Sharma MANU/SC/1065/1997: (1997) 2 SCC 62.
207. Bhai Hospital Trust v. Parvinder Singh MANU/DE/0024/2002: AIR 2002 Del 311.
208. Gangabai v. Chhabubai MANU/SC/0385/1981: AIR 1982 SC 20.
209. S.P.A. Annamalay Chetty v. B.A. Thornhill, AIR 1931 PC 263.
210. Ramesh Chandra v. Shiv Charan Das MANU/SC/0051/1991: AIR 1991 SC 264.
211. Saraswati v. Durga, MANU/MP/0039/1982: AIR 1982 MP 147.
212. Deva Ram v. Ishwar Chand, MANU/SC/0097/1996: AIR 1996 SC 378.

213. Aanaimuthu thevar v. Alagammal MANU/SC/0416/2005: AIR 2005 SC 4004.
214. R. v. Knaptoft Inhabitants (1824) 2 B & C 883; Heptulla Bros v. Thakore (1956 (1) WLR 289 (PC); or if any matter was incidentally
cognizable (Sanders (otherwise Saunders) v. Sanders (otherwise Saunders) (1952) 2 All ER 767.
215. Sajjadanashin Sayed Md. B.E.Edr. v. Musa Dadabhai Ummer MANU/SC/0122/2000: AIR 2000 SC 1238.
216. Sajjadanashin Sayed Md. B.E.Edr. v. Musa Dadabhai Ummer MANU/SC/0122/2000: AIR 2000 SC 1238.
217. Nazim Ali v. Anjuman Islamia, MANU/SC/0089/1999: AIR 1999 SC 1098.
218. Wali Mohd. v. Rahmat Bee, MANU/SC/0131/1999: AIR 1999 SC 1136.
219. Gram Panchayat v. Ujagar Singh, MANU/SC/0628/2000: AIR 2000 SC 3272.
220. Joginder Pal v. Indian Red Cross Society MANU/SC/0620/2000: AIR 2000 SC 3279.
221. Secretary of State v. Swaminatha Koundan, AIR 1915 Mad 294.
222. Collector of Central Excise v. M/s. Hindustan Lever Ltd., MANU/SC/0479/2000: AIR 2000 SC 2907.
223. Madhvi Amma Bhawani Amma v. Kunjikutty Pillai Meenakshi Pillai, MANU/SC/0393/2000: AIR 2000 SC 2301.
224. Karan Singh Tanwar v. The Estate Officer AND Ram Kishan v. Union of India MANU/DE/8117/2007.
225. State of Karnataka v. All India Manufacturers Organization AIR 2006 SC 1846.
226. Satyadhyan Ghosal and Ors. v. 5m. Deorajin Debi and Anr. MANU/SC/0295/1960 (Most. Rev. P.M.A. Metropolitan v. Moran Mar
Marthoma MANU/SC/0407/1995: AIR 1995 SC 2001.
227. Muniappa Nadar v. K.V. Doraipandi Nadar MANU/TN/0189/1988: AIR 1988 Mad 117; In Pakkran v. Pathumma, (1913) 25 Mad U 279;
Samsarivsa Sarvathi Pelekhan Erukkapakkan v. M. K. Pathumma, 20 Ind Cas 950 (D).
228. Mst. Laxmi v. Ganpat, AIR 1921 Nag 23 (E) and Chiragdin v. Dilawar Khan, AIR 1934 Lah 465 (F).
229. Antu Rai v. Ram Kinkar Rai, MANU/UP/0523/1935: AIR 1936 All 412 (C).
230. Krishnakumar v. Govardhan Naidu, MANU/TN/0181/1975; Suraj Mani v. Kishorilal MANU/HP/0019/1976.
231. Udho v. Smt. Khimian MANU/UP/0122/1978: AIR 1978 All 508.
232. Gnanada Gobindo Choudhur's case, MANU/WB/0549/1925 1926 Cal. 650.
233. Bijai Bahadur Singh v. Bhagwan Baksh Singh, AIR 1930 Oudh 335.
234. P.V. Jose v. Kaniekammal, AIR 2000 SC 2688.
235. Ajit Chopra v. Sadhu Ram, MANU/SC/0706/1999: AIR 2000 SC 212.
236. Escorts Farms Ltd., Previously known as Escorts Farms (Ramgarh) Ltd. v. The Commissioner, Kumanon Division, Nainital, U.P. AIR 2004
SC 2186.
237. Sheodan Singh v. Daryao Kunwar MANU/SC/0264/1966: AIR 1966 SC 1332.
239. State of Maharashtra v: M/s. National Construction Company, Bombay 1996 IAD (SC) 458; Pulavarthi Venkata Subba Rao. v. Valluri
Jagannadha Rao MANU/SC/0018/1963.
240. Sheodan Singh v. Daryao Kunwar MANU/SC/0264/1966: AIR 1966 SC 1332; Inacio Martins v. Narayan Hari Naik [1993] 3 SCC.
241. State of Maharashtra v. National Construction MANU/SC/0597/1996: AIR 1996 SC 2367.

242. Sheodan Singh v. Daryao Kunwar MANU/SC/0264/1966: AIR 1966 SC 1332.
243. Shantipada Ganguly v. Union of India AIR 1976 Pat 74.
244. Gajpat Singh v. Sudhan, MANU/PH/0116/1985: AIR 1985 Punj 135.
245. Parsotam Gir v. Narbada Gir, (1899) 26 Ind App 175.
246. Shivshankar Prasad Sah v. Baikunth Nath Singh MANU/SC/0022/1969: AIR 1969 SC 971.
247. Greater Cochin Development Authority v. Leelamma Valson MANU/SC/0086/2002: AIR 2002 SC 952.
248. Nana Tuka Ram v. Sonabai, MANU/MH/0279/1982: AIR 1982 Bom 437; Sheodan Singh v. Smt. Daryao Kunwar MANU/SC/0264/1966:
AIR 1966 SC 1332; Premier Tyres Limited v. Kerala State Road Transport Corporation MANU/SC/0176/1993 (Union of India (UOI) v. V.
Pundarikakshudu MANU/SC/0691/2003: AIR 2003 SC 3209.
249. Pawan Kumar Gupta v. Rochiram Nagdeo MANU/SC/1187/1999: AIR 1999 SC 1823 (1827); Ram Prakash v. Smt. Charan Kaur
MANU/SC/0931/1997: AIR 1997 SC 3760.
250. Sheodan Singh v. Smt. Daryao Kunwar MANU/SC/0264/1966: AIR 1966 SC 1332.
251. Sheodan Singh v. Daryao Kunwar MANU/SC/0264/1966.
252. Jai Narain v. Bulaki Das, MANU/UP/0093/1969: AIR 1969 All 504.
253. Tata Chemicals Limited v. Sadhu Singh MANU/UP/0009/1994: AIR 1994 All 66.
254. Syed Ahmed Ali Khan Alavi v. Hinga Lal I.L.R.(1946) 21 Luck. 586.
255. Durg Rajnandgaon Grameen Bank v. Suresh Kumar Shukla MANU/SC/0836/1999: (1999) 1 SCC 243.
256. United Provinces Electric Supply Co. Ltd. v. T. N. Chatterjee, MANU/SC/0455/1972: AIR 1972 SC 1201.
257. Arjun Singh v. Mohindra Kumar, MANU/SC/0013/1963.
258. Roop Kishore v. Firm Raghbir Singh Baboo Ram, ILR (1970) 1 Punj and Har 533; Ishar v. Sudesh Kumar MANU/PH/0184/1973: AIR
1973 Punj and Har 392 and Pohlu Ram v. Gram Panchayat, Dharamgarh 1980 Rev LR 132.
259. Pawan Kumar Gupta v. Rochiram Nagdeo MANU/SC/1187/1999: AIR 1999 SC 1823 (AIR2001Ke.37).
260. Sarguja Transport Service v. State Transport Appellate Tribunal, M.P MANU/SC/0114/1986: AIR 1987 SC 88.
261. Satydhyan Ghosal v. Smt. Deorajin Debi, MANU/SC/0295/1960: AIR 1960 SC 941; Director of Settlements, Andhra Pradesh v. M.R.
Apparao MANU/SC/0219/2002: AIR 2002 SC 1598.
262. Ahmed Ibrahim v. Khokhar Issa, (1980) 21 (2) Guj LR 514.
263. Devidayal Rolling Mills v. Prakash Chiman Lal Parikh MANU/SC/0312/1993: AIR 1993 SC 1982.
264. International Woollen Mills v. Standard Wool (U.K.) Ltd. MANU/SC/0304/2001: (2001) 5 SCC 265.
265. Gangappa Gurupadappa Gugwad v. Rachawwa MANU/SC/0351/1970: AIR 1971 SC 442.
266. Indraj v. Collector, AIR 1981 NOC 150.
267. Abdullah Ashgar Ali Khan v. Ganesh Dass AIR 1917 PC 201; Amba Prasad v. Mahboob Ali Shah MANU/SC/0240/1964: AIR 1965 SC 54
and Tarak Chandra v. Jagdish Chandra MANU/BH/0016/1954: AIR 1954 Pat 41.
268. Shankar v. Niranjan, AIR 1984 Pat 11.
269. Abhi Prosad v. Pushpa Doshi, MANU/WB/0058/1984: AIR 1984 Cal 250.
270. Rajkishore Mohanty v. Kangali Moharana MANU/OR/0038/1972: AIR 1972 Ori 119.
271. Rakha Singh v. Amrit Lal, MANU/PH/0133/1984: AIR 1984 P&H 47.
272. Konda Lakshmana Bapuji v. Govt. of A.P MANU/SC/0066/2002: (2002) 3 SCC 258.
273. Daryao and Ors. v. The State of U.P. MANU/SC/0012/1961: AIR 1961 SC 1457.
274. Amalgamated Coalfields v. Janapad Sabha, MANU/SC/0311/1962: AIR 1964 SC 1013.
275. Rajah Chattar Singh v, Diwan Roshansingh, AIR 1946 Nag 277.
276. Baijnath Prasad Sah v. Ramphal Sahni. MANU/BH/0024/1962: AIR 1962 Pat 72 (FB).
277. Jaswant Singh v. Custodian of Evacuee Property MANU/SC/0279/1985: AIR 1985 SC 1096.
278. Nirmal v. Jahanara, MANU/SC/0023/1973: AIR 1973 SC 1406.
279. Combined reading of the decisions in Talluri Venkata Seshayya v. Thadikonda Kotiswara Rao, AIR 1937 PC 1; Mbharilal v. Benoy Kishna,
MANU/SC/0008/1952: AIR 1953 SC 65, Marwari Kumhar v. Bhagwanpuri Guru Ganeshpuri MANU/SC/0501/2000: AIR 2000 SC 2629; K.
Ethirajan v. Lakshmi AIR 2003 SC 4295 and Kunjan Nair Shivaraman Nair v. Narayanan Nair, MANU/SC/0101/2004: AIR 2004 SC 1761.
280. M. Kunhirama Kurup v. Mayyarath Krishnan Kurup MANU/KE/0005/1987: AIR 1987 Ker 13.
281. In re; Newton Hickie v. Official Trustee of West Bengal, MANU/WB/0173/1954.
282. Barkat Ali v. Badrinarain MANU/RH/0096/2001: AIR 2001 Raj 51.
283. Direct Recruit, Class II Engineering Officers' Association v. State of Maharashtra.
284. State of Punjab v. M/s. Surinder Kumar and Co. MANU/SC/0187/1997: AIR 1997 SC 809.
285. Mohanlal Goenka v. Benoy Krishna Mukherjee MANU/SC/0008/1952: AIR 1953 SC 65.
286. Kani Ram v. Smt. Kazani MANU/SC/0618/1972: AIR 1972 SC 1427.
287. Jagannath Ramanuj Raj Deb v. Sri. Lakshmi Narayan Tripathy MANU/OR/0067/1960: AIR 1960 Orissa 197 (FB).
288. Mohanlal Goenka v. Benoy Krishna Mukherjee MANU/SC/0008/1952.
289. Matu Ram and Sons v. Elqin Mills Co. Ltd. MANU/DE/0026/1974: AIR 1974 Delhi 205.
290. Madhavan v. Bhavani 1980 Ker LT 315.
291. P.N. Govindan v. Abdul Kari Subaida Beevi MANU/KE/0379/1998: AIR 1998 Ker 50.
292. Ganesh v. Baidyanath, MANU/BH/0101/1958.
293. Konda Lakshmana Bapuji v. Govt. of Andhra Pradesh, MANU/SC/0066/2002: AIR 2002 SC 1012.
294. Kamla Bai v. Mangi Lal Duli Chand, MANU/SC/1027/1987: AIR 1988 SC 375.
295. Mohan Lal v. Benoy Krishna, MANU/SC/0008/1952: AIR 1953 SC 65.
296. Union of India v. Bilash Singh, MANU/WB/0061/1984: AIR 1984 Cal 261.
297. Madunuri v. State of A. P. MANU/AP/0162/1989: AIR 1989 AP 233.
298. P.M.C. Kunhiraman Nair v. C.R. Naganatha Iyer, MANU/SC/0069/1993: AIR 1993 SC 307.
299. S. G. Muley v. State of Maharashtra, MANU/SC/0004/1996: AIR 1996 SC 61.
300. Rajendra Kumar v. Kalyan MANU/SC/0474/2000: (2000) 8 SCC 99.

301. Ramadhar Shrivas v. Bhagwandas (2005) 13 SCC 1.
302. Meher Rusi Dalal v. Union of India AIR 2004 SC 3491.
303. Ankush R. Naik v. Sujata Sanzgiry (2008) 110 BOM LR 2154.
304. Eastern Common Effluent Treatment Company Private Limited v. The Tamil Nadu Pollution Control Board AND Veerapandi Common
Effluent Treatment Plant Private Limited v. The Tamil Nadu Pollution Control Board (2007) 3 MLJ 361.
305. T. Umayaparvathi v. Bhagavathiamma Nadachi MANU/TN/7523/2007.
306. Sir Srinivasa v. C. Muninarayanappa MANU/KA/0237/2008; Sham Rajendra Agrawal v. Ghanshyam Hajarilal Sharma 2007 (4) Bom CR
330.
307. Sheodan Singh v. Daryao Kumar MANU/SC/0264/1966: AIR 1966 SC 1332.
308. Sulochana Amma v. Narayanan Nair MANU/SC/0047/1994: AIR 1994 SC 152.
309. Church of South India v. Telugu Church Council MANU/SC/0262/1996: AIR 1996 SC 987.
310. Gorie Gowri Naidu (Minor) v. Thandrothu Bodemma, MANU/SC/0186/1997: AIR 1997 SC 808.
311. Sayyed Ali v. A.P. Waqf Board MANU/SC/0070/1998: AIR 1998 SC 972.
312. Gulabbai v. Manphool, MANU/SC/0339/1961: AIR 1962 SC 214.
313. Pandurang Kavade v. Annaji Bokil MANU/SC/0581/1971: AIR 1971 SC 2228.
314. Gulabchand v. State of Gujarat, MANU/SC/0300/1964: AIR 1965 SC 1153.
315. V. V. Mammi Kutty v. Moonam Kutty AIR 1993 Ker 104.
316. Pandurang Mahadeo Kavade v. Annaji Balwant Bokil MANU/SC/0581/1971: AIR 1971 SC 2228.
317. Smt. Raj Lakshmi Dasi v. Banmali Sen, MANU/SC/0063/1952: AIR 1953 SC 33.
318. Mst. Gulab Bai v. Manphool Bai, MANU/SC/0339/1961: AIR 1962 SC 214.
319. Gulab Bai's case MANU/SC/0339/1961.
320. Hope Plantations Ltd. v. Taluk Land Board, Peermade MANU/SC/0686/1998: (1999)5SCC590.
321. 'Raj Lakshmi Dasi v. Banamali Sen', MANU/SC/0063/1952.
322. M. H. Ravindra Nath v. M. L. Hanumanthrao, MANU/TN/0144/1988: AIR 1988 Mad 177.
323. A. R. Antulay v. R. S. Nayak, MANU/SC/0002/1988: AIR 1988 SC 1531; Gorie Gouri Naidu (Minor) v. Thandrothu Bodemma
MANU/SC/0186/1997: (1997) 2 SCC 552.
324. Bharathi Amma v. Kumaran Peethambaran AIR 1990 Ker 88; Union of India v. Pramod Gupta; MANU/SC/0965/2006: AIR 2006 SC 3708;
M/s. Bharat Barrel and Drum Manufacturing Co. Pvt. Ltd. v. Bharat Barrel Employees Union MANU/SC/0444/1987: (1987) 2 SCC 591; Sabitri
Dei v. Sarat Chandra Rout MANU/SC/1117/1996: (1996) 3 SCC 301.
325. In re: Meghraj Golab Chand, Firm v. Chandra Kamal, MANU/WB/0030/1941: AIR 1941 Cal 493.
326. Mahalingeswara Devaru v. Seetharama Bhatta, MANU/KA/0154/1978.
327. Jeevantha v. Hanumantha MANU/SC/0055/1950: AIR 1954 SC 9.
328. Amalgamated Coalfields Ltd. v. Janapada Sabha, Chhindwara MANU/SC/0311/1962 and Devilal Modi's case (Devilal Modi v. Sales Tax
Officer. Ratlam MANU/SC/0266/1964; Gulabchand Chhotalal Parikh v. State of Gujarat, MANU/SC/0300/1964.
329. Sri. N.M. Ramachandraiah v. The State of Karnataka, Department of Revenue AIR 2007 Kant 164.
330. Halsbury's Laws of England (See 3rd Ed., Vol. 115, paras 185 and 187).
331. Gulab Chand Chhotalal Parikh v. State of Bombay MANU/SC/0300/1964: [1965] 2 S.C.R. 574.
332. Sulochana Amma v. Narayanan Nair MANU/SC/0047/1994: AIR1994SC152.
333. P. V. N. Devoki Amma v. P. V. N. Kunhi Ranjan Nair, MANU/KE/0055/1980: AIR 1980 Ker 230.
334. Amar Singh v. Dalip MANU/PH/0181/1981: AIR 1981 P&H 237.
335. P. V. N. Devoki Amma v. P. V. N. Kunhi Ranjan Nair MANU/KE/0055/1980: AIR 1980 Ker 230.
337. Aiyar's authoritative the Law Lexicon of British India (Amar Singh v. Dalip MANU/PH/0181/1981: AIR 1981 P&H 237
339. Rajendra Kumar v. Kalyan; MANU/SC/0474/2000: (2000) 8 SCC 99.
340. Nabin Majhi v. Tela Majhi MANU/WB/0099/1978: AIR 1978 Cal 440.
341. Madhvi Amma Bhawani Amma v. Kunjikutty Pillai Meenakshi Pillai AIR 2000 SC 2301.
342. Nabin Majhi v. Tela Majhi MANU/WB/0099/1978: AIR 1978 Cal 440 (Amar Singh v. Dalip MANU/PH/0181/1981: AIR 1981 P&H 237.
343. Mylavarapu Chitti Sanyasi Prasad Rao v. Runku Lakshmayya MANU/AP/0117/1967: AIR 1967 AP 143.
344. Maghraj Calla v. Kajodi Mal MANU/RH/0003/1994: AIR 1994 Raj 11.
345. Ramachandra Sahu v. Smt. Pramila Sahu MANU/OR/0047/1992: AIR 1992 Ori 183.
346. Sri Sri Sai Baba v. Hanumtha Rao, MANU/TN/0534/1977: (1980) 2 Mad LJ 518: 93 Mad LW 337.
347. Gulam Abbas v. State of U. P., MANU/SC/0059/1981: AIR 1981 SC 2198.
348. Prabhakar v. Bharat, MANU/MH/0277/1983: AIR 1983 Bom 488.
349. Kunhappa Nair v. Suresh Kumar, MANU/KE/0023/1984: AIR 1984 Ker 99; Hrudananda Panda v. Dhirendra, MANU/OR/0019/1985: AIR
1985 Ori 74.
350. Vide Act No. 104 of 1976.
351. J. Rustomji's case, MANU/MH/0176/1955: AIR 1955 Bom 447.
352. Raj Lakshmi Dasi v. Banamali Sen and Bholanath Sen v. Raj Lakshmi Dasi MANU/SC/0063/1952: AIR 1953 SC 33.
353. Mahila Bajrangi (dead) through LRs. v. Badribai (2003) 2 SCC 464.
354. Hukum Chand v. Delhi Development Authority 152 (2008) DLT 565.
355. Raj Lakshmi Dasi v. Banamali Sen, MANU/SC/0063/1952.
356. Bhagwan Dayal v. Mst. Reoti Devi MANU/SC/0374/1961: AIR 1962 SC 287.
357. P. Dasa Muni Reddy v. P. Appa Rao, MANU/SC/0392/1974: AIR 1974 SC 2089.
358. Nabin Majhi v. Tela Majhi MANU/WB/0099/1978: AIR 1978 Cal 440
359. Sulochana Amma v. Narayanan Nair, MANU/SC/0047/1994: AIR 1994 SC 152 at 155.
360. Mukunda Pradhan v. Krupasindhu Panda MANU/OR/0061/1954: AIR 1954 Ori 202.
361. Wallis C. J. in AIR 1918 Mad 484 (F.B.) (G).
362. Sri Jagannadha Sway Vari Temple Vadali v. Bokinala Nikodev MANU/AP/0111/1976: AIR 1976 AP 253.
363. Municipal Corporation Of Greater Bombay v. Prabhat Mandal.
364. Sadananda Keot v. Jona Ram Saikia MANU/GH/0020/1998: AIR 1998 Gau 109.
365. R. Venugopala Naidu v. Venkatarayulu Naidu Charities MANU/SC/0433/1989: AIR 1990 SC 444; Ahmed Adam Sait v. Inayathullah
Mekhri MANU/SC/0235/1963: [1964]2 SCR 647.
366. Rural Litigation and Entitlement Kendra v. State of U. P. MANU/SC/0415/1988: AIR 1988 SC 2187.
367. Amrit Sagar Gupta v. Sudesh, MANU/SC/0484/1969: AIR 1970 SC 5.
368. Jack Irla v. Official Receiver, MANU/TN/0200/1962: AIR 1962 Mad 189.
369. Chakka Lakshminarayana v. K. China Subbarao, MANU/AP/0034/1990: AIR 1990 AP 164.
370. Corporation of City of Mysore v. Public Interest Litigation Association (Regd.) Mysore City MANU/KA/0011/1997: AIR 1997 Kant 70.
371. Jagannath Ramanuj Raj Deb v. Sri. Lakshmi Narayan Tripathy MANU/OR/0067/1960: AIR 1960 Orissa 197 (F B).
372. Genda Lal v. Hazari Lal MANU/UP/0148/1935: AIR 1936 All. 21 (FB).
373. Church of South India Trust Association v. Telgu Church Council, MANU/SC/0262/1996: AIR 1996 SC 987: 1996 AIR SCW 435.
374. Prem Lata Agarwal v. Lakshman Prasad Gupta MANU/SC/0022/1970: AIR 1970 SC 1525.
375. Ramgouda v. Lagmava, MANU/KA/0156/1985: AIR 1985 Kant 82.
376. Ram Kirpal Shukul v. Mussumat Rup Kuari, XI Indian Appeals 37: ILR 6 All 269.
377. See Mulla on the Code of Civil Procedure, Seventeenth Edn., Pages 148-149. Y. B. Patil v. Y. L. Patil MANU/SC/0035/1976: 1977 (1) SCR
320: (AIR 1977 SC 392) Mohammed Khalid v. Chief Commissioner, AIR 1968 Delhi 13.
378. Sita v. State, MANU/UP/0059/1969: AIR 1969 All 342 (FB); Munshi v. Chiranjit Singh, MANU/UP/0101/1956: AIR 1956 All 237.
Sheshamma v. Gangaraju, AIR 1957 AP 841.
379. Jhuma Ram v. Prami Bai, MANU/RH/0062/1973: AIR 1973 Raj 234.
380. P.C. Ray v. Union of India, MANU/WB/0116/1971: AIR 1971 Cal 512.
381. Ameena Amma v., Sundaram Pillai MANU/SC/0604/1994: (1994) 1 SCC 743.
382. Raghunath Pradhani v. Damodra Mahapatra and Ors. MANU/SC/0316/1978: AIR 1978 SC 1820.
383. Bharmappa Nemanna Kawale v. Dhondi Bhima Patil, MANU/SC/0040/1997: AIR 1997 SC 122.
384. Shivraj Gopalji v. Ayissa Bi MANU/PR/0022/1949: AIR 1949 PC 302.
385. Jagannath Ramanuj Raj Deb v. Sri. Lakshmi Narayan Tripathy MANU/OR/0067/1960: AIR 1960 Orissa 197 (F. B)
386. Mohanlal v. Benoy Kishna, MANU/SC/0008/1952: AIR 1953 SC 65; Abhoy Kanta Gohain v. Gopinath Deb Goswami and Others
MANU/WB/0098/1942: A.I.R. 1943 Cal. 460.
387. Shivashankar Prasad Shah v. Baikunth Nath Singh MANU/SC/0022/1969: AIR 1969 SC 971; Bishwanath Kundu v. Sm. Subala Dassi
MANU/WB/0066/1962: AIR 1962 Cal. 272.
388. Genda Lal v. Hazari Lal, MANU/UP/0148/1935: AIR 1936 All 21.
389. Kani Ram v. Kazani MANU/SC/0618/1972.
390. R. Viswanathan v. Rukn-Ul-Mulk Syed Abdul Wajid MANU/SC/0038/1962: AIR 1963 SC 1.
391. R. Viswanathan v. Rukn-Ul-Mulk Syed Abdul Wajid MANU/SC/0038/1962: AIR 1963 SC 1.
392. Brijlal Ramjidas v. Govindram Gordhandas Seksaria (1947) L.R. 74 I.A. 203.
393. Mrs. Veena Kalia v. Dr. Jatinder Nath Kalia and another, MANU/DE/0012/1996: AIR 1996 Del 54.
394. Gustavs Nouvion v. Freeman and another reported in 15 Appeal Cases 1, (M/s. International woolen Mills v. M/s. Standard Wool (U.K.)
Ltd MANU/SC/0304/2001: AIR 2001 SC 2134.
395. Raghurama Arya v. Bapanna Rao, MANU/AP/0205/1959.
SYNOPSIS
1. Historical aspects of res judicata 107
2. Object 108
3. Scope 109
(a) Res judicata between two stages same litigation 111
(b) Res Judicata between Co-defendants and Co- 111

plaintiffs
(c) Res judicata and Writ proceedings 114
(d) Res Judicata and Other proceedings 116

(e) Plea of res judicata, when to be taken 118
(f) Section 11 Whether exhaustive 119
(g) Questions of fact and questions of law 120
(h) Exceptions to the doctrine of Res judicata 120
(i) Judgment obtained by fraud or collusion 121
(j) Dismissal in default, ex parte decree and 122

compromise decree
(k) Ex-parte decree 122
(l) Compromise decree 123
4. Essentials of res judicata 123
(a) There must be two suits-one former suit and the 124
other subsequent suit and Explanation I
(b) The parties to the suits or the parties under whom 126
they or any of them claim must be the same in both
the suits litigating under the same title
(c) The matter directly and substantially in issue must 127

be the same either actually or constructively in both
the suits and Explanation III
(d) That the matter in issue has been heard and finally 133
decided and Explanation IV
(e) That the matter in issue was decided by a Court of 142

competent jurisdiction (Sir Srinivasa v. C.
Muninarayanappa; Sham Rajendra Agrawal v.
Ghanshyam Hajarilal Sharma) and Explanations II and
VIII
5. Explanation V-Relief Claimed but not granted- 148

deemed to be refused
6. Explanation VI-Representative suit 149

7. Explanation VII Res judicata in Execution 150
Proceedings
8. Conclusiveness of foreign Judgment 152
9. Principles of Res judicata 153
1. Historical Aspects of Res Judicata.
"Res judicata Pro Veritate Accipture" is the full maxim which has, over the years, shrunk to mere Res
Judicata (Deva Ram v. Ishwar Chand; Kunjan Nair Shivaraman Nair v. Narayanan Nair),1 which
expression means a matter already decided. It has a very ancient history. It was known to ancient
Hindu Law as Purva Nyaya. The plea of former Judgment has been illustrated in the text of Katyayana
thus, "If a person though defeated at law sues again, he should be answered 'you were defeated
formerly" (Raj Lakshmi Dasi v. Banamali Sen; Sheoparsan Singh v. Ramnandan Singh).2
This principle was also known to Roman law as 'exceptio res judicatae'. Julian defined the principle
thus, "and generally the plea of former Judgment is a bar whenever the same question of right is
renewed between the same parties by whatever form of action -- Et generaliter (ut julianus definit)
exceptio rel judicatae obstat, quotisns inter easdem personas esdem quaestio revocator, vel alio
genere judicli.) This doctrine was adopted by the countries on the European continent which had
modelled their civil law on the Roman pattern. In France, the doctrine is known as 'Chose jugee' --
thing adjudged. This principle of preclusion of re-litigation, or the conclusiveness of Judgment, has
struck deep roots in Anglo-American jurisprudence and is equally well-known in the Commonwealth
countries which have drawn upon the rules of Common law. The doctrine of res judicata is recognised
as a principle of universal jurisprudence forming part of the legal systems of all civilised nations (Mt.
Lachhmi v. Mt. Bhulli).3
Section 11 of Code of Civil Procedure, 1908, contains the rule of conclusiveness of the Judgment
which is- based partly on the maxim, of Roman jurisprudence. "interest republicae ut sit finis litium"
(It concerns the State that there be an end to law suits) and partly on the maxim "nemo debet bis
vexari pro Una et eadem causa" (no man should be vexed twice: over for the same cause). The
section does not affect the jurisdiction of the Court but operates as a bar to the trial of the suit or
issue, if the matter in the previous suit between the same parties litigating under the same title in a
Court, competent to try the subsequent suit in which such issue has been raised (Kunjan Nair
Shivaraman Nair v. Narayanan Nair; Daryao v. The State of U.P.; Ashok Kumar Srivastav v. National
Insurance Company Limited; Narayana Prabhu Venkateswara Prabhu v. Narayana Prabhu Krishna
Prabhu).4 The rule of res judicata "while founded on ancient precedent is dictated by a wisdom which
is for all time' and that the application of the rule by the Courts "should be influenced by no technical
considerations of form, but by matter of substance within the limits allowed by law (Sheoparsan
Singh v. Ramanandan Prasad Narayan Singh; Iftikhar Ahmed and Ors. v. Syed Meharban Ali and
Ors.).5
Res judicata is a doctrine based on the larger public interest. It is well settled that Section 11 of the
Code of Civil Procedure, 1908 (hereinafter, "the Code of Civil Procedure") is not the foundation of the
principle of res judicata, but merely statutory recognition thereof and hence, the Section is not to be
considered exhaustive of the general principle of law. The main purpose of the doctrine is that once a
matter has been determined in a former proceeding, it should not be open to parties to re-agitate the
matter again and again. The rule of res judicata contained in Section 11 of the Code has some
technical aspects, the general doctrine is founded on considerations of high public policy to achieve
two objects namely (i) that there must be a finality to litigation and (ii) that individuals should not be
harassed twice over with the same kind of litigation(Management of Indian Aluminium Company
Limited v. Sri S. Nagaiah).6
2. Object.
The object of introducing Section 11 in the Code of Civil Procedure is to confer finality on decisions
arrived at by competent Courts between interested parties after genuine contest (Ram Bhaj v. Ahmad
Saidakhtar Khan).7 Once the matter which was the subject matter stood determined by a competent
Court, no party thereafter can be permitted to reopen it in a subsequent litigation. Such a rule was
brought into the statute book with a view to bring the litigation to an end so that the other side may
not be put to harassment (Swamy Atmananda v. Sri Ramakrishna Tapovanam).8 Res judicata is a rule
of procedure and it cannot change the law of the land as applicable to specific parties by decisions of
Courts (Mathura Prasad v. Dossibai).9 Section 11 of the Code of Civil Procedure recognizes this
principle and forbids a Court from trying any suit or issue, which is res judicata, recognizing both
'cause of action estoppel' and issue estoppel (State of Karnataka v. All India Manufacturers
Organization).10
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. The principle is also founded on equity, justice and good
conscience which require that a party which has once succeeded on an issue should not be permitted
to be harassed by a multiplicity of proceedings involving determination of the same issue (Lal Chand
v. Radha Kishan).11 It is also in the public interest that individuals should not be vexed twice over
with the same kind of litigation (Daryao v. State of U.P.; Church of South India Trust Association v.
Telugu Church Council).12 The principle of res judicata envisages that a Judgment of a Court of
concurrent jurisdiction directly upon a point would create a bar as regards a plea, between the same
parties in some other matter in another Court, where the said plea seeks to raise afresh the very
point that was determined in the earlier Judgment (Swamy Atmananda and Ors. v. Sri Ramakrishna
Tapovanam; Kopargaon S.S.K. Ltd. v. State of Maharashtra; Satish Nambiar v. Union of India; Anatha
Shishu Sevashrama v. The State of Karnataka).13 The principles of res judicata as contained in
Section 11 Code of Civil Procedure bars any Court to 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. A finding which has
attained finality operates as res judicata (Kiran Tandon v. Allahabad Development Authority;
Bajranglal Shivchandrai Ruia v. Shashikant N. Ruia).14
3. Scope.
Res judicata, is a branch or specie of the Rule of Estoppel called Estoppel by Record (Guda
Vijayalakshmi v. Guda Ramachandra Sekhara Sastry).15 The previous Judgment creates an estoppel -
which merely means that what has been decided must be taken to be established as a fact, that the
decided issue cannot be reopened by those who are bound by the Judgment, that the clamoring
voices must be stilled, that the bitter waters of civil contention even though channeled into litigation
must be allowed to subside (Ampthill Peerage Case; Maghraj Calla v. Kajodi Mal).16 Hence such an
estoppel savours of an equity or justice created by actions of parties the results of which have
become recorded formally behind which they are not allowed to go (Sheoparsan Singh v.
Ramanandan Prasad Narayan Singh).17 The doctrine of estoppel is not a mere technical doctrine; but
is a fundamental doctrine, of all Courts, based on the twin principles -- that there must be an end to
litigation and, that man should not be vexed twice over for the same cause (Daryao and Ors. v. The
State of U.P.).18 However, such a doctrine would be wholly inapplicable to cases where the two
forums have separate and independent jurisdictions (Kirit Kumar Chaman Lal Kundaliya v. Union of
India (UOI) and Kirit Kumar Chaman Lal Kundaliya v. State of Gujarat).19
The principle of res judicata is based on the need of giving finality to judicial decisions. The bar
contained in the principle is that the same matter shall not be adjudged again. In other words
Section 11 embodies a rule of conclusiveness of Judgments as to the points decided (Satyadhan v.
Deorajin Debi).20 Section 11 of Code of Civil Procedure bars as a plea an issue tried in an earlier suit
founded on a plaint in which the matter is directly and substantially in issue and became final. In a
later suit between the same parties or their privies in a competent Court to try such subsequent suit
in which the issue has been directly and substantially raised and decided in the Judgment and decree
in the former suit would operate as res judicata (Sulochana Amma v. Narayanan Nair).21
It is a doctrine applied to give finality to 'lis' in original or appellate proceedings. The doctrine in
substance means that an issue or a point decided and attaining finality should not be allowed to be
reopened and re-agitated twice over. The literal meaning of res is everything that may form an object
of rights and includes an object, subject-matter or status and res judicata literally means: 'a matter
adjudged; a thing judicially acted upon or decided; a thing or matter settled by Judgment (Escorts
Farms Ltd., Previously known as Escorts Farms (Ramgarh) Ltd. v. The Commissioner,
Kumanon Division, Nainital).22 A final and binding judicial decision between the parties cannot be
challenged even on the ground that it is violative of Article 14 of the Constitution of India (Supreme
Court Employees Welfare Association v. Union of India).23 The principle contained in the section even
in Nagaland where the Code is not applicable in all its force in view of Section 1 (3) (b) of the Code,
the principle of res judicata does apply (Lonan Kutty v. Thomman).24
Res judicata is meant to avoid conflict in decisions - it is now settled principle that even ex-parte
decree does constitute res judicata if issue involve is one which constitutes basis or foundation of
decree (Vishnu Sugar Mills Ltd. v. I.S.P. Trading Co).25 But to this the qualification must be added
that, if such a party is to be bound by a previous Judgment, it must be proved clearly that he had or
must be deemed to have had notice that the relevant question was in issue and would have to be
decided (Chandu Lal v. Khalilur Rahman).26 In an issue, which is not adjudicated before the Court,
the provisions of Section 11 of the Code of Civil Procedure cannot be invoked(The Managing Director,
The Cauveri Neeravari Nigam Ltd. v. Sri Manjegowda).27
The principle of res judicata also comes into play when by the Judgment and Order a decision of a
particular issue is implicit in it, that is, it must be deemed to have been necessarily decided by
implication; then also the principle of res judicata on that issue is directly applicable (Workmen of
Cochin Port Trust v. Board of Trustees of the Cochin Port Trust and Anr.).28 One of the tests in
deciding whether the doctrine of res judicata applies to a particular case or not is to determine
whether two inconsistent decrees will come into existence 'if it is not applied' (Narayana Prabhu
Venkateswara Prabhu v. Narayana Prabhu Krishna Prabhu).29 It can safely be said that where two
connected suits have been tried together and the findings recorded in one of the suit have become
final in absence of an appeal, the appeal preferred against the findings recorded in the other suit
would definitely be barred by the principles of res judicata (Ram Prakash v. Smt. Charan Kaur;
Premier Tyres Limited v. Kerala State Road Transport Corporation).30
But, is the rule of res judicata merely a technical rule or is it based on high public policy? If the rule
of res judicata itself embodies a principle of public policy which in turn is an essential part of the rule
of law then the objection that the rule cannot be invoked where fundamental rights are in question
may lose much of its validity. Now the rule of res judicata as indicated in Section 11 of the Code of
Civil Procedure has no doubt some technical aspects, for instance, the rule of constructive res
judicata may be said to be technical; but the basis on which the said rule rests is founded on
consideration of public policy. It is in the interest of the public at large that a finality should attach to
the binding decisions pronounced by Courts of competent jurisdiction, and it is also in the public
interest that individuals should not be vexed twice over with the same kind of litigation (Daryao v.
State of U.P.; State of Maharashtra v: M/s. National Construction Company, Bombay; Sushil Kumar
Mehta v. Gobind Ram Bohra).31
The doctrine of res judicata so far it relates to prohibiting the retrial or an issue, must refer not to the
date of the commencement of the litigation, but to the time when the Judge is called upon to decide
the issue. The rule of res judicata is not limited to the Court of first instance but it applies equally to
the procedure of the first and second appellate Courts and indeed even to miscellaneous proceedings
(Krishnan Nair v. Kambi).32 The doctrine of res judicata is based on the principle that one cannot
be vexed twice for the same cause. It is also a rule of public policy. However, if the Court ignorant of
the earlier decision decides bona fide matter afresh it is not void for want of jurisdiction (Puthiyottil
Kunhava v. K. Mammad Kutty).33 In a civil proceeding the decision of a criminal Court is not res
judicata (Adi Pherozshah v. H.M. Seervai).34
If a suit is based on an earlier declaratory decree and such decree is contrary to the law prevailing at
the time of its consideration as to its legality or is a decree granted by a Court which has no
jurisdiction to grant such decree, principles of res judicata under Section 11 of the Code of Civil
Procedure will not be attracted and it is open to the Defendant in such suits to establish that the
declaratory decree relied upon by the Plaintiff is not based on a good law or Court granting such
decree did not have the jurisdiction to grant such decree(Shakuntla Devi v. Kamla).35 The doctrine of
res judicata is a wholesome one, which is applicable not only to matters covered by the Code of Civil
Procedure i.e. suits, but to all litigations including industrial cases (Management of Indian Aluminium
Company Limited v. Sri S. Nagaiah).36
(a) Res judicata between two stages of same litigation
The principle which prevents the same case being twice litigated is of general application and is not
limited by the specific words of Section 11 of Code of Civil Procedure in this respect. The principle of
res judicata applies as between two stages in the same litigation so that if an issue has been decided
at an earlier stage against a party it cannot be allowed to be re-agitated by him at a subsequent
stage in the same suit or proceedings (C.V. Rajendran v. N.M. Muhammed Kunhi; Satyadhyan Ghosal
v. Deorajin Debi; Mitsubishi France v. Neyveli Lignite Corporation Ltd.; Sarojini Prabhu v. Pappikutty
Adiesiar).37 Res judicata applies also as between two stages in the same litigation to this extent that
a Court, whether the Trial Court or a higher Court having at an earlier stage decided a matter in one
way will not allow the parties to re-agitate the matter again at a subsequent stage of the same
proceedings (U.P. State Road Transport Corporation v. State of U.P.).38 Though Section 11 of the
Code of Civil Procedure clearly contemplates the existence of two suits and the findings in the first
being res judicata in the later suit, it is well established that the principle underlying it is equally
applicable to the case of decisions rendered at successive stages of the same suit or proceeding.
Where the principles of res judicata is invoked in the case of the different stages of proceedings in
the same suit the nature of the proceedings, the scope of the enquiry which the adjectival law
provides for the decision being reached as well as the specific provision made on matters touching
such decisions are some of the factors to be considered before the principle is held to be applicable
(Arjun Singh v. Mohindra Kumar and Ors.; The State of Punjab v. Sri R.P. Kapoor).39 It is true that
principles of res judicata apply at different stages of the suit, but it is also well known that
interlocutory Orders do not operate as res judicata (Mahadeo Mahto v. Hiralal Verma).40
(b) Res Judicata between Co-defendants and co-Plaintiffs
Res Judicata applies not only to the parties to the suits i.e Plaintiff, Defendant as well as their privies
but also it applies between Co-defendants. However, in Order to raise the plea of res judicata under
Section 11 of the Code of Civil Procedure between Co-defendants, the following aspects must be
necessary;
(a) There must be a conflict of interest between the Defendants concerned;
(b) It must be necessary to decide the conflict in Order to give the reliefs which the Plaintiff
claims;
(c) The question between the Defendants must have been finally decided; and
(d) The Co-defendants were necessary and proper parties in the former suit.
Where there are two Defendants who have a dispute inter se and if that dispute has been decided,
one of the Defendants aggrieved by the finding recorded on the controversy between the two
Defendants can appeal against that finding only if it is res judicata against him in a subsequent suit.
It is therefore, clear that if all the Defendants have common interest in obtaining the dismissal of the
suit filed by the Plaintiff and if for dismissing the suit it is not necessary to decide the controversy
between the Defendants inter se the finding recorded on the controversy between the Defendants
themselves would not be res judicata. No appeal in the aforesaid circumstances would lie against the
finding at the instance of the Defendant aggrieved by it (Kesavan v. Lakshmy Amma).41 If a Plaintiff
cannot get at his right without trying and deciding a case between Co-defendant the Court will try
and decide that- case and the Co-defendants will be bound. But, if the relief given to the Plaintiff
does not require or involve a decision of any case between Co-defendants, the Co-defendants will not
be bound as between each other by any proceeding which may be necessary only to the decree the
Plaintiff obtains (Cottingham v. Earl of Shrewsbury; Dwarka Das v. The Union of India).42
If there was a conflict of interest between co-Plaintiffs or Co-defendants and it was necessary to
decide said conflict of interest, the decision made by the Court in former suit would operate as res
judicata (Iftikhar Ahmed v. Syed Meherban Ali).43 The requirements of application of res judicata
between co-Plaintiffs are same as that for Co-defendants. However, a mere casual observation
between the parties is neither res judicata nor where concerned party was neither necessary nor
proper party (Ram Sagar v. Yogendra and Mangu v. Madurai).44 If in the relief given or refused in an
earlier decision there was determination of any issue between Co-defendants/ co-Respondents then
principle of res judicata would bind Co-defendants as well (M/s. Makhija Construction & Engg. Pvt.
Ltd. v. Indore Development Authority).45
It is now settled that for a Judgment to operate as res judicata between or among Co-defendants it is
necessary to establish that (1) there was a conflict of interest between the co-defendants (2) that it
was necessary to decide the conflict in Order to give relief which the Plaintiff claimed; and (3) that
the Court actually decided the question. If thus a previous decision can operate as res judicata
between the Co-defendants under certain conditions, there is no reason why a previous decision
should not operate as res judicata between the co-Plaintiffs if the same conditions are mutatis
mutandis satisfied (Iftikhar Ahmed v. Syed Meharban All.; Munni Bibi v. Triloki Nath and Chandu Lal
Agarwalla v. Khalilur Rahman).46 In addition to these three conditions, the Supreme Court has added
another condition in case of Co-defendants, which is that the Co-defendants were necessary or
proper parties in the former suit. If a Plaintiff cannot get at his right without trying and deciding a
case between Co-defendants, the Court will try and decide the case, and the Co-defendants will be
bound by the decree. But if the relief given to the Plaintiff does not require or involve a decision of
any case between Co-defendants, the Co-defendants will not be bound as between each other
(Mahboon Sahab v. Syed Ismail).47 In Order to attract the rule of res judicata between Co-
defendants-according to the terms in Section 11 of the Code of Civil Procedure which provision of
course is not, in terms, applicable to proceedings in a Writ Petition it is necessary that there should
have been some issue directly and substantially in controversy between them which has been heard
and finally decided by the Court. Same would be the position, where a plea of res judicata is sought
to be raised between co-Respondents in a Writ Petition, on the general principles or res judicata
(State of Gujarat v. Meghji Pethraj Shah Charitable Trust).48
Where a suit for recovery of arrears of rent was decreed against one and dismissed against other Co-
defendant, the former cannot maintain an action against the other for reimbursement (Shankar Lal v.
Kannie Lal).49 Similarly, when a landlord, tenant and sub-tenant all the three were parties in a suit
and Court found sub-tenant becoming tenant directly under landlord, the tenant cannot maintain
fresh suit against the subtenant for his eviction as the finding between tenant and sub-tenant in the
earlier proceeding would operate as res judicata (Gopal v. Ram Lal).50 It is not necessary to attract
the doctrine of res judicata that there should be relief sought against each of such Defendant. Even a
proforma Defendant if he was a proper party, is bound by the principle of res judicata in subsequent
proceedings (Ram Gita v. Prithvi and Hitendra v. Chanda).51 Where R was a party to the previous suit
on the issue regarding R, and M's adoption was decided against R specifically. It was held that the
earlier decision would operate as res judicata (Rajendra Kumar v. Kalyan).52
Where each one of the Plaintiffs could have filed a suit for his share, mere fact that all of them joined
together as Plaintiffs and filed one suit does not mean that if for one reason or other the suit of one
of them fails or abates the suit of the other fails or abates. The decree is in substance the
combination of several decrees in favour of several Plaintiffs. If in an appeal against the decree one
of the Plaintiffs is not added as a Respondent, it only means that the decree in his favour cannot be
set aside or modified even if the appeal succeeds against other Plaintiffs in respect of their interest.
There would in that case be no conflict between the decrees as the decree is a combination of many
decrees (Prasad v. Balmiki Prasad).53
It is well settled that a party who is adversely affected by the decree can alone appeal against it. In a
case where a finding has been recorded against the Defendant but the suit has been dismissed, he
may challenge that finding if it is res judicata and is binding upon him in future. In other words if the
decree against the Plaintiff could not have been passed without deciding an issue against the
Defendant, the Defendant could probably have challenged that finding in an appeal. However, if the
Plaintiff' suit can be dismissed without recording any finding against the Defendant and yet if a
finding has been recorded against the Defendant then such a finding is of no consequence because
the success or failure of the Plaintiff's suit is not interlinked with it and in a large number of cases
depends upon the proof or otherwise of his own title (Konda Lakshman Bapuji v. State of Andhra
Pradesh).54 A Division Bench of the Madras High Court had laid down that for an appeal to lie, it is
not necessary that the finding should be actually embodied in the decree. However, where a suit is
dismissed and the Judgment contains some findings as between Co-defendants which are not
embodied in the decree nor implied therein such findings do not amount to res judicata and are not
appealable (Venkobacharlu v. Radabayamma).55
(c) Res judicata and Writ proceedings
Although by reason of the Explanation which was inserted in Section 141 of the Code of Civil
Procedure, 1908, by the Code of Civil Procedure (Amendment) Act, 1976, Section 11 of the Code
does not in terms apply to any proceeding under Article 226 of the Constitution, the principle of res
judicata does apply to all Writ Petitions under Article 226 (G.K. Dudani v. S.D. Sharma).56 However
where Section 11 of the Code is not applicable, the general principle of res judicata is made
applicable to Writ Petitions (Amalgamated Coalfields v. Janapada Sabha).57
Once the question which has been decided in SLP and Writ Petition cannot be allowed to reopen in
appeal (State of Gujarat v. Bhaterdevi Ramnivas Sanwalram).58 It is well settled that a decision on
an issue raised in a Writ Petition under Article 226 or Article 32 of the Constitution would also operate
as res judicata between the same parties in subsequent judicial proceedings. The only exception is
that the rule of res judicata would not operate to the detriment or impairment of a fundamental right
(Ashok Kumar Srivastav v. National Insurance Company Ltd.; Bua Das Kaushal v. The State of
Punjab).59 In other words the doctrine of res judicata or the principles of finality of Judgment cannot
be allowed to whittle down or override the express constitutional mandate to the Supreme Court
enshrined in Article 32 of the Constitution (Kirit Kumar Chaman Lal Kundaliya v. State of Gujarat).60
It is settled law that even the dismissal of special leave petition in limine operates as a final Order
between the parties and any Order passed by the High Court or Tribunal subsequently operates as a
res judicata as far as the parties thereto are concerned (Sree Narayana Dharamasanghom Trust v.
Swami Prakasananda).61 However, a different view has been taken in another matter by the Supreme
Court, wherein they have mentioned that disposal of SLP against a Judgment of the High Court does
not mean that the said Judgment is affirmed by such dismissal. The Order on a special leave petition
is also never res judicata. Principles of res judicata are a procedural provision. The same has no
application where there is inherent lack of jurisdiction (Ramnik Vallabhdas Madhvani v. Taraben
Pravinlal Madhvani).62
A Writ Petition dismissed under Article 226 of the Constitution of India would not ordinarily bar filing
of Writ Petition under Article 32 or on special leave petition under Article 136 (State of Punjab v. Ram
Lubhaya Bagga).63 The doctrine of res judicata or the principles of finality of Judgment cannot be
allowed to whittle down or override the express constitutional mandate to the Supreme Court
enshrined in Article 32 of the constitution (Kirit Kumar Chaman Lal Kundaliya v. Union of India (UOI)
and Kirit Kumar Chaman Lal Kundaliya v. State of Gujarat).64
Where a Writ Petition is dismissed in limine, it depends on the nature of the Order if the principle of
res judicata can be made applicable or not e.g., a speaking Order may amount to res judicata but
dismissing a petition without assigning reasons may not (Direct Recruit v. State of Maharashtra;
Rabindra Nath Biswas v. General Manager, N.F. Rly).65 If the Order is on the merits it would be a bar;
if the Order shows that the dismissal was for the reason that the petitioner was guilty of laches or
that he had an alternative remedy it would not be a bar. If the petition is dismissed in limine without
passing a speaking Order then such dismissal cannot be treated as creating a bar of res judicata. It is
true that, prima facie, dismissal in limine even without passing a speaking Order in that behalf may
strongly suggest that the Court took the view that there was no substance in the petition at all; but
in the absence of a speaking Order it would not be easy to decide what factors weighed in the mind
of the Court and that makes it difficult and unsafe to hold that such a summary dismissal is a
dismissal on merits and as such constitutes a bar of res judicata against a similar petition filed under
Article 32 (Daryao v. The State of U.P.).66 A different view however is that even if one Writ Petition is
dismissed in limine by a non-speaking Order 'dismissed', another Writ Petition would not be
maintainable because even the one-word Order, as must necessarily be taken to have decided
impliedly that the case is not a fit one for exercise of the writ jurisdiction of the High Court. Another
Writ Petition from the same Order or decision will not lie. But the position is substantially different
when a Writ Petition is dismissed either at the threshold or after contest without expressing any
opinion on the merits of the matter; then no merit can be deemed to have been necessarily and
impliedly decided and any other remedy of suit or other proceeding will not be barred on the principle
of res judicata (Workmen of Cochin Port Trust v. Board of Trustees of the Cochin Port Trust and
Anr.).67 In another case it has been held by the Supreme Court that where a Writ Petition is
dismissed with one-word Order, 'Dismissed', such an Order would not operate as res judicata in any
other proceedings but would only debar the party concerned from filing a fresh Writ Petition (Teja
Singh v. Union Territory of Chandigarh; Hoshnak Singh v. Union of India).68 Where however, the
second petition was based on an entirely different cause of action, the dismissal could not stand in
the way of the petitioner invoking the jurisdiction of the High Court under Article 226 of the
Constitution (Hoshnak Singh v. Union of India).69
It is in the interest of the public at large that a finality should attach to the binding decisions
pronounced by Courts of competent jurisdiction, and it is also in the public interest that individuals
should not be vexed twice over with the same kind of litigation. If these two principles form the
foundation of the general rule of res judicata they cannot be treated as irrelevant or inadmissible
even in dealing with fundamental rights in petitions filed under Article 32 (Daryao v. State of U.P.).70
If the petition is dismissed as withdrawn it cannot be a bar to a subsequent petition under Article 32,
because in such a case there has been no decision on the merits by the Court (Daryao . v. The State
of U.P.).71 Where therefore a Writ Petition is dismissed without notice to the other side but the Order
of dismissal is a speaking Order and the petition is disposed of on merits that would still amount to
res judicata and would bar a petition under Article 32. The petitioner's only proper remedy in such a
case would be to come in appeal from such a speaking Order passed on the merits, even though the
High Court may not have issued notice to the other side (The Virudhunagar Steel Rolling Mills'
case).72
Even successive petitions for habeas corpus under Article 32 would be maintainable in this Court
provided the points raised in the subsequent petitions are additional points not covered or agitated in
the previous petitions (Shri Lallubhai Jogibhai Patel v. Union of India W. P. No. 4349 of 1980).73 This
principle of public policy is entirely inapplicable to illegal detention and does not bar a subsequent
petition for a writ of habeas corpus under Article 32 of the Constitution on fresh grounds, which were
not taken in the earlier petition for the same relief (Shri Lallubhai Jogibhai Patel v. Union of India W.
P. No. 4349 of 1980).74 Where the first petition for writ of habeas corpus was dismissed, the second
petition lies only on fresh ground (Dr. (Smt.) Bharti Raj v. Sumesh Sachdeo).75 However, so far as
petitions for habeas corpus are concerned, the doctrine of constructive res judicata could not apply
(Ghulam Sarwar v. Union of India).76 It is however stated if the doctrine of res judicata is attracted
to an application for a writ of habeas corpus, there is no reason why the principles of constructive res
judicata cannot also govern the said application, for the rule of constructive res judicata is only a part
of the general principles of the law of res judicata, and if that be applied, the scope of the liberty of
an individual will be considerably narrowed. If the doctrine of constructive res judicata be applied,
this Court, though it is enjoined by the Constitution to protect the right of a person illegally detained,
will become powerless to do so. That would be whittling down the wide sweep of the constitutional
protection (Ghulam Sarwar v. Union of India).77
There is no good reason to preclude decisions on matters in controversy in writ proceedings under
Article 226 or Article 32 of the Constitution from operating as res judicata in subsequent regular suits
on the same matters in controversy between the same parties and thus to give limited effect to the
principle of finality of decision after full contest (Union of India v. Nanak Singh).78 Where, a writ
involving same question decided in earlier writ between parties to present writ and third party in
question and the right inter se the present parties in writ is not decided in earlier writ it was held that
res judicata or constructive res judicata was not applicable in the given facts (Ferro Alloys Corpn. Ltd.
v. U.O.I.).79
A Writ Petition dismissed on the ground of laches does not operate as res judicata (Pujaribai v. Madan
Gopal).80 It was held that the dismissal of a Writ Petition challenging disciplinary proceedings on the
ground that the charged officer had not been afforded reasonable opportunity to meet the allegations
against him, operated as resjudicata in respect of the subsequent suit in which the Order of dismissal
was challenged on the ground that it was incompetently passed (State of U.P. v. Nawab Hussain;
Pondicherry Khadi and Village Industries Board v. P. Kulothangan).81
A dispute raised by an application under Article 32 of the Constitution must be held to be barred by
principles of res judicata including the rule of constructive res judicata, if the same has been earlier
decided by a competent Court by a Judgment which became final (Federation of Directly Appointed
Officers Indian Railway v. Union of India).82 Where the first Writ Petition was withdrawn without grant
of liberty by the Court to file a second Writ Petition, the second Writ Petition for that very purpose is
not maintainable as attracting the principle of constructive res judicata (Avinash Nagra v. Navodaya
Vidyalaya Samiti).83 A finding recorded by the Court in its Judgment passed on a Writ Petition,
operates as res judicata in subsequent judicial proceedings (Ashok Kumar Srivastava v. National
Insurance Co. Ltd.).84
(d) Res Judicata and Other proceedings
However, the doctrine of res judicata does not apply in its all force to Tax Proceedings (Radhaswami
Satsang v. Income-tax Commissioner).85 In Industrial adjudications, the principle of res judicata
does apply (Workmen of the Straw Board Manufacturing Co. Ltd. v. Straw Board Manufacturing Co.
Ltd.).86 The principle is applicable to Arbitration proceedings also (K.V. George v. Secretary Water &
Power Department).87 Decision in arbitration suit treated as arbitration petition held that there is an
arbitration agreement between the parties. Held, this decision is binding on parties and operates as
res judicata in matter of enforcement of foreign award (Smita Conductors Ltd. v. Euro Alloys Ltd.).88
The general principle of res judicata applies to quasi-judicial authorities such as Tribunals (Koran v.
Kamla).89 A finding as to genuineness of the document like 'Will' given in probate proceeding is
binding on the parties and their representatives and fresh litigation is barred by res judicata but
finding of revenue Court on the question of genuineness of such document does not operate as res
judicata in probate proceedings (Balwant v. Mainabai).90 A decision of Rent Control Officer regarding
fixation of rent operates as res judicata in fresh proceedings on same facts and grounds (Yakubhai v.
Imamuddin)91 but the finding as to title of immovable property given by Rent Control Authority or
Judge Small Causes Court in proceeding connected with rent does not bar the Defendant or Plaintiff
from claiming ownership of the property (L.I.C. of India v. India Automobiles).92
Where admittedly, there is a finding recorded by the Deputy Registrar of Co-operative Societies
upholding the misconduct of the petitioner that may constitute res judicata. No doubt Section 11,
Code of Civil Procedure does not in clear terms apply because the authority is not a Court but a
Tribunal, constituted under the Co-operative Societies Act, has been given special jurisdiction, so, the
principle laid down thereunder mutatis mutandis squarely applies to the procedure provided under
the Act. It operates as res judicata. In the same analogy the Labour Court has no jurisdiction to
decide the dispute once over and the reference itself is bad in law (R.C. Tiwari v. M. P. State
Cooperative Marketing Federation Ltd.).93
Section 11 is based on public policy, as well as private justice. They would apply, therefore, to all
judicial proceedings whether civil or otherwise. Thus, the principles of res judicata equally applies to
quasi-judicial proceedings of the tribunals other than the Civil Courts like competent authority under
the Slum Areas (Improvement and Clearance) Act, 1956 (Sat Pal v. Sudershan Lal),94 Consolidation
Act (Ayodhya Sah v. The Joint Director of Consolidation; Sulochana Amma v.:Narayanan Nair),95
Land Tribunal, (Kunhappa Nair and v. Suresh Kumar)96 functioning under the Kerala Land Reforms
Act (Koran v. Kamala Shetty),97 Industrial Tribunals also (Burn & Co., Calcutta v. Their Employees;
Executive Engineer; ZP Engg. Divn. v. Digambara Rao; M/s. Bharat Barrel and Drum Manufacturing
Co. Pvt. Ltd. v. Bharat Barrel Employees Union; Pondicherry Khadi & Village Industries Board v. P.
Kulothangan),98 election petitions (Nirmal v. Jahanara).99 Arbitration proceedings (Nirmaljit Singh v.
Harnam Singh),100 probate cases, petitions under the Hindu Marriage Act (Vijayalakshmi v. Ram
Chandra)101 and Writ Petitions (Amalgamated Coalfields v. Janapada Sabha)102 etc. Where earlier
decision is a nullity, it can never operate as res judicata (V. N. Mammi Kutty v. Moonam Kutty).103
These principles does not strictly speaking apply to income-tax proceedings (M/s. Radhasoami
Satsang Saomi Bagh, Agra v. Commissioner of Income-tax).104 A decision on a question of fact or
law in a proceeding for assessment in one year is not binding in another year. The assessment and
the facts found are conclusive only in the year of assessment: the findings on questions of fact may
be good and cogent evidence in subsequent years, when the same question falls to be determined in
another year, but they are not binding and conclusive (M.M. Ipoh v. Commissioner of Income-tax).105
The reason being res judicata applies to debar Courts from entertaining issues on the same cause of
action whereas, the cause of action for each assessment year is distinct (Bharat Sanchar Nigam Ltd.
v. Union of India).106 But where a fundamental aspect permeating through the different assessment
years has been found as a fact one way or the other and parties have allowed that position to be
sustained by not challenging the Order, it would not be at all appropriate to allow the position to be
changed in a subsequent year (Acharya Jagdishwaranand Avadhuta v. Commissioner of Police,
Calcutta).107 The reason why Courts have held parties to the opinion expressed in a decision in one
assessment year to the same opinion in a subsequent year is not because of any principle of res
judicata but because of the theory of precedent or the precedential value of the earlier
pronouncement. Where facts and law in a subsequent assessment year are the same, no authority
whether quasi-judicial or judicial can generally be permitted to take a different view. This mandate is
subject only to the usual gateways of distinguishing the earlier decision or where the earlier decision
is per incuriam. However, these are fetters only on a co-ordinate bench which, failing the possibility
of availing of either of these gateways may yet differ with the view expressed and refer the matter to
a bench of superior strength or in some cases to a bench of superior jurisdiction. No one can dispute
that in our judicial system it is open to a Court of superior jurisdiction or strength before which a
decision of a Bench of lower strength is cited as an authority, to over rule it. This overruling would
not operate to upset the binding nature of the decision on the parties to an earlier lis in that lis, for
whom the principle of res judicata would continue to operate.
In taxation-matters, the strict rule of res judicata as envisaged by Section 11 of the Code of Civil
Procedure, 1908 has no application. As a general rule, each year's assessment is final only for that
year and does not govern later years, because it determines the tax for a particular period. It is,
therefore, open to the Revenue/Taxing Authority to consider the position of the assessee every year
for the purpose of determining and computing the liability to pay tax or octroi on that basis in
subsequent years. A decision taken by the authorities in the previous year would not estop or operate
as res judicata for subsequent year (Municipal Corporation of City of Thane v. Vidyut Metallics
Ltd.).108
The doctrine of res judicata is essentially confined to decisions of Courts and not to administrative
decisions (Administrator of the Shringeri Math, Jagatguru Shringeri Shankaracharya Shri Abhinav
Vidyatirth Swamigal v. Charity Commissioner, Bombay; Secunderabad Cantonment Board V. Mohd.
Mohiuddin; Y.B. Patil. v. Y.L. Patil),109 just because such administrative proceedings required that the
parties should be heard. Hence, such administrative authorities cannot be elvated to the status of
"Court" and its Orders credited with the force and efficacy of a decision of a Court of justice in a
judicial proceeding. Therefore, its Orders can also not operate as 'res judicata' to bind the parties to
knock the doors of Courts (Mahila Bajrangi v. Badribai).110
(e) Plea of res judicata, when to be taken
It is stated that the best method to decide the question of res judicata is first to determine the case
of the parties as put forward in their respective pleadings of their previous suits, and then to find out
as to what had been decided by the Judgments which operate as res judicata. Where the pleadings of
the suits instituted by the parties have not at all been filed on the Court record, the Court had to rely
upon the facts stated in the Judgment. It is well settled that the pleadings cannot be proved merely
by recitals of the allegations mentioned in the Judgment (Mohd. S. Labbai v. Mohd. Hanifa).111
The plea of res judicata has to be specifically and expressly raised. The foundation of the plea of res
judicata must be laid in the pleadings. Not only the plea has to be taken, but also it has to be
substantiated by producing the copies of the pleadings, issues and Judgment in the previous case.
May be in a given case only copy of Judgment in previous suit is filed in proof of plea of res judicata
and the Judgment contains exhaustive or in requisite details the statement of pleadings and the
issues which may be taken as enough proof (V. Rajeshwari v. T.C. Saravanabava).112 It is risky to
speculate about the pleadings merely by a summary of recitals of the allegations made in the
pleadings mentioned in the Judgment. If this was not done, no party would be permitted to raise it
for the first time at the stage of the appeal. The Constitution Bench in Gurbux Singh v. Bhooralal
placing on a par the plea of res judicata and the plea of estoppel under Order 2 Rule 2 of the Code of
Civil Procedure, held that proof of the plaint in the previous suit which is set to create the bar, ought
to be brought on record. The plea is basically founded on the identity of the cause of action in the
two suits and therefore, it is necessary for the defence which raises the bar to establish the cause of
action in the previous suit. The only exception to this requirement is when the issue of res judicata is
in fact argued before the lower Court (M/s. I.T.C. Ltd. v. Commissioner of Central Excise, New
Delhi).113 Thus, where no plea of res judicata was raised in the plaint, no issue of res judicata was
framed and tried. No submission of res judicata was made before any of the Courts below or the High
Court, it was held, such a plea cannot be permitted to be raised before the Supreme Court for the
first time (Madhukar D. Shende v. Tarabai Aba Shedage).114
(f) Section 11-Whether exhaustive
Although the doctrine of res judicata finds legislative expression in Section 11 of the Code of Civil
Procedure, the section is not exhaustive of all circumstances in which an issue may be res judicata.
The doctrine exists apart from the limited compass of Section 11 of the Code of Civil Procedure. The
doctrine has been applied, to cases to which Section 11 does not strictly apply (C. Sarala v. K.
Nalinakshan; Lal Chand. v. Radha Kishan; Dwarka Das v. The Union of India; Gulam Abbas v. State of
Uttar Pradesh).115 It is clear that in Order to raise the plea of res judicata, it is not necessary that
the plea must fall directly within the four corners of Sect Code of Civil Procedure so long as it can be
raised on the general principles of binding nature of final decision between the parties (Maghraj Calla
v. Kajodi Mal; Ramchandra Sheshgiri Kamath v. Janardan Vishwanath Hegde; Rajlakshmi v.
Banamali).116
However, it has also been held that when the Code of Civil Procedure enacted Section 11 prescribing
precisely when an earlier decision would be res judicata in a suit, it is not open to invoke the general
principles of res judicata in the context of a subsequent suit, though the conditions laid down in the
section were not satisfied, for otherwise the section would become nugatory: it would also introduce
anomalies. A decision in a previous suit would not be res judicata in a subsequent suit unless the
stringent conditions laid down in Section 11 of the Code were satisfied; whereas a decision in a
proceeding which was not a suit would be res judicata whether or not the said conditions were
complied with. If the fundamental requisites of res judicata were satisfied, a decision, if it fell under
Section 11 of the Code, would be res judicata in a subsequent suit; and even if it did not fall
thereunder, it would equally be res judicata. That could not have been the intention of the Legislature
(Gulabchand Chhotalal Parikh v. State of Gujarat).117
(g) Questions of fact and questions of law
It is well settled that once a issue of fact has been judicially determined finally between the parties
by a Court of competent jurisdiction and the same issue comes directly in question in subsequent
proceedings between the same parties then the persons cannot be allowed to raise the same
question which already stands determined earlier by the competent Court (Amarendra Komalam v.
Usha Sinha).118 A previous decision on a matter in issue is a composite decision; the decision on 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 and
again (Mathura Prasad's case; The State of Punjab v. Nand Kishore).119
Where the only issue evolved in the contempt proceeding was whether the Court's Order in the Writ
Petition was carried out or not. If the Order of the writ Court was not carried out, the contempt Court
was bound to pass suitable Orders to ensure obedience to the Order of the Court. The question of
correctness or validity of the Judgment passed on the Writ Petition could not be raised in contempt
proceeding. No question of res judicata arises in such a case (Comorin Match Industries (Pvt.) Ltd. v.
State of Tamil Nadu).120 It is neither in doubt nor in dispute that the issues of res judicata and/
constructive res judicata as also the maintainability of the suit can be adjudicated upon as
preliminary issues. Such issues, in fact, when facts are admitted, ordinarily should be decided as
preliminary issues (Abdul Rahman v. Prasony Bai; L. M. Das v. M. C. Das).121
(h) Exceptions to the doctrine of Res judicata
Broadly stated, the doctrine of res judicata operates when there occurs identity of subject-matter, of
the cause of action; of parties or their privies; of capacity or jurisdiction. This is only a general
statement admitting of limitations and exceptions. The doctrine, though sanctified by age, is not
without its oodles features. If the rule of estoppel prevents a man from speaking the truth, the rule
of res judicata prohibits a party from questioning the truth of everything contained in the Judgment.
In other words, if a former Judgment perpetrates an error, the doctrine of res judicata perpetuates it.
The principle, however, has been eulogised as salutary. A party whose interests have once been
placed in jeopardy, has a right to judicial immunity from the consequences of the same matter being
raked up again regardless of the fact whether the former Judgment was right and just. Emphasis is
laid on rule of repose rather than on the absolute justness of the conclusion. Once a dispute has been
concluded, then, that conclusion is right and just. The advantage to the society is that the doctrine of
res judicata not only puts an end to strife, but also it produces certainty as to individual rights. The
general welfare requires that litigation ought not to be interminable. It is said "Ne lites sint immorta-
les, dum litantes sunt mortales, (since litigants are mortals, let litigation not continue for ever) (Mt.
Lachhmi v. Mt. Bhulli).122
To this salutary rule, four specific exceptions are indicated. Firstly, the obvious one, that when the
cause of action is different, the rule of res judicata would not be attracted.
Secondly, where the law has, since the earlier decision, been altered by a competent authority.
Thirdly, where the earlier decision between the parties related to the jurisdiction of the Court to try
the earlier proceedings, the same would not be allowed to assume the status of a special rule of law
applicable to the parties and therefore, the matter would not be res judicata. Fourthly, where the
earlier decision declared valid a transaction which is patently prohibited by law, that is to say, it
sanctifies a glaring illegality (The State of Punjab v: Nand Kishore; Shakuntla Devi v. Kamla).123
As and when the Court is examining the question of any right having emanated from a Judgment of
the High Court and the said Judgment squarely having emanated; on following an earlier Judgment
of the said Court, without any further reasoning advanced and no question of facts involved but
purely a question of constitutionality of an Act, the moment the earlier Judgment of the High Court is
reversed by the Supreme Court, that becomes the law of the land, binding on all parties (Director of
Settlements, A.P. v. M.R. Appa Rao).124 The first writ was on the ground of apprehended bias. In the
present case the allegation is actual bias. Also, the subject matter of both proceedings is different.
Held, the second writ application is competent (G.N. Nayak v. Goa University).125 In Span Motels
Case finding of Supreme Court had become final after imposition of exemplary damages for
restoration of environment and ecology. Claim for reversal of those finding was rejected and it was
held that levy of exemplary damages was only in public interest and interest of justice to deter others
to desist from indulging in such wrongs (M.C. Mehta v. Kamal Nath).126
Where selection of Plaintiff by selection committee and followed by their promotion to be challenged
by Respondents first in the Writ Petition before High Court and later on in, suits, the Court held that
suits filed at later stage seeking same relief cannot be entertained by the Court being barred by res
judicata (Durg Rajnandgaon Grameen Bank v. Suresh Kumar Shukla).127
(i) Judgment obtained by fraud or collusion
If the Judgment has been obtained by fraud or collusion it is considered a nullity and the law provides
machinery whereby, its nullity can be so established. If the Judgment has been obtained in
consequence of some procedural irregularity, it may sometimes be set aside…But such exceptional
cases conclude the matter. That, indeed, is one of society's purposes in substituting the law suit for
the vendetta....And once the final appellate Court has pronounced its Judgment, the parties and
those who claim through them are concluded, and, if the Judgment is as to the status of a person, it
is called a Judgment in rem and everyone must accept it. Since Judges and juries are fallible human
beings, we have provided Appellate Courts which do their own fallible best to correct error. But in the
end you must accept what has been decided. Enough is enough'. And the law echoes: 'res judicata,
the matter is adjudged' (Ampthill Peerage Case).128
Fraud in the Court proceedings is such an act which vitiates the entire trial as such Judgment
obtained by fraud and collusion does not operate as res judicata. Of course, the fraud must be such
which prevented the other party who was deprived from presenting its case and consequently the
Court was prevented from doing the justice. It should be extrinsic or collateral to everything that has
been adjudicated upon. And it is not sufficient to save oneself only to allege that the Judgment in
former suit was based on perjured or false evidence (Weaver Mills Ltd. v. Balkis Ammal).129
A Judgment obtained by fraud does not operate as res judicata (Ibne Hasan v. Hasina Biwi).130
However, mere suppression of some evidence or negligence in conducting the case are not sufficient
to challenge a decree passed by a Court of competent jurisdiction (Weaver Mills Ltd. v. Balkis
Ammal).131 But if the suppression of fact was material one, and was made intentionally, the decision
given in former proceeding would not operate as res judicata (K. J. Traders v. State of Karnataka).132
Where the contention that no notice of the filing of the award was served on the parties was not
raised either in the plaint or before the Trial Court but the contention for the first time was raised in
second appeal before the High Court. It was held, that the High Court was not right in coming to the
conclusion that in the absence of the notice of the filing of the award, the decree in terms of award
can be considered as non-est and can be ignored so that it would not operate as res judicata. The
suit was held clearly barred by the principles of res judicata (Nirmaljit Singh v. Harnam Singh (dead)
by LR's).133 A collusive decree can also be challenged in the Court of law (Nachhittar Singh v. Jagir
Kaur).134 The question is whether even if one of the Defendants to the suit is in collusion with the
Plaintiff, the decision can be said to be binding on the Defendants on the principle of res judicata?
The answer must be in the affirmative. What one has to see is that an issue which has been raised in
the subsequent suit was raised in the previous suit directly and substantially between the parties and
that it was finally decided (Baboo v. Mt. Kirpa Dai).135
The provisions of Section 11, Code of Civil Procedure, are mandatory; and the ordinary litigant, who
claims under one of the parties to the former suit can only avoid its provisions by taking advantage of
Section 44, Evidence Act, which defines with precision the grounds of such avoidance as fraud or
collusion. It is not for the Court to treat negligence, or gross negligence, as fraud or collusion, unless
fraud or collusion is the proper inference from the facts (Talluri Venkata Seshayya v. Thadikonda
Kotiswara Rao).136 It has been held that if a decision has been rendered in an application under
Order IX, Rule 13 of the Code that summons was duly served, then no suit will lie on the ground that
the summons has been fraudulently suppressed as the same operates as res judicata (Janki Gope v.
Jangbahadur).137
(k) Dismissal in default, ex parte decree and compromise decree.
Dismissal of a petition in default does not amount to adjudication of controversy but it bars the
Plaintiff from bringing fresh suit on the same cause of action (Ram Avadh v. Dy. Director
Consolidation).138 However, there shall not be any bar on bringing another suit on a different cause
of action. Similarly, where a suit is withdrawn without seeking permission to file fresh suit, the fresh
suit would not be maintainable (Krishna Kumar v. Municipal Corpn.).139 Even if the subsequent suit is
not barred technically by Section 11 of the Code, it can be barred by the general principle of res
judicata.
(k) Ex parte decree
A party is as much bound by an ex parte decree as by a contested one (Habibur Rahman v. Vijay
Charan Abhay Charan Dubey and Bros.; Bramhanand Rai v. Dy. Director of Consolidation,
Ghazipur).140 The law is well-settled by now that an ex parte decree can operate as res judicata
because an ex parte decree is a decree on merit (Baldevdas Karsondas Patel v. Mohanlal Bapalal
Bahia).141 It was held that an ex parte decree would operate as res judicata between the parties in
any subsequent suit in respect of the same subject-matter (Gouri Shankar Bajoria v. Ram Banka)142
and in respect of all grounds mentioned in the suit (B. Pochaiah v. G. Akkapalli).143
Where an ex parte decree of restitution of conjugal rights is obtained by the husband, the wife filed
for the same relief. Though the objection of res judicata was not taken in the written statement by
the husband, yet it was taken in the amended written statement. The delay in taking the objection
was held to be immaterial (Nand Kishore Kapoor v. Smt. Shanti Kapoor).144
(l) Compromise decree
A compromise decree even though not covered under Section 11 of the Code, bars the
maintainability of fresh suit on the general principles of res judicata (Shailendra v. State; Kesavan v.
Padmanabhan).145 A consent decree is as binding upon the parties thereto as a decree passed by
invitum. It raises an estoppel as much as a decree passed 'in invitum (Sunderabai w/o Devrao
Deshpande v. Devaji Shankar Deshpande).146 The compromise having been found not to be vitiated
by fraud, misrepresentation, misunderstanding or mistake, the decree passed thereon has the
binding force of 'res judicata' (Shankar Sitaram Sontakke and Anr. v. Balkrishna Sitaram Sontakke
and Ors.; State of Punjab v. Amar Singh).147 However, a decree based on consent of parties, if
against public policy, statute or Court's Order cannot operate as res judicata (State of Punjab v. Amar
Singh).148 Accordingly, Judgments, Orders, and awards by consent have always been held no less
efficacious as estoppels than other Judgments, Orders or decisions, though doubts have been
occasionally expressed whether, strictly, the foundation of the estoppel in such cases is not
representation by conduct, rather than res judicata (Byram Pestonji Gariwala v. Union Bank of
India).149
Another view is a consent decree, does not operate as res judicata, because a consent decree is
merely the record of a contract between the parties to a suit, to which is superadded the seal of the
Court. A matter in contest in a suit may operate as res judicata only if there is adjudication by the
Court: the terms of Section 11 of the Code leave no scope for a contrary view (Baldevdas Shivlal v.
Filmistan Distributors (India) P. Ltd).150 The Court does not decide anything. Nor can it be said that a
decision of the Court was implicit in it. Only a decision by the Court could be res judicata, whether
statutory under Section 11 of Code of Civil Procedure, or constructive as a matter of public policy, on
which the entire doctrine rests (Pulavarthi Vankata Subba Rao v. Valluri Jagannadha Rao; Baldevdas
v. Filmistan Distributors; Uphras Lapasam v. Ka Esiboll Lyngdoh).151 Section 11 does not apply in
terms to consent decrees; for it cannot be said in the cases of such decrees that the matters in issue
between the parties 'have been heard and finally decided' within the meaning of this section.
4. Essentials for res judicata.
The general principle of res judicata is embodied in its different forms in three different Indian major
statutes--Section 11 of the Code of Civil Procedure, Section 300 of the Code of Criminal Procedure,
1973 and Sections 40 to 43 of the Indian Evidence Act, yet it is not exhaustive. Here, we are
concerned only with Section 11 of the Code of Civil Procedure. Following conditions must be proved
for giving effect to the principles of res judicata under Section 11:
(i) that the parties are same or litigating under same title,
(ii) that the matter directly and substantially in issue in the subsequent suit must be same
which was directly and substantially in issue in the former suit,
(iii) that the matter in issue has been finally decided earlier and
(iv) that the matter in issue was decided by a Court of competent jurisdiction.
If any one or more conditions are not proved, the principle of res judicata would not apply (Life
Insurance Corpn. of India v. Ganga Dhar v. Ranade).152 (Syed Mohd. S. Labbai v. Mohd. Hanifa).153
Where all the four conditions are proved, the Court has no jurisdiction to try the suit thereafter as it
becomes not maintainable and liable to be dismissed. For application of principle of res judicata,
existence of decision finally deciding a right or a claim between party is necessary (M/s. International
Woolen Mills v. M/s. Standard Wool (U.K.) Ltd.).154
Res judicata is a mixed question of fact and law (Madhukar D. Shende v. Tarabai Aba Shedage).155 It
is dictated by wisdom which is for all times. It does not draw sustenance from any statute nor should
any statutory provision be easily construed to render it ineffective (Balbir Kaur and another v. Gram
Panchayat Village Jalabehra and another).156
(a) There must be two suits: One former suit and the other subsequent suit and
Explanation I
The bar only applies 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. This clearly means that on the matter or
issue in question there must have been an application of the judicial mind and a final adjudication
has been made. If the former suit is dismissed without any adjudication on the matter in issue
merely on a technical ground of non-joinder, that cannot operate as res judicata (State of
Maharashtra v. M/ s. National Construction Co.).157
Meaning of "Suit"
The plain and grammatical meaning of the word "suit" occurring in clause "in a Court competent to
try such subsequent suit or the suit in which such issue has been subsequently raised" of Section 11
of Code of Civil Procedure includes the whole of the suit and not a part of the suit, so that giving the
word "suit" its ordinary meaning it is difficult to accept the argument that a part of the suit or an
issue in a suit is intended to be covered by the said word in the material clause (Gulab Bai V.
Manphool Bai).158 Having regard to the legislative background of Section 11, there can be no
hesitation in holding that the word 'suit' in the context must be construed liberally and it denotes the
whole of the suit and not a part of it or a material issue arising in it (Mirza Abid Kazim Husain v. Mirza
Nasir Husain).159 Section 11 is now made applicable by the Explanations and interpretation to certain
proceedings giving more extensive meaning to the word 'suit'. In its comprehensive sense the word
'suit' is understood to apply to any proceeding in a Court of justice by which an individual pursues
that remedy which the law affords. The modes of proceedings may be various but that if a right is
litigated between parties in a Court of justice the proceeding by which the decision of the Court is
sought may be a suit. But if the proceeding is of a summary nature not falling within the definition of
a suit, it may not be so treated for the purpose of Section 11 (Pandurang Ramchandra Mandlik v.
Shantibai Ramchandra Ghatge).160
Explanation I
In view of the risk of rigid application of the rule of res judicata defeating the ends of justice, several
important exceptions have been recognised. One of the rules of guidance is that former Judgment, on
the basis of which the plea of res judicata is rested, is to be construed with strictness in order to
ascertain compliance with the requirements of the principle. The rule, therefore, assumes that at the
earlier stage, the parties had effective opportunity to litigate the same matter in a Court of
competent jurisdiction on issues which were directly in point and properly before the Court. This
precaution cannot be overlooked, for, a decision, which has the force of res judicata, can "make the
white black, the black white; the crooked straight, the straight crooked--res judicata facit ex alba
nlgrum, ex nigro album, ex curvo rectum, ex recto curvum". A Judgment which is erroneous on facts
or law, is, nevertheless, res judicata so long as it is not vacated or reversed by a superior Court. In
other words, a suitor is entitled to one fair trial of his case and no one is permitted to harass another
a second time, or take the time of the Court, for agitating the some controversy. Once a final
Judgment is obtained, the same matter cannot be canvassed anew in another action, but it has to be
a decision on merits by a competent tribunal between parties over whom it has jurisdiction (Jaljodhan
Singh v. Kirpa Singh).161
This Section applies in terms to cases where the matter in issue in a subsequent 'suit' was an issue in
a "former suit". (Pandurang Ramchandra Mandlik v. Shantibai Ramchandra Ghatge).162 Under
Explanation I to Section 11, former suit is one which was decided earlier whether or not it was
instituted earlier. Decided earlier means finally decided earlier (M. Kunhirama Kurup v. Mayyarath
Krishnan Kurup; Balkishan v. Kishan Lal; Beni Madho v. Inder Shahi; Viswanathan v. A. Wazid).163
Thus the expression 'former suit' according to explanation 1 of Section 11 of Code of Civil Procedure
makes it clear that if a decision is given before the institution of the proceeding, which is sought to
be barred by res judicata, and that decision is allowed to become final or becomes final by operation
of law, a bar of res judicata would emerge (Narayana Prabhu Venkateswara Prabhu v. Narayana
Prabhu Krishna Prabhu by LRs.).164
In other words, what matters is prior decision and not prior institution. Nor it depends on existence of
right to appeal (Lonan Kutty v. Thomman).165 If at that time such a Court would have been
competent to try the subsequent suit, had it been then brought, the decision of such Court would
operate as 'res judicata' although subsequently by a rise, in the value of the property that Court had
ceased to be a proper Court, so far as regards its pecuniary jurisdiction, to take cognizance of a suit
relating to that very property (Jeevantha v. Hanumantha).166
The question of res judicata would not arise in the case of two suits decided simultaneously by a
common Judgment as decision given simultaneously cannot be said to be the decision in the former
suit qua the other suit (Tulison Traders, Delhi and Anr. v. Gurdit Singh and Ors.).167 The question of
res judicata arises only when there are two suits. When there is only one suit, the question of res
judicata does not arise at all. Where both the decrees are in the same case and based on the same
Judgment and the matter decided concerns the entire suit. As such, there is no question of the
application of the principle of res judicata. The same Judgment cannot remain effective just because
it was appealed against with a different number or a copy of it was attached to a different appeal.
The two decrees in substance are one (Mst. Lachmi v. Mst. Bhuli).168
There was difference of opinion amongst various High Courts on the question that when connected
suits involving common issues are disposed of by one Judgment, different decrees being passed and
prepared in each suit, but only one decree is appealed from, other decrees being final would operate
res judicata against the suit under appeal or not. However, more accepted view appears to be that
such a decree does not operate as res judicata (Jai Narain v. Bulaqi),169 as none of the suits can be
said to be 'former suit' for all are decided by one Judgment by the Trial Court. But if two separate
appeals are filed against such decrees in respect of separate suits decided by one Judgment, and one
of the appeal is dismissed on some preliminary point, the doctrine of res judicata would apply
(Sheodan v. Daryao; Pala Narayana v. M. V. V. Samaiah)170 except the cases where one of the appeal
is decided in terms of compromise between some of the parties.
Where the right claimed in both suits is the same the subsequent suit would be barred as 'res
judicata' though the right in the subsequent suit is sought to be established on a ground different
from that in the former suit. It would be only in those cases where the rights claimed in the two suits
were different that the subsequent suit would not be barred as 'res judicata' even though the
property was identical (Sardarani v. Shiv Lal).171
(b) Same parties or parties under whom they claim to litigate
Section 11 requires that former suit which has been adjudicated upon must have been between same
parties or between parties under whom they or any of them claim, litigating under same title. In
other words in Order to make a person bound by res judicata it must be proved that he was in some
way a party to the suit decided for a Judgment binds only parties and privies (Ishwar Das v. State of
M.P.)172 e.g. If a karta of joint Hindu family property was party to a suit decided, a suit filed by
another coparcener regarding same matter in issue is barred by res judicata (Amrit Sagar v. Sudesh
Behari).173 It is not necessary that parties should be common. Where a person is properly
represented in a suit by another either by act of parties or by operation of law, he can be presumed
to be a party to such suit. However, where after the finding or decision on a preliminary issue, new
Defendant is added to a suit, such finding would not operate as res judicata against that Defendant
(S. Mohd. Ismail v. S. Anwar Ali).174 Similarly, where a decree is passed against a minor who was not
properly represented, the principle of res judicata would not bar such person from contesting fresh
suit. But a transferee is bound by the decree passed against transferor in respect of property
transferred except where, the transfer has taken place before the former suit was filed.
In an earlier proceeding the wakf in question was described as "private", under law as it stood then in
a subsequent proceeding that wakf was declared as public after commencement of Bombay Public
Trusts Act. It was held, the earlier decision will not operate as res judicata in litigation filed
subsequent to the second decision (Sajjadanashin Sayed v. Musa Dadabhai Ummer).175 In a case
dispute between labour and Electricity Co. was referred to High Court. Subsequently, the Electricity
Company was amalgamated with State Electricity Board and the dispute was referred to the High
Court. It was held that subsequent reference had nothing to do with the earlier reference. Principles
of res judicata had no application (Karnataka Power Transmission Corporation Ltd. v. Amalgamated
Electricity Co. Ltd.).176 However, in another case it was held that once the issue was directly and
substantially involved in earlier proceedings and which was raised by the "forum", it is not
permissible for the forum to once again raise the same issue in subsequent proceedings by coming
under the "cloak" of the forum (Junior Telecom Officers v. Union of India).177
Where a dispute as to title to receive compensation amount has been referred to a Court, a decree
thereon not appealed from renders the question of title res judicata in a suit between the same
parties to the dispute. A party in such circumstances cannot be heard to say that the value of the
subject matter on which the former decision was pronounced was comparatively so trifling that it was
not worth their while to appeal from it (Ram Gobinda Dawan v. Smt. Bhaktabala and Ram Gobinda
Dawan v. Sunil Kumar Roy).178
One of the pre-conditions for attraction of Section 11 for an issue to be barred by res judicata, is
that, it must arise between the same parties and decided by a Court of competent jurisdiction.
Section 11 does not encompass a situation where one of the parties to the subsequent suit was
aware of the earlier suit and the question arising therein. It is also futile to submit that the Plaintiff
ought to have got himself pleaded to the earlier suit. There is no compulsion on a person to get
himself impleaded to any Court proceedings. As such, there cannot be any consequence of a person
not volunteering for being impleaded to a suit. But, there are definite consequences provided for in
the Code of Civil Procedure for not joining a proper or a necessary party to the proceedings(Shri
Narendra Akash Maharaj Petkar v. Shri Shahaji Baburao Petkar and The Saraswat Employee Co-op.
Hsg. Soc. Ltd. v. Shri Shahaji Baburao Petkar).179
(c) Matter directly and substantially in issue and Explanation III
It is well settled that in Order to attract the principles of res judicata as a bar in a subsequent suit,
the matter must have been directly and substantially in issue in the earlier suit and the issue should
have been heard and finally decided by the Court trying such suit. In other words, a decision on the
question must be necessary in Order to either decree or dismiss the Plaintiffs' suit (Ram Sagar Singh
v. Yogendra Narain Pd. Singh).180
Claim of right in its very inception depends upon proved facts and application of the relevant law
(Mata Din v. A. Narayanan).181
Matter in issue may be an issue of fact; an issue of law or one of mixed question of fact and law. The
matter in issue, if it is one purely of fact, decided in the earlier proceeding by a competent Court
must in a subsequent litigation between the same parties be regarded as finally, decided and cannot
be reopened. A mixed question of law and fact determined in the earlier proceeding between the
same parties may not, for the same reason, be questioned in subsequent proceeding between the
same parties. But, where the decision is on a question of law, i.e. the interpretation of a statute, it
will be res judicata in a subsequent proceeding between the same parties where the cause of action
is the same, for the expression "the matter in issue" in Section 11 Code of Civil Procedure means the
right litigated between the parties, i.e. the facts on which the right is claimed or denied and the law
applicable to the determination of that issue. Where, however, the question is one purely of law and it
relates to the jurisdiction of the Court or a decision of the Court sanctioning something which is
illegal, by resort to the rule of res judicata a party affected by the decision will not be precluded from
challenging the validity of that Order under the rule of res judicata, for a rule of procedure cannot
supersede the law of the land (Mathura Prasad Rajoo Jaiswal v. Dossibai N.B. Jeejeebhoy; The State
of Punjab v. Nand Kishore and Sabitri Dei v. Sarat Chandra Rout).182 The decision on law cannot be
diassociated from decision on facts on which the right is founded. In other words, when the finding
on an issue is based on a certain view of the law, that view of the law, as an abstract proposition and
disassociated from the actual matter in issue, will not be res judicata so as to be applicable to all
future disputes between the same parties which may give rise to the applicability of the same
abstract question of law (Bharathi Amma v. Kumaran Peethambaran).183
'Matter in issue' in Section 11 of the Code is distinct from the subject-matter and the object of the
suit as well as from the relief that may be asked for in it and the cause of action on which it is based,
and the rule of res judicata requiring the identity of the matter in issue will apply even when the
subject-matter, the object, the relief and the cause of action are different. It is the matter in issue
and not the subject-matter of the suit that forms the essential test of res judicata (Abdul Gani v.
Nabendra Kishore).184 If an issue does not arise out of the pleadings, the matter covered by it
cannot be said to be a matter directly and substantially in issue in the suit and when a finding on the
issue is given and it is claimed by a party that it operates as res judicata, the claim can be met by
the other party by showing that the issue did not arise directly and substantially in the previous suit.
The other party, however, may be estopped by his own conduct from pleading so, in which case the
only obstacle in the way of the decision operating as res judicata would disappear (L. Nem Kumar
Agarwal v. Nem Kumar and Anr.).185
Where there was no pleading by the Plaintiff that anybody had questioned the title. It could not have
been directly and substantially an issue in the earlier case (Poovanigowda v. Vasantha alias Subba
Rao).186 But where there is no allegation about a fact, there cannot be an issue (Lonan Kutty v.
Thomman).187 Whether a particular issue was directly and substantially same in the former suit or
not, the Court should compare the pleadings or allegations and issues involved in both the suits
(Isher Singh v. Sarwan Singh).188
Once the questions at issue in the two suits are found to be the same, the fact that the material
which led to the decision in the earlier suit was not again placed before the Court in the second suit
cannot make the slightest difference. The plea of res judicata may be sustained, without anything
more if the questions at issue and the parties are the same, subject of course to the other conditions
prescribed by Section 11 Code of Civil Procedure (Pandit Ishwardas v. State of Madhya Pradesh).189
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 source 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 (Mathura Prasad Sarjoo Jaiswal v.
Dossibai N.B. Jeojeebhoy).190 The previous decision on a matter in issue alone is res judicata, the
reasons for the decision are not res judicata (The Mysore State Electricity Board v. Bangalore
Woollen, Cotton and Silk Mills Ltd.; Mahila Bajrangi v. Badribai; Bharathi Amma v. Kumaran
Peethambaran).191 What is decided, that is the decision, alone is res judicata. When it is said that a
previous decision is res judicata, it is meant that the right claimed has already been adjudicated upon
and cannot again be placed in contest between the same parties (Bharathi Amma v. Kumaran
Peethambaran).192 It is the decision on an issue, and not a mere finding on any incidental question
to reach such decision, which operates as res judicata. It is not correct to say that the party has no
right of appeal against such a decision on an issue though the suit was ultimately recorded as
dismissed (Pawan Kumar Gupta v. Rochiram Nagdeo; Ganesh Patra v. Banabihari Patra).193 In Order
to apply the general principle of res judicata there should be an issue raised and decided, not merely
any finding on any incidental question for reaching such a decision. So if no such issue is raised and if
on any other issue, if incidentally any finding is recorded it would not come within the periphery of
the principle of res judicata (Madhvi Amma Bhawani Amma and Ors. v. Kunjikutty Pillai Meenakshi
Pillai).194
But when the law has since the earlier decision been altered by a competent authority or when the
earlier decision declares a transaction to be valid despite prohibition by law it does not operate as res
judicata. Thus a question of jurisdiction of a Court or of a procedure or a pure question of law
unrelated to the right of the parties founded purely on question of fact in the previous suit, is not res
judicata in the subsequent suit (Sushil Kumar Mehta v. Gobind Ram Bohra).195 Where the
observations and decisions made by the trial as well as Appellate Court in the nature of their
jurisdiction were never final and were meant to merge back or subsume in the final result of the suit,
no one can be heard to say that the matters therein, were "directly and substantially" in issue, which
debarred the Authority to determine the controversy between the parties on merit (Ajmer Central Co-
operative Bank Ltd., Ajmer v. Prescribed Authority).196 It hardly needs to be emphasised that it is the
conclusion contained, in the Order that operates as res judicata and not inference that can be drawn
from the Order. If the Order is not speaking Order (Union of India v. Pramod Gupta)197 or it does not
record any final conclusion on the merit of allegations in complaint, it cannot operate as res judicata.
On the other hand, if a reasoned Order recording finding on the merit of case is there, it will operate
as res judicata in subsequent proceedings, between the same parties (Maghraj Calla v. Kajodi
Mal).198
Res judicata may apply even in cases where a point is not raised by parties and it may also operate
in cases where a point though not material to the decision of the case is yet raised by parties, gone
into and decided by a Court (L. Nem Kumar Agarwal v. Nem Kumar and Anr).199 A decision on an
abstract question of law related to facts which give rise to a right cannot operate as res judicata
(Supreme Court Employees Welfare Association v. Union of India).200 The section does not affect the
jurisdiction of the Court but operates as a bar to the trial of the suit or issue, if the matter in the suit
was directly and substantially in issue (and finally decided) in the previous suit between the same
parties litigating under the same title in a Court, competent to try the subsequent suit in which such
issue has been raised (Deva Ram v. Ishwar Chand; Sulochana Amma v. Narayanan Nair; Bhai
Hospital Trust v. Parvinder
Singh; Arjun Singh v. Mahindra Kumar; Yoginder Pal v. Competent Authority; Virendra Saigal v.
Sumatilal Jamnalal).201
Section 11 of the Code of Civil Procedure provides that the Court will have no jurisdiction to try a suit
or issue in which the matter directly and substantially in issue had been in issue in a former suit
between the same parties. The principles of res judicata although provide for a salutary principle that
no person shall be harassed again and again, have its own limitations(Williams v. Lourdusamy).202
Direct and Substantial as distinct from Incidental and Collateral
The effect of res judicata is, confined to the matter which was "directly and substantially in issue in
the former litigation inter panes. A matter which is collaterally or incidentally in issue for the
purposes of deciding the matter which is directly in issue in the case cannot be made the basis of a
plea of res judicata. The question has to be decided on the pleadings, the issues and the findings
given in that case (Isher Singh v. Sarwan Singh).203 If the issue was "necessary" to be decided for
adjudicating on the principal issue and was decided, it would be "directly and substantially in issue. A
collateral or incidental issue is one that is incidental to a direct and substantive issue (Sajjadanashin
Sayed v. Musa Dadabhai Ummer),204 being incidental only to the substantial issue, cannot operate as
res judicata in a subsequent suit in which question of issue is directly raised (Ganga Bai v.
Chhabubai).205 In other words, when the question raised in the subsequent proceeding have no
bearing on the finding made in the earlier proceedings the principle of res judicata is not applicable
(State of U.P. v. Rup Lal Sharma).206 If the finding is given incidentally while determining another
issue which was directly and substantially in issue, such finding cannot be said to be on an issue
which was directly and substantially in issue in the former suit. Undoubtedly, the question whether a
matter is "directly and substantially in issue" would depend upon whether a decision on such an
issue, would materially affect the decision of the suit (Bhai Hospital Trust v. Parvinder Singh).207
When a finding as to title to immovable property is rendered by a Court of Small Causes res judicata
cannot be pleaded as a bar in a subsequent regular civil suit for the determination or enforcement of
any right or interest in immovable property. In Order to operate as res judicata the finding must be
one disposing of a matter directly and substantially in issue in the former suit and the issue should
have been heard and finally decided by the Court trying such suit. A matter collaterally or incidentally
in issue for the purposes of deciding the matter which is directly in issue in the case cannot be made
the basis of a plea of res judicata. It has long been held that a question of title in a Small Cause suit
can be regarded as incidental only to the substantial issue in the suit and cannot operate as res
judicata in a subsequent suit in which the question of title is directly raised (Gangabai v.
Chhabubai).208
There cannot be dispute about the principle that unless the previous decision was given after hearing
the parties, it cannot be considered a decision operating res judicata in subsequent proceedings. It
cannot also be gainsaid that the question whether the earlier decision was passed after affording an
opportunity of hearing or not is a question of fact (S.P.A. Annamalay Chetty v. B.A. Thornhill).209 It
does not matter if the suit decided and suit pending are of different nature. However, merely an
observation made by the Court, off the mark and in issue would not operate as res judicata (Ramesh
Chandra v. Shiv Charan Das).210 The consolidation proceedings should not be taken as ordinary suits
in the application of doctrine of res judicata (Saraswati v. Durga).211
Where in the subsequent suit the issue which was raised and tried in the previous suit was not raised,
framed or tried and no finding, therefore, came to be recorded as to whether the Defendants were
tenants of the land in suit. It is true that the instant suit which is the subsequent suit is between the
same parties who had litigated in the previous suit and the subject-matter of this suit namely the
disputed land is the same as was involved in the previous suit but the issues and causes of action
were different. Consequently, the basic requirement for applicability of rule of res judicata is wanting
as such principle of res judicata cannot be applied (Deva Ram v. Ishwar Chand).212 It is 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 issue 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 the injunction suit equally operates as res judicata (Aanaimuthu thevar v. Alagammal).213
The fundamental rule is that a Judgment is not conclusive if any matter came collaterally in question
(R. v. Knaptoft Inhabitants; Heptulla Bros v. Thakore) 214, it is required to be directly and
substantially in issue. If a matter was only 'collaterally or incidentally' in issue and decided in an
earlier proceeding, the finding therein would not ordinarily be res judicata in a latter proceeding
where the matter is directly and substantially in issue (Sajjadanashin Sayed Md. B.E.Edr. v. Musa
Dadabhai Ummer).215 The expression 'collaterally or incidentally' in issue implies that there is
another matter which is 'directly and substantially' in issue (Sajjadanashin Sayed Md. B.E.Edr. v.
Musa Dadabhai Ummer).216 Where earlier suit was instituted for declaration by Plaintiff on the
ground that land in dispute was known as 'Bade Takia' and was owned by Plaintiff but finding of Court
was it was waqf property, the subsequent suit by same party for declaration that opposite party had
no right over the property in dispute, is barred by this section (Nazim Ali v. Anjuman Islamia).217
Also, in such cases subsequent suit by manager or Mutawalli for possession of the property on the
ground of acquiring title by adverse possession is not maintainable (Wali Mohd. v. Rahmat Bee).218
The earlier suit was only for injunction and not one in title. No question of title was gone into or
decided, even if there is an incidental finding on title. Held, the decision of that suit will not act as res
judicata in a latter suit where title is directly in question (Gram Panchayat v. Ujagar Singh).219 The
proceedings for grant of succession certificate are summary in nature and no rights are finally
decided. A subsequent suit filed for a declaration of ownership cannot be dismissed on principles of
res judicata (Joginder Pal v. Indian Red Cross Society).220
Merely because, there was an adverse finding in the Judgment on a point not directly or substantially
in issue between the parties, a party aggrieved by such a finding would not have a right to contest it
when the decree is entirely in his favour and does not necessarily imply that finding (Secretary of
State v. Swaminatha Koundan).221 A finding in a remand Order cannot bind a higher Court when it
hears the matter in appeal (Collector of Central Excise v. M/s. Hindustan Lever Ltd.).122
Sphere of res judicata is not exhaustive, it is ever growing when an issue in a subsequent suit was
directly and substantially in issue in the earlier suit as between the same parties and was decided by
Court, it will operate as res judicata. Findings incidentally recorded do not operate as res judicata
(Madhvi Amma Bhawani Amma v. Kunjikutty Pillai Meenakshi Pillai).223 For operation of the
provisions of Section 11 of the Code of Civil Procedure and for being res judicata, decision must be
rendered on matters directly and substantially in issue and, therefore, if decision matter collaterally
and substantially in issue in previous proceeding, the same would not ordinary operate as rest
judicata in subsequent proceedings where the matter is directly and substantially in issue (Karan
Singh Tanwar v. The Estate Officer and Ram Kishan v. Union of India).224
Explanation III
Section 11 of the Code of Civil Procedure undoubtedly provides that only those matters that were
"directly and substantially in issue" in the previous proceeding will constitute res judicata in the
subsequent proceeding. Explanation III to Section 11 provides that for an issue to be res judicata it
should have been raised by one party and expressly denied by the other(State of Karnataka v. All
India Manufacturers Organization).225 The very fact that in future litigation it will not be open to
either of the parties to challenge the correctness of the decision on a matter finally decided in a past
litigation makes it important that in the earlier litigation the decision must be final in the strict sense
of the term (Satyadhyan Ghosal and Ors. v. Smt. Deorajin Debi and Anr.; Most. Rev. P.M.A.
Metropolitan v. Moran Mar Marthoma).226
Determination of the question of legal representative
The question whether a person can be permitted to be brought on record as the legal representative
of a deceased person for the purpose of continuing the proceedings already begun is a matter
collateral to the suit and any adjudication arrived at in the course of such an enquiry cannot operate
as res judicata (Muniappa Nadar v. K.V. Doraipandi Nadar; In Pakkran v. Pathumma; Samsarivsa
Sarvathi Pelekhan Erukkapakkan v. M. K. Pathumma).227 Similarly an Order rejecting an application
to be brought on the record as the legal representative of a deceased Appellant is not a decree and
does not constitute res judicata (Mst. Laxmi v. Ganpat and Chiragdin v. Dilawar Khan).228
Order XXII, Rule 5 of the Code of Civil Procedure provides only a summary procedure for appointing a
person to be the legal representative of the deceased party for the purpose of prosecuting the suit
and the Order appointing the legal representative does not operate as a final determination of the
representative character of the person appointed, that is to say, it does not operate as res judicata
(Antu Rai v. Ram Kinkar Rai).229 In deciding an application under Order XXII, Rule 5, Code of Civil
Procedure a duty is cast on the Court to determine who the legal representative of a deceased party
is, there need not be a comprehensive and exhaustive enquiry for the simple reason that the decision
has its inherent limitations and the recognition of a rival contender as the legal representative of the
deceased party is only for facilitating the early disposal of the action and the recognition of such a
right in a party to a proceeding will not confer right on the recognized representative in the estate or
property of the deceased nor will such a finding operate as res judicata in a subsequent proceeding
(Krishnakumar v. Govardhan Naidu; Suraj Mani v. Kishorilal).230
Res judicata in Rent Control Proceedings
It is not possible to postulate any hard and fast rule as to whether a previous decision in a suit for
rent does or does not operate as 'res judicata' in a subsequent suit based on title. The answer would
ultimately depend upon the fact as to whether the issue raised in the subsequent suit was directly
and substantially in issue in the former suit and this would again depend on the circumstances of
each case (Udho v. Smt. Khimian).231 In the case of suits for rent or other recurring liability the
cause of action for suits for successive period are different. In the case of such suits, for the doctrine
to apply, it will have to be shown that the question of right or liability not merely for the period in the
previous suit but that for all times or once for all was directly and substantially in issue and was tried
and determined. If a direct issue on the point was raised and decided, the decision would be res
judicata in respect of any suit for subsequent period (Gnanada Gobindo Choudhur's case).232 Where
in a previous suit by landlord against the tenant for rent the questions of status and rate of annual
rent were directly and substantially in issue, they would operate as res judicata in a subsequent rent
suit between the same parties of the landlord and the tenant's assignees or transferees, and this
would be the case, even though the decree in the previous case might have been ex parte (Bijai
Bahadur Singh v. Bhagwan Baksh Singh).233 Where the High Court on an earlier occasion had upheld
the finding that the Appellant was not entitled to protection of Rent Act. Held, the Appellant cannot
raise the same issue on principle of res judicata (P.V. Jose v. Kaniekammal).234 The earlier eviction
proceedings were based on lease, the decree for eviction was not executed within time. Subsequent
suit for possession based on title is not barred by Section 11 Code of Civil Procedure (Ajit Chopra v.
Sadhu Ram).235
(d) Heard and finally decided Explanation IV
Res judicata is a plea available in civil proceedings in accordance with Section 11 of the Code of Civil
Procedure. It is a doctrine applied to give finality to 'lis' in original or appellate proceedings. The
doctrine in substance means that an issue or a point decided and attaining finality should not be
allowed to be reopened and re-agitated twice over. "The literal meaning of res is" everything that
may form an object of rights and includes an object, subject-matter or status' and res judicata
literally means- 'a matter adjudged; a thing judicially acted upon or decided; a thing or matter
settled by Judgment.' Section 11 of Code of Civil Procedure engrafts this doctrine with a purpose that
'a final Judgment rendered by a Court of competent jurisdiction on the merits is conclusive as to the
rights of the parties and their privies, and, as to them, constitutes an absolute bar to a subsequent
action involving the same claim, demand or cause of action(Escorts Farms Ltd., Previously known as
Escorts Farms (Ramgarh) Ltd. v. The Commissioner, Kumanon Division, Nainital, U.P.).236
The expression 'heard and finally decided' in Section 11 means a matter on which the Court has
exercised its judicial mind and has after argument and consideration come to a decision on a
contested matter. It is essential that it should have been heard and finally decided. In Order that a
matter may be said to have been heard and finally decided, the decision in the former suit must have
been on the merits (Sheodan Singh v. Daryao Kunwar).237 What operates as res judicata is the ratio
of what is fundamental to the decision but it cannot be ramified or expanded by logical extension
(Pandurang Ramchandra Mandlik v. Shantibai Ramchandra Ghatge).238 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. That clearly means that on the matter or issue in question there
has been an application of the judicial mind and a final adjudication made (State of Maharashtra v.
M/s. National Construction Company, Bombay; Pulavarthi Venkata Subba Rao v. Valluri Jagannadha
Rao).239
If the decision in the former suit is not on merits, then the case cannot be said to have been heard
and finally decided. The examples of such cases could be that the former suit was dismissed by the
Trial Court for want of jurisdiction, or for default of Plaintiff's appearance, or on the ground of non-
joinder of parties or misjoinder of parties or multifariousness or on the ground that the suit was badly
framed, or on the ground that a technical mistake, or for failure on the part of the Plaintiff to produce
probate or letters of administration or succession certificate when the same is required by law to
entitle the Plaintiff to a decree, or for failure to furnish security for costs, or on the ground of
improper valuation or for failure to pay additional Court fee on a plaint which was undervalued or for
want of cause of action or on the ground that it is premature and the dismissal is confirmed in appeal
(if any) the decision not being on the merits would not be res judicata in a subsequent suit (Sheodan
Singh v. Daryao Kunwar; Inacio Martins v. Narayan Hari Naik).240
In Order that a matter may be said to have been heard and finally decided, the decision in the former
suit must have been on the merits. If the former suit is dismissed merely on technical ground without
any adjudication on matter in issue relating to main facts, such Judgment cannot operate as res
judicata (State of Maharashtra v. National Construction).241 Where, for example, the former suit was
dismissed by the Trial Court for want of jurisdiction, or for default of Plaintiff's appearance or on the
ground of nonjoinder of parties or misjoinder of parties or multifariousness, or on the ground of a
technical mistake, or for failure on the part of the Plaintiff to produce probate or letters of
administration or succession certificate when the same is required by law to entitle the Plaintiff to a
decree, or for failure to furnish security for costs, or on the ground of improper valuation or for
failure to pay additional Court-fee on a plaint which was undervalued or for want of cause of action or
on the ground that it is premature and the dismissal is confirmed in appeal (if any) the decision not
being on the merits would not be res judicata in a subsequent suit (Sheodan Singh v. Daryao
Kunwar).242
A dismissal of suit in default of Plaintiff bars fresh action but where dismissal is for want of
prosecution only, the res judicata would not apply. Similarly, where a suit is dismissed for want of
service of notice under Section 80 of the Code, the dismissal does not bar fresh suit (Shantipada
Ganguly v. Union of India).243 But when the suit is dismissed as abated the Plaintiff's heirs cannot
maintain fresh suit on same cause of action (Gajpat Singh v. Sudhan).244 Where a former suit
between the same parties in the same Court and for the same relief resulted in a decree of dismissal,
the Judgment leaving it open to the Plaintiff to bring a fresh suit and leaving "untouched and
undecided all matters" affecting the rights of the parties, such a decree, did not constitute res
judicata as it was not a final decision in the suit (Parsotam Gir v. Narbada Gir).245
Similarly the dismissal for default of the Judgment debtor of an application filed by him under Section
47, Code of Civil Procedure resisting the execution of the decree is not a final decision of the Court
after hearing the parties and therefore does not operate as res judicata and he can raise that
objection in a subsequent application filed by him (Shivshankar Prasad Sah v. Baikunth Nath
Singh).246 However, the Order granting future interest was passed in execution proceedings after the
scope and import of the decree stood concluded. It was held that, as the issue of future interest had
been raised and decided once, the Respondents are barred by res judicata from reopening it (Greater
Cochin Development Authority v. Leelamma Valson).247
Law is well established that a decision liable to appeal may be 'final' within the meaning of Section 11
of the Code of Civil Procedure until an appeal is preferred, but once the appeal is filed the decision
loses its character of 'finality' and what was once res judicata again becomes res sub judice that is,
matter under judicial enquiry. An undecided appeal cannot operate as res judicata (Nana Tuka Ram v.
Sonabai; Sheodan Singh v. Smt. Daryao Kunwar; Premier Tyres Limited v. Kerala State Road
Transport Corporation; Union of India (UOI) v. V. Pundarikakshudu).248 But where no appeal is
preferred against the earlier decision, the principle of res judicata gets attracted (Pawan Kumar
Gupta v. Rochiram Nagdeo; Ram Prakash v. Smt. Charan Kaur).249 It is well-settled that there can be
no res judicata where the final appeal Court confirms the decision of the Courts below on a different
ground or on one out of several grounds and does not decide the other ground. The reason for this is
that it is the decision of the final Court which is res judicata and if the final Court does not decide an
issue it cannot be said that that issue has been heard and finally decided (Sheodan Singh v. Smt.
Daryao Kunwar).250
In a case, the Trial Court decided two suits having common issues on merits and there were two
appeals there from and one of them was dismissed on a preliminary ground; with the result the Trial
Court's decision stood confirmed. It was held that the decision of the Appellate Court will be res
judicata and the Appellate Court must be deemed to have finally decided the matter. In such a case
the result of the decision of the appellate Court is to confirm the decision of the Trial Court and give
its reasons and if that is so the decision of the appellate Court will be res judicata (Sheodan Singh v.
Daryao Kunwar).251 It has also been held by a full bench of Five Judges held that where two suits
were consolidated and disposed of by one Judgment and two decrees were prepared but no appeal
was filed against the decree dismissing one suit, the appeal against the decree in the other suit was
not barred by res judicata as it is the decision and not the decree which creates bar of res judicata
(Jai Narain v. Bulaki Das).252 If several suits are decided by a common Judgment and separate
appeals are preferred, the appeals do not become incompetent merely on the ground that one of the
appeals has abated, or is dismissed on some grounds other than the merits of the appeal. Each
appeal is preferred against the separate decree and even if appeal preferred is affirmed in one of the
appeals, it does not operate as res judicata. It is the finding or decision which operates as res
judicata and not a decree (Tata Chemicals Limited v. Sadhu Singh).253 It has been held that where
the appeal was struck off as having abated, the decision would operate as res judicata (Syed Ahmed
Ali Khan Alavi v. Hinga Lal).254 A Suit barred by res judicata, cannot be entertained in second appeal
(Durg Rajnandgaon Grameen Bank v. Suresh Kumar Shukla).255
A party is not bound to appeal against every interlocutory Order which is a step in the procedure that
leads up to a final decision or award and to such an Order the principle of res judicata would not
apply (United Provinces Electric Supply Co. Ltd. v. T. N. Chatterjee).256 The Supreme Court has held
that a decision in an interlocutory proceeding of the type provided for by Order 9, Rule 7 is not of the
kind which can operate as res judicata so as to bar the hearing on the merits of an application under
Order 9, Rule 13, Code of Civil Procedure. As a matter of fact, when contrasted with Order 9, Rule 9
or Order 9, Rule, 13, Code of Civil Procedure, no appeal is provided against an action of the Court
under Order 9, Rule 7 refusing to set back the clock (Arjun Singh v. Mohindra Kumar).257 Dismissal
of a revision with one-word Order, 'Dismissed', would not debar the aggrieved party from re-agitating
the matter in appeal from the final decree. (Roop Kishore v. Firm Raghbir Singh Baboo Ram; Ishar v.
Sudesh Kumar and Pohlu Ram v. Gram Panchayat, Dharamgarh).258
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. It is for the Defendant in such a suit to choose whether
the Judgment should be appealed against or not. If he does not choose to file the appeal he cannot
thereby avert the bar of res judicata in the subsequent suit (Pawan Kumar Gupta v. Rochiram
Nagdeo).259 The rule of res judicata applies to a case where the suit or an issue has already been
heard and finally, decided by a Court. In the case of abandonment or withdrawal of a suit without the
permission of the Court to file a fresh suit, there is no prior adjudication of a suit or an issue is
involved, yet the Code provides, as stated earlier, that a second suit will not lie in Sub-rule (4) of
Rule 1 of Order XXIII of the Code when the first suit is withdrawn without the permission referred to
in Sub-rule (3) in Order to prevent the abuse of the process of the Court (Sarguja Transport Service
v. State Transport Appellate Tribunal, M.P.).260
When a matter--whether on a question of fact or a question of law--has been decided between two
parties in one suit or proceeding and the decision is final, either because no appeal was taken to a
higher Court or because the appeal was dismissed, or no appeal lies, neither party will be allowed in
a future suit or proceeding between the same parties to canvass the matter again. The result of this
is that the original Court as well as any higher Court must in any future litigation proceed on the
basis that the previous decision was correct (Satydhyan Ghosal v. Smt. Deorajin Debi; Director of
Settlements, Andhra Pradesh v. M.R. Apparao).261 It is however, essential there must be a final
adjudication in earlier proceedings against the same issue between the same parties (Ahmed Ibrahim
v. Khokhar Issa).262 However, this question would depend on the facts and circumstances of each
case and the nature of the Order passed at an earlier stage of the proceedings (Devidayal Rolling
Mills v. Prakash Chiman Lal Parikh).263
Applicability to ex-parte Judgment
Where the Court has delivered ex-parte Judgment and has not applied its mind or dealt with the
terms of contract which was in fact the subject of contention between the parties, it cannot be said to
be a decision on merits. The broad proposition that any decree passed in the absence of the
Defendant, is a decree on merits as it would be the same as if the Defendant had appeared and
contested the Judgment cannot be accepted. This authority itself makes it clear that the decree
would not be on merits if the Court has not gone through and considered the case of the Plaintiff and
taken evidence of the witnesses of the Plaintiff.(International Woollen Mills v. Standard Wool (U.K.)
Ltd).264
Judgment on preliminary point- Whether res judicata
It is open to a Court not to decide all the issues which may arise on the pleadings before it if it finds
that the plaint on the face of it is barred by any law. If however, 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 (Gangappa Gurupadappa Gugwad v. Rachawwa).265 Thus, where the
Plaintiff's cause of action is against a Government and the plaint does not show that notice under
Section 80 claiming relief was served in terms of the said section, it would be the duty of the Court to
reject the plaint recording an Order to that effect with reasons for the Order. In such a case the Court
should not embark upon a trial of all the issues involved and such rejection would not preclude the
Plaintiff from presenting a fresh plaint in respect of the same cause of action. But, where the plaint
on the face of it does not show that any relief envisaged by Section 80 is being claimed, it is the duty
of the Court to go into all the issues which may arise on the pleadings including the question as to
whether notice under Section 80 was necessary. If the Court decides the various issues raised on the
pleadings, the adjudication of the rights of the parties, apart from the question as to the applicability
of Section 80 of the Code and absence of notice thereunder operates as res judicata in a subsequent
suit where the identical questions arise for determination between the same parties.
Similarly if a suit is decided on a preliminary issue without conclusions on other issues, such other
issues are open to be raised in subsequent suit and are not barred by principle of res judicata (Indraj
v. Collector).266 Further, if a suit is dismissed on a preliminary ground or on the ground that it is
premature, its Judgment does not operate as res judicata in the subsequent suit (Abdullah Ashgar Ali
Khan v. Ganesh Dass; Amba Prasad v. Mahboob Ali Shah and Tarak Chandra v. Jagdish Chandra).267
Also, interim Orders passed in suit operate as res judicata only during the trial of that suit, (Shankar
v. Niranjan)268 as such an interlocutory Order in a previous suit does not bar the Court from passing
interim Order in a later comprehensive suit (Abhi Prosad v. Pushpa Doshi).269
Explanation IV Constructive res judicata
Explanation IV to Section 11 of the Code says that any matter which might and ought to have been
made a ground of defence or attack in a former suit of the nature (referred to in the body of the
section) shall be deemed to have been a matter directly and substantially in issue in such suit. This
Explanation, therefore, refers to pleas which ought to have been taken in the former suit, but not
actually taken. In the nature of things, therefore, such pleas, which are not actually taken but which
ought to have been taken, can never be heard and much less decided. If to attract the operation of
the principle of res judicata it is always insisted upon that a plea must have been actually heard and
determined by the Court, then Explanation IV, would lose all its meaning, because there may not be
any occasion to press Explanation IV into service (Rajkishore Mohanty v. Kangali Moharana).270
From a reading of section 11 read with Explanation, it is evident that a decision of a Court is final not
only if it has been decided in an earlier suit between the same parties but also if the matter might or
ought to have been made ground of defence or attack in the former suit. The principle underlying the
Explanation is that if a party had an opportunity to raise a matter in a suit that should be considered
to have been raised and decided (Rakha Singh v. Amrit Lal),271 irrespective of the fact, if it
was actually raised or not. Thus, a plea which might and ought to have been taken in the earlier suit,
shall be deemed to have been taken and decided against the person raising the plea in the
subsequent suit. But to attract the provisions of Section 11 Code of Civil Procedure, there must be a
final adjudication of the matter between the parties in earlier suit or proceeding. Where there had
been no final determination of the rights of the parties, the principle of constructive res judicata
under Explanation IV to Section 11 Code of Civil Procedure would not get attracted (Konda
Lakshmana Bapuji v. Govt. of A.P).272
The basis on which the rule of constructive res judicata rests is founded on considerations of public
policy. It is in the interest of the public at large that finality should attach to the binding decisions
pronounced by Courts of competent jurisdiction, and it is also in the public interest that individuals
should not be vexed twice over with the same kind of litigation. If these two principles form the
foundation of the general rule of res judicata they cannot be treated as irrelevant or inadmissible
even in dealing with fundamental rights in petitions filed under Article 32. (Daryao and Ors. v. The
State of U.P.).273 One of the essential conditions for attracting the mischief of the res judicata is that
the matter in issue in the former suit should be directly and substantially in issue in the subsequent
suit. What would constitute "directly and substantially" in issue would depend upon the facts and
circumstances of each case. The concept of Constructive res judicata was incorporated in Explanation
IV of Section 11. It introduces a fiction of what would amount to be "directly and substantially in
issue", for the purposes of res judicata, even though no such plea or defence has been specifically
raised in the pleadings. In other words, the constructive res judicata is an artificial form of res
judicata (Amalgamated Coalfields v. Janapad Sabha).274
It clearly follows that the rule of res judicata disallows the parties to a judicial determination from
litigating the same question again and again even though the determination may even be
demonstratively wrong. In Order to attract the provisions of this section it is necessary to show not
only that the party could have raised defence in the former suit, but it must also be shown that it was
bound to raise the defence in the earlier litigation. Only in that event Explanation IV to Section 11,
Code of Civil Procedure will be attracted (Rajah Chattar Singh v. Diwan Roshansingh).275 This
principle of constructive res judicata has been extended further. If a party has knowledge of a
proceeding, and having had an opportunity when he might and ought to have raised an objection, he
does not do so, he 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 him (Baijnath Prasad Sah v.
Ramphal Sahni).276 In Order that a defence of resjudicata may succeed it is necessary to show that
not only the cause of action was the same but also that the Plaintiff had an opportunity of getting the
relief which he is now seeking in the former proceedings. The test is whether the claim in the
subsequent suit or proceedings is in fact founded upon the same cause of action which was the
foundation of the former suit or proceedings (Jaswant Singh v. Custodian of Evacuee Property).277
Where the knowledge of ground of attack is alleged to have been obtained during the trial it is
sufficient to attract Explanation IV of Section 11 if the party failed to pursue the same in cross-
examination (Nirmal v. Jahanara).278 When the proceedings have attained finality, parties are bound
by the Judgment rendered therein and are estopped from questioning it. They cannot litigate, again,
on the same cause of action nor can they litigate any issue, which was necessary for decision in the
earlier litigation. Section 11 of the Code of Civil Procedure does not affect the jurisdiction of the Court
but operates, as a bar in subsequent suits to the trial of the issue, which was directly and
substantially in issue in the former suit between the same parties or between the parties under whom
they or any of them litigate under the same title and if the issue has been heard and finally decided.
Hence, the fact that a defence, though available, was not taken inadvertently or through negligence
would be immaterial. In fact, in the light of Explanation IV to Section 11, even if a defence has not
been taken in the former suit, yet if such a defence could have been taken in the former suit, then,
too, the same shall be deemed to have been "directly and subsequently" in issue in the former suit
and the party concerned will be debarred from raising such an issue. The provisions of Section 11,
Code of Civil Procedure, are mandatory, and the ordinary litigant, who claims under one of the parties
to the former suit can only avoid its provisions on grounds of fraud or collusion. Even an erroneous
decision in law operates as "res judicata' between the parties to it. The correctness or otherwise of a
judicial decision has no bearing upon the question whether or not it operates as ' res judicata' (Talluri
Venkata Seshayya v. Thadikonda Kotiswara Rao; Mbharilal v. Benoy Kishna; Marwari Kumhar v.
Bhagwanpuri Guru Ganeshpuri; K. Ethirajan v. Lakshmi and Kunjan Nair Shivaraman Nair v.
Narayanan Nair).279
If a party to whom a plea under Section 11 is available does not care to raise such a plea, it will be
the duty of the Court to decide the question brought before it for decision. The Court may have no
other course but to decide the matter on the merits. If a decision is suffered without raising the plea
of res judicata, it is not open to the defaulting party to challenge the decision in other proceedings as
one passed without jurisdiction. As already stated jurisdiction of the Court to decide a question will
not be taken away by the provisions of Section 11. The contention regarding res judicata also could
be the subject of constructive res judicata. Parties may not be always vigilant. If a party fails to raise
such a plea and suffers an adverse decision, he will be precluded by the rule of constructive res
judicata and he will be bound to suffer the decision on account of waiver of the right which is lost to
him. The rule of res judicata is not limited to the Trial Court alone. It applies to the appellate and
second appellate Courts and miscellaneous proceedings also. In such a situation, when there are two
conflicting decisions inter parties on the same subject-matter, applying the bar of constructive res
judicata, the last one in point of time must prevail between the parties and the first one which is
superseded by the other must be regarded as dead (M. Kunhirama Kurup v. Mayyarath Krishnan
Kurup).280
At one time it was thought that the rule of constructive 'res judicata' did not apply to the question of
jurisdiction, but the matter has now been set at rest by the decision of the Supreme Court in (Mohan
Lal v. Boney Krishna; In re Newton Hickie v. Official Trustee of West Bengal).281 The principle of
constructive res judicata applies not only between two proceedings but also at the subsequent stage
of the same proceedings (Barkat Ali v. Badrinarain).282
The principle of constructive res judicata has been applied to writ (Direct Recruit, Class II Engineering
Officers' Association v. State of Maharashtra).283 Thus, wherein an earlier proceeding an issue was
not decided by the Court and was not challenged by the parties then such issue cannot be raised
again in subsequent proceeding as it is barred by constructive res judicata. The words "might and
ought" used in Section 11 of the Code of Civil Procedure stand in the way of the subsequent Writ
Petitions (State of Punjab v. M/s. Surinder Kumar and Co.).284
That the principle of constructive res judicata is applicable to execution proceedings is no longer open
to doubt (Mohanlal Goenka v. Benoy Krishna Mukherjee).285 In execution proceedings Section 11 of
the Code of Civil Procedure does not apply in terms but the rule of constructive res judicata has
always been applied (Kani Ram v. Smt. Kazani).286 An objection that the decree is not executable or
is barred by limitation, which ought to have been raised but not raised in prior execution, will be
barred by the principle of constructive res judicata (Jagannath Ramanuj Raj Deb v. Sri Lakshmi
Narayan Tripathy).287 Similarly, if a Judgment-debtor failed to raise objection to execution on the
ground that the execution Court had no jurisdiction to execute the decree, the failure to raise the
objection precluded him from raising the plea of jurisdiction on the principle of constructive res
judicata after the property was sold to the auction-purchaser who had entered into possession
(Mohanlal Goenka v. Benoy Krishna Mukherjee).288
Where in an earlier objection application against execution no plea is raised that the residential house
is exempt from attachment and such an application is dismissed, a subsequent application raising
such plea is barred by the principle of constructive res judicata (Matu Ram and Sons v. Elqin Mills Co.
Ltd.).289 Where, the Plaintiff failed to claim the benefit under the Cochin Proclamation or under
Section 5 of the Kerala Land Reforms Act before the second preliminary decree was passed, the same
is fatal and he is precluded from raising the very same contention in the proceeding for passing a
final decree (Madhavan v. Bhavani).290
The principle of constructive res judicata would not apply where a landlady claims eviction on
different grounds, which constitute different cause of action. A finding in one matter will not preclude
the landlady from claiming eviction in spite of adverse Order in earlier petition (P.N. Govindan v.
Abdul Kari Subaida Beevi).291 Where in a previous title suit, an issue was framed on the point
whether the sale deed was genuine and for consideration and for legal necessity, but the suit was
dismissed on the ground that the sale deed was collusive and without consideration and the Court did
not go into the question of legal necessity, because the Judge wrongly thought that the question
could not be gone into because all the reversioners had not been impleaded in the suit. That in spite
of this observation of the Court the question of legal necessity must be deemed to have been
impliedly decided against the Plaintiff in the previous suit and, therefore, the question was barred by
the principle of constructive res judicata in the subsequent suit (Ganesh v. Baidyanath).292
The principle of constructive res judicata, on the ground that the fact of enforcement of the A.P. Land
Grabbing (Prohibition) Act was not brought to the notice of the High Court at the time of disposal of
the Writ Appeal is not available to the Appellant by operation of the principle of 'might and ought' in
Explanation IV of Section 11 Code of Civil Procedure. When its title or interest had not been finally
determined by the High Court (Konda Lakshmana Bapuji v. Govt. of Andhra Pradesh).293 In other
words the matter is regarded as having been constructively in issue.
By applying the principle, since the parties failed to avail of the opportunity, the constructive issue is
considered as having been decided (Kamla Bai v. Mangi Lal Duli Chand)294 e.g. When a Judgment-
debtor fails to take a particular plea in his objections, he cannot be allowed to raise the same plea
again (Mohan Lal v. Benoy Krishna).295 Similarly, where a party to a contract fails to take the plea
that Defendant-firm was reconstituted in earlier round of litigation, the plea cannot be taken on the
principle of constructive res judicata (Union of India v. Bilash Singh).296
However, in the principle of constructive res judicata the words 'might and ought to have been raised'
refer to the cause of action said to have been available at the time of commencement of litigation
(Madunuri v. State of A. P.).297 Where in the earlier suit parties were litigating in respect of plant and
machinery installed over a plot to run a mill, in the subsequent suit which was for possession of land
pertaining thereto, the Defendant cannot be barred from taking the plea that he is lessee of the land
on the ground that he did not take that plea in earlier suit which was not related to land (P.M.C.
Kunhiraman Nair v. C.R. Naganatha Iyer).298
Where the bar of limitation was available to the Appellant when the first Writ Petition was filed, since
the Amendment Act 68 of 1984 had come into force on 24 September, 1984 during the pendency of
Writ Petition. He did not raise the point. Therefore, The doctrine of "might and ought" engrafted in
Explanation IV of Section 11 of Code of Civil Procedure would come into play and the Appellant is
precluded to raise the controversy once over. Therefore, the doctrine of constructive res judicata puts
an embargo on his right to raise the plea of bar of limitation (S. G. Muley v. State of
Maharashtra).299
The doctrine of res judicata or constructive res judicata predominantly is a principle of equity, good
conscience and justice. It would neither be equitable nor fair nor in accordance with the principles of
justice that the issue concluded earlier ought to be permitted to be raised later in a different
proceeding (Rajendra Kumar v. Kalyan).300 A writ proceeding is a different proceeding. Whatever can
be held to have been decided expressly, implicitly or even constructively while dismissing the special
leave petition cannot be re-opened. But the technical rule of res judicata, although a wholesome rule
based on public policy, cannot be stretched too far to bar the trial of identical issues in a separate
proceeding merely on an uncertain assumption that the issues must have been decided. It is not safe
to extend the principle of res judicata to such an extent so as to found it on mere guess work. The
principle of constructive res judicata underlying Explanation IV of Section 11 of the Code of Civil
Procedure was applied to writ case.
The expression 'matter in issue' under Section 11 of the Code of Civil Procedure, 1908 connotes
matter directly and substantially in issue actually or constructively. A matter is actually in issue when
it is in issue directly and substantially and a competent Court decides it on merits. A matter is
constructively in issue when it 'might and ought' to have been made a ground of defence or attack in
the former suit. Explanation IV to Section 11 of the Code 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 defence or attack, shall be deemed to have been a matter
directly and substantially in issue in such suit. 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. The object of Explanation IV is to
compel the Plaintiff or the Defendant to take all the grounds of attack or defence in one and the same
suit(Ramadhar Shrivas v. Bhagwandas).301 Even otherwise, it is settled law that in every proceeding
the whole of the claim which a party is entitled to make should be made and where a party omits to
sue in respect of any portion of the claim he cannot afterwards sue for the portion so omitted.
Explanation 4 to Section 11 Code of Civil Procedure also provides that any matter which might or
ought to have been made a ground of defence or attack in a former proceeding will be deemed to
have been a matter directly and subsequently in issue in that proceeding (Meher Rusi Dalal v. Union
of India).302
Section 11, Explanation IV, Code of Civil Procedure provides that any matter which might or 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. In other words 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 doctrine underlying Explanation
IV is that the parties having had an opportunity of controverting the matter that should be taken to
be the same thing as if the matter had been actually controverted and decided. In other words the
objections now being taken are deemed to have been heard and decided and this principle applies
even to the different stages of the same proceedings (Ankush R. Naik v. Sujata Sanzgiry).303 An
adjudication is conclusive and final not only as to the actual matter determined but also as to every
other matter which the parties might and ought to have litigated and have had decided as incidental
to or essentially connected with subject matter of the litigation and every matter coming into the
legitimate purview of the original action both in respect of the matters of claim and defence (Eastern
Common Effluent Treatment Company Private Limited v. The Tamil Nadu Pollution Control Board and
Veerapandi Common Effluent Treatment Plant Private Limited v. The Tamil Nadu Pollution Control
Board).304 In short, if a party to a suit fails to raise a matter which might and ought to have been
made a ground of attack or defence in the former suit shall also be deemed to have been a matter
directly and substantially, in such suit and the principle of constructive res judicata applies in the
subsequent proceedings(T. Umayaparvathi v. Bhagavathiamma Nadachi).305
(e) By competent Court and Explanations VIII and II
Sir Srinivasa v. C. Muninarayanappa; Sham Rajendra Agrawal v. Ghanshyam Hajarilal Sharma.306

Another requirement to make the doctrine of res judicata applicable is that the Court which decided
the former suit was competent to try the subsequent suit (Sheodan Singh v. Daryao Kumar),307 or
the suit in which the issue has been subsequently raised. The words "competent to try such
subsequent suit" have been interpreted that it must refer to the pecuniary jurisdiction of the earlier
Court to try the subsequent suit at the time when the first suit was brought. Mere competency to try
the issue raised in the subsequent suit is not enough. A decree in a previous suit will not operate as
res judicata, unless the judge, by whom it was made, had jurisdiction to try and decide, not that
particular suit, but also the subsequent suit itself in which the issue is subsequently raised
(Sulochana Amma v. Narayanan Nair).308 This expression in Section 11 does not mean that the Court
deciding earlier suit need to have territorial jurisdiction to try subsequent suit (Church of South India
v. Telugu Church Council).309 The law is well-settled that even if erroneous, an inter-party Judgment
binds the parties if the Court of competent jurisdiction has decided by lis (Gorie Gowri Naidu (Minor)
v. Thandrothu Bodemma).310 But competent jurisdiction is an essential condition of every valid res
judicata (Sayyed Ali v. A.P. Waqf Board).311
In other words the Court which decided the former suit or issue must be a Court of concurrent
jurisdiction (Gulabbai v. Manphool).312 For the purposes of Section 11 jurisdiction of such Court is to
be examined as to competency to try the subsequent suit on the date when former suit was
instituted (Pandurang Kavade v. Annaji Bokil).313 It is not necessary that the former proceedings and
the subsequent suit have the 'same subject-matter'. The nature of the former proceeding is
immaterial (Gulabchand v. State of Gujarat).314 In Order to operate as res judicata it must be
established that the previous decision was given by a Court which had jurisdiction to try the present
suit, and there would be no res judicata if the previous decision was by a Court having no jurisdiction
(V.V. Mammi Kutty v. Moonam Kutty)315 of course the principles of res judicata are applicable to
pecuniary jurisdiction, but there is no reason why the same principle should not apply in other cases
of Courts without jurisdiction. The law is well settled that a Court which had no jurisdiction to try a
cause cannot by its own erroneous decision confer on itself competence to decide it and its decision
on the question of jurisdiction cannot operate as res judicata. Conversely, the decision relating to
jurisdiction cannot be said to constitute the bar of res judicata where by an erroneous interpretation
of a statute it holds that it has no jurisdiction (Pandurang Mahadeo Kavade v. Annaji Balwant
Bokil).316
The condition regarding the competency of the former Court to try the subsequent suit is one of the
limitations engrafted on the general rule of res judicata by Section 11 of the Code and has application
to suits alone. When a plea of res judicta is founded on general principles of law, all that is necessary
to establish is that the Court that heard and decided the former case was a Court of competent
jurisdiction. It does not seem necessary in such cases to further prove that it has jurisdiction to hear
the later suit (Smt. Raj Lakshmi Dasi v. Banmali Sen).317 Unless the Court, which decided the former
suit, was competent to decide not only the issue, which arose in the subsequent suit but also the
subsequent suit itself, the decision in the former suit of the question of proprietary right will not be
res judicata in the subsequent suit on the same question (Mst. Gulab Bai v. Manphool Bai).318 If the
former Court was not competent to try the subsequent suit the question of res judicata would not
arise (Gulab Bai's case).319 The decisions pronounced by Courts of competent jurisdiction are final
unless modified or reversed by Appellate authorities (Hope Plantations Ltd. v. Taluk Land Board,
Peermade).320
Where we are dealing with a case of 'res judicata' which is not covered by Section 11, then the mere
fact that the Court which decided the issue in the first suit was not competent to decide the
subsequent suit would not prevent the principle of 'res judicata' applying (Raj Lakshmi Dasi v.
Banamali Sen).321 Similarly, if such Court had the jurisdiction over former suit but had no jurisdiction
to try the subsequent suit, even then principle of res judicata would not apply. However, since the
principle contained in Section 11 has the object of avoiding the multiplicity of suits and also for giving
finality to the decisions of the Courts, it can be applied even in those cases where provisions of the
section are not strictly applicable (M. H. Ravindra Nath v. M. L. Hanumanthrao)322 provided, the
decision in the former suit is passed by the Court of competent jurisdiction. The section is mandatory.
Even a wrong decision, if final can operate as res judicata (A.R. Antulay v. R.S. Nayak; Gorie
Gouri Naidu (Minor) v. Thandrothu Bodemma).323 A wrong decision rendered with jurisdiction, if not
corrected by appeal, revision, review or other methods available by law will have as much binding
force as a right decision. Jurisdiction to decide involves the right to err within the limits of
jurisdiction. By such error, if something is done assuming non existent jurisdiction or wrongly
omitting to exercise the vested jurisdiction by an erroneous interpretation of law, the question cannot
operate as res judicata. The characteristic attribute of a judicial act or decision is that it binds,
whether it be right or wrong. An error of law or fact committed by a judicial or quasi judicial body
cannot be impeached otherwise than in appeal, etc. unless it relates to a matter of jurisdiction. When
the decision is a nullity for want of inherent jurisdiction, no question of res judicata will arise
(Bharathi Amma v. Kumaran Peethambaran; Union of India v. Pramod Gupta; M/s. Bharat Barrel and
Drum Manufacturing Co. Pvt. Ltd. v. Bharat Barrel Employees Union; Sabitri Dei v. Sarat Chandra
Rout),324 same is the view of Calcutta High Court (In re: Meghraj Golab Chand, Firm v. Chandra
Kamal).335
The principle of res judicata is not affected by a subsequent contrary view taken by a superior Court
in any other case. Therefore, even if a decision happens to be wrong in view of the later Judgment of
the High Court, it is binding between the parties and its legal effect remains the same whether the
reason for the decision was sound or not (Mahalingeswara Devaru v. Seetharama Bhatta).326
In Order to make out a plea of 'res judicata' it is necessary to prove that the Court that tried the
former suit was competent to try the subsequent suit. There can be no question about it but it is also
well settled that in Order to determine whether a Court which decided the former suit had jurisdiction
to try the subsequent suit, regard must be had to the jurisdiction of former Court at the date of the
decision of the former suit and not to its jurisdiction at the date of the subsequent suit (Jeevantha v.
Hanumantha).327 It is not necessary that the Court deciding the matter formerly be competent to
decide the subsequent suit or that the former proceeding and the subsequent suit have the same
subject matter. The nature of the former proceeding is immaterial (Amalgamated Coalfields Ltd. v.
Janapada Sabha, Chhindwara and Devilal Modi's case (Devilal Modi v. Sales Tax Officer. Ratlam);
Gulabchand Chhotalal Parikh v. State of Gujarat).328 The doctrine of estoppel by Judgment does not
rest on any superior authority of the Court rendering the Judgment, and a Judgment of one Court is a
bar to action between the same parties for the same cause in the same Court or in another Court,
whether the later has concurrent or other jurisdiction.
For application of Section 11 of the Code of Civil Procedure the first and foremost requirement is that
the Court which has recorded the earlier finding and the Court which is dealing with subsequent
proceedings both must be competent to try such dispute (Sri. N.M. Ramachandraiah v. The State of
Karnataka, Department of Revenue).329 The doctrine applies equally in all Courts and it is immaterial
in what Court the former proceedings was taken, provided only that it was a Court of competent
jurisdiction, or what from the proceeding took, provided it was really for the same cause.330 It is not
necessary that the Court deciding the matter formerly be competent to decide the subsequent suit or
that the former proceeding and the subsequent suit have the same subject matter. The nature of the
former proceeding is immaterial (Gulab Chand Chhotalal Parikh v. State of Bombay).331
Explanation VIII Court of limited jurisdiction
The Amending Act of 1976 introduced Explanation VIII in the Code. The amendment made no
attempt to delete the words "Court competent to try such" suit in the main section, which would
indicate that the legislature intended to retain the distinction between Judgments of the Court of
limited pecuniary jurisdiction, which will not operate as res judicata to a later suit laid in a Court of
unlimited jurisdiction, on the same issue between the same parties or persons under whom they
claim title or litigating under the same title. Explanation VIII only brings within the fold of Section 11,
the decree or Order of the Courts of special jurisdiction, like probate Court, land acquisition Court,
rent control Court etc. The non obstante clause incorporated in Explanation VIII would be only in
relation to such decrees. The purpose of the explanation, therefore, is only to remove that anomaly.
The legislature having been aware of the law laid down by Courts, that the decree of a Court of
limited pecuniary jurisdiction does not operate as res judicata in a subsequent suit, did not intend to
alter the law by suitable amendment to the body of Section 11 (Sulochana Amma v. Narayanan
Nair).332
Explanation VIII was introduced in the Code of Civil Procedure by way of amending Act of 1976. The
requirement of Section 11 prior to induction of Explanation VIII was that the former Court should be
competent to try such subsequent suit or the suit in which the issue has been subsequently raised.
Thus, the view of some of the Courts was where the former Court was Court of limited jurisdiction
and was not competent to try subsequent suit, the finding of the former Court on any issue did not
bind the subsequent Court on that issue. This interpretation was against the public policy behind the
mandate of Section 11 as it missed the object of giving finality to an issue and consequently led to
multicipility of litigation. It lead to an avoidable anomaly.
The object of Parliament in introducing Explanation VIII to section 11 was to remove this anomaly
and to render the principle of res judicata more effective by providing that the prior decision rendered
on the issue concerned by a Court of limited jurisdiction competent to decide such issue shall operate
as res judicata in a subsequent suit notwithstanding that such Court of limited jurisdiction was not
competent to try such subsequent suit. In such case it cannot be said that the expression "Court of
limited jurisdiction" signifies Courts other than ordinary Courts of civil judicature such as revenue
Courts, land acquisition Courts, insolvency Courts, probate Courts etc. The object and purpose
underlying the introduction of Explanation VIII was much wide, namely, to render the principle of res
judicata fully effective so that issues heard and finally decided between the parties to an action by
any Court competent to decide such issues should not be allowed to be repaginated by such parties
or persons claiming through them in a subsequent, litigation (P. V. N. Devoki Amma v. P. V. N. Kunhi
Ranjan Nair).333
The crucial question herein, is as to what did the legislature intend when it designedly used the
expression "Court of limited jurisdiction" in the aforesaid provision. It bears repetition that the
doctrine of res judicata to independent proceedings and at one stage it was proposed to bring every
civil proceeding within its scope. However, this was perhaps considered to be too wide and it was
therefore, constricted to judicial quasi-judicial proceedings before a Court of limited jurisdiction
(Amar Singh v. Dalip).334
The expression "a Court, of limited jurisdiction" is wide enough to include a Court whose jurisdiction
is subject to a pecuniary limitation and it will not be right to interpret the said expression as
connoting only Courts other than ordinary Civil Courts. Such a narrow and restricted interpretation is
not warranted by the words used by the Parliament (P. V. N. Devoki Amma v. P. V. N. Kunhi Ranjan
Nair).335 It has also been defined in Corpus Juris Secundum, Volume XXI, as where an Act confers on
a Court exclusive jurisdiction in certain cases, but abstains from conferring general jurisdiction, such
Court is one of limited jurisdiction. The Punjab and Haryana High Court relying upon Juris Secundum
has observed that Courts of limited or special jurisdiction are those, which can take cognizance of a
few specified matters only, those which have only a special jurisdiction for a particular purpose or are
clothed with special power beyond which they have no authority of any kind (Amar Singh v.
Dalip).336 Volume 14 of American jurisprudence defines Courts of limited jurisdiction as Courts
created by statute and not by the Constitution are tribunal of special and limited jurisdiction only.
They can exercise only such power as are directly conferred on them by legislative enactment and
such as may be incidentally necessary to the execution of those powers. The Ballentine's Law
Dictionary has defined limited jurisdiction Courts as Courts which are interior or not of record, or not
of general, but limited jurisdiction. Whereas the Courts of general jurisdiction are Courts which can
take cognizance of all causes of a particular nature, Courts of limited or special jurisdiction are those
which can take cognizance of a few specified matters only (Amar Singh v. Dalip).337 Thus it is evident
from the above that the expression "Court of limited jurisdiction" is used in contra-distinction to Civil
Courts having unlimited general jurisdiction (Amar Singh v. Dalip).338
The expression "Court of limited jurisdiction", occurring in Explanation VIII to Section 11 Code of Civil
Procedure ought to be given the widest possible amplitude and not a limited or restrictive
interpretation. We therefore, hold that, on the general principle of res judicata, the decision of the
High Court on a Writ Petition under Article 226 on the merits on a matter after contest will operate as
res judicata in a subsequent regular suit between the same parties with respect to the same matter
(Rajendra Kumar v. Kalyan).339 Courts of limited jurisdiction are Courts other than the ordinary Civil
Courts. These Courts are Revenue Courts, Land Acquisition Courts, Administrative Courts, Insolvency
Courts, Guardianship Courts, Probate Courts etc. These Courts are to try certain specific matters and
in that sense they may be said to be Courts of limited jurisdiction. These Courts are also Courts of
exclusive jurisdiction in respect of the matters they are to try. The decisions of such Courts operated
as res judicata in subsequent suits not by virtue of Section 11 but on the general principles of res
judicata. By enacting Explanation VIII, the legislature brought the decisions of such Courts within the
purview of Section 11. In other words, it is not necessary now to apply the general principles of res
judicata, but in view of Explanation VIII the decisions of the Courts of limited jurisdiction or exclusive
jurisdiction will operate as res judicata in subsequent suits under section 11 (Nabin Majhi v. Tela
Majhi).340 This shows that sphere of res judicata as enshrined in Section 11, Code of Civil Procedure
is not exhaustive, it is ever growing. One such example of its growth is exhibited by the incorporation
of Explanation VIII in Section 11 by means of Amending Act in 1976 (Madhvi Amma Bhawani Amma
v. Kunjikutty Pillai Meenakshi Pillai).341
This is also an indication that Explanation VIII does not contemplate that the two proceedings must
be suit, but as stated already the decision has been given in a former proceedings by a Court of
limited jurisdiction and not in a former suit (Nabin Majhi v. Tela Majhi; Amar Singh v. Dalip).342 It will
thus be plain that a Judgment of a Court of exclusive jurisdiction can operate as res judicata only on
a matter which that Court could exclusively decide (Mylavarapu Chitti Sanyasi Prasad Rao v. Runku
Lakshmayya).343
The Judgment or determination by a tribunal of limited but competent jurisdiction can act as a bar to
raising of such issues covered by such Judgments in a subsequent civil suit. What is essential for
raising the plea of res judicata, on general principle, is that there must be a judicial determination of
issue in controversy with a final decision thereon; in earlier proceedings between the same parties
(Maghraj Calla v. Kajodi Mal).344 Therefore an issue heard and finally decided by an authority under
the House Rent Control Act, which is Court of limited jurisdiction and competent to decide an issue,
would also operate as res judicata in a subsequent suit (Ramachandra Sahu v. Smt. Pramila
Sahu).345 Where a party having filed a suit against the Defendant in Munsif's Court having limited
pecuniary jurisdiction, got an adjudication to the effect that the suit properties had already been
partitioned, another suit for partition filed by Defendant in the Court of higher pecuniary jurisdiction
alleging that the value of the properties shown now is correct, is barred by Section 11 (Sri Sri Sai
Baba v. Hanumtha Rao).346 This view has been now confirmed by the Supreme Court in Gulam
Abbas's case (Gulam Abbas v. State of U. P.).347 However, for attracting Explanation VIII of the
section, competence of the Court of limited jurisdiction to decide the issue must be present. Once
that is there, the finding of Judge Small Cause Courts is also binding on Civil Court (Prabhakar v.
Bharat).348 Even the finding of revenue Court can be binding on the Civil Court (Kunhappa Nair v.
Suresh Kumar; Hrudananda Panda v. Dhirendra).349 All earlier decisions of the various High Courts
against above view stand neutralised by introduction of Explanation VIII in the section w.e.f. 1st
February, 1977 350 and do not hold good any more. But a finding given by a Court having no
jurisdiction at all in the matter cannot operate as res judicata.
A decision as to the proof of the will given by any Civil Court can under no circumstance operate as
res judicata in probate proceedings taken out in the probate Court. In a civil suit the Court is only
concerned with deciding the rights between the parties. The Probate Court is a Court of conscience,
and it does decide rights between parties but it has to deliver a Judgment which would become a
Judgment in rem and this Judgment will bind not only the parties before it but the whole world (J.
Rustomji's case).351 A plea of res judicata on general principles can be successfully taken in respect
of Judgments of Courts of exclusive jurisdiction, like revenue Courts, land acquisition Courts,
administration Courts, etc. It is obvious that these Courts are not entitled to try a regular suit and
they only exercise special jurisdiction conferred on them by the statute (Raj Lakshmi Dasi v.
Banamali Sen and Bholanath Sen v. Raj Lakshmi Dasi).352
The Explanation VIII stipulate that an issue 'heard and finally' decided though by a Court of limited
jurisdiction, which the said 'Court' is competent to decide such an issue, shall operate as resjudicata
in a subsequent suit, notwithstanding that such Court of limited jurisdiction was not competent to try
such subsequent suit in which such issue has been subsequently raised (Mahila Bajrangi (dead)
through LRs. v. Badribai).353
A plain reading of Explanation VIII clearly indicates that, the application of Section 11 of the Code of
Civil Procedure extends to a decision of a Court of limited jurisdiction, inasmuch as, an issue heard
and finally decided within the competence of such Court, will operate as res judicata in a subsequent
suit. The only condition in Order to attract Explanation VIII is that the decision in a former
proceeding must be final and not subject to the concurrent jurisdiction of a Civil Court. It is thus,
unquestionable that a matter directly and substantially in issue in a former proceeding, adjudicated
upon by a Court of exclusive jurisdiction, will bar the trial of the same issue in a subsequent suit. It is
equally settled that tribunals invested with a special jurisdiction are Courts of exclusive jurisdiction in
respect of the specific matters that they are competent to adjudicate. A decision in a previous
proceeding tried by a tribunal will be res judicata if the proceeding falls within the class to which the
Act constituting the tribunal applies. Therefore, it is observed that in Order that a decision in a former
proceeding operates as res judicata, the requirement of Section 11 Code of Civil Procedure is that the
tribunal which decided the former proceeding must either be a Court of exclusive jurisdiction or a
Court of limited jurisdiction competent to try the issue raised in the subsequent suit(Hukum Chand v.
Delhi Development Authority).354
A plea of res judicata on general principles can be successfully taken in respect of Judgment of Courts
of exclusive jurisdiction like revenue Courts, land acquisition Courts, administrative Courts etc. It is
obvious that these Courts are not entitled to try a regular suit and they only exercise a special
jurisdiction conferred on them by the statute (Raj Lakshmi Dasi v. Banamali Sen).355 Thus, the
Judgment of the Revenue Court on the issue of proprietary title could not operate as res judicata as a
Revenue Court was not competent to try the subsequent suit (Bhagwan Dayal v. Mst. Reoti Devi).356
If the former Court is unable to try the subsequent suit as it is beyond its pecuniary jurisdiction, the
decision of the former Court will not be res judicata in the subsequent suit. The legislature did not
intend to change this position, had it really intended to remove the condition relating to the
competency of the former Court, in that case, it would have removed the same from the section itself
and not depended upon the explanation (Nabin Majhi v. Tela Majhi).357
Where a Rent Control Officer under the Rent Law had no jurisdiction to try and decide a matter, his
decision and Order cannot operate as res judicata (P. Dasa Muni Reddy v. P. Appa Rao).358 The
condition regarding competency of the former Court to try the subsequent suit on the date of
institution of the former suit is no more necessary for the purposes of principle of res judicata as
contained in Section 11 of the Code and also for the application of general principle of res judicata,
and only requirement in this regard is that the Court deciding former case was having jurisdiction to
decide that case (Sulochana Amma v. Narayanan Nair).359
5. Explanation V- Relief Claimed but not granted- deemed to be refused.
The expression "relief claimed" used in Explanation 5 to Section 11 refers to a relief which the Court
is bound to grant and not to one which it is discretionary for the Court either to grant or not to grant.
In other words, it must form part of the relief claimed in the plaint, that is, something which the
Plaintiff can claim as of right and something included in his cause of action. If the cause of action is
established then the Court has, no discretion to refuse (Mukunda Pradhan v. Krupasindhu Panda).360
It does not include reliefs such as mesne profits accruing after the institution of the suit as to which
no cause of action had then arisen, but which the Court has been expressly empowered to grant.361
The relief sought must legitimately form part of the claim in the suit. In other words, it must be
something which the Plaintiff may claim as of right. That is, something which the Plaintiff may include
in his cause of action and if the cause of action is established, the Court would have no discretion to
refuse (Sri Jagannadha Sway Vari Temple Vadali v. Bokinala Nikodev).362
6. Explanation VI-Representative suit.
The words "public right " have been added in Explanation VI in view of the new Section 91 Code of
Civil Procedure and to prevent multiplicity of litigation in respect of public right. In view of
Explanation VI it cannot be disputed that Section 11 applies to public interest litigation as well but it
must be proved that the previous litigation was the public interest litigation not by way of a private
grievance (Municipal Corporation of Greater Bombay v. Prabhat Mandal).363 Explanation VI will apply
also to a private right and what is required is that they should claim the right common for themselves
and others (Sadananda Keot v. Jona Ram Saikia).364
Explanation VI provides that where persons litigate bona fide in respect of a 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
Section 11 read with its explanation VI leads to the result that a decree passed in a suit instituted by
persons to which explanation VI applies will bar further claims by persons interested in the same
right in respect of which the prior suit had been instituted. Explanation VI thus illustrates one aspect
of constructive res judicata. Where a representative suit is brought under Section 92 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 said
earlier suit (R. Venugopala Naidu v. Venkatarayulu Naidu Charities; Ahmed Adam Sait v. Inayathullah
Mekhri).365
The scope of the Explanation is wider than what is covered under Order I, Rule 8 of the Code.
However, it is necessary for applying the aforesaid Explanation that the earlier litigation was bona
fide on behalf of all the interested persons who are not named in the array of parties. It is still not
clear to what extent plea of res judicata can be taken in the Public Interest Litigations (Rural
Litigation and Entitlement Kendra v. State of U. P.).366 In case of joint Hindu family property even if a
person has not described as karta or Manager, but if it is found that he represented in substance the
other members, the decree would be a res judicata (Amrit Sagar Gupta v. Sudesh).367 But a
representative suit instituted by one creditor under Section 53 of the Transfer of Property Act,
without impleading Official Receiver, does not bind him (Jack Irla v. Official Receiver).368 Similarly,
where a Manager of joint Hindu family has taken loan not for the benefit of the members of family,
the decree against him would not bind such members (Chakka Lakshminarayana v. K. China
Subbarao).369
The mere technicality that the subsequent challenge is presented by different individual or set of
individuals will not come in the way of application of res judicata (Corporation of City of Mysore v.
Public Interest Litigation Association (Regd.) Mysore City).370
7. Explanation VII Res judicata in Execution Proceedings.
Prior to insertion of Explanation VII to Section 11 in the Code of Civil Procedure, there were
conflicting views about application of Section 11, Code of Civil Procedure, to the execution
proceedings. It was held that Section 11 is not exhaustive on the question of res judicata and its
general principle applies to execution proceedings also (Jagannath Ramanuj Raj Deb v. Sri. Lakshmi
Narayan Tripathy).371 Where, therefore, a matter which directly and substantially, arises for decision
in an execution proceeding, is heard and decided by a competent Court, such a decision is final
between the parties and operates as res judicata in a subsequent execution proceeding or at a
subsequent stage of the same execution proceeding. An express adjudication by the Court in the
presence of parties, would mean that the question must be considered to have been finally decided,
no matter whether it is raised again at a subsequent stage of the same proceeding, or in a
subsequent execution proceeding (Genda Lal v. Hazari Lal).372
The Law Commission recommended that the principle of res judicata should be applied to the
situations of proceedings in execution and independent proceedings and suggested insertion of
Section 11A. Instead of inserting Section 11A the Joint Committee of Parliament suggested insertion
of Explanation to Section 11 and on the basis of that report, Explanations VII and VIII have been
inserted by Code of Civil Procedure. (Amendment) Act, 1976. Section 11 of the present Code
excluding Explanation VIII envisages that Judgment in a former suit would operate as res judicata if
the Court which decided the suit was competent to try the same by virtue of its pecuniary jurisdiction
and the subject-matter to try the subsequent suit as such it is not necessary that the said Court
should have had territorial jurisdiction to decide the subsequent suit (Church of South India Trust
Association v. Telgu Church Council).373
Explanation VII added in the section Vide Act No. 104 of 1976 has made it clear that not only general
principle of res judicata but also constructive res judicata apply to execution proceedings (Prem Lata
Agarwal v. Lakshman Prasad Gupta).374 The provisions of the section are now applicable to a
proceeding for the execution of a decree, and references in the section to a suit, issue or former suit
shall be construed as references respectively to a proceeding for the execution of a decree, question
arising in such proceeding and a former proceeding for the execution of that decree. However, an
application by decree-holder to transfer certain papers to another Court for further execution is not
an execution application and its dismissal does not bar a fresh application (Ramgouda v.
Lagmava).375
The doctrine of res judicata has been applied to execution proceedings (Ram Kirpal Shukul v.
Mussumat Rup Kuari)376 to a subsequent stage of the same proceeding (Y. B. Patil v. Y. L. Patil;
Mohammed Khalid v. Chief Commissioner),377 to special Acts like Debt Relief Acts and consolidation
of holdings Acts, (Sita v. State; Munshi v. Chiranjit Singh; Sheshamma v. Gangaraju).378 Displaced
Persons (Compensation and Rehabilitation) Act, (Jhuma Ram v. Prami Bai)379 to Orders of remand
and to awards under the
Arbitration Act (P.C. Ray v. Union of India).380 It is settled law that the general principles of Section
11 of the Code of Civil Procedure apply to execution proceedings as well (Ameena Amma v.
Sundaram Pillai).381 If basic issue in both the proceedings is different and Judgment debtor failed to
raise objections in the earlier proceedings, it cannot debar him from raising the objection at the time
of subsequent proceedings on principle of actual or constructive res judicata (Raghunath Pradhani v.
Damodra Mahapatra and Ors.).382
Where admitted position is that the Civil Court decreed the suit for eviction against the Appellant
holding that he was not a tenant which Order has become final. The same plea of want of jural
relationship is sought to be raised in execution. Having allowed it to become final it is not open to
contend that he is still a tenant and therefore, the decree is nullity. The executing Court was right in
refusing to entertain the objection for executing the decree (Bharmappa Nemanna Kawale v. Dhondi
Bhima Patil).383
Where in an earlier execution proceedings a decree-holder could have raised a plea that the
Judgment-debtor had an interest in certain property which could be attached under his decree but
the plea was not raised through his own default and the execution was dismissed, the dismissal
operates as res judicata in the subsequent execution proceedings and even apart from the provisions
of Section 11, Code of Civil Procedure, it is contrary to the principle to allow the decree-holder in
fresh proceedings to renew the same claim merely because he neglected at a proper stage in
previous proceedings to support his claim by the argument of which he subsequently wishes to avail
himself (Shivraj Gopalji v. Ayissa Bi).384
An objection as to jurisdiction of executing Court raised and finally decided in a prior execution would
be barred by res judicata in subsequent execution irrespective of whether the decision was erroneous
in law or not (Jagannath Ramanuj Raj Deb v. Sri. Lakshmi Narayan Tripathy).385 The correctness or
otherwise of a judicial decision has no bearing upon the question whether or not it operates as res
judicata. A decision in the previous execution case between the parties that the matter was not
within the competence of the executing Court, even though erroneous is binding on the parties
(Mohanlal v. Benoy Kishna; Abhoy Kanta Gohain v. Gopinath Deb Goswami and Others).386
The dismissal for default of the Judgment-debtor of an application filed by him under Section 47,
Code of Civil Procedure resisting the execution of the decree is not a final decision of the Court after
hearing the parties and therefore, does not operate as res judicata and he can raise that objection in
a subsequent application filed by him (Shivashankar Prasad Shah v. Baikunth Nath Singh;
Bishwanath Kundu v. Sm. Subala Dassi).387
A Judgment-debtor is not precluded by the principle of res judicata from raising the plea of limitation
in an execution unless (i) there was an express adjudication on the question of limitation against a
Judgment-debtor in an earlier execution proceeding or at an earlier stage of the same execution
proceeding; (ii) or if there was adjudication implied in an Order which, taken with surrounding
circumstances, should be taken to imply a conscious determination of the question of limitation
adversely to the Judgment-debtor; and (iii) if the Judgment-debtor did not fail to take the plea of
limitation when it might and ought to have been taken, and no relief prayed for in the execution
application, was granted, nor a partial satisfaction of the decree was obtained by the decree-holder
(Genda Lal v. Hazari Lal).388
It was held that the decision given in the first execution proceeding on a mixed question of law and
fact, and not one of law only, would operate as res judicata in a subsequent execution proceeding
between the same parties (Kani Ram v. Kazani).389
8. Conclusiveness of foreign Judgment.
In England, the subject of res judicata is mainly dealt with as part of the law of evidence, and a
former Judgment is said to create an estoppel by record. The subject of the conclusiveness of foreign
Judgments is dealt with in India in the law of procedure, while in England it is dealt with as a part of
Private International Law. This law is not to be taken as a kind of law binding upon the States of the
world arising out of a communis comsensus of the States. There is no such consensus, though
reciprocal laws exist. Each Country decides for itself how far the foreign Judgments will be received.
A foreign Judgment receives different treatment in different parts of the world. Apart from reciprocity
between different Countries which have agreed to be Mutually bound, there are numerous
approaches to the problem. In some Countries, direct enforcement of such Judgments, if registered
in the Country of origin, is permitted in the same way as in Sections 44 and 44A of our Code of Civil
Procedure. In others, the Judgments (unless reciprocal agreements exist) must be sued upon. There
too, the question arises whether the original cause of action merges in the Judgment-transitu in rem
judicature, or survives. In some Countries like France, the Judgment of a foreign Court is subjected
to scrutiny, while in some of the Nordic Countries, the Judgment has no value (R. Viswanathan v.
Rukn-Ul-Mulk Syed Abdul Wajid).390
The rule of conclusiveness of foreign Judgments applies only to matters directly adjudicated upon.
Manifestly, therefore, every issue heard and finally, decided in a foreign Court is not conclusive
between the parties. What is conclusive is the Judgment. Again, the competence of a Court for the
application of the rule of res judicata falls to be determined strictly by the municipal law; but the
competence of the foreign tribunal must satisfy a dual test of competence by the laws of the State in
which the Court functions, and also in an international sense (R. Viswanathan v. Rukn-Ul-Mulk Syed
Abdul Wajid).391 The expression "matter" in Section 13 is not equivalent to subject matter; it means
the right claimed. To be conclusive the Judgment of the foreign Court must have directly adjudicated
upon a matter, the adjudication must be between the same parties, and the foreign Court must be a
Court of competent jurisdiction (Brijlal Ramjidas v. Govindram Gordhandas Seksaria).392
A divorce Judgment obtained by the husband from the Court of Canada on the ground that was not
available according to the law that prevailed in India - It was ruled that the said Judgment was not
binding hence could not operate as res judicata (Mrs. Veena Kalia v. Dr. Jatinder Nath Kalia and
another).393
It was held that if a foreign Judgment finally and conclusively settled the existence of the debt so as
to become res judicata between the parties, then the action can be brought on such a Judgment
(Gustavs Nouvion v. Freeman and another; M/s. International woolen Mills v. M/s. Standard Wool
(U.K.) Ltd).394
9. Principles of res judicata.

The following principles emerge in regard to res judicata (Raghurama Arya v. Bapanna Rao)395:
(1) The primary test of res judicata depends upon the identity of title in the two litigations and not
the identity of the actual property involved in the two cases;
(2) The principle of res judicata is not affected by a subsequent contrary view taken by a superior
Court in any other case. A wrong decision by a Court having jurisdiction is as much binding between
the parties as a right one and may be superseded only by appeals to higher Tribunals or other
procedure like review which the law provides;
(3) "Matter in issue" in Section 11 of the Code of Civil Procedure is distinct from the subject matter
and the object of the suit as well as from the relief that may be asked for in it and the cause of action
on which it is based, and the rule of res judicata requiring the identity of the matter in issue will
apply even when the subject matter, the object, the relief and the cause of action are different. It is
the "matter in issue" and not the subject matter of the suit that forms the essential test of res
judicata;
(4) A remark by a Court in dismissing of a suit that the Plaintiffs are at liberty to file a fresh suit
without there being any formal application under Order 23, Rule 1, will not amount to a permission to
bring a fresh suit under Order 23, Rule 1 of the Code of Civil Procedure;
(5) Permission to withdraw suit does not imply recognition of maintainability of a suit nor has the
Court power to provide to that effect in the Order.
(6) Where in a previous title suit, one of the issues framed is left undecided wrongly holding that the
issue could not be gone into because of certain infirmities and the suit is dismissed, the question with
regard to the same issue gets barred by constructive res judicata in a subsequent suit, as it is
deemed to have been impliedly decided in a previous suit;
(7) The Courts in this country have no power unlike the Courts of Equity or Common Law in England
to dismiss a suit with liberty for the Plaintiff to bring a fresh suit for the same matter, or to enter a
non-suit. Such power of the Indian Courts is limited to questions of form, as in the matters in
misjoinder of parties, or of the matters in suit, (2) where the material document has been rejected
for not having a proper stamp, and (3) if there has been an improper valuation of the subject matter
of the suit.
The Code of Civil Procedure, 1908

By Anupam Srivastava
© Manupatra Information Solutions Pvt. Ltd.
Disclaimer :
The views and comments expressed in the present category are those of the Author. These should not be taken to reflect the views of the
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Commentary On Section 11 CPC

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CODE OF CIVIL PROCEDURE, 1908

Section 11 - Res judicata

Reference/ Relevance within Statute

Order 41 Rule 5 (Stay of proceedings and execution)

Pre 1976 Amendments and Case Cited

AIR 2004 SC 1761.

3. Mt. Lachhmi v. Mt. Bhulli AIR 1927 Lah 289.

6. Management of Indian Aluminium Company Limited v. Sri S. Nagaiah MANU/KA/0064/2009

7. Ram Bhaj v. Ahmad Saidakhtar Khan AIR. 1938 Lah. 571.

2008 (1) Kar LJ 551.

9. Mathura Prasad v. Dossibai, MANU/SC/0420/1970: AIR 1971 SC 2355.

11. Lal Chand v. Radha Kishan, MANU/SC/0483/1976: AIR 1977 SC 789.

20. Satyadhan v. Deorajin Debi, MANU/SC/0295/1960: AIR 1960 SC 941.

21. Sulochana Amma v. Narayanan Nair MANU/SC/0047/1994: AIR1994SC152.

MANU/SC/0144/2004: AIR 2004 SC 2186

24. Lonan Kutty v. Thomman, MANU/SC/0358/1976: AIR 1976 SC 1645.

26. Chandu Lal v. Khalilur Rahman A.I.R. I950 P.C. 17.

32. Krishnan Nair v. Kambi MANU/TN/0326/1936: AIR 1937 Mad 544.

34. Adi Pherozshah V. H.M. Seervai; MANU/SC/0044/1970: AIR 1971 SC 385.

35. Shakuntla Devi v. Kamla, MANU/SC/0277/2005: (2005) 5 SCC 390.

36. Management of Indian Aluminium Company Limited v. Sri S. Nagaiah MANU/KA/0064/2009.

41. Kesavan v. Lakshmy Amma, MANU/KE/0041/1968.

47. Mahboon Sahab v. Syed Ismail MANU/SC/0698/1995: (1995) 3 SCC 693.

50. Gopal v. Ram Lal, MANU/RH/0005/1989: AIR 1989 Raj 24.

52. Rajendra Kumar v. Kalyan, MANU/SC/0474/2000: AIR 2000 SC 3335.

53. Prasad v. Balmiki Prasad, MANU/SC/0008/1974: AIR 1975 SC 733.

55. Venkobacharlu v. Radabayamma, MANU/TN/0931/1924: AIR 1924 Mad 858.

56. G.K. Dudani v. S.D. Sharma MANU/SC/0570/1986: AIR1986SC1455.

57. Amalgamated Coalfields v. Janapada Sabha, MANU/SC/0311/1962: AIR 1964 SC 1013.

Punjab MANU/SC/0492/1970: AIR 1971 SC 1676.

60. Kirit Kumar Chaman Lal Kundaliya v. State of Gujarat MANU/SC/0164/1981.

66. Daryao v. The State of U.P. MANU/SC/0012/1961: AIR1961SC1457.

70. AIR 1961 SC 1437, Daryao v. State of U.P.

71. Daryao v. The State of U.P. MANU/SC/0012/1961: AIR1961SC1457.

76. Ghulam Sarwar v. Union of India, MANU/SC/0062/1966.

77. Ghulam Sarwar v. Union of India, MANU/SC/0062/1966.

78. Union of India v. Nanak Singh MANU/SC/0185/1968.

79. Ferro Alloys Corpn. Ltd. v. U.O.I. MANU/SC/0190/1999: AIR1999SC1236.

80. Pujaribai v. Madan Gopal, MANU/SC/0424/1989.

85. Radhaswami Satsang v. Income-tax Commissioner, MANU/SC/0061/1992: AIR 1992 SC 377.

89. Koran v. Kamla, MANU/KE/0037/1978: AIR 1978 Ker 172.

90. Balwant v. Mainabai, MANU/MP/0004/1991: AIR 1991 MP 11.

91. Yakubhai v. Imamuddin, MANU/GJ/0192/1991: AIR 1991 Guj 180.

92. L.I.C. of India v. India Automobiles, MANU/SC/0199/1991: AIR 1991 SC 884.

99. Nirmal v. Jahanara, MANU/SC/0023/1973: AIR 1973 SC 1406.

100. Nirmaljit Singh v. Harnam Singh; MANU/SC/0576/1996: AIR 1996 SC 2252.

101. Vijayalakshmi v. Ram Chandra, MANU/SC/0315/1981: AIR 1981 SC 1143.

102. Amalgamated Coalfields v. Janapada Sabha, MANU/SC/0311/1962L: AIR 1964 SC 1013.

103. V. N. Mammi Kutty v. Moonam Kutty, AIR 1993 Ker 104.

105. M.M. Ipoh v. Commissioner of Income-tax MANU/SC/0166/1967: AIR1968SC317.

110. Mahila Bajrangi v. Badribai; MANU/SC/1187/2002: (2003) 2 SCC 464.

111. Mohd. S. Labbai v. Mohd. Hanifa MANU/SC/0510/1976: AIR 1976 SC 1569.

112. V. Rajeshwari v. T.C. Saravanabava, MANU/SC/1057/2003: (2004) 1 SCC 551.

v. State of Uttar Pradesh MANU/SC/0059/1981: AIR 1981 SC 2198.

118. Amarendra Komalam. v. Usha Sinha; MANU/SC/0266/2005: AIR 2005 SC 2758.

122. Mt. Lachhmi v. Mt. Bhulli AIR 1927 Lah 289.

125. G.N. Nayak v. Goa University, MANU/SC/0055/2002: AIR 2002 SC 790.

132. K. J. Tradus v. State of Karnataka, MANU/KA/0018/1991: AIR 1991 Kar 63.

137. Janki Gope v. Jangbahadur AIR 1935 Patna 458.