DAMODARAM SANJIVAYYA NATIONAL

LAW UNIVERSITY
VISAKHAPATNAM
A.P. INDIA

JURISDICTION OF COURTS AND RES JUDICATA

CIVIL PROCEDURE CODE

Ms. BHAGYALAXMI

Name of the Candidate: VANYA SRIKANT

Roll No. & Semester: 20140140
Vth SEMESTER IIIrd YEAR
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ACKNOWLEDGMENT
I am highly elated to work on the topic JURISDICTION OF COURTS AND RES JUDICATA. I
take this opportunity to express my gratitude to the people who have been instrumental in
successful completion of the project. I am thankful to my teacher, Ms. Bhagyalaxmi, who
guided me in every step. I would like to enlighten my readers with my efforts. I have tried my
best to bring luminosity to this project.
I am thankful to the librarian who provided me required books and necessary materials. I could
not complete the project without their assistance.

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BRIEF CONTENTS

Abstract
1. Introduction
2. What is Res Judicata?
2.1. History of Doctrine
2.2. Rationale behind the Doctrine
2.3. Explanation I-VII to Section 11 of the Code of Civil Procedure, 1908
2.4. Applicability of Res Judicata
3. Essentials of Res Judicata
3.1. Matter directly and substantially in use
3.2. Former suit
3.3. Suit between same parties
4. Iftikhar Ahmed v. Syed Meherban Ali
5. Matters to be decided by Competent Court
6. The matter should be heard and finally decided
7. Res Judicata and Writ Petitions
7.1. Daryao v.State of U.P.
8. Conclusion
Bibliography

ABSTRACT

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We have often seen lawyers arguing in courts that the suit is struck by the principle of res
judicata. If this plea is accepted by the Bench, in principle, the case in question is rejected right
at the stage of admission itself.
According to the dictionary meaning, res judicata means a case or suit involving a particular
issue between two or more parties already decided by a court. Thereafter, if either of the parties
approaches the same court for the adjudication of the same issue, the suit will be struck by the
law of res judicata. The rule of 'res judicata' is based on the conditions of public policy. It
envisages that finality should attach to the binding decisions of the court so that the individuals
should not be made to face the same litigation twice.
Res Judicata Pro Veritate Occipitur is the full maxim which has, over the years shrunk to
Res Judicata.
The concept of Res Judicata finds its evolvement from the English Common Law system, being
derived from the overriding concept of judicial economy, consistency, and finality. From the
common law, it got included in the Code of Civil Procedure, 1908 and which was later as a
whole was adopted by the Indian legal system. From the Civil Procedure Code, the
Administrative Law witnesses its applicability. Then, slowly but steadily the other acts and
statutes also started to admit the concept of Res Judicata within its ambit. This research work
shall be dealing with every such aspect of res judicata.

1. INTRODUCTION
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Laws of every land are based on principles. These principles govern the entire realm of
jurisprudence in a country. These principles guide legislation, give legitimacy to judicial
decisions and protect the citizens of a nation. The judiciary incorporates these principles in
deciding cases and ensures conformity by the legislature and executive to such principles.
Res judicata is one such principle, whose origin cannot be sufficiently traced. It is an all
pervading concept present in all jurisdictions of the world. Res judicata is based on public policy
and has universal application. India, has adopted the principle of res judicata in S.11 of the Code
of Civil Procedure, 1908 (hereinafter referred to as C.P.C.).
Modern day society is filled with disputes and litigations. The courts are flooded with frivolous,
slow and cumbersome cases. The embodiment of a principle like res judicata, is but one of
necessity in our country. In order to bring finality to litigation and prevent a person from being
dragged to court again and again, res judicata is essential in any society.
This project essentially focuses on S.11 of the C.P.C. The scope of this project covers an
overview of the doctrine of res judicata in general providing a background to this paper. This
paper seeks to analyze theory of the doctrine and its application in the form of case laws.

2. WHAT IS RES JUDICATA?

The principle of res judicata while founded on a precedent is dictated by a wisdom which is for
all time.1
Res judicata is a judicial creation with roots in the Latin phrase Res judicata pro veritate
accipitur, a matter adjudged is taken for truth. 2 Res judicata is, in both civil law and common
law systems, a case in which there has been a final judgment and is no longer subject to appeal.
The term is also used to refer to the doctrine meant to bar re-litigation of such cases between the
same parties, which is different between the two legal systems. Once a final judgment has been
1 SIR LAWRENCE JENKINS, Sheoprasad Singh v. Ramanandan Prasad Singh, AIR 1916 PC 78.
2 ALLAN D. VESTAL, RES JUDICATA/PRECLUSION 19 (1969); Barbara Andersen Gimbel, The
ResJudicata Doctrine Under Illinois and Federal Law, 88 ILL. B.J. 404, 404 (2000)
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handed down in a lawsuit, subsequent judges who are confronted with a suit that is identical to or
substantially the same as the earlier one will apply the res judicata doctrine to preserve the effect
of the first judgment.3 The principle of res judicata is not the creature of any statute or the
handiwork of any code of law. It is the gift of public policy.4
2.1.

HISTORY OF DOCTRINE

The doctrine of res judicata, in its essence, has an ancient history, although it is difficult to say
definitively whether or not the doctrine as it stands now was formulated before 1776. 5
Understood in the distant past by both Hindu lawyers and Muslim jurists, it was known to
ancient Hindu Law as Purva Nyaya" or former judgement. 6 Under Roman Law, it was
recognized by the doctrine of exception rei judicatae which also meant previous judgment.
Under English law, the principle is embodied in the maxim interest reipublicae ut sit finis litium,
which means the interest of the State lies in that there should be a limitation to law suits. Now,
all the countries of the Commonwealth and those of the European Continent accept that once a
matter has been brought to trial once, it should not be tried again except by way of appeal.
In order for the bar of res judicata to be applicable, it must be shown that the cause of action in
both the suits is the same as well as that the plaintiff had an opportunity to get the relief that is
now being claimed in the subsequent suit, in the former proceeding itself.7 Res judicata bars the
opening of final, un-appealed judgments on the merits, even where the judgment may have been
wrong or based on a legal principal subsequently overruled.8

3 Satyadhyan ghoshal v Deorjin Debi AIR 1960 SC 941

4 Gulabchand Chhotalal Parikh vs State Of Bombay, 1965 AIR 1153
5 Duches of Kingston's Case (2 Smith's L.C. 13th edn. 644, 645.)
6 Raj Lakshmi Dasi v. Banawali Sen, AIR 1953 SCC 33; [1953]4 SCR 154.
7 Explanation VII of Section 11 of the Code of Civil Procedure, 1908.
8 Union of India and Others v. Major S.P. Sharma and Others, CIVIL APPEAL NOs.2951-2957 OF 2001
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2.2.

RATIONALE BEHIND THE DOCTRINE

The essence of the doctrine of res judicata is the judicially formulated proposition that a matter
which has been adjudicated in a prior action cannot be litigated a second time. The policies
which res judicata is designed to serve include the public interest in decreasing litigation,
protection of the individual from the harassment of having to litigate the same cause of action or
issue against the same adversary or his privy more than once, and facilitation of reliance on
judgments.9
Essentially, the doctrine of res judicata in general is based on the three following maxims 10:
nemo debet lis vexari pro una et eadem casua meaning that no man should be vexed twice for
the same cause, interest republicae ut sit finis litium or that it is in the interest of the State that
there should be an end to litigation, and res judicata pro veritate occipitur meaning that a
judicial decision must be accepted as correct.
The principle itself is founded upon the principles of justice equity and good conscience, and
applies to various civil suits, criminal proceedings, writs, execution proceedings etc. 11 The
underlying purpose for this judicially created doctrine was to instill finality into litigation and to
provide for sound economic use of judicial resources.12
2.3.

EXPLANATIONS

I-

VIII

TO

SECTION

11,

CODE

OF

CIVIL

PROCEDURE, 1908
Explanation I to S.11 states that res judicata depends upon the decision unlike S. 10, wherein
res sub judice hinges upon the institution of a suit.

9 Wulfjen v. Dolton , 24 Cal.2d 891

10 Duches of Kingston's Case (2 Smith's L.C. 13th edn. 644, 645.)
11 Ramesh Chandra Sankla Etc . Vs. Vikram Cement Etc. AIR 2009 SC 713: 2008 (10) SCALE 112
12 Arikapudi Balakotayya v. Yadlapalli Nagayyaheld, AIR 1946 Mad 509
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Explanation II to S.11 lays down that the finality of such a decision does not depend upon the
existence of a right to appeal. The decision is taken as final regardless of whether the right to
appeal exists.
Explanation III deals with matters that are actually in issue, vis--vis constructively in issue (as
in Explanation IV), inasmuch as there is a dispute, where one party alleges something and the
other party either denies it or admits it.
Explanation IV embodies the doctrine of constructive res judicata.
Explanation V declares that if multiple reliefs are sought in the plaint, those which are not
granted expressly by the Court are deemed to have been refused. So, if the Court does not make
reference to some or any reliefs which are claimed, the law deems them to have been refused by
the Court.
Explanation VI provides that if one or more persons file a suit on behalf of many others, who
also have a right to file such a suit, then the decision in such a suit will be binding upon those
who file the suit, as well as all those people on whose behalf such a suit is filed/who are
represented by the persons who actually file the suit.
Explanation VII, as explained earlier, indicates that the doctrine of res judicata as provided for
by S. 11 applies to execution proceedings as well. However, it is important to note that different
petitions may be filed asking for different reliefs. E.g. While a civil arrest may be sought only
once, attachment of property, immovable or movable, may be sought numerous times, since the
defendant may acquire new property. Hence, res judicata will not apply, as in each case the
property is different.
Explanation VIII declares that res judicata will apply to a subsequent suit even where the Court
that decided the former suit is not competent to try the subsequent one, provided that it was
competent to try the former suit, wherein the decision was given.
2.4.

APPLICABILITY OF RES JUDICATA

Res judicata is a principle of universal application. It applies to civil suits, criminal proceedings,
writ petitions, execution suits etc. This doctrine is however, neither applicable to summary
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dismissal nor to compromise and consent decrees. 13 The doctrine of res judicata is not confined
to the limits prescribed in Section 11, Civil Procedure Code. The underlying principle of that
doctrine is that there should be finality in litigation and that a person should not be vexed twice
over in respect of the same matter.14 The essential condition for the applicability is that the
subsequent suit or proceeding is founded on the same cause of action on which the former suit
was founded.15 It is a debatable point whether the doctrine of res judicata should be interpreted
liberally or strictly. However, keeping in view its basis and objective, which is based on public
policy, it can be reasonably asserted that the doctrine of res judicata should be interpreted
liberally.16

3. ESSENTIALS OF RES JUDICATA

Res judicata has universal application. In jurisdictions world over the essentials of res judicata
are that: once a court with competent personal and subject matter jurisdiction over the parties
renders a final judgment, that judgment should conclude the matter between the parties. These
principles provide the foundation for the doctrine of res judicata. As a general rule, in order for
the doctrine of res judicata to apply to future litigation, four elements must be present. First, the
court must have competent jurisdiction over both the subject matter in dispute and the parties
involved in the litigation. Second, the judgment must have been on the merits. If the plaintiff
received judgment in her favor, there is no question that the judgment was on the merits. If the
defendant received judgment in her favor, then the judgment may or may not be upon the
merits. As a general rule, when a plaintiff's claim is dismissed based on procedure, the judgment
is not on the merits. However, if a court's ruling in favor of a defendant was not based on
procedural grounds, then the judgment will generally be on the merits. Third, the second case
13 In CORPUS JURIS (vol. 34, p. 743)
14 Duches of Kingston's Case (2 Smith's L.C. 13th edn. 644, 645.)
15 Gulabchand Chhotalal Parikh vs State Of Bombay, 1965 AIR 1153, 1965 SCR (2) 547
16 Columbia Steel Fabricators, Inc. v. Ahlstrom Recovery, 44 F.3d 800 (9th Circ.1995)
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must be based on the same cause of action as the first action. Finally, the parties in the second
action must have been involved in the initial litigation. Moreover, when the doctrine of res
judicata applies to a second suit involving the same parties and the same cause of action, the first
judgment is conclusive not only on the matters that were actually litigated, but on all matters
which could have been litigated. Res judicata bars the opening of final, un-appealed judgments
on the merits, even where the judgment may have been wrong or based on a legal principal
subsequently overruled. The underlying purpose for this judicially created doctrine was to instill
finality into litigation and to provide for sound economic use of judicial resources.17
Under the Code of Civil Procedure, 1908 the conditions for res judicata to apply are18:

The matter which is directly and substantially in issue in the subsequent suit or issue must be the
same matter which was directly and substantially in issue, either actually or constructively in the
former suit. This applies to execution proceedings as well.
It is necessary that the parties to the subsequent suit be the same parties as were in the former
suit, or are parties who are claiming under the parties to the former suit.
The parties should have been litigating under the same title, i.e. in the same capacity as the
former suit. In order for the bar of res judicata to apply to the subsequent suit, or the issues
therein, the same (matters directly and substantially in issue) should have been heard and decided
by a Court in the former suit. It is important to note that the Court which decided the former suit
should have been competent to decide such former suit, and had done so on merits.
Earlier, it was required that the Court which decided the former suit must be competent to decide
the subsequent suit as well. However, now, with the insertion of Explanation VIII into the
section, such a requirement has been done away with.
3.1.

MATTER DIRECTLY AND SUBSTANTIALLY IN USE

17 Satyadhyan Ghoshal v Deorjin Debi AIR 1960 SC 941

18 Sarla Bala Devi v. Shyam Prasad Chatterjee, 23 AIR 1948 PC 168.
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The words in S.11 use the phrase matter directly and substantially in issue. Thus, for res
judicata to operate the former suit and the subsequent suit should have matter which was
directly and substantially in issue.19
The test to decide whether a matter was directly and substantially in issue in the earlier
proceedings is to see if it was necessary for that issue to be decided in order for an adjudication
upon the principal issue. However, every single issue framed is not a matter which is directly and
substantially in issue. Thus, is becomes imperative to examine the plaint and the written
statement to arrive at a conclusion as to which issues were directly and substantially in issue and
which ones were merely incidentally or collaterally in issue. 20 Another manner in which such
may be tested is by checking if decision on such an issue would materially affect the decision of
the suit.21
Where there are findings on several issues or where the court rests its decision on more than one
point, the findings on all the issues or points will be res judicata. 22 However, no objective test can
be laid down to definitively determine which matters are directly and substantially in issue in
every case and it depends on the facts and circumstances of each case.
3.2.

FORMER SUIT

The most important condition that needs to be satisfied is that the matter in issue in the
subsequent suit was in issue, directly and substantially, in a former suit. The general and ordinary
meaning of suit is a proceeding which is commenced by presentation of a plaint. 23 Ordinarily,
and in more specific terms, a suit is a civil proceeding that is instituted by the presentation of a
19 Explanation IV of Section 11 of Code of Civil Procedure, 1908
20 Sir Lawrence Jenkins in Duches of Kingston's Case (2 Smith's L.C. 13th edn. 644, 645.)
21 Shivakumar H B vs Sri L C Hanumanthappa
22 Jallur Venkata Seshayya v. Thadviconda Koteswara Rao
23 In Hansraj Gupta V. Official Liquidators, Dehra Dun-Mussoorie Electric Tramway Co (1932) L.R. 60
I.A. 13, s.c. 35 Bom. L.R. 319
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plaint.24 The expression former suit denotes a suit that has been decided earlier in time than the
suit in question, i.e. the subsequent suit, regardless of whether such a suit which was decided
earlier was instituted subsequently to the suit in question or not. If two suits are instituted one
after the other, and both relate to the same question in controversy, the bar of res judicata will
apply even in cases where the subsequently instituted suit is decided first.25
3.3.

SUIT BETWEEN SAME PARTIES

A party is a person whose name appears on the record at the time of the decision. A party may
be the plaintiff or defendant. The condition recognizes the general principle of law that
judgments and decrees bind the parties and privies. 26 Once the matter is heard and decided in one
suit, the same cannot be agitated again by the same parties, their legal representatives or
successors. Res judicata binds in a subsequent suit, the same parties to the former suit, the legal
representatives of such parties or anyone claiming under such parties. Further, even if a
subsequent suit is brought about in a different form or under a different guise, but seeking to
agitate the same matter as was decided in the former suit, it will be barred by res judicata. E.g. A
sues B for breach of contract. As suit is dismissed. A cannot file a fresh suit against B for
claiming damages.
Res judicata also operates between co-plaintiffs and co-defendants. In case of co-plaintiffs, it
must be necessary that there is a conflict between the plaintiffs that must be resolved in order to
give relief to the defendant, and such a matter is decided by the Court and the parties were
necessary or proper parties in the former suit. If it is so decided, the decision will operate as res
judicata between the co-plaintiffs in a subsequent suit.27

24 Venkata Chandrappa Nayanivaru v. Venkatarama Reddi (1898) I.L.R. 22 Mad. 250

25 Sarla Bala Devi v. Shyam Prasad Chatterjee, 23 AIR 1948 PC 168.
26 Rural Litigation And Entitlement Kendra v. State of U.P., AIR 1985 SC 652
27 C.M.V. Krishnamachari vs M.D. Dhanalakshmi Ammal And Ors., AIR 1968 Mad 142
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4. IFTIKHAR AHMED V. SYED MEHERBAN ALI28

There was a dispute as to title to some land. The appellant sought to challenge the decision of the
High Court, which was to the effect that the respondents also had some title to the land in
question. Initially, the dispute between the parties was referred to an arbitrator by the Civil
Judge. The holding of the arbitrator was that that the respondents had no title and sole title
belonged to the appellant. The decision of the arbitrator was based upon a judgment of the High
Court in an earlier judgement, wherein both the present appellant and respondents were coplaintiffs in a suit against another person, again in respect of title to the land. Such a decision of
the High Court was considered by the arbitrator to operate as res judicata, and hence held in
favor of the appellants.
The respondents then filed objections against the decision of the arbitrator with the Civil Judge,
Meerut, and the Civil Judge said that the decision of the High Court did not operate as res
judicata and since the decision of the arbitrator, dependent as it was on the decision of the High
Court as res judicata, was manifestly wrong and vitiated by error of law. An order for fresh
arbitration was passed.
The appellants then filed objections before the Civil Judge who did not find anything manifestly
wrong on the face of the record and confirmed the decision of the arbitrator. The appellants
preferred an appeal to the District Court, which allowed it, opining that the decision of the High
Court did constitute res judicata and hence ordered a fresh arbitration. The respondents then filed
a revision petition in the High Court, and the High Court confirmed the decision of the Civil
Judge, reversing the decision of the District Court.
The matter then came up before the Supreme Court a Special Leave Petition. The Supreme Court
considered the matter, and considered the question of whether the respondents, who had had
failed previously to establish title to the properties, could agitate the matter again. In doing so,
the Court also explained the concept of res judicata between defendants and reiterated the
established rule that in order that such a principle may be invoked, the following conditions must
be met:
28 1974 AIR 749, 1974 SCR (3) 464
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(1) There was a conflict of interest between co-defendants;

(2) That it was necessary to decide the conflict in order to give the relief which the plaintiff
claimed in the suit; and
(3) That the court actually decided the question.
The Court then went on to say that if all these conditions were satisfied mutatis mutandis, there
was no reason why the previous decision should not operate as res judicata between co-plaintiffs
as well. On this reasoning, the Court agreed with the holding of the earlier arbitrators and
contention of the appellants that the earlier decision of the High Court did operate as res judicata,
since all the three conditions had been met mutatis mutandis between the co-plaintiffs in the
earlier case, and accordingly allowed the appeal.
It is also important to mention that the parties in the subsequent suit, though they may be the
same, must additionally be litigating in the same capacity as they were in the former suit.

5. MATTERS TO BE DECIDED BY COMPETENT COURT

It is essentially for res judicata to operate against the subsequent, that the former suit should have
been decided by a court competent to try the subsequent suit. The expression competent to
try means competent to try the subsequent suit if brought at the time the first suit was
brought.29 Before Explanation VIII was added to S. 11, the position was that the Court that
decided the former suit must have been competent to decide the subsequent suit as well, and if it
was not, then res judicata would not apply. However, with the insertion of Explanation VIII, even
if the Court that decided the former suit is not competent to decide the subsequent suit, res
judicata will still be applicable provided that the former suit was decided by a competent Court.
The current position of law is that even if the Court that decided the former suit is not competent
to decide the subsequent one, and yet there are some common issues which arise in the
subsequent suit, which the Court (being competent to do so), decided in the former suit, the
doctrine of res judicata will operate against such issues, and the Court deciding the subsequent
suit will not decide upon these issues.
29 Abinash Chandra v. Madhusudan Majumdar, AIR 1952 Cal 673
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This may arise in the case of pecuniary jurisdiction, the Court which decided the first suit cannot
decide the second one, but the second suit does have certain issues which were decided in the
former suit (and competently so). In such a case, the second court shall not decide those issues
that were decided by the first court in the former suit. In such a case, res judicata will apply not
to the subsequent suit, but to those issues therein which were decided in the former suit.

6. THE MATTER SHOULD BE HEARD AND FINALLY DECIDED

For res judicata to be applied, it is necessary that that the matter should have been heard and
finally decided in the former suit, and whether such decision be right or wrong is of
consequence.30 If an opinion is expressed on issues not material to the decision, then res judicata
will not apply.31 The matters which are directly and substantially in issue in the subsequent suit
must have been heard by the Court in the former suit and a final decision on the same must have
been delivered. In such cases, res judicata will apply to the subsequent suit. Such a provision also
applies to former suits that were disposed of ex parte, provided that notifications were suitably
issued to the party in question. But if a suit is dismissed on a technical ground, such a nonjoinder of necessary party, it would not operate as res judicata.32

6.1.

RES JUDICATA V. RES SUB JUDICE

Often people confuse the concepts of res sub judice and res judicata. Res sub judice is discussed
in S. 10 and applies to the date of institution of suit. It is matter pending judicial enquiry. S. 11 of
the CPC and is a matter adjudicated upon and applies to the date of adjudication.

30 Gita Ram Kalsi vs S. Prithvi Singh And Ors., AIR 1956 P H 129
31 Bai Chanchal Widow Of Chhaganbhai vs Bai Suraj Widow Of Ranchhodbhai, AIR 1963 Guj 198
32 Smt. Kiran Kumari And Anr. vs Sethani Prabhavati Kanwar And Ors., AIR 1962 Raj 139
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Res sub judice stays the latter suit instituted in court which has the same matter directly and
substantially in issue in the previous suit. Res judicata bars the trial of a suit in which the matter
directly and substantially in issue has already been adjudicated upon in a previous suit.33

7. RES JUDICATA AND WRIT PETITIONS

It was debatable whether the term suit would include writs and whether the principle of res
judicata would apply to writ petitions.
7.1.

DARYAO V. STATE OF U.P.34

Six writ petitions were presented before the Supreme Court entertaining this question. One of the
writ petitions was examined in detail by the court.
Facts- The relevant facts are that the petitioners were tenants in the lands of which the
respondents were proprietors. The petitioners had to leave the lands for some period owing to
communal disturbances. When the petitioners returned, they found that the respondents were in
unlawful possession of the land. The petitioners then filed ejectment suits under S. 180 of the
U.P. Tenancy Act, 1939, and obtained a decree in their favor, which was confirmed in appeal,
and thereby obtained possession of the said lands through Court.
The respondents preferred a second appeal before the Board of Revenue under S. 267 of the Act
of 1939, wherein the Board allowed the appeal and held that the respondents were entitled to the
possession of the lands in question.

High Court: The petitioners filed a writ petition under A. 226 before the High Court. However,
before the petition was filed, the Allahabad High Court had interpreted a particular section of the
U.P. Land Reforms Act, and such an interpretation was against the interests of the petitioners.
Hence, in consequence of such interpretation, the petitioners could not press their petition, and it
33 Devilal Modi v. Sales Tax Officer, AIR 1965 SC 1150
34 1961 AIR 1457, 1962 SCR (1) 574
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was consequently was dismissed. The same section of the said Act was later amended, in
consequence of which the petitioners approached the Supreme Court via writ petition under
Article 32.
The question that arose for consideration was that since the grounds were same as those raised
before the Allahabad High Court, was the writ petition was hit by res judicata? The petitioners
placed reliance on the supremacy of A. 32 and it being above all other rights. They emphasized
that a fundamental right cannot be whittled down by a technical rule of the C.P.C. as the
Constitution is supreme.
Supreme Court: The Supreme Court was not impressed with the arguments of the petitioners.
The court held that the rule of res judicata as embodied in S. 11 of the Code did have some
technical aspects, but was by and large based on high public policy that there should be a finality
to litigation, and was also based upon the notion that no person should be vexed twice for the
same cause. Due to the doctrine being based on these considerations it couldnt be treated as
irrelevant or inadmissible even where writ petitions dealing with fundamental rights were
concerned.
The other contention of the petitioners was that High Court and Supreme Court cannot be said to
be courts of competent jurisdiction as they are different. This contention was also negated by the
court and it held that the jurisdictions of the High Court under A. 226 and the Supreme Court
under A. 32 were substantially the same, and even on that count, the application of res judicata
couldnt be barred. Based on these reasons, the Supreme Court dismissed the writ petitions as
being barred by res judicata arising from the previous decision of the High Court and laid down
the rule that
We hold that if a writ petition filed by a party under Art. 226 is considered on the merits as a
contested matter, and is dismissed the decision thus pronounced would continue to bind the
parties unless it is otherwise modified or reversed by appeal or other appropriate proceedings
permissible under the Constitution. It would not be open to a party to ignore the said judgment
and move this Court under Art. 32 by an original petition made on the same facts and for
obtaining the same or similar orders or writs. If the petition filed in the High Court under Art.
226 is dismissed not on the merits but because of the laches of the party applying for the writ or
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because it is held that the party had an alternative remedy available to it, then the dismissal of the
writ petition would not constitute a bar to a subsequent petition under Art. 32 except in cases
where and if the facts thus found by the High Court may themselves be relevant even under Art.
32.
However, this view of the Supreme Court has been criticized by some jurists. They have argued
that the judiciary has reduced the fundamental fight in Article 32 as one subject to the principle
of res judicata and even laches, forgetting that there is no great fundamental principle than the
right guaranteed in moving the court under Article 32. Article 32 is silent as to res judicata and
limitation but judicial legislation has introduced these needless aspects into writ jurisprudence.35
It is submitted that the researcher agrees with the view of the Supreme Court. There has to be
finality to litigation. Keeping in view the slow process of judicial remedy and frivolous litigation
in our society, it is rather imperative that the principle of res judicata be given as liberal an
interpretation and its scope should not be curtailed.

8. CONCLUSION
The principle of Res Judicata does not apply strictly to public interest litigations. The procedural
laws are not fully applicable to PIL cases. Where the prior public interest relates to illegal
mining, subsequent public interest litigation to protect environment is not barred. Though, the
provisions of section 11 of the Code 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 of the Indian Evidence Act which defines with precision the grounds of such evidence 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 facts. Other factors in exception
to section 11 being present must be litigating bona fide and the fulfillment of this is necessary for
the applicability of the section.

Since the primary object of Res Judicata is to bring an end to litigation, there is no reason not to
extend the doctrine to public interest litigation.
35 A.R. Antulay vs R.S. Nayak & Anr, 1988 AIR 1531, 1988 SCR Supl. (1)1
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In Forward Construction Co. v. Prabhat Mandal,36 the Supreme Court was directly called upon
to decide the question. The apex court held that the principle would apply to public interest
litigation provided it was a bona fide litigation.
In another case of Ramdas Nayak v. Union of India,37 the court observed:
It is a repetitive litigation on the very same issue coming up before the courts again and again in
the grab of public interest litigation. It is high time to put an end to the same.

BIBLIOGRAPHY
-Cases Referred36 1986 AIR 391, 1985 SCR Supl. (3) 766
37 AIR 1995 Bom 235, 1995 (3) BomCR 301, (1995) 97 BOMLR 809
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Sheoprasad Singh v. Ramanandan Prasad Singh

Satyadhyan Ghoshal v Deorjin Debi
Gulabchand Chhotalal Parikh vs State Of Bombay
Duches of Kingston's Case
Raj Lakshmi Dasi v. Banawali Sen
Union of India and Others v. Major S.P. Sharma and Others
Wulfjen v. Dolton
Ramesh Chandra Sankla Etc . Vs. Vikram Cement Etc.
Arikapudi Balakotayya v. Yadlapalli Nagayyaheld
Columbia Steel Fabricators, Inc. v. Ahlstrom Recovery
Sarla Bala Devi v. Shyam Prasad Chatterjee
Shivakumar H B vs Sri L C Hanumanthappa
Jallur Venkata Seshayya v. Thadviconda Koteswara Rao
Hansraj Gupta V. Official Liquidators, Dehra Dun-Mussoorie Electric Tramway Co.
Venkata Chandrappa Nayanivaru v. Venkatarama Reddi
Rural Litigation And Entitlement Kendra v. State of U.P
C.M.V. Krishnamachari vs M.D. Dhanalakshmi Ammal And Ors
Iftikhar Ahmed v. Syed Meherban Ali
Abinash Chandra v. Madhusudan Majumda
Gita Ram Kalsi vs S. Prithvi Singh And Ors.
Bai Chanchal Widow Of Chhaganbhai vs Bai Suraj Widow Of Ranchhodbhai
Smt. Kiran Kumari And Anr. vs Sethani Prabhavati Kanwar And Ors
Devilal Modi v. Sales Tax Officer
Daryao v. State of U.P.
A.R. Antulay vs R.S. Nayak & Anr.
Forward Construction Co. v. Prabhat Mandal
Ramdas Nayak v. Union of India

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