Legal Blog: 'Res Judicata' : The Law

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Thursday, February 3, 2011

'Res Judicata' : The Law

Justice Singhvi
The Supreme Court in M.Nagabhushana vs State Of Karnataka & Ors. has reiterated the principles and the concept of 'Res Judicata'. The Court, while examining various judicial pronouncements on the subject, has, inter alia, held as under;

14. The principles of Res Judicata are of universal application as it is based on two age old principles, namely, `interest reipublicae ut sit finis litium' which means that it is in the interest of the State that there should be an end to litigation and the other principle is `nemo debet his ve ari, si constet curiae quod sit pro un aet eademn cause' meaning thereby that no one ought to be vexed twice in a litigation if it appears to the Court that it is for one and the same cause. This doctrine of Res Judicata is common to all civilized system of jurisprudence to the extent that a judgment after a proper trial by a Court of competent jurisdiction should be regarded as final and conclusive determination of the questions litigated and should for ever set the controversy at rest.

15. That principle of finality of litigation is based on high principle of public policy. In the absence of such a principle great oppression might result under the colour and pretence of law in as much as there will be no end of litigation and a rich and malicious litigant will succeed in infinitely vexing his opponent by repetitive suits and actions. This may compel the weaker party to relinquish his right. The doctrine of Res Judicata has been evolved to prevent such an anarchy. That is why it is perceived that the plea of Res Judicata is not a technical doctrine but a fundamental principle which sustains the Rule of Law in ensuring finality in litigation. This principle seeks to promote honesty and a fair administration of justice and to prevent abuse in the matter of accessing Court for agitating on issues which have become final between the parties.

16. Justice Tek Chand delivering the unanimous Full Bench decision in the case of Mussammat Lachhmi Vs. Mussammat Bhulli (ILR Lahore Vol.VIII 384) traced the history of this doctrine both in Hindu and Mohammedan jurisprudence as follows:-

"In the Mitakshra (Book II, Chap. I, Section V, verse 5) one of the four kinds of effective answers to a suit is "a plea by former judgment" and in verse 10, Katyayana is quoted as laying down that "one against whom a judgment had formerly been given, if he bring forward the matter again, must be answered by a plea of Purva Nyaya or former judgment" (Macnaughten and Colebrooke's translation, page 22). The doctrine, however, seems to have been recognized much earlier in Hindu Jurisprudence, judging from the fact that both the Smriti Chandrika (Mysore Edition, pages 97-98) and the Virmitrodaya (Vidya-Sagar Edition, page 77) base the defence of Prang Nyaya (former decision) on the following text of the ancient law- giver Harita, who is believed by some Orientalists to have flourished in the 9th Century B.C. and whose Smriti is now extant only in fragments:-

"The plaintiff should be non- suited if the defendant avers: `in this very affair, there was litigation between him and myself previously,' and it is found that the plaintiff had lost his case".

There are texts of Prasara (Bengal Asiatic Society Edition, page 56) and of the Mayukha (Kane's Edition, page 15) to the same effect.

Among Muhammadan law-givers similar effect was given to the plea of "Niza-i-munfasla" or "Amar Mania taqrir mukhalif." Under Roman Law, as administered by the Proetors' Courts, a defendant could repel the plaintiff's claim by means of `exceptio rei judicatoe" or plea of former judgment. The subject received considerable attention at the hands of Ruman jurists and as stated in Roby's Roman Private Law (Vol.II, page 338) the general principle recognised was that "one suit and one decision was enough for any single dispute" and that "a matter once brought to trial should not be tried except, of course, by way of appeal".

(Page 391-392 of the report)

17. The learned Judge also noted that in British India the rule of Res Judicata was first introduced by Section 16 of the Bengal Regulation, III of 1973 which prohibited the Zilla and City Courts from entertaining any cause which, from the production of a former decree or the record of the Court, appears to have been heard and determined by any Judge or any Superintendent of a Court having competent jurisdiction. The learned Judge found that the earliest legislative attempt at codification of the law on the subject was made in 1859, when the first Civil Procedure Code was enacted, whereunder Section 2 of the Code barred every Court from taking cognizance of suits which, on the same cause of action, have been heard and determined by a Court of competent jurisdiction. The learned Judge opined, and in our view rightly, that this was partial recognition of the English rule in so far as it embodied the principles relating to Estoppel by judgment or Estopel by record.

18. Thereafter, when the Code was again revised in 1877, the operation of the rule was extended in Section 13 and the bar was no longer confined to the retrial of a dispute relating to the same cause of action but the prohibition was extended against reagitating an issue, which had been heard and finally decided between the same parties in a former suit by a competent court. The learned Judge also noted that before the principle assumed its present form in Section 11 of the Code of 1908, the Section was expanded twice. However, the learned Judge noted that Section 11 is not exhaustive of the law on the subject.

19. It is nobody's case that the appellant did not know the contents of FWA. From this it follows that it was open to the appellant to question, in the previous proceeding filed by it, that his land which was acquired was not included in the FWA. No reasonable explanation was offered by the appellant to indicate why he had not raised this issue. Therefore, in our judgment, such an issue cannot be raised in this proceeding in view of the doctrine of Constructive Res Judicata.

20. It may be noted in this context that while applying the principles of Res Judicata the Court should not be hampered by any technical rules of interpretation. It has been very categorically opined by Sir Lawrence Jenkins that "the application of the rule by Courts in India should be influenced by no technical considerations of form but by matter of substance within the limits allowed by law". [See Sheoparsan Singh Vs. Rammanandan Prasad Singh, (1916) 1 I.L.R. 43 Cal. 694 at page 706 (P.C.)].

21. Therefore, any proceeding which has been initiated in breach of the principle of Res Judicata is prima-facie a proceeding which has been initiated in abuse of the process of Court.

22. A Constitution Bench of this Court in Devilal Modi Vs. Sales Tax Officer, Ratlam & Ors. - AIR 1965 SC 1150, has explained this principle in very clear terms: "But the question as to whether a citizen should be allowed to challenge the validity of the same order by successive petitions under Art. 226, cannot be answered merely in the light of the significance and importance of the citizens' fundamental rights. The general principle underlying the doctrine of res judicata is ultimately based on considerations of public policy. One important consideration of public policy is that the decisions pronounced by courts of competent jurisdiction should be final, unless they are modified or reversed by appellate authorities; and the other principle is that no one should be made to face the same kind of litigation twice over, because such a process would be contrary to considerations of fair play and justice, vide : Daryao Vs. State of U.P., 1962-1 SCR 575; (AIR 1961 SC 1457)."

23. This Court in All India Manufacturers Organisation (supra) explained in clear terms that principle behind the doctrine of Res Judicata is to prevent an abuse of the process of Court.

24. In explaining the said principle the Bench in All India Manufacturers Organisation (supra) relied on the following formulation of Lord Justice Somervell in Greenhalgh Vs. Mallard - (1947) 2 All ER 255 (CA): "I think that on the authorities to which I will refer it would be accurate to say that res judicata for this purpose is not confined to the issues which the court is actually asked to decide, but that it covers issues or facts which are so clearly part of the subject-matter of the litigation and so clearly could have been raised that it would be an abuse of the process of the court to allow a new proceeding to be started in respect of them."

25. The Bench also noted that the judgment of the Court of Appeal in "Greenhalgh" was approved by this Court in State of U.P. Vs. Nawab Hussain - (1977) 2 SCC 806 at page 809, para 4.

26. Following all these principles a Constitution Bench of this Court in Direct Recruit Class II Engg. Officers' Assn. Vs. State of Maharashtra - (1990) 2 SCC 715 laid down the following principle: "......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 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. Thus, the principle of constructive res judicata underlying Explanation IV of Section 11 of the Code of Civil Procedure was applied to writ case. We, accordingly hold that the writ case is fit to be dismissed on the ground of res judicata"

27. In view of such authoritative pronouncement of the Constitution Bench of this Court, there can be no doubt that the principles of Constructive Res Judicata, as explained in explanation IV to Section 11 of the CPC, are also applicable to writ petitions.

2 comments:

  1. Lying, distortion and other forms of intellectual dishonesty are endemic among judges; the Judiciary in India is infested with psychopathic judges; the reason why psychopathic misbehavior is so common is that there is no accountability for giving a complete go-by to the principles of law, including the principle of res judicata, laid down by the Supreme Court.

    In this context, let me share my personal experience. On 18.11.2003, CAT expressly quashed and set aside an illegal and unconstitutional order of Government of Maharashtra (GOM) dated 13.5.1996. However, CAT did not quash the consequential orders; the stand of the CAT was that the impugned consequential orders amount to multifariousness. Therefore, I partly impugned the said Order of CAT in Delhi High Court (HC), for quashment of the said consequential orders. The respondents did not impugn the said Order of CAT; therefore, the said quashment of the said order of GOM dated 13.5.1996 became legally final and binding. Therefore, HC could not have re-opened the said quashment of the said order of GOM dated 13.5.1996; however, Justice Pradeep Nandrajog, who is known as the knight-errant of Indian Judiciary, has re-opened the said settled issue of the said quashment of the said order of GOM dated 13.5.1996, on the imaginary ground that the said quashment is per incuriam, ignoring the settled law that the principle of per incuriam has no application to the doctrine of res judicta.

    In a nutshell, our country, including the Judiciary, is steeped in hypocrisy. High Courts and subordinate courts covertly hold the judgments of the Supreme Court in contempt. The Supreme Court itself has repeatedly expressed anguish and agony over the psychopathic misbehavior (judicial indiscipline and judicial impropriety) of these judges, but to no avail.

    The need of the hour is that all these judges and all the other personnel in the Executive and Legislative branches of the Government must be required to undergo a prescribed psychopathic test, developed by Dr. Robert D. Hare. Otherwise, we shall continue to be ruled by those who have no conscience, and, the evils shall continue to multiply, and, we shall continue to be slaves, not knowing the truth that we are having a system called pathocracy, not democracy.

    vijay.kumar.agarwal.ias@gmail.com
    http://vijaykumarias.blogspot.com
    pradeep nandrajog.wordpress.com

    ReplyDelete
  2. Vijay Kumar AgarwalJanuary 11, 2012 at 9:00 PM

    Lying, distortion and other forms of intellectual dishonesty are endemic among judges; the Judiciary in India is infested with psychopathic judges; the reason why psychopathic misbehavior is so common is that there is no accountability for giving a complete go-by to the principles of law, including the principle of res judicata, laid down by the Supreme Court.

    In this context, let me share my personal experience. On 18.11.2003, CAT expressly quashed and set aside an illegal and unconstitutional order of Government of Maharashtra (GOM) dated 13.5.1996. However, CAT did not quash the consequential orders; the stand of the CAT was that the impugned consequential orders amount to multifariousness. Therefore, I partly impugned the said Order of CAT in Delhi High Court (HC), for quashment of the said consequential orders. The respondents did not impugn the said Order of CAT; therefore, the said quashment of the said order of GOM dated 13.5.1996 became legally final and binding. Therefore, HC could not have re-opened the said quashment of the said order of GOM dated 13.5.1996; however, Justice Pradeep Nandrajog, who is known as the knight-errant of Indian Judiciary, has re-opened the said settled issue of the said quashment of the said order of GOM dated 13.5.1996, on the imaginary ground that the said quashment is per incuriam, ignoring the settled law that the principle of per incuriam has no application to the doctrine of res judicta.

    In a nutshell, our country, including the Judiciary, is steeped in hypocrisy. High Courts and subordinate courts covertly hold the judgments of the Supreme Court in contempt. The Supreme Court itself has repeatedly expressed anguish and agony over the psychopathic misbehavior (judicial indiscipline and judicial impropriety) of these judges, but to no avail.

    The need of the hour is that all these judges and all the other personnel in the Executive and Legislative branches of the Government must be required to undergo a prescribed psychopathic test, developed by Dr. Robert D. Hare. Otherwise, we shall continue to be ruled by those who have no conscience, and, the evils shall continue to multiply, and, we shall continue to be slaves, not knowing the truth that we are having a system called pathocracy, not democracy.

    vijay.kumar.agarwal.ias@gmail.com
    http://vijaykumarias.blogspot.com
    pradeep nandrajog.wordpress.com
    January 11, 2012 8:46 PM

    ReplyDelete

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