Res Judicata and Constructive Res Judicata

Saji Koduvath, Advocate, Kottayam.

Introduction.

‘Res’, in Latin, means a thing or matter; and ‘Judicata’ means decided or judged.

• Thus, Res Judicata applies when the ‘matter is decided’.

It is based on the public policy of finality and conclusiveness of judicial decisions, and private interest of all persons sued; that is, one should not be tried twice for the same cause or a matter that has been directly and substantially in issue in an earlier suit. Sec. 11 of the Code of Civil Procedure, 1908, elucidates this principle.

Sec. 11, Civil Procedure Code, 1908, reads as under:

“Res Judicata – No court shall 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.” … (Explanations I to VIII)

Core Ingredients of Res Judicata

• The matter in issue has been an issue in a former suit.

Other Requirements

• Same matter; Same Parties
• Heard and finally decided
• By a competent court

No Res judicata, where –

• Decision by fraud
• Dismissal in limine
• Suit was premature
• Pure question of law
• Compromise decree
• Want of jurisdiction
• Habeas corpus cases
• Dismissal on ‘limitation’
• New laws bring changes 
• Public interest litigation
• Decision not on the merits,
• Dismissal for want of notice
• Suit was not properly framed,
• Dismissal on technical ground
• Default of plaintiffs appearance,
• Decision by an incompetent court
• Cases where re-litigation is needed
• Misjoinder or non-joinder of parties
• Grounds not taken up by appeal court,
• Earlier decision between co-defendants,
• Findings on the Title in an injunction suit.
• Ultimate decision – suit was not maintainable
• Dismissed in limine without a Speaking Order
• Intermediate reliefs in interlocutory applications.
• Findings not Necessary (for supporting decree)
• Taxation cases. Liability to pay tax each year differs.
• Lower Court findings where appeal decree was passed
• Former decision was too perverse (no proper reasoning)  
• Adverse findings against one who got a favorable decree
• Different causes of action, as in an injunction suit or in an eviction suit

Binding Precedent and Res Judicata – a Couplet

• Binding Precedent refers to a judicial rule or principle established in an earlier binding decision that must be followed in subsequent similar cases.
• Res Judicata applies to findings of both law and fact. It bars the same parties from re-litigating issues that have already been finally decided.
• Binding Precedent pertains strictly to legal principles and technically bind courts, not parties.

No ‘Binding Precedent’ if earlier decision was –

• without taking into account the statutory provision or factual situation
• wrong in law.

Classifications of Res Judicata

In law, ‘res judicata’ signifies ‘bar-by-res-judicata’ to subsequent litigation. Based on practical application of bar-by-res-judicata, judicial findings can be broadly classified into 3 categories:

• Res judicata (Bar by actual findings),
• Constructive res judicata (Bar by res judicata, beyond findings), and
• Ineffectual Res Judicata (Findings; but, no bar by res judicata)

Should the Matter be in “Actual Issue”, Or Need be in “Substance” alone

Earlier Broader View : Sufficient if the Matter was in Issue in Substance

In Gulabchand Chhotalal Parikh v. State of Bombay, AIR 1965 SC 1153, it is held as under:   

• “We therefore hold that on the general principle of res judicata, the decision of the High Court on a writ petition under Art. 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.”

In Nayan Bhebli v. Bhutnath Sardar, 2014 5 CHN 594, it is held as under:

• “It is not necessary that a distinct issue should be raised. It is sufficient if the matter was in issue in substance [Md. Ali v. Upendra 58 CLJ 196].”

Modern Trend (Stricter Approach): Same Issue Must Have Been Adjudicated in the Former Suit

In M.  Siddiq v. Mahant Suresh Das, 2020-1 SCC 1, paras 439 and 446 are noteworthy. They read as under:

• 439. The applicability of Section 11 is premised on certain governing principles. These are:
  • .(i) The matter directly and substantially in issue in the suit should have been directly and substantially in issue in a former suit;
  • (ii) The former suit should be either between the same parties as in the latter suit or between parties under whom they or any of them claim litigating under the same title;
  • (iii) The court which decided the former suit should have been competent to try the subsequent suit or the suit in which the issue has been subsequently raised; and
  • (iv) The Issue should have been heard and finally decided by the court in the former suit.

• 446. There is absolutely no merit in the contention that the principles of constructive res judicata will bar the subsequent suits. The parties were distinct. The claim in the earlier suit was distinct. The basis of the claim was indeed not that which forms the subject matter of the subsequent suits.

In Srihari Hanumandas Totala v. Hemant Vithal Kamat, AIR 2021 SC 3802; 2021-9 SCC 99, it was held as under:

• “26. Section 11 of the CPC enunciates the rule of res judicata: a court shall not try any suit or issue in which the matter that is directly in issue has been directly or indirectly heard and decided in a former suit? Therefore, for the purpose of adjudicating on the issue of res judicata it is necessary that the same issue (that is raised in the suit) has been adjudicated in the former suit. It is necessary that we refer to the exercise taken up by this Court while adjudicating on res judicata, before referring to res judicata as a ground for rejection of the plaint under Order 7 Rule 11.”

In Mohd. Saeed v. Munnu Khan, AIR 2014 All. 125, it is held as under:

• “Identity of matter in issue, i.e. the matter directly and substantially in issue in the subsequent suit must be the same matter which was directly and substantially in issue in the former suit either actually (Expln 3) or constructively (Explan 4).
• “The subject-matter and the causes of actions of the two suits may be different but the issues may be the same. Expln III refers to direct res judicata and Expln. IV to constructive res judicata. It is not necessary that a distinct issue should be raised. It is sufficient if the matter was in issue in substance.”

Conscious Adjudication of an Issue Constitutes Res Judicata

In Erach Boman Khavar v. Tukaram Shridhar Bhat, 2013-15 SCC 655, it is held that the doctrine of res judicata can only apply when there has been a conscious adjudication of the issue on merits. It is held as under:

• “39. From the aforesaid authorities it is clear as crystal that to attract the doctrine of res judicata it must be manifest that there has been a conscious adjudication of an issue. A plea of res judicata cannot be taken aid of unless there is an expression of an opinion on the merits. It is well settled in law that principle of res judicata is applicable between the two stages of the same litigation but the question or issue involved must have been decided at earlier stage of the same litigation.” (Quoted in: Ebix Singapore Private Limited v. Committee of Creditors of Educomp Solutions Limited, 2022-2 SCC 401)

Read Also: Res Judicata: ‘Same issue’ must have been ‘Adjudicated’ in the former suit

Bar by Res-judicata, When Attracted

1. Same matter in issue: The matter in issue in earlier suit and the subsequent suit must be directly and substantially same. It need not have been considered, actually; a constructive consideration will be sufficient. But, the consideration of the same should not have been ‘incidental or collateral’.
2. Same Parties: Parties to both suits must be same. It includes their privies on whom the concerned right or interest may have devolved. No Res Judicata Between Co-Defendants.
3. Parties litigating under the same title: Parties must be litigating under the same title, in both suits. It refers to the capacity of persons who are suing or who are sued.  That is, whether the suit is for the benefit of the person named in the suit alone, or whether that person also represents the interest of another or others. A decision on such a suit will be binding on all such persons represented, and it will be independent of any particular cause of action on which one sues or is sued. In Ram Gobinda v. Bhaktabala, AIR 1971 SC 664, it is observed that the test for res judicata is the identity of title in the two litigations and not the identity of the subject matter involved in the two cases. Explanation VI lays down that where persons litigate bona fide in respect of public right or of a private right claimed in common for themselves and others, all persons interested in such right shall, for the purposes of this section, be deemed to claim under the persons so litigating.  It is clear that to attract Explanation VI, all persons who are represented in the representative capacity need not be expressly named in the suit. A suit instituted under Order I, rule 8, CPC will fall under this category.
4. Tried by a competent court: The former suit must have been tried by a competent court. The principle behind this proposition is that the finding of a Court of limited jurisdiction will not be final and binding.  In Explanation II it is clarified that for the purposes of this section, the competence of a Court shall be determined irrespective of any provisions as to a right of appeal from the decision of such Court.
5. Heard and finally decided: The matter must have been heard and finally decided by the earlier court in the earlier suit. What is material is the date on which the earlier suit was decreed; and not its date of filing.

The Supreme Court pointed out five conditions to attract Res judicata, in Sheldon Singh v. Daryao Kunwar. AIR 1966 SC 1332. They were –

• (i) The matter directly substantially in issue in the subsequent suit or issue must be the same matter which was directly and substantially in issue in the former suit;
• (ii) The former suit must have been a suit between the same parties or between parties under whom they or any of them claim;
• (iii) The parties must have litigated under the same title in the former suit;
• (iv) The court which decided the former suit must be a Court competent to try the subsequent suit or the suit in which such issue is subsequently raised; and
• (v) The matter directly and substantially in issue in the subsequent suit must have been heard and finally decided by the Court in the first suit.

In Mysore State Electricity Board v. Bangalore Woollen, Cotton, and Silk Mills Ltd., AIR 1963 SC 1128, it is emphasised that the court must look at the nature of the litigation, what the issues were raised therein, and what was actually decided in it, to decide whether a decision in an earlier litigation operated as res judicata.

Read Also:

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Issue Must Have Been Raised

Sufficient pleading should have been raised by the party (in the subsequent suit) who seeks dismissal on bar by ‘res judicata’ so that an issue must have been raised on the same.  (Kalawati Kotla vs. Shokilal, AIR 2013 Chh. 12)

In Madhukar D. Shende v. Tarabai Aba Shedage, AIR 2002 SC 637, it is observed as under:

• “We are not inclined, in the facts and circumstances of this case, to weight the admissibility and binding efficacy of the decision rendered in the earlier suit on the doctrine of res judicata and holding the earlier decisions as conclusive between the parties. Res judicata is a mixed question of fact and law. We do not find the plea of res judicata having been raised in the plaint. Copies of pleadings and issues framed in the earlier suit have not been tendered in evidence and we do not find any issue on res judicata having been framed and tried between the parties in the present suit. No submission raising the plea of res judicata was made before any of the courts below or the High Court. We do not think such a plea can be permitted to be raised before this Court for the first time and at the hearing.”

Dismissed in limine without a Speaking Order No Res Judicata

In Hoshnak Singh v. Union of India, AIR 1979 SC 1328, it was held by the Supreme Court as under:

• “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 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.” (Quoted in: Satpura Narmada Kshetriya Gramin Bank, Chhindwara v. A. K.  Chaturvedi, 2012-1 JLJ 78; 2012-1 MPLJ 282)

No Res Judicata Between Co-Defendants

Abubakar Husein Mulani v. Jafar Ahmad Mulani, 2010-1 CivCC 324; 2010-1 MhLJ 243; 2010-6 RCR(Civ) 1008, it is observed as under”

• “In view of the settled legal position, the finding of the appellate Court in the said Appeal No.304/1984 would operate as a res judicata if a similar issue arises between the said plaintiffs and the defendant No.1 in future, but it could not operate as res judicata in the litigation between the present plaintiff and the defendant No.1, who were co-defendants in that earlier litigation.”

Res Judicata Rests Upon Pleadings

Res judicata arises on finding of a matter in an earlier case. But, res judicata always rests upon pleadings; because ‘the matter directly and substantially in issue’ is the decisive factor to determine res judicata.

Referring to earlier decisions, it is pointed out by our Apex Court in V Rajeswari v. T C Saravanabava, 2004-1 SCC 551, that the plea of res judicata is founded on proof of certain facts and then by applying the law to the facts so found; and that it is, therefore, necessary that the foundation for the plea must be laid in the pleadings and then an issue must be framed and tried. It was also emphasised that a plea not properly raised in the pleadings or in issues at the stage of the trial, would not be permitted to be raised for the first time at the stage of appeal.

However, the Apex Court added:

• “The view taken by the Privy Council was cited with approval before this Court in State of Punjab v. Bua Das Kaushal. However, an exception was carved out by this Court and the plea was permitted to be raised, though not taken in the pleadings nor covered by any issue, because the necessary facts were present to the mind of the parties and were gone into by the Trial Court. The opposite party had ample opportunity of leading the evidence in rebuttal of the plea. The Court concluded that the point of  res judicata had throughout been in consideration and discussion and so the want of pleadings or plea of waiver of res judicata cannot be allowed to be urged.” (Quoted in Swamy Atmananda Vs. Ramkrishna Tapovanam, AIR 2005 SC 2392)

Necessary to examine plaint, written statement, issues and judgment

For determining res judicata it is necessary to examine the plaint, the written statement, the issues and the judgment to find out if the matter was directly and substantially in issue (Ishwer Singh v. Sarwan Singh AIR 1965 SC 948; Syed Mohd. Salie Labbai v. Mohd. Hanifa, (1976) 4 SCC 780; Nand Ram v. Jagdish Prasad: AIR  2020 SC 1884).

In Syed Mohd. Salie Labbai v. Mohd. Hanifa, (1976) 4 SCC 780, it was observed as under

• “8. In the instant case according to the plaintiffs- respondents, the identity of the subject matter in the present suit is quite different from the one which was adjudicated upon in the suits which formed the basis of the previous litigation. In our opinion, the best method to of 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 rt as res judicata. Unfortunately however in this case the pleadings of the suits instituted by the parties have not at all been filed and we have to rely upon the facts as mentioned in the judgments themselves. It is well settled that pleadings cannot be proved merely by recitals of the allegations mentioned in the judgment.”

In V. Rajeshwari v. T.C. Saravanabava, (2004) 1 SCC 551, it is observed as under:

• “12. The plea of res judicata is founded on proof of certain facts and then by applying the law to the facts so found. It is, therefore, necessary that the foundation for the plea must be laid in the pleadings and then an issue must be framed and tried. A plea not properly raised in the pleadings or issues at the stage of the trial, would not be permitted to be raised for the first time at the stage of appeal [see (Raja) Jagadish Chandra Deo Dhabal Deb v. Gour Hari Mahato AIR 1936 PC 258: 1936 All LR 786, Medapati Surayya v. Tondapu Bala Gangadhara Ramakrishna Reddi [AIR 1948 PC 3 : (1947) 2 MLJ 511] and Katragadda China Anjaneyulu v. Kattaragadda China Ramayya [AIR 1965 AP 177 : (1965) 1 An LT 149 (FB)] ]. The view taken by the Privy Council was cited with approval before this Court in State of Punjab v. Bua Das Kaushal.(1970) 3 SCC 656. However, an exception was carved out by this Court and the plea was permitted to be raised, though not taken in the pleadings nor covered by any issue because the necessary facts were present to the mind of the parties and were gone into by the trial court.The opposite party had ample opportunity of leading the evidence in rebuttal of the plea. The Court concluded that of the point of res judicata had throughout been in consideration and discussion and so the want of pleadings or plea of waiver of res judicata cannot be allowed to be urged.
• 13. Not only the plea has to be taken, but it has to be substantiated by producing copies of the pleadings, issues and judgment in the previous case. Maybe, in a given case only a copy of the judgment in the 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. But as pointed out in Syed Mohd. Salie Labbai v. Mohd. Hanifa (1976) 4 SCC 780 the basic 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 suit and then to find out as to what had been decided by the judgment which operates as res judicata. 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. The Constitution Bench in Gurbux Singh v. Bhooralal AIR 1964 SC 1810 : (1964) 7 SCR 831 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. Such pleas cannot be left to be determined by mere speculation or inferring by a process of deduction what were the facts stated in the previous pleadings. Their Lordships of the Privy Council in Kali Krishna Tagore v. Secy. of State for India in Council (1887-88) 15 IA 186: ILR 16 Cal 173 pointed out that the plea of res judicata cannot be determined without ascertaining what were the matters in issue in the previous suit and what was heard and decided. Needless to say, these can of be found out only by looking into the pleadings, the issues and the judgment in the previous suit.”

In Prem Kishore v. Brahm Prakash, 2023-3 MLJ 200 (SC); 2023-2 PLJR(SC) 270, it is pointed out as under:

• “Since an adjudication of the plea of res judicata requires consideration of the pleadings, issues and decision in the ‘previous suit’, such a plea will be beyond the scope of Order 7 Rule 11 (d), where only the statements in the plaint will have to be perused.”

A “collateral or incidental” finding would not ordinarily be res judicata.

If only finding is “Necessary”, then only it is “Directly and Substantially” in issue

In Sajjadanashin Sayed v. Musa Dadabhai Ummer, (2000) 3 SCC 350 the Supreme Court held that to attract res judicata on an earlier finding, the matter must have been directly and substantially in issue and that the finding on an issue came “collaterally or incidentally” would not ordinarily be res judicata. It was pointed out that if only the issue was “necessary” to be decided for adjudicating on the principal issue and had actually been decided, then only it would have to be treated as “directly and substantially” in issue; and that it is also necessary that the judgment was in fact based upon that decision.

For Res Judicata – Adjudication of the Issue Material and Essential

In Sajjadanashin it is pointed out as under:

• “Where title to property is the basis of the right of possession, a decision on the question of possession is res judicata on the question of title to the extent that adjudication of title was essential to the judgment; but where the question of the right to possession was the only issue actually or necessary involved, the judgment is not conclusive on the question of ownership or title.”

Referring to Sajjadanashin Sayed, it is observed in Nand Ram v. Jagdish Prasad: AIR  2020 SC 1884 that a material test to be applied is whether the court considered the adjudication of the issue material and essential for its decision.

• (Sajjadanashin Sayed v. Musa Dadabhai Ummer, (2000) 3 SCC 350, is quoted and followed in: M.S. Ananthamurthy v. J. Manjula (Neutral Citation: 2025 INSC 273)

Referring Sajjadanashin Sayed it is observed in Union of India Vs. Vijay Krishna Uniyal, 2017-12 SCALE 704, that one has to examine the plaint, the written statement, the issues and the judgment to find out if the matter was directly and substantially in issue.

In Sajjadanashin Sayed v. Musa Dadabhai Ummer, AIR 2000 SC 1238, observed as under:

• “Point No. 1:
• 11. The words “collaterally” or “incidentally in issue” have come up for interpretation in several common law jurisdictions in the context of the principle of res judicata. While the principle has been accepted that matters collaterally or incidentally in issue are not ordinarily res judicata, it has however been accepted that there are exceptions to this rule. The English, American, Australian and Indian Courts and Jurists have therefore proceeded to lay down certain tests to find out if even an earlier finding on such an issue can be res judicata in a later proceedings. There appears to be a common thread in the tests laid down in all these countries. We shall therefore refer to these developments.
• 12. Matters Collaterally or incidentally in issue:
• It will be noticed that the words used in Section 11 CPC are “directly and substantially in issue.” If the matter was in issue directly and substantially in a prior litigation and decided against a party then the decision would be res judicata in a subsequent proceeding. Judicial decisions have however held that 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.
• 13. As pointed out in Halsbury’s Laws of England (Vol. 16, Para 1538) (4th Ed.), the fundamental rule is that a judgment is not conclusive if any matter came collaterally in question [R. vs. Knaptoft Inhabitants, Heptulla Bros vs. Thakore; or if any matter was incidentally cognizable Sanders (otherwise Saunders) vs. Sanders (otherwise Saunders)].
• 14. A collateral or incidental issue is one that is ancillary to a direct and substantive issue; the former is an auxiliary issue and the latter the principal issue. The expression collaterally or incidentally in issue implies that there is another matter which is directly and substantially in issue (Mulla, CPC 15th Ed. p. 104).
• 15. Difficulty in distinguishing whether a matter was directly in issue or collaterally or incidentally in issue and tests laid down in various Courts:
• Difficulty in this area of law has been felt in various jurisdictions and therefore some tests have been evolved. Halsbury says (Vol. 16, Para 1538) (4th Ed.) that while the general principle is clear “difficulty arises in the application of the rule in determining in each case what was the point decided and what was the matter incidentally cognizable, and the opinion of Judges seems to have undergone some fluctuations.”
• 16. Spencer Bower and Turner on The Doctrine of Res Judicata (2nd Ed, 1969) (p. 181) refer to the English and Australian experience and quota Dixon, J. of the Australian High Court in Blair v. Curran to say: “The difficulty in the actual application of these conceptions is to distinguish the matters fundamental or cardinal to the prior decision on judgment, or necessarily involved in it as its legal justification or foundation, from matters which, even though actually raised and decided as being in the circumstances of the case the determining considerations, yet are not in point of law the essential foundation of a groundwork of the judgment.” The authors say that in order to understand with essential distinction, one has always to inquire with unrelenting severity – is the determination upon which it is sought to find an estoppel so fundamental to the substantive decision that the latter cannot stand without the former. Nothing less than this will do. It is suggested by Dixon, J that even where this inquiry is answered satisfactorily, there is still another test to pass: viz. whether the determination is the immediate foundation” of the decision as opposed to merely “a proposition collateral or subsidiary only, i.e. not more than part of the reasoning supporting the conclusion.” It is well settled, say the above authors “that a mere step in reasoning is insufficient. What is required is no less than the determination of law, or fact or both, fundamental to the substantive decision.”

A deliberate judicial decision alone is Judicial Precedent

As regards binding precedent it is observed in Union of India v. Dhanwanti Devi, (1996) 6 SCC 44, as under:

• “9…..It is not everything said by a Judge while giving judgment that constitutes a precedent. The only thing in a Judge’s decision binding a party is the principle upon which the case is decided and for this reason it is important to analyse a decision and isolate from it the ratio decidendi. According to the well-settled theory of precedents, every decision contains three basic postulates-
  • (i) findings of material facts, direct and inferential. An inferential finding of facts is the inference which the Judge draws from the direct, or perceptible facts;
  • (ii) statements of the principles of law applicable to the legal problems disclosed by the facts; and
  • (iii) judgment based on the combined effect of the above. A decision is only an authority for what it actually decides.
• What is of the essence in a decision is its ratio and not every observation found therein nor what logically follows from the various observations made in the judgment. Every judgment must be read as applicable to the particular facts proved, or assumed to be proved, since the generality of the expressions which may be found there is not intended to be exposition of the whole law, but governed and qualified by the particular facts of the case in which such expressions are to be found. It would, therefore, be not profitable to extract a sentence here and there from the judgment and to build upon it because the essence of the decision is its ratio and not every observation found therein. The enunciation of the reason or principle on which a question before a court has been decided is alone binding as a precedent. The concrete decision alone is binding between the parties to it, but it is the abstract ratio decidendi, ascertained on a consideration of the judgment in relation to the subject-matter of the decision, which alone has the force of law and which, when it is clear what it was, is binding. It is only the principle laid down in the judgment that is binding law under Article 141 of the Constitution. A deliberate judicial decision arrived at after hearing an argument on a question which arises in the case or is put in issue may constitute a precedent, no matter for what reason, and the precedent by long recognition may mature into rule of stare decisis. It is the rule deductible from the application of law to the facts and circumstances of the case which constitutes its ratio decidendi. “

Constructive Res-Judicata: For Not Making Whole Pleadings

In Forward Construction Co. v. Prabhat Mandal, Andheri, AIR 1986 SC 391, the Supreme Court observed the scope of Explanation IV to Section 11 of CPC as under:

• “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 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. It is true that where a matter has been constructively in issue, it cannot be said to have been actually heard and decided. It could only be deemed to have been heard and decided.”

In Mahesh Kumar Singh v. Union of India (Vipin Sanghi, Rekha Palli, JJ.), 2017-242 DLT 467, it was held as under:

• “21. There is a clear distinction between proceedings where the issue could have been raised, and proceedings where issue should have been raised. In our opinion, the principle of constructive res judicata cannot be applied to bar an adjudication on an issue which was neither necessary to be raised, nor averted to by the court in the earlier proceedings.”

Explanation IV of Sec. 11 CPC brings-forth the bar on ‘constructive res judicata’. It sounds that the parties to the litigation should bring their whole case before the court in a candid manner. To attract the contention as to bar on constructive res judicata it must be shown that the particular matter in issue or ground must have been a matter which ‘might and ought’ to have raised as a  point in the former suit.

The majority view authored by Justice Untwalia in a full bench decision in Baijnath Prasad Sah vs. Ramphal Sahni (AIR 1962 Pat 72) examined the scope of ‘might and ought’ in the Explanation IV of Sec. 11 CPC and explained as under:

• “If a party takes an objection at a certain stage of a proceeding and does not make another objection which it might and ought to have taken at the same stage, it must be deemed the Court has adjudicated upon the other objection also and has held against it. This principle of constructive res judicata has been extended further. If a party has knowledge of a proceeding, and having had an opportunity when it might and ought to have raised an objection, it does not do so, it 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 it. Though a transaction is void if a certain provision of law applies, it is for the court to decide whether that provision is applicable. Once a competent court has given a decision, holding expressly or by implication, that provision of law is inapplicable and the transaction is not void, that decision operates as res judicata between the parties. So also if an order of the court is deemed to have decided the question, the order is binding upon the parties.” Quoted in: Bhanu Shankar Raikwar Vs. Vijay Shankar Raikwar: 2018-3 MPLJ 569

From the above, it is clear that constructive res judicata is invited in the following two situations:

• Out of wilful act: If a party takes a particular objection on a specific matter or allegation at a certain stage of a proceeding and does not make another objection which it might and ought to have taken at that stage.
• Out of tacit or implicit act: If a party has (i) knowledge of a proceeding, and (ii) having had an opportunity to raise a particular objection, omits to do so; that is, tacitly or implicitly omits when it might and ought to have done.

It is held in Shankara Co-op Housing Society Ltd. v. M. Prabhakar, AIR 2011 SC 2161; (2011) 5 SCC 607, as under:

• “77. In the present case, it is admitted fact that when the contesting Respondents filed W.P. No. 1051 of 1966, the ground of non-compliance of statutory provision was very much available to them, but for the reasons best known to them, they did not raise it as one of the grounds while challenging the notification dated 11.12.1952 issued under the Evacuee Property Act. In the subsequent writ petition filed in the year 1990, initially, they had not questioned the legality of the notification, but raised it by filing an application, which is no doubt true, allowed by the High Court. In our view, the High Court was not justified in permitting the petitioners therein to raise that ground and answer the same, since the same is hit by the principles analogous to constructive res judicata.”

• See Blog: Pleadings Should be Specific; Why?
• See Blog: Adverse Possession: An Evolving Concept

Res Judicata by Implied Finding

There should be a specific and express finding on a specific issue in the earlier suit, for invoking res judicata. Constructive res judicata is an exception to the general rule.  Explanation IV of S. 11, CPC, lays down that res judicata may be deemed ‘beyond findings’.

Though res judicata may arise on an implied finding, it does not dehors the proposition that pleadings are the decisive factor for res judicata. It is held in Nikunja Behari Das v. Jatindra Nath Kar, AIR 1956 Cal 613, as under :

• “A decision by necessary implication is as much res judicata as an express decision. That this is so in the case where Explanation IV of S. 11, Civil Procedure Code, has to be considered, there can be no doubt, but even in other cases where a matter has been raised in the pleadings but there is no express decision but there is a decision by necessary implication, the Courts have always held that the principle of res judicata is applicable.” [Quoted in: Globe Publications Vs. Madan Gopal: AIR 1996 P&H 115]

Referring Greenhalgh v. Mallard (1576 ER 123) the Supreme Court explained in the State of UP v. Nawab Hussain (AIR 1969 SC 1256) that if a person is allowed to choose one cause of action from two or more causes of action from the same set of facts he would not be allowed to choose one at a time and to reserve the other for subsequent litigation. It amounts to abuse of process of the court.

No Res judicata, Where suit dismissed on Technical Ground

It is trite law – there will not be res judicata if a suit is dismissed not on merit but on technical ground. (See: Niloufer Siddiqui v. Indian Oil Corporation Ltd., AIR 2008 Patna 5 upheld by the Supreme Court in Indian Oil Corporation Ltd.  v. Niloufer Siddiqui, 2015-16 SCC 125: Referred to in: P. Rajesh v. V. Shanthi, 2015-5 LW 27; 2015-7 MLJ 648)

Therefore, there may not be any bar on the ground of res judicata even if a suit is dismissed on the technical ground of claiming inconsistent pleas of easement.

No Res Judicata, in spite of findings (Ineffectual Res Judicata)

Though there may be a previous decision on a particular issue, it may not bar the trial of subsequent suit as res judicata in the following instances.

1. Former decision was not from a competent court; or order/decree was without jurisdiction. Fatma Bibi Ahmed Patel v. State of Gujarat, (2008) 6 S.C.C. 789.
2. Where ultimate decision in earlier case was on the ground that the suit was not maintainable, findings on merits in such cases do not constitute res judicata.
3. Adverse finding against a party in whose favour the suit or the appeal is ultimately decided: PMA Metripolitan v. Moran Mar Marthoma, AIR 1995 SC 2001; Bakerbag Subhanbeg Vs. Shrikant Laxminarayan Zanwar: 2008-3 All MR 656.
4. Former decision was too perverse for no proper reasoning was given.  
5. Pure question of law.  Raju Ramsing Vasave v. Mahesh Deorao Bhivapurkar, (2008) 9 S.C.C. 54.
6. Public interest litigation (M.C. Mehta v. Union of India, (2000) 5 S.C.C. 525).   Principles of res judicata do not strictly apply to public interest writs – under Article 32 and Article 226.
7. Dismissal of earlier suits and writs in limine. Daryao v. State of Uttar Pradesh, A.I.R. 1961 S.C. 1457.
8. Dismissal of earlier suits and writs on technical ground or for want of parties: Ram Gobinda v. Bhaktabala, AIR 1971 SC 664; Shiromani Gurdwara Parbandhak Committee Vs Mahant Harman Singh AIR 2003 SC 3349.
9. Dismissal of earlier suits on a technical ground that they were for a mere declaration without seeking consequential relief: Inacia Martins v. Narayan Hari Naik AIR 1993 SC 756.
10. First suit was dismissed for want of notice: Ramasami v. Thalawasal Marudai Reddi, l.L.R. 47 Mad. 453.
11. First suit was dismissed on the ground of bar by ‘limitation‘. Munishi Chinadandasi v. Munishi Pedda Tatiah, AIR 1921 Mad 279; Krishnan Vs. Perumal Nadar, AIR 1973 Mad 81
12. Dismissal of earlier suit for default of plaintiff or on limitation. Ram Gobinda v. Bhaktabala, AIR 1971 SC 664.
13. In earlier suit, the plaintiff was non-suited on the ground of limitation, res judicata, mis-joinder, insufficient court fees on the plaint, jurisdiction or a like technical and preliminary ground: Venkatasuryanarayana v. Sivasankara-narayana (1914) 17 M.L.T. 85, Rama Krishna Naidu v. Krishnaswami Naidu, 36 M.L.J. 641.
14. If appeal in earlier litigation was dismissed on technical grounds, lower court decision holds the field. Sheodan Singh v. DaryaoKunwar, AIR 1966 SC 1332.
15. Findings on several grounds against a party. In appeal lower court decree confirmed; but, only one ground considered. Res judicata on that one ground alone.
16. Cases where re-litigation is needed.
17. Habeas corpus cases. If one habeas corpus petition is dismissed, then subsequent petition with fresh grounds will not be discarded. Sunil Dutt v. Union of India, A.I.R. 1982 S.C. 53.
18. New laws bring new changes that lead to the filing of a subsequent suit with the same cause of action. 
19. Decision in the former suit has been obtained by fraud (Section 44 of the Indian Evidence Act, 1872 refers to such judgments). Beli Ram v. Chaudri Mohammad Afzal, (1948) 50 Bom.L.R. 674.
20. Different causes of action, as in an injunction suit or in an eviction suit.
21. Intermediate reliefs in interlocutory applications.
22. Taxation cases. Liability to pay tax each year differs is independent of each other.  Broken Hill Proprietary Co. Ltd. v. Broken Hill Municipal Council, 1926 A.C. 94.   Instalment Supply Private Limited v. Union of India, AIR 1962 S.C. 53.

Ultimate Decision – Suit Not Maintainable, NO Res Judicata on findings on Merits

Our Apex Court pointed out in Vithal Yeshwant Jathar v. Shikandar Khan Makhtum Khan, AIR 1963 SC 385, as under:

• “It is well settled that if the 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. ” (Quoted in: Commissioner of Endowments Vs. Vittal Rao, AIR 2005 SC 454)

However, where the ultimate decision in the early suit was on a technical or other ground that the suit was not maintainable, there will be no res judicata on findings on merits in other issues of that case.

In PMA Metripolitan v. Moran Mar Marthoma, AIR 1995 SC 2001, it is held as under:

• “In Abdullah Ashgar Ali Khan v. Ganesh Dass AIR 1917 PC 201 the Court while considering the expression, ‘heard and finally decided’ in Section 10 of the British Baluchistan Regulation IX of 1896 held that where the suit was dismissed by two courts on merits but the decree was maintained in second appeal because the suit was not properly constituted then the finality on merits stood destroyed. In Sheosagar Singh & Ors. v. Sitaram Singh ILR 1897 Cal. Vol. XXIV where parentage of defendant was decided in his favour by the Trial Court but the High Court maintained the order as the suit was defective the claim of the defendant in the latter suit that the finding on parentage operated as res judicata was repelled and it was held, that the question of parentage had not been heard and finally decided in the suit of 1885. The appeal in that suit had put an end to any finality in the decision of the first Court, and had not led to a decision on the merits. The rationale of these decisions is founded on the principle that if the suit was disposed of in appeal not on merits but for want of jurisdiction or for being barred by time or for being defectively constituted then the finality of the findings recorded by the Trial Court on merits stands destroyed as the suit having been found to be bad for technical reasons it becomes operative from the date the decision was given by the trial court thus rendering any adjudication on merits impliedly unnecessary.”

In Pawan Kumar Gupta Vs. Rochiram Nagdeo, 1999-4 SCC 243, it is observed as under:

• “19. Thus the second legal position is this: 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.”[Quoted in: Director, WB Fire Service Vs. Shyam Sundar Kalra: 2018-2 CalLT 389; Mir Shah Zahoor Trustee Vs. Haji Shaik Madhar: 2009-2 ALD 557, 2009-4 ALT 263; Bakerbag Subhanbeg Vs. Shrikant Laxminarayan Zanwar: 2008-3 All MR 656; Mahadu Punjaba Dhage Vs. Prabhakar Trimbak: 1999-4 All MR 381, 2000-2 BCR 817.]

It is pointed out in D. Kandaswamy Naicker v. R. Kumaraswamy (1990-1 MadLJ 166) that where a finding in a judgment is a mere opinion and it is neither an order nor a decree, it can bind none, and it cannot be treated as a judicial and enforceable determination of a matter. (Also see:Rama Shankar v. Hubraji (AIR 1969 All 407) It is held in Pakkran v. Pathuamma, 25 M.L.J. 279, that any decision on a collateral matter would not operate as res judicata. In Rama Krishna Naidu v. Krishnaswami Naidu, (1918) 36 M.L.J. 641, it was held that if the findings rendered were wholly inconsistent with the decree, they would not operate as res judicata.

In Venkata-surya-narayana v. Siva-sankara-narayana, (1914) 17 M.L.T. 85, it was observed that where the plaintiff was non-suited on the ground of limitation, res judicata, mis-joinder, insufficient court fees on the plaint, jurisdiction or a like technical and preliminary grounds, and at the same time the court proceeded to give a finding on the merits against defendants to save a remand by the Appellate Court, such findings on merits would not be res judicata if, on appeal, the appellate Court did not itself think it necessary to give its decision based on such findings on merits, or if in case there was no appeal. It was observed in that case that it was evident that the first Court did not intend its findings on merits to be final.

See also:

Ganeshprasad Badrinarayan Lahoti Vs. Sanjeevprasad, 2004-7 SCC 482,
Karnail Singh Vs. Bhajan Singh, 2005 AIR(P& H) 207,
Phonographic Performance Vs. Union of India: 2015-220 DLT 90.

NO Res Judicata on Adverse Findings, In a Favourable Decree, For No Appeal

There will be no res judicata on adverse findings (on other issues) if the suit or appeal is ultimately decided in favour of a party.  In PMA Metripolitan v. Moran Mar Marthoma, AIR 1995 SC 2001, it is observed as under:

• “59. Last but not the least reason to hold that the finding in the Vattipanam Suit recorded by the High Court in its original judgment on canon etc. could not operate as res judicata is where a decree is one of dismissal in favour of the defendants, but there is an adverse finding against him, a plea of res judicata cannot be founded upon that decision because the defendant having succeeded on the other plea had no occasion to go further in appeal against the adverse finding recorded against him [see Midnapur Zamindari Company Ltd. vs. Naresh Narayan Roy, AIR 1922 PC 241 ] …..
• Similarly, in the decision of the Patna High Court in Arjun Singh v. Tara Das Ghosh, AIR 1974 Pat 1 the primary question was whether a party against whom a finding is recorded has got a right of appeal even though the ultimate decision was in his favour and it was held that there was no bar, but what was necessary was that the finding so recorded should operate as res judicata. On facts it was found that the Appellate Court while maintaining the order of dismissal of the suit on preliminary issue recorded findings on other issues which were against the plaintiff, yet the plaintiff was not entitled to file an appeal as the findings on merits which were adverse to him could not operate as res judicata.
• In Sham Nath’s case (Sham Nath Madan vs. Mohammad Abdullah, AIR 1967 J&K 85) the learned Single Judge rejected the plea of res judicata raised on behalf of the plaintiff, but while considering the alternative argument, observed that an adverse finding recorded against a defendant in a suit dismissed could not operate as res judicata unless the adverse finding formed a fundamental part of the decree itself.”

In Ravinder Kumar Sharma v. State of Assam, AIR 1999 SC 3571, the Supreme Court held as under:

• “23. The respondents before us are, therefore, entitled to contend that the finding of the High Court in regard to absence of reasonable and probable cause or malice – (upon which the decree for pecuniary damages in B and C Schedules was based) can be attacked by the respondents for the purpose of sustaining the decree of the High Court refusing to pass a decree for non-pecuniary damages as per the A Schedule. The filing of cross-objections against the adverse finding was not obligatory. There is no res judicata. …” (Quoted in: Mohammed v. Chandrika, ILR 2010-3 Ker  358; 2010-3 KHC 233;  2010-3 KLT 306)

In Balu Mahadeo Randhir v. Nabilal Haji Habib Gadiwale, 1997-2 BomCR 462; 1997-1 MhLJ 302, it is oheld as under:

• “Where a suit is dismissed, the defendant against whom an adverse finding might have come to be recorded on some issue has no right of appeal and he canot question those findings before the Appellate Court. Inasmuch as the defendant could not have filed an appeal, the decision in the aforesaid Regular Civil Suit No. 298 of 1971 cannot act as res judicata…”

In Bakerbag Subhanbeg Vs. Shrikant Laxminarayan Zanwar: 2008-3 All MR 656 it is pointed out that an appeal would lie against only those findings that amount to a ‘decree’ or ‘order’ that falls under Section 96 or Section 100 CPC. Similarly, no appeal lies against an Order under Section 104 read with Order 43, Rule 1. In Bakerbag Subhanbeg earlier decisions were referred to in detail. It includes the following:

Midanpur Zamindari Co. v. Naresh Narayan Roy, AIR 1922 PC 241; 
Run Bahadur Singh v. Lucnokoer,  ILR (1885)11 Cal 301 (PC); 
Pateswari Din v. Mahant Sarjudass, AIR 1938 Oudh 18;
Bansi Lal Ratwa v. Laxminarayan, 1969 2 AWR 246,
Arjun Singh v. Tara Das Ghosh, AIR 1974 Pat 1.

Res Judicata: The issue should have been necessary to be decided

In PMA Metropolitan v. Moran Mar Marthoma, AIR 1995 SC 2001, it is held as under:

• “57. It is fairly settled that the finding on an issue in the earlier suit to operate as res judicate should not have been only directly and substantially in issue but it should have been necessary to be decided as well.”

It is the appellate decision that operates as res judicata

PMA Metropolitan v. Moran Mar Marthoma, AIR 1995 SC 2001, continued as under:

• “When a decision is taken in appeal the rule is that it is the appellate decision and not the decision of the Trial Court that operates as res judicata.”

Appeal dismissed on limitation; Trial Court decision on merits ceases to be final

PMA Metropolitan v. Moran Mar Marthoma, AIR 1995 SC 2001, further continued as under:

• “Where a suit is decided both on merits and on technical grounds by the Trial Court, and the appellate court maintains it on technical ground of limitation or suit being not properly constituted then the decision rendered on merits by the Trial Court ceases to have finality.
• In Abdullah Ashgar Ali Khan v. Ganesh Dass AIR 1917 PC 201 the Court while considering the expression, `heard and finally decided’ in Section 10 of the British Baluchistan Regulation IX of 1896 held that where the suit was dismissed by two courts on merits but the decree was maintained in second appeal because the suit was not properly constituted then the finality on merits stood destroyed.”  (The apex Court also referred to Sheosagar Singh & Ors. v. Sitaram Singh ILR 1897 Cal. Vol. XXIV. )
• “58. The rationale of these decisions is founded on the principle that if the suit was disposed of in appeal not on merits but for want of jurisdiction or for being barred by time or for being defectively constituted then the finality of the findings recorded by the Trial Court on merits stands destroyed as the suit having been found to be bad for technical reasons it becomes operative from the date the decision was given by the trial court thus rendering any adjudication on merits impliedly unnecessary. “

Finding in Review Sustains; Other Earlier Findings Not Res Judicate

PMA Metropolitan v. Moran Mar Marthoma, AIR 1995 SC 2001, proceeded further as under:

• “58. …. On the same rationale, once the Royal Court of Appeal allowed the Review Petition and dismissed the appeal as the ex-communication of Dionysius was contrary to principles of natural justice and he had not become heretic then the finding on authenticity of the canon etc. rendered in the original order was rendered unnecessary. Therefore, the finding recorded on the authenticity of the canon and power of the Patriarch etc. recorded in the earlier order could not operate as res judicate in subsequent proceedings.”

No Res Judicata on a Finding on Title, in an Injunction Suit and in Probate Action

An incidental finding will not constitute res judicata.

In Sajjadanashin Sayed v. Musa Dadabhai Ummer, (2000) 3 SCC 350, it is observed as under:

• “24. Before parting with this point, we would like to refer to two more rulings. In Sulochana Amma v. Narayanan Nair [(1994) 2 SCC 14] this Court held that a finding as to title given in an earlier injunction suit would be res judicata in a subsequent suit on title. On the other hand, the Madras High Court, in Vanagiri Sri Selliamman Ayyanar Uthira-soma-sundareswarar Temple v. Rajanga Asari [AIR 1965 Mad 355 : ILR (1965) 1 Mad 232] held (see para 8 therein) that the previous suit was only for injunction relating to the crops. Maybe, the question of title was decided, though not raised in the plaint. In the latter suit on title, the finding in the earlier suit on title would not be res judicata as the earlier suit was concerned only with a possessory right. These two decisions, in our opinion, cannot be treated as being contrary to each other but should be understood in the context of the tests referred to above. Each of them can perhaps be treated as correct if they are understood in the light of the tests stated above. In the first case decided by this Court, it is to be assumed that the tests above-referred to were satisfied for holding that the finding as to possession was substantially rested on title upon which a finding was felt necessary and in the latter case decided by the Madras High Court, it must be assumed that the tests were not satisfied. As stated in Mulla, it all depends on the facts of each case and whether the finding as to title was treated as necessary for grant of an injunction in the earlier suit and was also the substantive basis for grant of injunction. In this context, we may refer to Corpus Juris Secundum (Vol. 50, para 735, p. 229) where a similar aspect in regard to findings on possession and incidental findings on title were dealt with. It is stated:
• “Where title to property is the basis of the right of possession, a decision on the question of possession is res judicata on the question of title to the extent that adjudication of title was essential to the judgment; but where the question of the right to possession was the only issue actually or necessarily involved, the judgment is not conclusive on the question of ownership or title.””
• (Quoted and followed in: M.S. Ananthamurthy v. J. Manjula, Neutral Citation: 2025 INSC 273; 27.02.2025)

The Apex Court (Sulochana Amma Vs. Narayanan Nair, (1994) 2 SCC 14) also pointed out as under:

• “The decision in earlier case on the issue between the same parties or persons under whom they claim title or litigating under the same title, it operates as a res-judicata. A plea decided even in a suit for injunction touching title between the same parties, would operate as res-judicata. It is a 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 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 injunction suit equally operates as a res-judicata.”

Anathula Sudhakar Vs. P. Buchi Reddy, AIR 2008 SC 2033, the Supreme Court held that where the issue of title involves complicated or complex questions of fact and law, or where court feels that parties had not proceeded on the basis that title was at issue, the court should not decide the issue of title in a suit for injunction. It is clear that findings of title in such suits are redundant so far as res judicata is concerned, the Court proceeded to hold as under:

• “21. To summarise, the position in regard to suits for prohibitory injunction relating to immovable property, is as under:
• (a) Where a cloud is raised over the plaintiff’s title and he does not have possession, a suit for declaration and possession, with or without a consequential injunction, is the remedy. Where the plaintiff’s title is not in dispute or under a cloud, but he is out of possession, he has to sue for possession with a consequential injunction. Where there is merely an interference with the plaintiff’s lawful possession or threat of dispossession, it is sufficient to sue for an injunction simpliciter.
• (b) As a suit for injunction simpliciter is concerned only with possession, normally the issue of title will not be directly and substantially in issue. The prayer for injunction will be decided with reference to the finding on possession. But in cases where de jure possession has to be established on the basis of title to the property, as in the case of vacant sites, the issue of title may directly and substantially arise for consideration, as without a finding thereon, it will not be possible to decide the issue of possession.
• (c) But a finding on title cannot be recorded in a suit for injunction, unless there are necessary pleadings and appropriate issue regarding title (either specific, or implied as noticed in Annaimuthu Thevar [Annaimuthu Thevar v. Alagammal, (2005) 6 SCC 202] ). Where the averments regarding title are absent in a plaint and where there is no issue relating to title, the court will not investigate or examine or render a finding on a question of title, in a suit for injunction. Even where there are necessary pleadings and issue, if the matter involves complicated questions of fact and law relating to title, the court will relegate the parties to the remedy by way of comprehensive suit for declaration of title, instead of deciding the issue in a suit for mere injunction.
• (d) Where there are necessary pleadings regarding title, and appropriate issue relating to title on which parties lead evidence, if the matter involved is simple and straightforward, the court may decide upon the issue regarding title, even in a suit for injunction. But such cases, are the exception to the normal rule that question of title will not be decided in suits for injunction. But persons having clear title and possession suing for injunction, should not be driven to the costlier and more cumbersome remedy of a suit for declaration, merely because some meddler vexatiously or wrongfully makes a claim or tries to encroach upon his property. The court should use its discretion carefully to identify cases where it will enquire into title and cases where it will refer to the plaintiff to a more comprehensive declaratory suit, depending upon the facts of the case.”
• (Quoted and followed in: M.S. Ananthamurthy v. J. Manjula, Neutral Citation: 2025 INSC 273; 27.02.2025)

(Both, Sulochana Amma and Anathula Sudhakar are referred to in T. Ravi Vs. B. Chinna Narasimha, 2017-7 SCC 342)

In Hem Nolini Judah v. Isolync Saroibashini Bose, AIR 1962 (SC) 1471, it was held that questions of title are not decided in proceedings for the grant of probate or letters of administration.

• See Blog: No Res judicata on Finding on Title in an Injunction Suit
• Declaration and Injunction

Appellate Decision Operates As Res Judicata

Decree of a lower court merges with the decree of the appellate court. Hence appellate decree is to be looked into to determine res judicata. In PMA Metripolitan v. Moran Mar Marthoma, AIR 1995 SC 2001, it is observed as under:

• “If the ex-communication of Dionysius was invalid for violation of principles of natural justice, as was found by the Bench reviewing the order, then the findings on earlier issues were rendered unnecessary and it is fairly settled that the finding on an issue in the earlier suit to operate as res judicata should not have been only directly and substantially in issue but it should have been necessary to be decided as well. For instance, when a decision is taken in appeal the rule is that it is the appellate decision and not the decision of the Trial Court that operates as res judicata. Consequently where a suit is decided both on merits and on technical grounds by the Trial Court, and the appellate court maintains it on technical ground of limitation or suit being not properly constituted then the decision rendered on merits by the Trial Court ceases to have finality. In Abdullah Ashgar Ali Khan v. Ganesh Dass AIR 1917 PC 201 the Court while considering the expression, `heard and finally decided’ in Section 10 of the British Baluchistan Regulation IX of 1896 held that where the suit was dismissed by two courts on merits but the decree was maintained in second appeal because the suit was not properly constituted then the finality on merits stood destroyed. In Sheosagar Singh & Ors. v. Sitaram Singh ILR 1897 Cal. Vol. XXIV where parentage of defendant was decided in his favour by the Trial Court but the High Court maintained the order as the suit was defective the claim of the defendant in the latter suit that the finding on parentage operated as res judicata was repelled and it was held, that the question of parentage had not been heard and finally decided in the suit of 1885. The appeal in that suit had put an end to any finality in the decision of the first Court, and had not led to a decision on the merits.”

Res Judicata on Ex Parte Decree

An ex-parte decree might also will constitute res judicata if the defendant  had express notice of the pleadings and the prayer that a particular issue or matter would be decided.

• (State of UP v. Jagdish Saran Agrawal: AIR  2008 SC 817;
• Raj Lakshmi Dasi v. Banamali Sen – AIR 1953 SC 33;
• Ram Gobinda Dawan v. Bhaktabala – AIR 1971 SC 664;
• Pandurang v. Shantabai – AIR 1989 SC 2240;
• Thiruvengadam Mammad v. Chathamkara Ammad – AIR 1929 Madras 89;   
• H.R  C.E. Commissioner v. V. Krishnaswami – AIR 1975 Madras 167).

Whether a Consent/Compromise Decree Operates as Res judicata

In Pulavarthi Venkata Subbarao v. Valluri Jagannadha Rao, AIR 1967 SC 591, the Supreme Court observed as under:

• “….A compromise decree is not a decision by the Court. It is acceptance by the Court of something to which the parties had agreed. The decree merely sets the seal of the Court on the agreement of the parties. The Court does not decide anything. Nor can it be said that the decision of the Court was implicit in it. Only that decision by the Court can be res judicata where the case has been heard and decided on merit . … the statutory prohibition under Sec. 11 of the code of civil procedure or that of constructive res judicata would apply as a matter of public policy ….. Such a decree cannot strictly be regarded as a decision on the matter which was heard and finally decided, and cannot operate as res judicata. ..”. 
• See also: Daryao v. State of UP, 1962- I SCR 574;
• Vidya Sagar v. Sudesh Kumari, 1976-1 SCC 115;
• Jamia Masjid v. K. V.  Rudrappa, AIR 2021 SC 4523; 2022-9 SCC 225.

It is held in Baldevdas Shivlal v. Filmistan Distributors (I) P. Ltd., AIR 1970 SC 406, that ‘a matter in contest in a suit may operate as res judicata only if there is an adjudication by the Court’. 

Ratio Decidendi is the Binding Precedent; Not  Findings on Facts or Issues

In Jagdish Prasad v. State of MP, 2004(4) MPLJ 537, it was held by the Supreme Court as under:

• “Any observation made or relief given by a Court, out of sympathy, compassion, sentiments and not based on any discernible principle of law or de hors the merits of the case, cannot be a binding precedent. A judgment of a Court contains three parts :
  • (i) finding of facts;
  • (ii) statement of principle of law applicable to the legal problem raised on the facts, based on which the case is decided; and
  • (iii) decision which is based on the finding of fact, applicable principles of law, and in some cases, discretion and the need to mould the relief in a particular manner.
• Out of the three parts, it is only the second part, that is ratio decidendi or statement of law applied and acted upon by the Court, that is a binding precedent. Neither the findings on facts nor the ultimate decision, that is, the relief given or the manner adopted to dispose of the case, is a precedent.” (Quoted in: Satpura Narmada Kshetriya Gramin Bank, Chhindwara v. A. K.  Chaturvedi, 2012-1 JLJ 78; 2012-1 MPLJ 282)

In A-One Granites v. State of U.P. [(2001)3 SCC 537], the Supreme Court observed that where no consideration was given to the question, the decision cannot be said to be binding; and precedents sub silentio and without arguments are of no moment. (Referred to in: Satpura Narmada Kshetriya Gramin Bank, Chhindwara v. A. K.  Chaturvedi, 2012-1 JLJ 78; 2012-1 MPLJ 282.)

Res Judicata Binds Parties; Ratio Decidendi (as Binding Precedent) Binds Courts

In The Modern English Legal System (4th Edition) by Smith, Bailey and Gunn (Sweet & Maxwell, 2002), pages 518-519, says as under:

• “…. Thus the Court’s order is binding on the parties under the res judicata doctrine; the ratio decidendi is binding on other Courts in accordance with the principles outlined above under the doctrine of binding precedent. A startling illustration of the distinction was provided by the following series of cases. A testator, John Arkle Waring, left annuities to Mr. Howard and Mrs. Louie Burton-Butler ‘free of income tax’. In 1942 the Court of Appeal in Re warning, Westminster Bank Ltd. v. Awdry : (1942) Ch. 426 on an appeal in which Howard was a party, held that income tax had to be deducted. Louie was not a party as she was in an enemy occupied country. Leave to appeal to the House of Lords was refused. Four years later the House of Lords in Berke¬ley v. Berkeley : (1946) A.C. 555 overruled the Awdry case. Subsequently, Jenkins J. held that the Awdry case was res judica¬ta so far as Howard was concerned notwithstanding that its ratio had been overruled in Berkeley v. Berkeley and that Louie’s annuity would be dealt with in accordance with the later case. (See Re Warning, Westminster Bank v. Burton-Butler : (1948) Ch. 221).”
• (Quoted in: Kalinga Mining Corporation v. Union of India (AK Ganguly, CJ, then) 2007-104 CLT 737, Ori)

Spencer Bower, Turner and Handley’s Commentary on the Doctrine of res judicata (Butterworths: London, Edinburgh, Dublin – 1996, pages 8 and 9), explains the concept of res judicata as under:

• “There is an essential difference between res judicata estoppel and the doctrine of judicial precedent. Under the former a final decision in fact or law by any Court having jurisdiction precludes either party (except on appeal) from again raising the same issue against the other in any Court. The doctrine of judicial precedent, on the other hand, is not concerned with issues between parties. …
• The difference is illustrated by the cases of Re Waring decided in 1942 and 1948. In the first Farwell J held that Section 25 of the Finance Act 1941 was not applicable (1942) Ch. 309 to an annuity; but the Court of Appeal reversed this decision. (1942) Ch. 426. The effect was two-fold; it decided as res judicata between the parties that Section 25 applied, and it bound Courts up to the Court of Appeal in other cases. In Berkeley v. Bekeley (1946) AC 555, the House of Lords overruled Re Waring. In 1948 the trustees sought a decision as between themselves and the annuitant who had not been joined in the first proceedings. (1948) Ch. 221. The other annuitant remained bound by the earlier decision, but the result (see Duke of Bedford v. Elliz : (1901) AC 1 at 8), was otherwise governed by Berkeley v. Berkeley: Gisborne Sheepfarmers’ Mercantile Co. Ltd. v. IRC : (1962) NZLR 810 at 814.” (Quoted in: Kalinga Mining Corporation v. Union of India (AK Ganguly, CJ, then) 2007-104 CLT 737, Ori)

In State of M.P. v. Mulam Chandi, AIR 1973 MP293, it has been held as under:

• “As between a decision which operates a s res judicata and a decision which is binding as a precedent but not res judicata, the former must prevail.”

Interpretation of a Document can Be A Binding Judicial Precedent

In Sahu Madho Dass v. Mukand Ram, 1955 AIR SC 481, it was observed out as under:

• “Mukand Ram was not a party to that litigation and the decision does not bind him but it operates as a judicial precedent about the construction of that document, a precedent with which we respectfully agree.”
• (Referred to in: Syed Hafiz Mir v. Abdul Nayeemkhan, AIR 1960  MP 50; Potluri Saraswathi v. Vallabhaneni Veerabhadra Rao, 2004-7 ALT 120; Harabati v. Jasodhara Debi, AIR 1977  Ori  143; Ramachandra Bhat v. Srideviamma, AIR 1976 Kar 217; Katragadda China Anjaneyulu v. Kattragadda China Ramayya, 1965  AIR AP 177.)

In R. V. Bhupal Prasad v. Saleha Begum, 2002 Supp2 ALD 735; 2001-5 ALT 770, it is pointed out that in Anjaneyulu v. Ramaiah, 1965-1 ALT 149, a Full Bench of the Andhra High Court held that interpretation of a material document in a prior proceeding between the same parties even if does not operate as res judicata would be a binding judicial precedent in a subsequent proceeding between the parties based on that document.

Even an erroneous decision operates as Res Judicata

In Bindeswari v. Bageshwari, AIR 1936 PC 46, it was held as under:

• “Where the decision of the Court in a previous suit determined that the section had never applied to a transaction, a Court in a new suit between the same parties with regard to the same transaction cannot try a new the issue as to its applicability in face of the express prohibition in Section 11 of the Code. “

In Mohanlal Goenka v. Benoy Kishna, AIR 1953 SC 65 it was laid down  as under:

• “(23) There is ample authority for the proposition that even an erroneous decision on a question of 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. 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; see Abhoy Kanta Gohain v. Gopinath Deb Goswami AIR 1943 Cal. 460.”

No Binding Precedent if relevant statutory provision was Not considered

In Union of India v. Maniklal Banerjee, AIR 2006 SC 2844, the Apex Court has held as under:

• “It is now well-settled that if a decision has been rendered without taking into account the statutory provision, the same cannot be considered to be a binding precedent. This Court, in Pritam Singh, while exercising its discretionary jurisdiction, might have refused to interfere with the decision. The same, therefore, did not constitute any binding precedent.” (Referred to in: Hameeda Begum v. Champa Bai Jain (Arun Misra, J.), ILR 2009 MP 2328; 2009-3 MPLJ 472)

Arun Misra, J., referred to the House of Lords’ decision in Hameeda Begum v. Champa Bai Jain, ILR 2009 MP 2328; 2009-3 MPLJ 472, and said as under:

• “(35) Another decision relied upon is rendered by the House of Lords in Watt vs. Ahsan (2007) UKHL 51. In the aforesaid case, question arose on Section 12 of the Race Relations Act, 1976. The submission was made that they were party and that All vs. Mcdonagh (2002) ICR 1026 was wrongly decided. In any case, the interpretation given to Section 12 by the EAT in Sawyer v. Ahsan (2000) ICR 1 is res judicata between him and the Labour Party, not only for the purposes of his first complaint but for the other two as well. It was opined that the EAT was wrong in Sawyer vs. Ahsan (2000) ICR 1 to hold that the Labour Party was a qualifying body, but there was no appeal against the decision of EAT , it was held that decision was binding upon the parties though wrong in law. When the Tribunal was-having the jurisdiction to decide the question, it is binding upon the parties though erroneous.
• There is no dispute with the aforesaid proposition, but here we are concerned with the fresh cause of action on which suit is based and previously relevant statutory provision of Section 111 (d) of TP Act was not taken into consideration, question of determination of tenancy was also not decided.”

Exceptions to the Rule of Res Judicata

Arun Misra, J., pointed out as regards Rule of Res Judicata, in Hameeda Begum v. Champa Bai Jain, ILR 2009 MP 2328; 2009-3 MPLJ 472 (referring to State of MP. v. Mulamchand 1973 MPLJ 832), as under:

• ( 36 ) …. The rule admits of certain exceptions.
  • One is that where the decision relates to the jurisdiction of the Court to try the earlier proceeding, it will not operate as res judicata if in the subsequent suit it is found to be erroneous because the question of jurisdiction is unrelated to rights claimed by one party and denied by other.
  • Another exception is where the law is altered since the earlier decision, the earlier decision will not operate as res judicata between the same parties.
  • Third exception is that a decision of a Court sanctioning something which is illegal does not operate as res judicata, and a party affected by the decision is not precluded from challenging its validity.
• In the instant case, the earlier decisions rendered by this Court were not on the question of law of merger of tenancy into co-ownership and section 111 (d) of the TP Act was not considered, thus, it cannot be said to be operating as res judicata in the present suit based on fresh cause of action of ejectment of tenant and title. Tenant has protection under Rent Act, he can be evicted only on availability of ground under Section 12 of the Act. It is a question pertaining to jurisdiction to evict. There is no finding of fact which is coming in the way in the instant suit. The main question is that of the status of the defendants and beyond iota of doubt, they are tenants and tenancy is not determined by the fact that only portion of the property had been purchased by one of the heirs of the original tenant.”

Whether O. I, r. 8 Decree is Res Judicata 

Order I rule 8 of the Code of Civil Procedure, 1908, enables the plaintiffs to file a suit in a representative capacity for the benefit of a class of (numerous) persons.

Whether the decree in such a suit operates as res judicata against the persons who are represented remains as a controversy.  In any event, by the insertion of Sub-rule (6) to rule 8 of Order I, in 1976, it became legitimate to say that the decree stands as res judicata. Sub-rule (6) lays down that a decree passed in a suit under rule 8 shall be binding on all persons on whose behalf or for whose benefit the suit is instituted or defended.

Therefore, the view taken in Srinivasa Aiyankar v. Aryar Srinivasa Aiyankar, (1910) ILR 33 Mad 483 : 6 IC 229, that the decisions do not bind on those who were not actually (eo nominee)  parties (and hence not res judicata and not enforceable in execution)  does not hold good at present. This view in Srinivasa Aiyankar had been taken in following cases (prior to 1976) also:

• Sahib Thampi v. Hamid, 36 Mad. 414
• Walker v. Sur, 1914-2 KB 930
• Hardie and Lane Limited v. Chiltern, 1928-1 KB 663
• Kodia Goundar v. Velandi Goundar. AIR 1955 Mad 281

It is noteworthy that even when Sub-r. (6) of r. 8 of O. I was not available in the Code, it was observed in Waryam Singha v. Sher Singh, AIR 1942 Lah 136, that the decree for injunction could be executed against any of the persons who were represented under O. 1 r. 8 CPC; because,  all the persons who were represented must be held to be parties as the decree obtained in such a suit was binding on all of them. This view is taken in following cases also:

• Mool Chandra Jain v. Jagdish Chandra Joshi, AIR 1955 All 385
• Abdulla v. Parshotam Singh, AIR  1935 Lah 33
• Jatindra Mohan Banerje v. Kali Charan, AIR 1960 Cal 623

Relying on Shri V. J. Thomas v. Shri Pathrose Abraham, AIR 2008 SC 1503, and Kodia Goundar Vs. Velandi Goundar, AIR 1955 Mad 281, the Kerala High Court has in Narayanan V. Periyadan Narayanan Nair, 2021 (3) KHC 211 (FB) held that execution of a decree is not possible if he was not impleaded as a defendant. The Full Bench overruled James Vs. Mathew (ILR 2012-4 Ker 753, 2012-4 Ker 640, 2012-4 Ker LT 666, 2012-4 KHC 604 ), which held that a decree for injunction obtained in a representative suit is binding on all persons for whose benefit the suit was defended, though they were not eo nomine parties to the suit; and that in case of wilful disobedience of such a decree by those persons for whose benefit the suit was defended, it is enforceable against them under r. 32 of O. XXI of the Code.

See Blog: Decree in OI R8 CPC-Suit & Eo-Nomine Parties

Res Judicata, Order II Rule 2 Bar and Sec. 10 CPC

Sec. 11 CPC and Order II rule 2 CPC bar suit/relief. But, Sec. 10 CPC bars trial only. Because:

• Sec. 11 CPC (Res Judicata) begins as – “No Court shall try any suit or issue”.
• Order II Rule 2 bars to – “sue for any relief omitted“.
• Sec. 10 CPC (Res sub judice – Latin: ‘under judgment’) begins as – “No Court shall proceed with the trial of any suit“.

See Blog: Order II, Rule 2 CPC – Not to Vex Defendants Twice for the Same Cause of Action

Change of Law and Res judicata

When the law has been changed, subsequent to a decision rendered by a Court, it is held in Alimunnissa Chowdharani v. Shyam Charan Roy, 1905-1 CLJ 176, that the earlier decision would not operate as res judicata.

In Mathura Prasad Bajoo Jaiswal v. Dossibai N.B. Jeejeebhoy, 1970-1 SCC 613, it is observed that when the law has undergone a change, there would be no question of res judicata or constructive res judicata. It is observed as under:

• “5. But the doctrine of res judicata belongs to the domain of procedure: it cannot be exalted to the status of a legislative direction between the parties so as to determine the question relating to the interpretation of enactment affecting the jurisdiction of a Court finally between them, even though no question of fact or mixed question of law and fact and relating to the right in dispute between the parties has been determined thereby. A decision of a competent Court on a matter in issue may be res judicata in another proceeding between the same parties: the “matter in issue” may be an issue of fact, an issue of law, or one of mixed law and fact. An issue of fact or an issue of mixed law and fact decided by a competent court is finally determined between the parties and cannot be reopened between them in another proceeding. The previous decision on a matter in issue alone is res judicata: the reasons for the decision are not res judicata. A matter in issue between the parties is the right claimed by one party and denied by the other, and the claim of right from its very nature depends upon proof of facts and application of the relevant law thereto. A pure question of law unrelated to facts which give rise to a right, cannot be deemed to be a matter in issue. 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 foundation of the right and the relevant law applicable to the determination of the transactions which is the soured 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. 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. …….
• 7. Where the law is altered since the earlier decision, the earlier decision will not operate as res judicata between the same, parties: Tarini Charan Bhattacharjee’s case. It is obvious that the matter in issue in a subsequent proceeding is not the same as in the previous proceeding, because the law interpreted is different.”

Can res judicata be raised as a preliminary point/issue

The Kerala High Court in V. Narayana Bhakthan v. The President, Anantha Narayanapuram, 2008-3 Ker LT 840 it is held as under:

• “The question of res judicata can be raised as a preliminary point in certain circumstances. Sub-rule (2) of Rule 2 of Order XIV of the CPC states that where issues, both of law and of fact, arise in the same suit, and the Court is of the opinion that the case or any part thereof may be disposed of on an issue of law only, it may try that issue first if that issue relates to: (a) the jurisdiction of the Court, or (b) a bar to the suit created by law for the time being in force. The said sub-rule also provides that the Court may, if it thinks fit, postpone the settlement of the other issues until after that issue has been determined, and may deal with the suit in accordance with the decision on that issue. In ML Sethi v. RP Kapur, AIR 1972 SC 2379, it was held that it is well settled that a plea of res judicata is a plea of law which concerns the jurisdiction of the court and a finding on the plea in favour of the party raising it would oust the jurisdiction of the court. If the question of res judicata can be decided without reference to the disputed questions of fact and without the necessity of there being any evidence to be adduced, the Court would be justified in dealing with the said contention as a preliminary issue. However, if the Court finds that disputed questions of fact are involved or that the plea of res judicata is a mixed question of law and fact, the Court is not bound to decide the said question as a preliminary issue.”

Effect of failure to raise bar of res judicata as a preliminary issue

In V. Narayana Bhakthan v. The President, Anantha Narayanapuram, 2008-3 Ker LT 840, it is held, further as under:

• Even if a party, who is entitled to request the court to consider the contention of res judicata as a preliminary issue, fails to make a request in that behalf at the appropriate time, that does not operate as a bar for him to raise the contention of res judicata at the final stage of the suit. Such a contention would not be barred by res judicata by his not requesting the same to be considered as a preliminary issue. On the other hand, if such a question is raised as a preliminary issue and a decision is rendered against the party raising it, he would be precluded at a later stage of the same proceeding from raising the very same contention that the suit is barred by res judicata except by challenging the final decision in Appeal.”

S. Nagaraj (dead) by LRs. VS B. R. Vasudeva Murthy, 08 Feb 2010
2010 2 AIR(Kar)(R) 274; 2010 Supp AIR(SC) 551; 2010 0 AIR(SCW) 1519; 2010 2 JT 185; 2010 3 KarLJ 513; 2010 Supp1 KLT 95; 2010 2 Scale 232; 2010 3 SCC 353; 2010 1 SCC(Civ) 695; 2010 4 SCJ 258; 2010 2 SCR 586; 2010 2 SLT 441; 2010 0 Supreme(SC) 140;

Correctness of the Finding has no bearing

Rankin, C.J. of the Calcutta High Court in Tarini Charan Bhattacharjee v. Kedar Nath Haldar,AIR 1928 Cal. 777 held as under:

• “The question whether decision is correct or erroneous has no bearing upon the question whether it operates or does not operate as res judicata.”

Res Judicata in Writ Proceedings

Our Apex Court observed in State of Tamil Nadu v. State of Kerala, AIR 2014 SC 2407; 2014-12 SCC 696as under:

• “156. The rule of res judicata is not merely a technical rule but it is based on high public policy. The rule embodies a principle of public policy, which in turn, is an essential part of the rule of law. In Duchess of Kingston; 2 Smith Lead Cas 13 Ed. Pp. 644, 645, the House of Lords (in the opinion of Sir William de Grey) has observed:
  • “From the variety of cases relative to judgments being given in evidence in civil suits, these two deductions seem to follow as generally true: first, that the judgment of a court of concurrent jurisdiction, directly upon the point, is as a plea, a bar, or as evidence, conclusive, between the same parties, upon the same matter, directly in question in another court; secondly, that the judgment of a court of exclusive jurisdiction, directly upon the point, is, in like manner, conclusive upon the same matter, between the same parties, coming incidentally in question in another court, for a different purpose.”
• 157. Corpus Juris explains that res judicata is a rule of universal law pervading every well-regulated system of jurisprudence, and is put upon two grounds, embodied in various maxims of the common law; the one, public policy and necessity, which makes it to the interest of the State that there should be an end to litigation; and the other, the hardship on the individual that he should be vexed twice for the same cause.
• 158. In Sheoparsan Singh v. Ramnandan Prashad Narayan Singh; [AIR 1916 PC 78], Sir Lawrence Jenkins noted the statement of law declared by Lord Coke, ‘interest reipublica ut sit finis litium,’ otherwise great oppression might be done under colour and pretence of law. – (6 Coke, 9A.)
• 159. In Daryao and Ors. v. State of U.P. and Ors.; [AIR 1961 SC 1457], P.B. Gajendragadkar, J. while explaining the rule of res judicata stated that on general considerations of public policy there seems to be no reason why rule of res judicata should be treated as inadmissible or irrelevant while dealing with the petitions filed under Article 32 of the Constitution. P.B. Gajendragadkar, J. referred to earlier decision of this Court in Pandit M.S.M. Sharma v. Dr. Shree Krishna Sinha and Ors.; [AIR 1960 SC 1186] wherein the application of the rule of res judicata to a petition filed under Article 32 was considered and it was observed that the question determined by the previous decision of this Court cannot be reopened and must govern the rights and obligations of the parties which are subsequently the same.
• 160. In Gulab Chand Chhotalal Parikh v. State of Bombay; [(1965) 2 SCR 547], this Court stated that a decision in a writ petition is res judicata in a subsequent suit.
• 161. In Union of India v. Nanak Singh; [(1968) 2 SCR 887 : AIR 1968 SC 1370] the question whether the decision in a writ petition operates as res judicata in a subsequent suit filed on the same cause of action has been settled. In Nanak Singh, this court observed that 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.
• 162. Union of India v. Nanak Singh; [(1968) 2 SCR 887 : AIR 1968 SC 1370] has been followed by a three Judge Bench of this Court in State of Punjab v. Bua Das Kaushal; [ (1970) 3 SCC 656]. In our view, the rule of res judicata which is founded on public policy prevents not only a new decision in the subsequent suit but also prevents new investigation. It prevents the defendant from setting up a plea in a subsequent suit which was decided between the parties in the previous proceedings. The legal position with regard to rule of res judicata is fairly well-settled that the decision on a matter in controversy in writ proceeding (Article 226 or Article 32 of the Constitution) operates as res judicata in subsequent suit on the same matters in controversy between the same parties. For the applicability of rule of res judicata it is not necessary that the decision in the previous suit must be the decision in the suit so as to operate as res judicata in a subsequent suit. A decision in previous proceeding, like under Article 32 or Article 226 of the Constitution, which is not a suit, will be binding on the parties in the subsequent suit on the principle of res judicata.
• 163. For the applicability of rule of res judicata, the important thing that must be seen is that the matter was directly and substantially in issue in the previous proceeding and a decision has been given by the Court on that issue. A decision on issue of fact in the previous proceeding – such proceeding may not be in the nature of suit – constitutes res judicata in the subsequent suit.
• 164. In light of the above legal position, if the 2006 judgment is seen, it becomes apparent that after considering the contentions of the parties and examining the reports of Expert Committee, this Court posed the issue for determination about the safety of the dam to increase the water level to 142 ft. and came to a categorical finding that the dam was safe for raising the water level to 142 ft. and, accordingly, in the concluding paragraph the Court disposed of the writ petition and the connected matters by permitting the water level of Mullaperiyar dam being raised to 142 ft. and also permitted further strengthening of the dam as per the report of the Expert Committee appointed by the CWC. The review petition filed against the said decision was dismissed by this Court on 27.7.2006. The 2006 judgment having become final and binding, the issues decided in the said proceedings definitely operate as res judicata in the suit filed under Article 131 of the Constitution.
• 165. Shri Harish Salve, learned senior counsel for Kerala, placed reliance upon the decision of this Court in N.D. Jayal and Anr. v. Union of India and Ors.; [(2004) 9 SCC 362]. In N.D. Jayal69 Dharmadhikari, J. made general observations on the dam safety aspect that plea like res judicata on the earlier decisions passed by the Supreme Court cannot be allowed to be raised. The observations made by Dharmadhikari, J. in N.D. Jayal have to be read as an exception to the res judicata rule in the matters where, by their very nature, the factual situation has drastically changed in course of time. If substantial changes in the circumstances occur and such circumstances are shown to the Court necessitating departure from the earlier finding on the issue of safety, the Court can be approached and in that event the Court itself may exercise its discretion to reopen the safety aspect having regard to the drastic change in circumstances or in emergent situation as to the safety of dam. In our view, a judicial decision, having achieved finality, becomes the last word and can be reopened in the changed circumstances by that Court alone and no one else.
• 166. On behalf of Kerala, it is contended that the jurisdiction of this Court under Article 32 of the Constitution for enforcement of the fundamental rights conferred by Part III of the Constitution is ousted or excluded in respect of disputes between two or more States: since such disputes fall within the ambit of the original jurisdiction of this Court under Article 131 of the Constitution or jurisdiction of a tribunal constituted under the provisions of Inter-State River Water Disputes Act, 1956 read with the provisions of Article 262 of the Constitution. Thus, it was submitted that the 2006 judgment is not binding and that the rule of res judicata can hardly be attracted in this situation.
• 167. We are unable to accept the submission of the learned senior counsel for Kerala. The label of jurisdiction exercised by this Court is not material for applicability of principles of res judicata if the matter in issue in the subsequent suit has already been concluded by the earlier decision of this Court between the same parties. The 2006 judgment was the result of judicial investigation, founded upon facts ascertained in the course of hearing. The plea of lack of jurisdiction of this Court was taken in the earlier proceedings on both the grounds, viz.,
•        (1) whether the jurisdiction of this Court is barred in view of Article 262 read with Section 11 of the Inter-State River Water Disputes Act, 1956, and
•        (2) whether Article 363 of the Constitution bars the jurisdiction of this Court. On both these questions the findings were recorded against Kerala. It is too much for Kerala to say that the 2006 judgment is without jurisdiction and not binding.
• xxxxx
• 169. Explanations VII and VIII were inserted in the above provision by Code of Civil Procedure (Amendment) Act, 1976 w.e.f. 1.2.1977. Explanation VIII in this regard is quite relevant. The principles of res judicata, thus, have been made applicable to cases which are tried by Courts of limited jurisdiction. The decisions of the Courts of limited jurisdiction, insofar as such decisions are within the competence of the Courts of limited jurisdiction, operate as res judicata in a subsequent suit, although, the Court of limited jurisdiction that decided the previous suit may not be competent to try such subsequent suit or the suit in which such question is subsequently raised. If a decision of the Court of limited jurisdiction, which was within its competence, operates as res judicata in a subsequent suit even when the subsequent suit is not triable by it, a fortiori, the decision of the highest Court of the land in whatever jurisdiction given on an issue which was directly raised, considered and decided must operate as res judicata in the subsequent suit triable exclusively by the highest Court under Article 131 of the Constitution. Any other view in this regard will be inconsistent with the high public policy and rule of law. The judgment of this Court directly upon the point, is as a plea, a bar, or as evidence, conclusive between the same parties, upon the same matter, directly in question before this Court, though, label of jurisdiction is different.
• 170. The principles of res judicata are clearly attracted in the present case. The claim of Kerala in the earlier proceeding that water level cannot be raised from its present level of 136 ft. was expressly not accepted and the obstruction by Kerala to the water level in the Mullaperiyar dam being raised to 142 ft. on the ground of safety was found untenable. The judgment dated 27.2.2006 of this Court, thus, operates as res judicata in respect of the issue of safety of the dam by increasing its water level from 136 ft. to 142 ft.”

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End Notes:

Sec. 11 Civil Procedure Code, 1908, reads as under:

• Res Judicata -No Court shall 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.
• Explanation I– The expression “former suit” shall denote a suit which has been decided prior to the suit in question whether or not it was instituted prior thereto.
• Explanation II.- For the purposes of this section, the competence of a Court shall be determined irrespective of any provisions as to a right of appeal from the decision of such Court.
• Explanation III.- The matter above referred to must in the former suit have been alleged by one party and either denied or admitted, expressly or impliedly, by the other.
• Explanation IV.- Any matter which might and 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.
• Explanation V.- Any relief claimed in the plaint, which is not expressly granted by the decree, shall, for the purposes of this section, be deemed to have been refused.
• Explanation VI– Where persons litigate bona fide in respect of public right or of a private right claimed in common for themselves and others, all persons interested in such right shall, for the purposes of this section, be deemed to claim under the persons so litigating.
• Explanation VII.- The provisions of this section shall apply to a proceeding for the execution of a decree and reference in this section to any suit, issue or former suit shall be construed as references, respectively, to proceedings for the execution of the decree, question arising in such proceeding and a former proceeding for the execution of that decree.
• Explanation VIII.-An issue heard and finally decided by a Court of limited jurisdiction, competent to decide such issue, shall operate as res judicata in as subsequent suit, notwithstanding that such Court of limited jurisdiction was not competent to try such subsequent suit or the suit in which such issue has been subsequently raised.

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Read in this Cluster (Click on the Topic):

Book No. 1.   Handbook of a Civil Lawyer

• Civil Procedure – CPC
• Civil Rights and Jurisdiction of Civil Courts
• Pleadings Should be Specific; Why?
• Best Evidence Rule in Indian Law
• Declaration and Injunction
• Res Judicata and Constructive Res Judicata
• Order II, Rule 2 CPC – Not to Vex Defendants Twice
• Notice to Produce Documents in Civil Cases
• Production of Documents: Order 11, Rule 14 & Rule 12
• Modes of Proof – Admission, Expert Evidence, Presumption etc.
• Marking Documents Without Objection – Do Contents Proved
• Production, Admissibility & Proof Of Documents
• Sec. 91 CPC and Suits Against Wrongful Acts
• Remedies Under Sec. 92 CPC
• Mandatory Injunction – Law and Principles
• Interrogatories: When Court Allows, When Rejects?
• Can a Party to Suit Examine Opposite Party, as of Right?
• Decree in OI R8 CPC-Suit & Eo-Nomine Parties
• Power of attorney
• No Adjudication If Power of Attorney is Sufficiently Stamped
• Notary Attested Power-of-Attorney Sufficient for Registration
• Permission when a Power of Attorney Holder Files Suit
• Stamp Act
• Adjudication as to Proper Stamp under Stamp Act
• Unstamped & Unregistered Documents and Collateral Purpose
• Title and Possession
• Adverse Possession: An Evolving Concept
• Adverse Possession: Burden to Plead Sabotaged
• When ‘Possession Follows Title’; ‘Title Follows Possession’?
• Civil Procedure – General
• ‘Mutation’ by Revenue Authorities will not Confer ‘Title’
• Does Alternate Remedy Bar Civil Suits and Writ Petitions?
• Void, Voidable, Ab Initio Void, and Sham Transactions
• Can Courts Award Interest on Equitable Grounds?
• Natural Justice – Not an Unruly Horse
• ‘Sound-mind’ and ‘Unsound-Mind’
• Forfeiture of Earnest Money and Reasonable Compensation
• Who has to fix Damages in Tort and Contract?
• Notary-Attested Documents: Presumption, Rebuttable
• Relevant provisions of Kerala Land Reforms Act in a Nutshell
• Kerala Land Reforms Act – Plantation-Tenancy and Land-Tenancy
• Evidence Act – General
• Expert Evidence and Appreciation of Evidence
• How to Contradict a Witness under Sec. 145, Evidence Act
• Rules on Burden of proof and Adverse Inference
• Best Evidence Rule in Indian Law
• Modes of Proof – Admission, Expert Evidence, Presumption etc.
• Significance of Scientific Evidence in Judicial Process
• Polygraphy, Narco Analysis and Brain Mapping Tests
• Sec. 65B
• Sections 65A & 65B, Evidence Act and Arjun Panditrao: in Nutshell
• Sec. 65B, Evidence Act: Arjun Paditrao Criticised.
• Sec. 65B Evidence Act Simplified
• ‘STATEMENTS’ alone can be proved by ‘CERTIFICATE’ u/s. 65B
• Sec. 65B,  Evidence Act: Certificate for Computer Output
• Certificate is Required Only for ‘Computer Output’; Not for ‘Electronic Records’: Arjun Panditrao Explored.
• Documents
• Oral Evidence on Contents of Document, Irrelevant
• Marking Documents Without Objection – Do Contents Stand Proved?
• Proof of Documents & Objections To Admissibility – How & When?
• Notary-Attested Documents: Presumption, Rebuttable
• Presumptions on Registered Documents & Collateral Purpose
• Notice to Produce Documents in Civil Cases
• Production of Documents: Order 11, Rule 14 & Rule 12
• Modes of Proof – Admission, Expert Evidence, Presumption etc.
• Marking Documents Without Objection – Do Contents Proved
• Production, Admissibility & Proof Of Documents
• Substantive Documents, and Documents used for Refreshing Memory and Contradicting 
• Visual and Audio Evidence (Including Photographs, Cassettes, Tape-recordings, Films, CCTV Footage, CDs, e-mails, Chips, Hard-discs, Pen-drives)
• Relevancy, Admissibility and Proof of Documents
• Contract Act
• ‘Sound-mind’ and ‘Unsound-Mind’ in Indian Civil Laws
• Forfeiture of Earnest Money and Reasonable Compensation
• Who has to fix Damages in Tort and Contract?
• Easement
• What is Easement?
• Does Right of Easement Allow to ‘Enjoy’ After Making a Construction?
• What is “period ending within two years next before the institution of the suit”?
• Is the Basis of Every Easement, Theoretically, a Grant
• Extent of Easement (Width of Way) in Easement of Necessity
• Village Pathways and Right to Bury are not Easements.
• Custom & Customary Easements in Indian Law
• ‘Additional Burden Loses Lateral Support’ – Incorrect Proposition

Book No. 2: A Handbook on Constitutional Issues

• Judicial & Legislative Activism in India: Principles and Instances
• Can Legislature Overpower Court Decisions by an Enactment?
• Separation of Powers: Who Wins the Race – Legislature or Judiciary?
• Kesavananda Bharati Case: Never Ending Controversy
• Mullaperiyar Dam: Disputes and Adjudication of Legal Issues
• Article 370: Is There Little Chance for Supreme Court Interference
• Maratha Backward Community Reservation: SC Fixed Limit at 50%.
• Polygraphy, Narco Analysis and Brain Mapping Tests
• CAA Challenge: Divergent Views
• Religious issues
• Secularism and Art. 25 & 26 of the Indian Constitution
• Secularism & Freedom of Religion in Indian Panorama
• ‘Ban on Muslim Women to Enter Mosques, Unconstitutional’
• No Reservation to Muslim and Christian SCs/STs (Dalits) Why?
• Parsi Women – Excommunication for Marrying Outside
• Sabarimala Review Petitions & Reference to 9-Judge Bench
• Ayodhya Disputes: M. Siddiq case –Pragmatic Verdict

Book No. 3: Common Law of CLUBS and SOCIETIES in India

• General Features
• Bye Laws Fundamental
• Effect of Registration of Societies and Incorporation of Clubs
• Societies and Branches
• Vesting of Property in Societies and Clubs
• Juristic Personality of Societies and Clubs
• Incidents of Trust in Clubs and Societies
• Legal Personality of Trustees and Office Bearers
• Suits By or Against Societies, Clubs and Companies
• Court’s Jurisdiction to Interfere in the Internal Affairs
• How to Sue Societies, Clubs and Companies
• Amendment of Bye laws of Societies and Clubs
• Dissolution of Societies and Clubs
• Rights & Liabilities of Members of Clubs and Societies
• Management – Powers of General Body and Governing Body
• Expulsion of Members & Removal of Office-Bearers
• Election & Challenge in Societies and Clubs
• Court Interference in Election Process
• Individual Membership Rights in Societies & Clubs
• State-Interference in Affairs of Societies & Clubs
• Law on Meetings: An Overview

Book No. 4: Common Law of TRUSTS in India

• General Principles
• What is Trust in Indian Law?
• Public & Private Trusts in India.
• Public Trusts and Indian Trusts Act – An Overview
• Incidents of Trust in Clubs and Societies
• Public Trusts and (State) Endowments/Trusts Acts
• Trust is ‘An Obligation’; Not a Legal Entity
• Dedication and Vesting
• Dedication of Property in Public Trusts
• Vesting of Property in Trusts
• Indian Law Does Not Accept Salmond, as to Dual Ownership
• Trustees and Management
• Trustees and Administration of Public Trusts
• Alienation of Public Trust Property
• Extinction, Discharge, Revocation, etc. of Public Trusts
• Breach of Trust
• Breach of Trust and Removal of Trustees
• Suits by or against Trusts
• Suits By or Against Trusts and Trustees
• Remedies Under Sec. 92 CPC
• Law on Religious Trusts & Trustees
• Philosophy of Idol Worship
• Is an Idol a Perpetual Minor?
• Hindu Temples & Law of Trusts
• Law of Mutts and Other Hindu Endowments
• Legal Personality of Temples, Gurudwaras, Churches and Mosques
• Shebaits & Mahants and Law of Trustees
• Ayodhya Disputes: M. Siddiq case – Pragmatic Verdict
• Sabarimala Review Petitions & Reference to 9-Judge Bench
• Secularism and Art. 25 & 26 of the Indian Constitution
• Secularism & Freedom of Religion in Indian Panorama
• ‘Muslim Women: Ban to Enter Mosques, Is it Unconstitutional
• Parsi Women Excommunication, Unconstitutional.
• General
• State & Court – Protectors of All Charities
• Business by Charitable Trusts & Institutions