Res Judicata and Judicial Precedent

Taken from: Res Judicata and Constructive Res Judicata

Saji Koduvath, Advocate, Kottayam.

Res Judicata When Attracted

Res Judicata applies when the ‘matter is decided’.

Core Ingredients:
•➧ The matter in issue has been an issue in a former suit.

Other Requirements
•➧ (i) Matter in issue directly and substantially same; Same Parties, (ii) Heard and finally decided, and (iii) Decision by a competent court.
•➧ Sufficient pleading should have been raised

Other Settled Positions
•➧ The issue should have been necessary to be decided; an incidental finding will not constitute res judicata.
•➧ No res judicata if the ultimate decision – suit was not maintainable.
•➧ No res judicata on adverse finding against whom the suit is ultimately decided.
•➧ Former decision was too perverse.  

Other Concluded Points
•➧ Findings on several grounds. In the appeal, only one ground was considered. Res judicata on that one ground alone.
•➧ Different causes of action, as in an injunction suit or in an eviction suit.

Precedents – only if they decide a question of law

              •➧ A Case is only an Authority for what it Actually Decides.
              •➧ Decision Applicable Only to Facts Cannot be a Binding Precedent.
              •➧ Binding Precedent Helps in Promoting Certainty and Consistency.
              •➧ A decision is available as a precedent only if it decides a question of law.
              •➧ An order made merely to dispose of the case cannot have the value or effect of a binding precedent.
              •➧ The precedential value is attached only to orders which are preceded by a detailed judgment.

Ratio Decidendi alone is Binding Precedent 

               •➧ Ratio decidendi alone is the Binding Precedent.
               •➧ Ratio decidendi is a statement of principles of law.
               •➧ Ratio decidendi is the vital element in the decision.
               •➧ Ratio decidendi literally means “reason for deciding”.
               •➧ Ratio decidendi is the essence, and not every observation.
               •➧Ratio decidendi is a declaration of law in a speaking order.
              •➧ Ratio decidendi is the Legal Principle Guiding the Decision.
               •➧ Ratio decidendi alone binds under Article 141 of the Constitution. 
              •➧ What is binding is discernible Ratio and the Principle, not the Conclusion.
             •➧ A case is only an authority for what it decides, and not for what logically follows from it.
              •➧ No Binding Precedent if a decision is without taking into account the statutory provision or if it is wrong in law.
              •➧ Ratio decidendi Is Binding Precedent: Mere Casual Expressions – Not of Much Avail
             •➧ It is important to read and analyse the Entire Judgment, and the ratio decidendi is to be isolated.
              •➧ Words in a Judgment are Not to be Interpreted as a Statute; Words in it are Not to be Taken Literally.
              •➧ The abstract ratio decidendi (ascertained on a consideration of the judgment)  alone has the force of law.
             •➧ For the Legal Principles Guiding the Decision constitute ‘Ratio Decidendi’, it is always necessary to see what the facts were.

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; 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)

Binding Judicial Precedent and Res Judicata – a Couplet

Binding Judicial 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 binds courts, not parties.

No ‘Binding Precedent’ if earlier decision was –

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

Binding Precedent- In Nutshell

No Binding Precedent if relevant STATUTORY PROVISION was Not considered. [Union of India v. Maniklal Banerjee, AIR 2006 SC 2844] 

Where no consideration was given to the question, the decision cannot be said to be binding; and precedents SUB SILENTIO – Without Arguments – are of NO MOMENT. [A-One Granites v. State of U.P., 2001-3 SCC 537] 
 
A decision is available as a precedent only if it DECIDES a QUESTION OF LAW. [State of Punjab v. Surinder Kumar, AIR 1992 SC 1593: 1992-1 SCC 489]. Not facts. [Prakash Chandra Pathak v. State of Uttar Pradesh, AIR 1960 SC 195] 

RATIO DECIDENDI is Binding Precedent: Mere Casual Expressions – Not of Much Avail.[ Girnar Traders v. State of Maharashtra, (2007) 7 SCC 555; State of Maharashtra v. Bhakti Vedanta Book Trust, AIR 2013 SC 1667; 2013-4 SCC 676; Shrirampur Municipal Council v. Satyabhamabai Bhimaji Dawkher, AIR 2013 SC 3757; 2013 5 SCC 627; Arun Kumar Aggarwal v. State of Madhya Pradesh, AIR 2011 SC 3056; 2014-13 SCC 707). 

For Binding Precedent, finding must be ‘RATIO DECIDENDI’ (necessary to the decision), and  Not obiter dicta. [Allen in ‘Law in the Making’; Quoted in: Chandrapal Singh v. State of U. P. (All), 2023-11 ADJ 543; Chandrapal Singh v. State of U. P. (All), 2023-11 ADJ 543)]

Court’s order is binding on the parties under res judicata; the RATIO DECIDENDI is binding on other Courts as binding precedent. [The Modern English Legal System (4th Edition) by Smith, Bailey and Gunn (Sweet & Maxwell, 2002), pages 518-519] 
 
What is of the essence in a decision is its ratio and not every observation found therein. [State of Orissa v. Sudhansu Sekhar Misra, AIR 1968 SC 647; Union of India v. Dhanwanti Devi, 1996-6 SCC 44; Secunderabad Club v. CIT, 2023 SCC OnLine SC 1004, 2023-457 ITR 263 (SC) 

The doctrine of precedent mandates that an exposition of law must be followed and applied. [State of U.P. v. Ajay Kumar Sharma, 2016-15 SCC 289]. 

Res judicata bars raising the same issue. Judicial precedent is not concerned with issues between parties. (Spencer Bower, Turner and Handley’s Commentary on the Doctrine of Res Judicata (Butterworths: London, Edinburgh, Dublin – 1996, pages 8 and 9)

Res judicata pertains to the parties;  precedent refers to a binding declaration of law that applies to courts or authorities. [Indian Broadcasting and Digital Foundation v. Telecom Regulatory Authority of India, 01 Nov 2024, 2024 KER 80988]. 

A decision on the ‘construction of that document’ can operates as a judicial precedent against one though he was not a party to that litigation (Sahu Madho Dass v. Mukand Ram, 1955 AIR SC 481).

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)

Ratio Decidendi Is Binding Precedent: Casual Words, Not of Much Avail

In Girnar Traders v. State of Maharashtra, AIR 2007 SC 3180; (2007) 7 SCC 555, pointing out – the “observations of the Court did not relate to any of the legal questions arising in the case and, accordingly, cannot be considered as part of the ratio decidendi”, it is laid down as under:

  • “Hence, in light of the aforementioned judicial pronouncements, which have well settled the proposition that only the ratio decidendi can act as the binding or authoritative precedent, it is clear that the reliance placed on mere general observations or casual expressions of the Court, is not of much avail to the respondents.”
  • (Quoted in: State of Maharashtra v. Bhakti Vedanta Book Trust, AIR 2013 SC 1667; 2013-4 SCC 676;
  • Shrirampur Municipal Council v. Satyabhamabai Bhimaji Dawkher, AIR 2013 SC 3757; 2013 5 SCC 627;
  • Arun Kumar Aggarwal v. State of Madhya Pradesh, AIR 2011 SC 3056; 2014-13 SCC 707)

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

A Full Bench of the Allahabad  HighmCourt, in  Indian Ceramic House, Langra-Ki-Chowki, Agra v. Sales Tax Officer, II Sector, Agra : 1970 SCC OnLine All 193, observed as under:

  • “A Judgment is authoritative only as to that part of it which is considered to have been necessary to the decision of the case, and not that part which was not necessary to its decision. The first is called ‘ratio decidendi’. Which is binding as a precedent. The other called ‘obiter dicta’ cannot be treated as a binding precedent though the opinion so expressed is entitled to respect.” (Quoted in Chandrapal Singh v. State of U. P. (All), 2023-11 ADJ 543)

The Supreme Court in Jayant Verma v. Union of India, (2018) 4 SCC 743, quoted the dissenting judgement of A.P. Sen, J. in Dalbir Singh v. State of Punjab, (1979) 3 SCC 745, with approval :

  • “54. This question is answered by referring to authoritative works and judgments of this Court. In Precedent in English Law by Cross and Harris (4th edn.), ‘ratio decidendi’ is described as follows: “The ratio decidendi of a case is any rule of law expressly or impliedly treated by the judge as a necessary step in reaching his conclusion, having regard to the line of reasoning adopted by him, or a necessary part of his direction to the jury.”

Allen in ‘Law in the Making’ said as under:

  • “Any judgment of any Court is authoritative only as to that part of it, called the ‘ratio decidendi’, which is considered to have been necessary to the decision of the actual issue between the litigants. It is for the Court, of whatever degree, which is called upon to consider the precedent, to determine what the true ‘ratio decidendi’ was…………..Judicial opinions upon such matters, whether they be merely casual, or wholly gratuitous or (as is far more usual) of what may be called collateral relevance, are known as ‘obiter dicta or simply ‘dicta’, and it is extremely difficult to establish any standard of their relative weight.” (Quoted in : Chandrapal Singh v. State of U. P. (All), 2023-11 ADJ 543). (Quoted in : Chandrapal Singh v. State of U. P. (All), 2023-11 ADJ 543).

In State of Orissa v. Sudhansu Sekhar Misra, AIR 1968 SC 647, wherein after relying on British authorities it was held:

  • “13….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 it. On this topic, this is what Earl of Halsbury L.C. said in Quinn v. Leathem [[1901] AC 495]:
  • “Now before discussing the case of Allen v. Flood, [1898] AC 1 and what was decided therein, there are two observations of a general character which I wish to make, and one is to repeat what I have very often said before, that 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 are not intended to be expositions of the whole law, but governed and qualified by the particular facts of the case in which such expressions are to be found. The other is that a case is only an authority for what it actually decides. I entirely deny that it can be quoted for a proposition that may seem to follow logically from it. Such a mode of reasoning assumes that the law is necessarily a logical code, whereas every lawyer must acknowledge that the law is not always logical at all. It is not a profitable task to extract a sentence here and there from a judgment and to build upon it.”

The Supreme Court, in Krishena Kumar v. Union of India, 1990 (4) SCC 207, said as under::

  • “19. The doctrine of precedent, that is being bound by a previous decision, is limited to the decision itself and as to what is necessarily involved in it. It does not mean that this Court is bound by the various reasons given in support of it, especially when they contain “propositions wider than the case itself required”. This was what Lord Selborne said in Caledonian Railway Co. v. Walker’s Trustees [(1882) 7 App Cas 259 : 46 LT 826 (HL)] and Lord Halsbury in Quinn v. Leathem [1901 AC 495, 502 : 17 TLR 749 (HL)]. Sir Frederick Pollock has also said :
  • “Judicial authority belongs not to the exact words used in this or that judgment, nor even to all the reasons given, but only to the principles accepted and applied as necessary grounds of the decision.”

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.”

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. 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.

A deliberate decision after hearing on a question constitute a precedent

A three Judge Bench of our Apex Court, in Union of India v. Dhanawanti Devi, (1996) 6 SCC 44. held 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.
  • 10. Therefore, in order to understand and appreciate the binding force of a decision it is always necessary to see what were the facts in the case in which the decision was given and what was the point which had to be decided. No judgment can be read as if it is a statute. A word or a clause or a sentence in the judgment cannot be regarded as a full exposition of law. Law cannot afford to be static and therefore, Judges are to employ an intelligent technique in the use of precedents……” (Quoted in: Vishal N.  Kalsaria v. Bank of India, 2016-3 SCC 762)

Constructive Res-Judicata: For Not Making Whole Pleadings

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.”

No Res Judicata by Implied/ Incidental 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.

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.”

Also read:  

             •➧ Ratio Decidendi (alone) Forms a Precedent; Not the Final Order or Conclusion.
             •➧ Relevancy of a Civil Case Judgment in Criminal Cases: Does a Civil Court Judgment Bind a Criminal Court?
             •➧ Prem Raj v.  Poonamma Menon (SC), April 2, 2024 – An Odd Decision on ‘Civil Court Judgment Does Not Bind Criminal Court’.
             •➧ Cheating and Breach of Contract: Distinction lies in Fraudulent Intention ‘at the time of Promise’.  No Criminal Case endures on a Dispute Essentially Civil in Nature.
             •➧ No Res judicata on Finding on Title in an Injunction Suit
             •➧ What are “Relevant Under Some Other Provisions of this Act” in Sec. 43?
             •➧ Judicial Precedent and Res Judicata – a Couplet
             •➧ Res Judicata and Constructive Res Judicata
             •➧ Alternative Pleadings on Title and Adverse Possession: Mutually Inconsistent or Mutually Destructive?

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

In PMA Metripolitan 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.”

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Read in this cluster (Click on the topic):

Civil Suits: Procedure & Principles

Book No, 1 – Civil Procedure Code

Principles and Procedure

PROPERTY LAW

Title, ownership and Possession

Adverse Possession

Land Laws/ Transfer of Property Act

Land Reform Laws

Power of attorney

Evidence Act – General

Sec. 65B

Admission, Relevancy and Proof

Law on Documents

Documents – Proof and Presumption

Interpretation

Contract Act

Law on Damages

Easement

Stamp Act & Registration

Divorce/Marriage

Negotiable Instruments Act

Criminal

Arbitration

Will

Book No. 2: A Handbook on Constitutional Issues

Religious issues

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

Book No. 4: Common Law of TRUSTS in India

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