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)

Decision without Argument, Crucial words, Citation of Authority: Not binding

In Gerard vs. Worth of Paris Ltd. (K), (1936) 2 All ER 905 (CA), it was observed that a decision which is rendered without argument, without reference to the crucial words of the rule, and without any citation of authority is not binding and need not be followed. The Court further observed that precedents sub silentio and without argument are of no moment. (Referred to in: Bindu K.B. vs. State of Kerala, 2014 (4) KHC 772.)

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)

‘PER INCURIAM’ and Decision of Co- equal Bench

Per Incuriam If Not Obeyed Provision In A Statute, Earlieer Judgment

“Incuria” literally means “carelessness”. Per Incuriam gives the idea – ‘out of ignorance’.

Black’s Dictionary, explains per incuriam as under:

“A judgment per incuriam is one which has been rendered inadvertently.”

A Judgment rendered in total ignorance of law or earlier decision alone constitute the principles of per incurium; erroneous appreciation or misconstruction of a binding precedent is not a per incuriam decision. Total ignorance of earlier judgments of co-equal bench also renders a decision per incuriam. Such judgments will not be treated as precedent. [See: State of State of M.P. Vs. Narmada Bachao Andolan, (2011) 7 SCC 639, Punjab Land Development and Reclamation Corpn. Ltd. v. Presiding Officer, (1990) 3 SCC 682, Fuerst Day Lawson Ltd. v. Jindal Exports Ltd. (2001) 6 SCC 356, Subhash Chandra v. Delhi Subordinate Services Selection Board, (2009) 15 SCC 458]

Sundeep Kumar Bafna v. State of Maharashtra [2014] 16 SCC 623, it is observed that the Latin expression “per incuriam” means through inadvertence. A decision can be said generally to be given per incuriam when the Court has acted in ignorance of a previous decision of its own or when it has acted in ignorance of a decision of the High Court or the Supreme Court. (Punjab Land Devl., & Reclamation Corpn. Ltd. v. Presiding Officer, Labour Court : (1990) 3 SCC 682; Commissioner of Income Tax v. B.R. Constructions, 1992 SCC OnLine AP 121).

Halsbury’s Laws of England, Fourth Edition, para 578 at page 297 states the rule of per incuriam as follows:—ignorance of the terms of a statute or rule having statutory force.”

Larger Strength Is Binding On Any Subsequent Bench Of Lesser Or Co-Equal Strength Central Board of Dawoodi Bohra Community and another vs. State of Maharashtra and another, (2005) 2 SCC 673), Referred in P.A.Thomas v.Authority Under the Minimum Wages Act 2008 1 KHC 800 ; 2008 1 KLT 858 (S.Siri Jagan,J.)

Subsequent Bench Would Follow Earlier Co-Ordinate Bench
Judicial Discipline-Binding Precedent-Except in compelling circumstances, such as where order of earlier Bench is per incuriam, subsequent Bench would follow earlier co-ordinate Bench. (Para 23) Jai Singh v. Municipal Corporation of Delhi 2010 9 SCC 385 (B.Sudershan Reddy and Surinder Singh Nijjar, JJ.)

Kerala High Court View: Two benches of equal strength of the APEX COURT: Later Decision will Prevail

The Full Bench of the Kerala High Court, in a reference, in Raman Gopi v. Kunju Raman Uthaman [2011 (4) KLT 458], had to decide – how to deal with conflicting views in the decisions of two benches of equal strength of the Apex Court. It was held that in case of conflicting decisions taken in the two Benches of equal strength of the Apex Court, the decision later in point of time, will prevail over the earlier one. It was pointed out that

a decision of the Apex Court on a declaration of law is binding on all High Courts and Subordinate courts under Article 141 of the Constitution of India and
it may not be proper for the High Courts or Subordinate Courts to criticise and characterise a decision of the Apex Court which has laid down a point of law as per incuriam.

Raman Gopi v. Kunju Raman Uthaman [2011 (4) KLT 458 (FB)] is followed in M/s. Norman Printing Bureau v. P.M. Mammu Haji, 2013 4 ILR(Ker) 84; 2013 3 KHC 798; 2013-4 KLT 606 (K.M. Joseph & A. Hariprasad, JJ.) observing as under:

“10. Question as to which of the decisions pronounced by Benches of the Supreme Court of co-equal strength is the binding precedent was considered by this Court on many occasions. In Joseph v. Special Tahsildar (2001 (1) KLT 958) Full Bench of this Court considered the above question in extenso. Law laid down therein is the following:
- “We may now refer to a few High Court decisions on the question where an apparent conflict between an earlier and a later decision of the Apex Court by Benches consisting of equal number of Judges is pointed out. In our view, in such a situation the later decision must prevail over the earlier decision.”
11. Later, a Full Bench of this Court in Raman Gopi v. Kunju Raman Uthaman (2011 (4) KLT 458) answered a reference order relating to the binding nature of decisions, where conflicting views are expressed in the decisions of two Benches of co-equal strength of the Supreme Court. After an elaborate precedential survey, following propositions have been laid down:
“The legal position, which therefore emerges on a discussion and analysis of the principles stated in various decisions of the Apex Court and other High Courts including this Court, so as to act as guidance to the High Courts and Subordinate Courts, when faced with a conflicting decisions, are summarised below:-
- (i) In case of conflicting views taken in the decisions of two Benches of equal strength of the Apex Court, the decision later in point of time, will prevail over the earlier one;
- (ii) What is binding is the ratio decidendi. A decision is only an authority for what it actually decides.
- (iii) A decision which is not expressed and is not found on reasons nor proceeds on consideration of issue cannot be deemed to be a law declared to have a binding effect as is contemplated by Art.141 of the Constitution. Similarly, any declaration made or conclusion arrived at without application of mind or preceded without a reason, cannot be a declaration of law, or authority as a binding precedent.
- (iv) It is well settled that what is the essence of a decision is the ratio and not every observation, nor what logically follows from various observations made in it.
- (v) 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 Art.141 of the Constitution.
- (vi) A decision passes sub-silentio, in the technical sense that has come to be attached to that phrase, when the particular point of law involved in the decision is not perceived by the court or present to its mind (Salmond on Jurisprudence 12th Edn. p.153).
- (vii) A Division Bench, in case of conflict between the decision of a Division Bench of two Judges and the decision of a larger Bench and in particular, a Constitution Bench, would be bound by the latter decision.
- (viii) Per incuriam means a decision rendered by ignorance of a previous binding decision such as a decision of its own or of a court of coordinate or higher jurisdiction or in ignorance of the terms of a statute or of a rule having the force of law. A ruling making specific reference to an earlier binding precedent may. Or may not be correct, but cannot be said to be per incuriam”.
Hence, it is now indubitable that the decision rendered by the Apex Court later in point of time will prevail over the earlier one.”

Raman Gopi v. Kunju Raman Uthaman [2011 (4) KLT 458 (FB)] is also Referred to in:

Saiby v. Mary, 2025-5 KHC 482: 2025-4 KLT 933 (Easwaran S., J.);
M/s Asm Traxim Pvt Ltd v. Union Of India, 2025-11 ADJ 500 ; 2025-5 AllLJ 100
Munni Lal v. Mohd. Rafik Kidwai, 2023-7 ADJ 74 ; 2023-AHC 124434 ; 2023-160 AllLR 658 ; 2023-2 ARC 432 ; 2023-4 AWC 3629
XXXXXXXXXX – v. State of Kerala, 2022-5 KLT 636 (Kauser Edapagath, J.)

Daisy M.P. v. State of Kerala, 2020-3 KHC 115 ; 2020-2 KLT 639 (Sunil Thomas, J.)
Smitha v. V. Krishnan, 2017 AIR(Ker) 87; 2017-1 KHC 81; 2017-1 KLT 892 (K.T. Sankaran, P.D. Rajan and P. Ubaid, JJ.)
Narayanan Radhakrishna Menon v. Narayanan Sukumara Menon, 2018-1 KHC 412 ; 2018-2 KLT 553)
Papaiah Alias S.R. Papi Reddy v. P. Nagaraja Reddy, 2019 3 AIR(Kar)(R) 274
Rosamma Joseph v. State of Kerala,2014 1 KLT(SN) 70 ; 2014 KHC 154 (K. Ramakrishnan, J.)
St. Joseph’s Hospital Trust v. The Kerala University of Health Sciences, 2012-3 KHC(SN) 26 ; 2012-4 KLT 444 (K.M. Joseph & K. Harilal, JJ.)
Saramma Paulose v. Lilly, Decided On: 03-10-2011 (Thomas P. Joseph. J)

In Kumari Alias Mary Francis, v. Baby, 2022-6 KHC 270 ; 2022-5 KLT 614 (P. Somarajam, J.) referred Raman Gopi v. Kunju Raman Uthaman [2011 (4) KLT 458 (FB)], laid down the history of this decision as under:

“2. Ext. B1 is a registered Will dated 2/11/1971 jointly executed by Paul and Sara. The suit was filed after the lapse of more than 30 years. ……The learned counsel for the appellant/plaintiff relied on the decision in Bharpur Singh & Ors. v. Shamsher Singh, 2009 (3) SCC 687, in support of his argument that there cannot be any application of Section 90 of the Evidence Act pertaining to a Will or testament irrespective of whether it is registered or not. But it is against the rationale (ratio) applied by the Apex Court in several decisions including the decision rendered by a Constitution Bench. Hence, it is necessary to ascertain the principle of binding precedent especially when contrary views were taken by a Full Bench and a Division Bench of this Court.
3. The issue came up before the Privy Council as early as in the year 1947 in Munnalal v. Mt. Kashibai, AIR 1947 PC 15, wherein it was held that the execution and attestation of a Will of more than 30 years old, when produced from proper custody, can be presumed. Later on, a three Judge Bench of the Apex Court had affirmed the legal position in Kalidindi Venkata Subbaraju & Ors. v. Chintalapati Subbaraju & Ors., AIR 1968 SC 947. It was followed by this Court in Narayanan Radhakrishna Menon v. Narayanan Sukumara Menon, 2018 (2) KLT 553. Subsequently, it was settled by a Constitution Bench of the Apex Court in Central Board of Dawoodi Bohra Community and Another v. and State of Maharashtra and Another, AIR 2005 SC 752, that a decision delivered by a larger Bench is binding on any subsequent Bench of lesser or co-equal strength. It is further laid down that a Bench of lesser strength cannot doubt the correctness of the view of the law taken by a Bench of larger strength and summed up as follows:-
- “The law laid down by Supreme Court in a decision delivered by a Bench of larger strength is binding on any subsequent Bench of lesser or co-equal strength. A Bench of lessor quorum cannot doubt the correctness of the view of the law taken by a Bench of larger quorum. In case of doubt all that the Bench of lesser quorum can do is to invite the attention of the Chief Justice and request for the matter being placed for hearing before a Bench of larger quorum than the Bench whose decision has come up for consideration. It will be open only for a Bench of co-equal strength to express an opinion doubting the correctness of the view taken by the earlier Bench of co-equal strength, whereupon the matter may be placed for hearing before a Bench consisting of a quorum larger than the one which pronounced the decision laying down the law the correctness of which is doubted.”
4. It has been further reiterated by a three Judge Bench of the Apex Court in New India Assurance Company Ltd. v. Hilli Multipurpose Cold Storage Pvt. Ltd., AIR 2016 SC 86, by holding that the judgment delivered earlier in point of time shall prevail over the judgment rendered by a co-equal Bench on a later point of time.
5. The abovesaid principle is subject to the exception that when in a subsequent pronouncement, after taking into consideration the previous judgment, re-defines or explains the width of principles laid down in the previous judgment, the subsequent pronouncement has to be followed (M. Natarajan v. State (2008) 8 SCC 413). It must be understood that there is no scope to re-write or reconsider the legal position earlier laid down by a larger Bench or a co-equal Bench, except for the purpose of explaining the width and length of the principle laid down in the previous judgment. Very recently, another Constitution Bench of the Apex Court in Dr. Shah Faesal and Ors. v. Union of India and Another [(2020) 4 SCC 1] had reiterated the legal position by explaining the rule of per incuriam, relevancy and binding precedent of ratio decidendi laid down in an earlier judgment of co-equal Bench or a larger Bench. There will not be any binding precedent regarding obiter dicta. The Constitution Bench of the Apex Court had considered in this context, the doctrine of binding precedent with its utmost importance in the administration of judicial system by referring yet another five Judge Bench of the Apex Court in Chandra Prakash v. State of U.P., (2002) 4 SCC 234, and also the law laid down in National Insurance Co. Ltd. v. Pranay Sethi, (2017) 16 SCC 680: (2018) 3 SCC (Civ) 248 : (2018) 2 SCC (Cri) 205. The view that the subsequent decision shall be declared per incuriam only if there exists a conflict in the ratio decidendi of the earlier judgments has got approval by a five-Judge Bench of the Apex Court in Punjab Land Development & Reclamation Corpn. Ltd. v. Labour Court, (1990) 3 SCC 682.”

Is the Full Bench Decision “Per Incuriam”?Does it apply to ‘Co-equal Benches’?

Kumari Alias Mary Francis, v. Baby, 2022-6 KHC 270 ; 2022-5 KLT 614 (P. Somarajam, J.) distinguished (?) Raman Gopi v. Kunju Raman Uthaman [2011 (4) KLT 458 (FB)] observing as under:

“6. But, without noticing the law laid down by the Constitution Bench of the Apex Court in Central Board of Dawoodi Bohra Community’s case (supra), a Division Bench of this Court in Sampath S. Pawar v. Ibrahim, 2013 (3) KLT 722, had laid down the law that when conflicting views are taken by Benches of co-equal strength, the decision later in point of time will prevail over the earlier one by referring to a Full Bench decision of this Court in Raman Gopi v. Kunju Raman Uthaman, 2011 (4) KLT 458 (FB).”
In fact, the abovesaid contrary view was taken by the Full Bench of this Court after referring the legal position laid down by the Constitution Bench in Central Board of Dawoodi Bohra Community’s case (supra). But the reference was only for the purpose of binding precedents of the larger Benches over the Benches of lesser strength. It was not referred in relation to “ratio decidendi” settled with respect to conflicting decision rendered by co-equal Benches. A mere citing of a decision or a legal position settled in an earlier judgment, not for the purpose either to follow or dissent, cannot be said to have referred so as to exclude the same from the mischief of “per incuriam decis”. In order to avoid the mischief, the “ratio decidendi” settled on a particular legal issue by the earlier larger or co-equal Bench must be referred in relation to that particular “ratio decidendi”. Hence, the legal position laid down by the Full Bench without referring to the law laid down in Central Board of Dawoodi Bohra Community’s case (supra) in relation to conflicting decision and the binding precedents of co-equal Benches would stand “per incuriam decis”. The decision rendered by the Division Bench in Sampath’s case (supra) by following the Full Bench decision in Raman Gopi’s case (supra) without noticing the decision of the Constitution Bench in Central Board of Dawoodi Bohra Community’s case (supra) also would stand per incuriam decis. So also, the decision rendered by a Single Bench of this Court in Hameed v. State of Kerala, 2008 (1) KLT 534, by taking a contrary view, though referred the decision of the Constitution Bench of the Apex Court in Central Board of Dawoodi Bohra Community’s case (supra) cannot be held good law.
7. The observation made by the Apex Court in Official Liquidator v. Dayanand and Others [(2008) 10 SCC 1] assumes importance at this juncture. The relevant portion is extracted below for reference:
- “There have been several instances of different Benches of the High Court not following the judgments/orders of coordinate and even larger Benches. In some cases, the High Courts have gone to the extent of ignoring the law laid down by this Court without any tangible reason. Likewise, there have been instances in which smaller Benches of this Court have either ignored or bypassed the ratio of the judgments of the larger Benches including the Constitution Benches. These cases are illustrative of non-adherence to the rule of judicial discipline which is sine qua non for sustaining the system.”
8. Further, in view of the legal position settled by the Constitution Bench of the Apex Court in Central Board of Dawoodi Bohra Community’s case (supra) and Dr. Shah Faesal’s case (supra), the earlier decision rendered by a Full Bench of this Court in Joseph v. Special Tahsildar (2001 (1) KLT 958 (FB)) holding that when two decisions of co-equal Benches of the Apex Court are conflicting, the decision later in time to be binding, cannot be held good law. The decision rendered by the Apex Court in Bharpur Singh’s case (supra) without noticing the earlier legal position settled by a larger Bench (three Judge Bench) of the Apex Court in Kalindindi Venkata Subbaraju’s case (supra), hence cannot be held to have binding precedent.”

The View: in Co-Equal Bench, Latest Judgment should Prevail – Fallacious?

It is held in Bindu v. State of Kerala, 2014 4 KHC 772 ; 2015 1 KLT(SN) 5 (Dama Seshadri Naidu, J.) that the school of thought — in case of conflict between co-equal benches, the latest judgment should prevail — is fallacious. Still, if the latter bench refers to the earlier one and distinguishes it, to that extent of distinction, the latter one binds. The court referred to the following decisions:

Andhra Pradesh S.K. Mahaboob Ali, Ex-CRPF Constable, Nandyal v. Director General of Police, Central Reserve Police Force, New Delhi and others, 2005 (1) ALT 412 (DB)
Jabalpur Bus Operators Association and others v. State of Madhya Pradesh and another, AIR 2003 MP 81

CONFLICTING DECISIONS OF CO-ORDINATE 2 Judge BENCHES – REFER THE MATTER TO A BENCH OF THREE HON’BLE JUDGES. Hardeep Singh v. State of Punjab 2009 AIR(SC) 483 ; 2009-16 SCC 785 (C.K. Thakker and D.K. Jain, JJ.)

Co-Ordinate Bench Decisions also Should be Referred to a Larger Bench If Difference

In Lala Shri Bhagwan v. Ram Chand, AIR 1965 SC 1767, it is held as under:

“8. .. It is hardly necessary to emphasise that considerations of judicial propriety and decorum require that if a learned single Judge hearing a matter is inclined to take the view that the earlier decisions of the High Court, whether of a Division Bench or of a single Judge, need to be reconsidered, he should not embark upon that enquiry sitting as a single Judge, but should refer the matter to a Division Bench or, in a proper case, place the relevant papers before the Chief Justice to enable him to constitute a larger Bench to examine the question. That is the proper and traditional way to deal with such matters and it is founded on healthy principles of judicial decorum and propriety. ….” (Quoted in: U.P. Power Corporation Ltd. v. Rajesh Kumar, AIR 2012 SC 2728 ; 2012-7 SCC 1.)

In Sundarjas Kanyalal Bhathija v. The Collector, Thane, Maharashtra, AIR 1991 SC 1893, it is observed as under:

“One must remember that pursuit of the law, however, glamorous it is, has its own limitation on the Bench. In a multi-Judge Court, the Judges are bound by precedents and procedure. They could use their discretion only when there is no declared principle to be found, no rule and no authority. The judicial decorum and legal propriety demand that where a learned single Judge or a Division Bench does not agree with the decision of a Bench of co-ordinate jurisdiction, the matter shall be referred to a larger Bench. It is a subversion of judicial process not to follow this procedure.” (Quoted in: U.P. Power Corporation Ltd. v. Rajesh Kumar, AIR 2012 SC 2728 ; 2012-7 SCC 1.)

In State Through Central Bureau Of Investigation v. Hemendhra Reddy, 2023-16 SCC 779 (Surya Kant, J.B. Pardiwala, JJ.), it is said as under:

81. We would like to extend a word of caution over here. While it is open to a learned Judge to differ with a view of a Co-ordinate Bench the sequitur is to make a reference to a larger Bench on papers being placed before the learned Chief Justice. The learned Judge cannot simply say “with due respect, I do not agree to the ratio…” or “the decision is per incuriam as a binding judgment of the Supreme Court has not been considered….” and proceed to take a contrary view as done in the impugned order. Such an approach would result in conflicting opinions of Co-ordinate Benches, resulting in judicial chaos and is, thus, improper. This is something atrocious and unacceptable.”

The Apex court referred Official Liquidator v. Dayanand and Others reported in (2008) 10 SCC 1

In Mahadeolal Kanodia v. Administrator General of W.B. [AIR 1960 SC 936 : (1960) 3 SCR 578] our Apex Court pointed out as unser:

“19. … If one thing is more necessary in law than any other thing, it is the quality of certainty. That quality would totally disappear if Judges of coordinate jurisdiction in a High Court start overruling one another’s decisions.

CONTRARY TO THE LAW DECLARED BY THE APEX COURT; Pareed Pillai v. Oriental Insurance Co. Ltd., 2019 AIR Ker 9 ; 2018 4 KLT 792 (Hrishikesh Roy, P.R.Ramachandra Menon, A.K.Jayasankaran Nambiar, Anil K.Narendran, Devan Ramachandran, JJ.)

HAD NOT TAKEN NOTE OF A BINDING CONSTITUTION BENCH DECISION; BUT FOLLOWED A LATER DECISION. Kottukal Konam Hindu Nadar Mahajana Sanm v. P.Kunjukrishnan Nadar AS 615/2000 Decided On : 09-04-2010

EXCEPT IN COMPELLING CIRCUMSTANCES EARLIER BENCH CAN BE SAID TO BE PER INCURIAM

Except in compelling circumstances, such as where the order of the earlier bench can be said to be per incuriam, in that it is passed in ignorance of an earlier binding precedent/ statutory or constitutional provision, the subsequent bench would follow the earlier oordinate bench.

SALMOND: Lower Court Can Pick And Choose: Salmond on Jurisprudence a lower court can pick and choose between two conflicting decisions of the same court on the same question of law. P.A. Thomas v. Authority Under the Minimum Wages Act 2008 1 KHC 800; 2008 1 KLT 858 (S. Siri Jagan, J.). Read as under:

“10. Salmond on Jurisprudence deals with the question of choosing between conflicting decisions of the same court by a subordinate court as follows:

“(4) Inconsistency with earlier decision of higher court. it is clear law that a precedent loses its binding force if the court that decided it overlooked an inconsistent decision of a higher court. If, for example, the Court of Appeal decides a case in ignorance of a decision of the House of Lords which went the other way, the decision of the Court of Appeal is per incuriam, and is not binding either on itself or on lower courts; on the contrary, it is the decision of the House of Lords that is binding. The same rule applies to precedents in other courts, such as the Divisional Court.
(5) Inconsistency between earlier decisions of the same rank. A court is not bound by its own previous decisions that are in conflict with one another. This rule has been laid down in the Court of Appeal, Court of Criminal Appeal and Divisional Court and it obviously applies also to the House of Lords. There may at first sight seem to be a difficulty here: how can a situation of conflict occur, if the court is bound by its own decisions? At least two answers may be given. First, the conflicting decisions may come from a time before the binding force of precedent was recognized. Secondly, and more commonly, the conflict may have arisen through inadvertence, because the earlier case was not cited in the later. Owing to the vast number of precedents, and the heterogeneous ways in which they are reported-or are not reported-it is only too easy for counsel to miss a relevant authority. Whenever a relevant prior decision is not cited before the court, or mentioned in the judgments, it must be assumed that the court acts in ignorance or forgetfulness of it. If the new decision is in conflict wit the old, it is given per incuriam and is not binding on a later court.
Although the later court is not bound by the decision so given per incuriam, this does not mean that it is bound by the first case. Perhaps in strict logic the first case should be binding, since it should never have been departed from, and was only departed from per incuriam. However, this is not the rule. The rule is that where there are previous inconsistent decisions of it own, the court is free to follow either. It can follow the earlier, but equally, if it thinks fit, it can follow the later. This rule has been laid down for the Court of Appeal, and it is submitted that it applies also to other courts. It will be seen, therefore, that this exception to the binding force of precedent belongs both to the category of abrogation by subsequent facts and to the category of what is here called inherent vice. The earlier case can be disregarded because of the subsequent inconsistent decision on the same level of authority, and the later case can be disregarded because of its inherent vice of ignoring the earlier case.
Where authorities of equal standing are irreconcilably in conflict, a lower court has the same freedom to pick and choose between them as the schizophrenic court itself. The lower court may refuse to follow the later decision on the ground that it was arrived at per incuriam, or it may follow such decision on the ground that it is the latest authority. Which of these two courses the court adopts depends, or should depend, upon its own view of what the law ought to be. However, it takes a somewhat bold judge to disregard a precedent handed down by a court of higher standing on the ground that the decision was per incuriam.”

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.”

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

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.”

In Neelima Srivastava v. State of Uttar Pradesh, AIR 2021 SC 3884: (2021) 17 SCC 693, our Apex Court reiterated that it is not permissible for the parties to reopen the concluded judgments of the Court. The Court said as follows:

“30. It becomes absolutely clear from the above clarification that earlier decisions running counter to the principles settled in the decision of Umadevi (Secretary, State of Karnataka v. Umadevi, (2006) 4 SCC 1) will not be treated as precedents. It cannot mean that the judgment of a competent Court delivered prior to the decision in Umadevi (3) and which has attained finality and is binding inter se between the parties need not be implemented. Mere over-ruling of the principles, on which the earlier judgment was passed, by a subsequent judgment of higher forum will not have the effect of uprooting the final adjudication between the parties and set it at naught. There is a distinction between over-ruling a principle and reversal of the judgment. The judgment in question itself has to be assailed and got rid of in a manner known to or recognized by law. Mere over-ruling of the principles by a subsequent judgment will not dilute the binding effect of the decision on inter-parties.
32. … It is a well settled principle of law that a Letters Patent Appeal which is in continuation of a Writ Petition cannot be filed collaterally to set aside the judgment of the same High Court rendered in an earlier round of litigation ignoring the principles of res-judicata and doctrine of finality.
35. Thus, it is very well-settled that it is not permissible for the parties to reopen the concluded judgments of the court as the same may not only tantamount to an abuse of the process of the court but would have far-reaching adverse effect on the administration of justice.” (Quoted in: Reddy Enterprises, Vijayawada v. Appellate Authority & Additional Commissioner (ST) Vijayawada, 2024-5 ALD 452)

.Also read:

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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