Res Judicata: Should Substantially the ‘Same Issue’ Must Have Been ‘Adjudicated’ in the Former Suit

Saji Koduvath, Advocate, Kottayam.

Abstract

The authoritative modern decisions reflect a ‘strict and technical’ interpretation of res judicata, in contrast to earlier broader views that required only a ‘decision on the same matter‘, or a ‘similar issue‘ in both suits.

The modern trend, in substance, requires the following:

  • The ‘same issue‘ must have been adjudicated in the former suit.
  • Finding on the issue in the earlier suit must have been ‘necessary or essential‘.
  • That is, the issue must have been heard and decided consciously.
  • The parties should have had an opportunity to meet the contentions on the matter.

Sec. 11 of the Code of Civil Procedure deals with Res Judicata. It 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.”

Res Judicata: The Issue Should Have Been ‘Necessary to be Decided’

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

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

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

Sec. 11 CPC says as to “suit or issue in which the matter directly and substantially in issue“. There are two views in the matter.

Earlier Broader View: Sufficient if a similar issue arises

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

  • “We therefore hold that on the general principle of res judicata, the decision of the High Court on a writ petition under Art. 226 on the merits on a matter after contest will operate as res judicata in a subsequent regular suit between the same parties with respect to the same matter.”

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

  • “In view of the settled legal position, the finding of the appellate Court in the said Appeal No.304/1984 would operate as a res judicata if a similar issue arises between the said plaintiffs and the defendant No.1 in future…”

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

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

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

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

In Ravi Azta v. Union of India (TS Chauhan, J.), ILR 2018-2 (HP) 129, it is observed as under:

  • “13. The doctrine of res judicata is applied to give finality to ‘lis’ and in substance means that an issue or a point decided and attaining finality should not be allowed to be reopened and re-agitated twice over. The literal meaning of res is ‘everything that may form an object of rights and includes an object, subject-matter or status; and res judicata literally means ‘a matter adjudged; a thing judicially acted upon or decided; a thing or matter settled by judgment. Even otherwise, the provision of CPC, more particularly, those contained in Section 11 are not exhaustive and contain only the general principles of res judicata.”

Modern Trend (Stricter Approach): Same Issue Must Have Been Adjudicated in the Former Suit giving due emphasis to ‘directly and substantially in issue‘

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

  • 439. The applicability of Section 11 is premised on certain governing principles. These are:
    • .(i) The matter directly and substantially in issue in the suit should have been directly and substantially in issue in a former suit;
    • (ii) The former suit should be either between the same parties as in the latter suit or between parties under whom they or any of them claim litigating under the same title;
    • (iii) The court which decided the former suit should have been competent to try the subsequent suit or the suit in which the issue has been subsequently raised; and
    • (iv) The Issue should have been heard and finally decided by the court in the former suit.
  • 446. There is absolutely no merit in the contention that the principles of constructive res judicata will bar the subsequent suits. The parties were distinct. The claim in the earlier suit was distinct. The basis of the claim was indeed not that which forms the subject matter of the subsequent suits.

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

  • “26. Section 11 of the CPC enunciates the rule of res judicata: a court shall not try any suit or issue in which the matter that is directly in issue has been directly or indirectly heard and decided in a former suit? Therefore, for the purpose of adjudicating on the issue of res judicata it is necessary that the same issue (that is raised in the suit) has been adjudicated in the former suit. It is necessary that we refer to the exercise taken up by this Court while adjudicating on res judicata, before referring to res judicata as a ground for rejection of the plaint under Order 7 Rule 11.
  • Justice R C Lahoti (as the learned Chief Justice then was), speaking for a two Judge bench in V. Rajeshwari v. T.C. Saravanabava, (2004) 1 SCC 551, discussed the plea of res judicata and the particulars that would be required to prove the plea. The Court held that it is necessary to refer to the copies of the pleadings, issues and the judgment of the former suit, while adjudicating on the plea of res judicata:
  • “11. The rule of res judicata does not strike at the root of the jurisdiction of the court trying the subsequent suit. It is a rule of estoppel by judgment based on the public policy that there should be a finality to litigation and no one should be vexed twice for the same cause.
  • xxx xxx xxx
  • … Their Lordships of the Privy Council in Kali Krishna Tagore v. Secy. of State for India in Council, (1887-88) 15 IA 186 : ILR 16 Cal 173 pointed out that the plea of res judicata cannot be determined without ascertaining what were the matters in issue in the previous suit and what was heard and decided. Needless to say, these can be found out only by looking into the pleadings, the issues and the judgment in the previous suit.”
  • (See also: Prem Kishore v. Brahm Prakash, 2023 SCC Online SC 356, 2023-3 MLJ 200 (SC))

Conscious Adjudication of an Issue alone Constitutes Res Judicata

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

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

In Jamia Masjid v. K. V.  Rudrappa (DY Chandrachud, Vikram Nath, Hima Kohli, JJ.), AIR 2021 SC 4523; 2022-9 SCC 225, the pragmatic approach to be adopted in this matter is laid down as under:

  • “In order to adjudicate on the applicability of the plea of res judicata vis-à-vis the first suit, it is necessary that we decide on the following three issues:
  • .A. The scope of the first suit which was instituted under Section 92 of the CPC;
  • B. Whether the parties in the first suit and the instant proceedings are the same; and
  • C. Whether the issue of title over the suit property was conclusively decided in the first suit.”

For Res Judicata – Adjudication of the Issue must have been Material and Essential

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.

  • (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.)

In Sajjadanashin, it is pointed out as under:

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

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

Referring to 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.

See also:

  • Har Narayan Tewari v. Cantonment Board, Ramgarh Cantonment, 2024-8 SCC 114,
  • Srihari Hanumandas Totala v. Hemant Vithal Kamat, AIR 2021 SC 3802; 2021-9 SCC 99

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

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

A Deliberate Judicial Decision alone is Judicial Precedent

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

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

A Compromise/Consent Decree is no Adjudication; No Res Judicata

In Pulavarthi Venkata Subba Rao v. Valluri Jagannadha Rao, AIR 1967 SC 591, the Supreme Court has laid down as under:

  • “A compromise decree is not a decision by the Court, it is the acceptance by the Court of something to which the parties had agreed. It has been said that a compromise decree merely sets the seal of the Court on the agreement of the parties. The Court did not decide, anything. Nor can it be said that the decision of the Court was implicit in it.”
  • See also: Daryao v. State of UP, 1962- I SCR 574;
  • Vidya Sagar v. Sudesh Kumari, 1976-1 SCC 115;
  • Jamia Masjid v. K. V.  Rudrappa, AIR 2021 SC 4523; 2022-9 SCC 225.

In Baldevdas Shivlal and another v. Filmistan Distributors (India) Pvt. Ltd., AIR 1970 SC 406, it is held as under:

  • “A consent decree according to the decisions of this Court does not operate as res-judicata because a consent decree is merely the record of contract between the parties to a suit, to which is superadded the seal of the Court. A matter in contest in a suit may operate as res-judicata only if there is an adjudicationby the Court; the terms of section 11 of the Code leave no scope for a contrary view.”

Estoppel by Conduct in a Compromise Suit

It is pointed out in Jamia Masjid v. K. V.  Rudrappa (DY Chandrachud, Vikram Nath, Hima Kohli, JJ.), AIR 2021 SC 4523; 2022-9 SCC 225 – (i) A ‘compromise decree is not a decision of court, principle of res judicata cannot be made applicable’ (ii) ‘However, compromise decree may in effect create estoppel by conduct between parties and parties by estoppel will be prevented from initiating a subsequent suit’.

Conclusion

With regard to res judicata, the modern trend in law adopts a more technical approach, requiring actual adjudication of the ‘same issue‘ in both the former and the subsequent suits. In contrast, the earlier view was broader, holding that res judicata would be attracted if the matter was in issue ‘in substance’, even if not the same or substantially identical.

Read Also:

             •➧ 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
             •➧ Res Judicata and Judicial Precedent
             •➧ 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?

End Notes:

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

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

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