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September 10, 2018

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MAZES


- Lalltaksh Joshi, Lawyer [ New Delhi ]

lalltakshJoshi

The plea of res judicata hinges on the grounds of public policy and necessity, where public policy dictates that there be an end to litigation whereas necessity demands that no individual be vexed twice for the same cause...

Whether the res is sub judice or judicata raises a panoply of issues. Equal number of questions arises in the mind in case of existence of conflicting judgments between the same parties with respect to matters directly and substantially in issue in both proceedings where divergent views were expressed. The expression “directly and substantially in issue” means whether it was necessary to decide the said issue.1

Courts discouraging the practice of the same parties litigating again over issues identical with previous round of litigation is one of the oldest known legal doctrines. The plea of “former judgment” was expounded by distinguished Hindu commentators in the 12th century which meant that in case a person defeated at law sues again, he should be answered that he was defeated formerly.2 Every jurisdiction, whether civil or common law, has its own cosmic jurisprudence on the plea of res judicata. In India, its statutory teeth are, inter alia, given by Sections 11 and 12 of the Code of Civil Procedure, Article 20(2) of the Constitution of India, Section 26 of the General Clauses Act, and Section 300 of the Code of Criminal Procedure.

Various precedents have expanded the scope of Section 11 of the Code of Civil Procedure pertaining to res judicata by making it applicable to different stages of the same suit. The plea of res judicata is also applicable to writ petitions as held by a Constitution Bench of the Apex Court in Direct Recruit Class case3. In addition to the earlier adjudication being final and binding as to the identical matter, the same also applies to matters which are incidental or essentially connected with the subject matter of the litigation being agitated by the parties and thereafter decided by court. In fact, a writ petition under Article 226 of the Constitution of India dismissed after hearing the parties on merits operates as res judicata in a subsequent petition filed under Article 32 of the Constitution of India before the Supreme Court on the same facts seeking same reliefs by the same parties.4

The litigation muddle begins with passing of divergent judgments between the same parties qua issues that are directly and substantially in issue in both the proceedings which resulted in conflicting decisions as the question arises which judgment out of those two would be binding

A party can successfully assert the former adjudication only when the res has transitioned from sub judice to judicata, i.e., after the expiry of the prescribed period of limitation to file an appeal against the earlier decision. There may be a clash of dates between the expiry of limitation period and the date of hearing in other pending proceedings. In Canara Bank case5, the Supreme Court directed a pragmatic approach to be followed by courts. In case the period of limitation to file an appeal has not expired or has just expired, the court which is hearing the second proceedings can enquire from the party whether it intends to appeal the former adjudication. In case of an affirmative response, the court should adjourn the second innings, and upon filing of an appeal, stay the said second round of litigation. If, for any reason, an appeal is not filed against the earlier decision and a “sufficiently long period” has passed after the expiry of the limitation period to file an appeal, the court hearing the second bout would be justified in considering the former adjudication as res judicata. The Apex Court held that “No hard and fast rule can be applied.” and the facts and circumstances of each case have to be looked at before proceeding with the second round of list. The Supreme Court directed a circumscribed approach while condoning deliberate or avoidable delay in filing an appeal against the earlier decision which would renege the res from judicata to sub judice.

The transitional phase of the res from sub judice to judicata is applicable only in case of review and appeal. The party intending to file a special leave petition before the Apex Court cannot take the plea of res sub judice in the second proceedings as special leave petition is not a right of appeal but discretion conferred by the Constitution of India upon the Supreme Court, except when the Apex Court expressly stays the second proceedings before the lower fora.

The plea of res judicata hinges on the grounds of public policy and necessity. While it is public policy that there should be an end to litigation, it is a necessity that no individual should be vexed twice for the same cause. The significance of the plea of res judicata lies in the endeavor to avoid inconsistent judgments, otherwise originating a shroud of litigation maze.

The litigation muddle begins with passing of divergent judgments between the same parties qua issues that are directly and substantially in issue in both the proceedings which resulted in conflicting decisions as the question arises which judgment out of those two would be binding. Such a situation may occur when a party, due to strategy or oversight, does not stress upon the earlier decision implying the court has no knowledge of it. Similar situation may also ensue when in spite of the party contending the former verdict, the court comes to a conflicting decision for want of persuasion. Either way, filing of review petition(s) and/or appeal(s) against each conflicting judgment may bring resolution to a halt. The courts in the United States of America mechanically follows the last-in-time rule wherein the latter judgment prevails and operates as res judicata. In India, there appears to be no consistent practice followed in face of such difficult times.

In 2006, the Karnataka High Court in the case of Gurulingappa6 had to face a situation wherein two contradictory judgments were passed by the trial court as the parties to the suits had not filed either an application to stay the subsequent suit or to consolidate/club both the suits. As a result thereof, the judge proceeded to record evidence in both the suits and passed independent judgments. The existence of two conflicting decisions was discovered at the appellate court. Instead of applying the plea of res judicata, the appellate court decided to hear both the appeals together and passed a judgment based on evidence recorded in both the suits.

In 2012, the Karnataka High Court in the case of Mrs. Zeenathunnissa7 was posed with a scenario where two inconsistent judgments were passed by two co-ordinate benches of the same court. Upon discovery of divergent judgments, the high court remanded the matter back to the trial court with directions for the matter to be assigned to one judge who would take up the matters from the stage of completion of evidence and deliver a consistent judgment without being swayed by any findings in the inconsistent judgments passed earlier.

A uniform approach is difficult to apply in case of conflicting judgments. The above judicial pronouncements imply that such mazes can be cleared by judicious application of mind to the facts and circumstances of each case. Devising a methodology on a case-to-case basis to ease out the creases in the interest of justice and equities seems to be a better alternative.

1. Sajjadanashin Sayed Vs Musa Dadabhai Ummer; (2000) 3 SCC 350.
2. Sheoparsan Singh Vs Ramnandan Singh; AIR 1916 PC 78.
3. Direct Recruit Class II Engg. Officers’ Assn. Vs State of Maharashtra; (1990) 2 SCC 715.
4. Daryao v. State of U.P.; AIR 1961 SC 1457.
5. Canara Bank Vs N.G. Subbaraya Shetty & Anr.; Civil Appeal No. 4233 of 2018; D/d.: 20.04.2018.
6. Gurulingappa Vs Channappa; AIR 2006 Kar 220.
7. Mrs. Zeenathunnissa Vs Smt. Habeeunnissa and others; 2012 SCC Online Kar 1073

Disclaimer – The views expressed in this article are the personal views of the author and are purely informative in nature.


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