MAZES

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

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.

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