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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 whereasnecessity demands that no individual be vexed twice for the same cause...Whether the res is sub judice or judicataraises a panoply of issues. Equal numberof questions arises in the mind in caseof existence of conflicting judgmentsbetween the...
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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
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.
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.