INTRODUCTION:
In the present blog, we will study the exception of res judicata and the dimensions, essentials and applicability of res judicata, which has already been covered in earlier blogs. It is also necessary to look into those situations where a plea of res judicata i.e. exceptions of res judicata can not be contended and the bar of res judicata will preclude the court from adjudicating the parties’ rights in the subsequent suit.
LAW on Res judicata:
Section 11 of the Civil procedure code is law on res judicata which infers the bar on the court to try any suit or proceedings in which matter which is directly and substantially in issue has also been directly and substantially in issue in the former suit and which has been finally heard and decided by the court of competent jurisdiction. Section 11 is appended with VIII explanations all has already been discussed in earlier blogs along with the controversy concerning section 11 and explanation VIII. When all the requisites of section 11 are substantiated, the plea of res judicata will oust the court’s jurisdiction to try the subsequent suit or proceeding. There are certain circumstances where plea res judicata is not considered in the subsequent suit which are as under. Following are exceptions of res judicata.
EXCEPTIONS:
- Dismissal in default: In case a matter is dismissed in default as in, nonappearance of the parties, there is no adjudication of rights of parties. One of the pre requisites for the application of res judicata is that matter is heard and finally decided by the court however when a matter is dismissed in default it can not be said matter is heard and finally decided. From this it could be construed that section 11 will not be invoked to bar the court from trying subsequent suit when former suit is dismissed in default. It is pertinent to note that there are certain disabilities imposed upon the plaintiff in a case of dismissal in default for instance CPC forbids the party to the case from instituting fresh suit unless court is satisfied that there is valid reason for nonappearance. In Sheodan Singh vs. Daryao Kunwar 1966 SCR (3) 300 court decided thatres judicata is applicable in a case where matter is heard and finally decided on merits. Moreover, when an appeal has been filed against a decree which has been passed on merits, and further such appeal is dismissed on the preliminary issue as in dismissal in default or on issue of limitation, in such situation plea res judicata will be operative. The reason behind the same is that when a decree on merits is appealed it will not impact the merits of the decree and appellate court is simply upheld the decree passed in suit this will not adverse the operation of res judicata.
- Dismissal in limine: The term in limine means in the “beginning” when a suit is dismissed in limine without a speaking order it will not attract res judicata in subsequent suit as it is not possible to identify on what grounds court concluded that the order of dismissal. Daryao vs. State of U.P. AIR 1961SC 1457 Court upheld that any suit or proceeding dismissed in limine without any speaking order than plea of res judicata do not survive in the subsequent suit.
- Dismissal of SLP: SLP that is special leave petition which is filed in the supreme court under Article 136 of the Constitution. Supreme court in Workmen of Cochin Port Trust vs Board Of Trustees of The Cochin Port (1978) 3 SCC 119: A bench of 3 judges observed that in a case where an SLP has been dismissed without a speaking order the rights of parties cannot be further barred by res judicate. There is no bar to initiate a writ under Article 32 or 226 in case of dismissal of SLP without speaking order as it can not be assumed without a speaking order that all the issue in SLP has been decided on merits.
- EX parte Decree: In a case where a suit has been dismissed ex parte their res judicata will be operative, as the ex parte decree will be considered same as bi-parte decree for the application section 11. An ex parte decree means where the defendant do not appear in the court even when he is dually served there the court will proceed further and deicide the suit and pass a decree. This is also considered as conclusive determination of rights of parties therefore the rule of res judicata will be applicable.
- Compromise or consent decree: A compromise or consent decree is the one which passed based on agreement between the parties. Such decree is not decision of court and there is not adjudication of by the court. The contention of applicability of res judicata on compromise decree is often object on the ground that matter is not heard and finally decided by the court therefore requisites of section is not fulfilled. In Pulavarthi Venkata Subba Raoand Ors vs Valluri Jagannadha Rao & Ors 1964 SCR (2) 310: Court observed: The compromise decree was not a decision by the Court. It was 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 a decision of the court was implicit in it. Only a decision by the court could be res judicata, whether statutory under section 11 of the Code of Civil Procedure, or constructive as a matter of public policy on which the entire doctrine rests………. The earlier decision cannot strictly be regarded as a matter which was “heard and finally decided”. The decree might have created an estoppel by conduct between the parties…….
- Withdrawal of suit: When a suit or proceeding is withdrawn there is no adjudication of rights of parties thus the suit is not heard and finally decides by the court. Since there is no decision on merits the bar of res judicata does not operate. It is pertinent to note section 11 of CPC is not applicable in a case where former suit is withdrawn, nonetheless order 23 rule 1 put a bar on filing a fresh suit when the earlier suit is withdrawn.
- Change in circumstances and change in law: Res judicata will not be operative in both the cases reason being that cases must be decided based on the law as it stands when judgment is pronounced.
- Interim order: Section 11 itself infers that the doctrine of res judicata is applicable not only when judgment is passed but also to the different stages of the same suit or proceeding. Therefore, the res judicata will apply to interim orders because the court will not permit the parties to set the clock back during the pendency of the suit or any other proceedings. S Ramachandra Rao vs S Nagabhushana Rao 2022 SCC Online SC 1460: It has been held that the doctrine of res judicata is not only attracted in subsequent proceedings but also at subsequent stage of same proceedings.
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