INTRODUCTION:
We have already covered the essentials and dimensions of res judicata along with all the explanations of section 11 of the Civil Procedure code hereinafter mentioned as CPC; to understand the present work well it is necessary to read the earlier blog. (Read…….). The present blog will further cover the concept concerning the applicability of res judicata. Whether res judicata can be contended in case of public interest litigation, writs, and criminal proceedings.
APPLICABILITY:
Res judicata is applicable once the conditions stipulated under section 11 of CPC are established. Res judicata is not a bar on the party to initiate a proceeding against the other party in fact it precludes the court from trying any suit or an issue. Therefore, the res judicata is not applicable to the subsequent suit when the former is decided by the competent court in fact the same is applicable at the different stages of the same suit. Despite the operation of res judicata on all the civil suits and issues of the said suit, the question is whether the said principle is applicable in the case of public interest litigation and writs under Articles 32 and 226 of the Constitution of India and criminal proceedings.
A. Public Interest litigation:
What is public interest litigation?
It means a case or a petition filed before the court to enforce the rights of public or to safeguard the rights of public at large. This is not provided in any statute this is a concept was transpired through judicial activism. It was first highlighted by justice Krishna Iyer in Mumbai Kamgar Sabha vs. Abdul Thai (1976) 3 SCC 832. Additionally, the first reported case of in which PIL was filed is Hussainara Khatoon vs. State of Bihar (1980) 1 SCC 98.
Whether res judicata applicable in case of PIL?
Section 11 Explanation VIenvisage the word “public right” therefore the question is whether res judicata will be applicable in case of all the public interest litigation or not? Explanation VI of Section 11 infer two terms one is “public right” and other is “bona fide” these two terms are necessary to be ascertained in every case for the applicability of section 11 in case of PIL thereby to bar any further PIL on same cause of action to claim same relief in the name of interest of public.
Supreme court in Forward Construction Co. v. Prabhat Mandal (1986) 1 SCC 100: court observed that the word “public right” in explanation VIis to prevent multiplicity of the PIL claiming thereby same rights in several proceedings. Court enunciated that in view of Explanation VI it cannot be disputed that section 11 applies to public interest litigation as well but it must be proved that the previous litigation was the public interest litigation not by way of a private grievance. It has to be a bona fide litigation in respect of a right which is common and is agitated in common with others.
Another judgment National Confederation of Officers Association of Central Public Sector Enterprises vs Union of India (2022) 4 SCC 764: Court observed that :
while determining the applicability of the principle of res judicata under Section 11 of the Code of Civil Procedure 1908, the Court must be conscious that grave issues of public interest are not lost in the woods merely because a petition was initially filed and dismissed, without a substantial adjudication on merits. There is a trend of poorly pleaded public interest litigations being filed instantly following a disclosure in the media, with a conscious intention to obtain a dismissal from the Court and preclude genuine litigants from approaching the Court in public interest. This Court must be alive to the contemporary reality of "ambush Public Interest Litigations" and interpret the principles of res judicata or constructive res judicata in a manner which does not debar access to justice. The jurisdiction under Article 32 is a fundamental right in and of itself.
In another judgment a bench of 3 judges held that res judicata will not strictly apply in case where public interest is at stake. Government of NCT of Delhi & Anr. v. M/s BSK Realtors LLP & Anr. (2024) 7 SCC 430 :
“Res judicata, as a technical legal principle, operates to prevent the same parties from relitigating the same issues that have already been conclusively determined by a court...the previous decision of this Court in the first round would not operate as res judicata to bar a decision on the lead matter and the other appeals; more so, because this rule may not apply hard and fast in situations where larger public interest is at stake.”
B. Writ:
What is writ?
Article 32 and 226 of Constitution of India expound the writ power of the Supreme court and High Court respectively. Party can directly approach Supreme Court under Article 32 in case of abridgment of any right which are guaranteed under part III of the Constitution. Article 226 is also with regard to the writ power of the High Court this power of high court is in fact wider than the power of the apex court under article 32.
Now the issue is whether res judicata will be attracted in case of writ jurisdiction or not when condition stipulated under section 11 of CPC exist.
Whether res judicata is applicable on writ?
The leading case on the applicability of res judicata on writ petition is Daryao vs State of U.P. AIR 1961 SC 1457: In the said case constitution bench placed res judicata on higher footing thereby treating the binding character of any judgment passed by the competent court as part of rule of law. Court observed as under for bar of res judicata on writ:
It is in the interest of the public at large that a finality should attach to the binding decisions pronounced by Courts of competent jurisdiction, and it is also in the public interest that individuals should not be vexed twice over with the same kind of litigation. If these two principles form the foundation of the general rule of res judicata they cannot be treated as irrelevant or inadmissible even in dealing with fundamental rights in petitions filed under Article 32.
Writ petition dismissed in limine:
In a case where writ petition is dismissed in limine whether res judicata will be attracted or not was also decided by the constitution bench in Daryao vs State of U.P. (supra). Court observed that in a case where petition has been dismissed in limine and an order is pronounced their applicability of res judicata depends on nature of order. On the contrary where petition is dismissed in limine and without any speaking order then there will be no applicability of res judicata in subsequent petition.
Writ dismissed as withdrawn:
When a writ petition is dismissed as withdrawn, plea of res judicata is not available as the case is not decided by the adjudicating court of the former suit did not decide the case on merits. The reason is simple that there has to be a speaking order for operation of section 11 to bar the subsequent suit. Moreover, in a case where a petition has been dismissed as withdrawn without the liberty to file the fresh case to claim relief any subsequent petition is not maintainable.
Constructive res judicata on writ:
There are both affirmative and negative judgment concerning the applicability of constructive res judicata on the writ jurisdiction. Supreme Court 5 jusdes bench in Devilal Modi, Proprietor, M/S. Daluram … vs Sales Tax Officer, Ratlam And Others AIR (1965) SC 1150 court observed as under:
The general principle underlying the doctrine of res judicata is ultimately based on considerations of public policy. One important consideration of public policy is that the decisions pronounced by courts of competent jurisdiction should be final, unless they are modified or reversed by appellate authorities; and the other principle is that no one should be made to face the same kind of litigation twice over, because such a process would be contrary to considerations of fair play and justice,……..Court further observed that if the doctrine of constructive res judicata is not applied to writ proceedings, it would be open to the party to take one proceeding after another and urge new grounds every time; and that plainly is inconsistent with considerations of public policy….
C. Res judicata on Habeas Corpus writ:
Another aspect on the application of res judicata is whether same will be operative in case of writ of Habeas Corpus. Supreme court 5 judges’ bench in Ghulam Sarwar vs Union Of India & Ors AIR 1967 SC 1335: it was observed that If the doctrine of constructive res judicata be applied, this Court, though it is enjoined by the Constitution to protect the right of a person illegally detained, will become powerless to do so. That would be whittling down the wide sweep of the constitutional protection….
Srikant vs District Magistrate, Bijapur (2007) 1 SCC 385: It was held by the court that the bar of res judicata or constructive res judicata would apply even to a petition under Article 32 of the Constitution where a similar petition seeking the same relief has been filed under Article 226 of the Constitution before the High Court and the decision rendered against the petitioner therein has not been challenged by filing an appeal in the Supreme Court and has been allowed to become final. However, this principle, namely, the bar of res judicata or principles analogous thereto would not apply to a writ of habeas corpus where the petitioner prays for setting him at liberty. If a person under detention files a writ of habeas corpus under Article 226 of the Constitution before the High Court and the writ petition is dismissed (whether by a detailed order after considering the case on merits or by a non- speaking order) and the said decision is not challenged by preferring a Special Leave Petition under Article 136 of the Constitution and is allowed to become final, it would still be open to him to file an independent petition under Article 32 of the Constitution seeking a writ of habeas corpus.
D. Res judicate on subsequent stage:
It is pertinent to note that section 11 is not only applicable in case of subsequent suit however it is also applicable at the subsequent stage of the same suit. The section 11 of CPC put a bar to adjudicate not only subsequent suit but also an issue as it infers that “no court shall try any suit or an issue”.
The supreme court in S Ramachandra Rao vs S Nagabhushana Rao (2022) 17 S.C.R. 451 court evaluated that:
doctrine of res judicata is attracted not only in separate subsequent proceedings but also at the subsequent stage of the same proceedings. Moreover, a binding decision cannot lightly be ignored and even an erroneous decision remains binding on the parties to the same litigation and concerning the same issue, if rendered by a Court of competent jurisdiction. Such a binding decision cannot be ignored even on the principle of per incuriam because that principle applies to the precedents and not to the doctrine of res judicata."
E. Criminal proceedings:
Wither res judicate is applicable on criminal proceedings or only on civil proceedings. The principle of res judicata is also applicable to the criminal proceedings reason being that no person should be prosecuted again for the same offence who has been tried and acquitted or convicted by the competent court. In Bhagat Ram and another v. State of Rajasthan and another (1972) 2 SCC 466 Supreme court enunciated that principle of res judicata is squarely applicable to the criminal proceedings.
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