RES JUDICATA: HISTORY AND SHAPING OF THE CONCEPT THROUGH FOREIGN JUDGMENTS
– Samarth Chaddha
Jindal Global Law School
– Himanshu Chauhan
Jindal Global Law School
Abstract
Under most legal systems of the world, a “legislative adventure” is what courts tend to discourage. This is what the Supreme Court of India decided its take would be on the doctrine of res judicata in its decision in M Nagabhushana v. State of Karnataka & Others.1 Traditional belief amongst Indian courts about idea of having a more than one chance to legislative adventure is that it is an abuse of the Court process. Lord Simon of Gaisdale has expressed how courts have been provided for rival contentions to be heard, but “in the end you must accept what has been decided. Enough is enough.” And the law echoes: “res judicata, the matter is adjudged.”2
Res judicata (‘a thing decided’- Latin) is based on two principles. First is ‘interest reipublicae ut sit finis litium’3 that translates to the idea that it is in the interest of the State that there should be an end to litigation. Second is ‘nemo debet his ve ari, si constet curiae quod sit pro un aet eademn’4 which basically means no one should be vexed twice in a litigation if it appears to the Court that it is for one and the same cause. SC believes that the finality of litigation is based strongly on public policy and absence of the principle would amount to a never ending cycle of litigation in which the rich and malignant have a huge incentive to exploit the poor and the ones with bona fide intentions. Thus, the doctrine of Res Judicata has evolved to prevent such anarchy. It seeks to promote honesty and a fair administration of justice.5 Thus, the individual right of protection from repetitive litigation has been expressed by Lord Coke:
1 “Res judicata is not a technical doctrine. It is a fundamental principle sustaining the rule of law ensuring finality of litigation. It prevents the parties from approaching courts for re-agitating same issues which have already been finally decided between parties.” (2011) 3 SCC 408
2 The Ampthill Peerage Case (1977) A.C. (H.L) 547 at 575-76 (U.K.).
3 Ibid, paragraph 12.
4 Ibid, paragraph 13.
5 Ibid, paragraph 13.
“Otherwise great oppression might be done under color and pretense of law; for if there should not be an end to suits, then a rich and malicious man would indefinitely vex him who hath right by suits and actions; and in the end (because he cannot come to any end) compel him (to redeem to his charge and vexation) to leave and relinquish his right…”6
However, the doctrine has been shaped along time through interpretations of the present Sections 11, 13 of the Code of Civil Procedure through a series of judgments. Thus, it is important not just to look at the history of how res judicata was introduced into the Indian legal system, but also how it has been molded through exceptions provided in the reasoning of the Supreme Court and the questions that have been raised through the treatment of foreign arbitral awards by Indian courts.
History of Res Judicata in India
Justice Tek Chand has delivered a Full Bench decision in Lacchmi v. Bhulli, 7 that points to the historical origins of res judicata in Hindu and Mohammedan jurisprudence. Mitakshara8 provides “a plea by former judgment” as one of the four kinds of effective answers to a suit, which seems proximate to the definition of res judicata. Also, in verse 10 of the Mitakshara,9 Katyayana has been quoted as ‘laying down as the basis for res judicata if a matter was to be brought forward again.’ He thinks that if has been formerly
been given, it must be answered by a plea of Purva Nyaya or former judgment.10
Also,
‘in verse 221 he propounds a rule similar to the rule of constructive res-judicata.’11
Smriti Chandrika12 and the Virmitrodaya13 base the defense of Prang Nyaya (which
6 Ferrer v. Arden (1599) 77 Eng Rep. 263, 266; 6 Co. Rep. 7 a (Eng).
7 ILR (1927) 8 Lah 384.
8 (Book.II, Chap. 1, Section V, verse 5) as cited by Justice Chand in Lachhmi v. Bhulli which has been mentioned in M Nagabhushana v. State of Karnataka & Others.
9 Ibid.
10 Macnaughten and Colebrooke’s translation, page 22 as cited by Justice Chand in Lachhmi v. Bhulli which has been mentioned in M Nagabhushana v. State of Karnataka & Others.
11 Justice Mandagadde Rama Jois, “Legal and Constitutional History of India: Ancient legal, judicial, and
constitutional system,”Accessed April 5th, 2014: http://books.google.co.in/books/about/Legal_and_Constitutional_History_of_Indi.html?id=V552bAz5xFAC &redir_esc=y
12 Mysore Edition, pages 97-98 as as cited by Justice Chand in Lachhmi v. Bhulli which has been mentioned in M
Nagabhushana v. State of Karnataka & Others.
13 Vidya-Sagar Edition, page 77 as cited Justice Chand in Lachhmi v. Bhulli which has been mentioned in M Nagabhushana v. State of Karnataka & Others.
literally means ‘former justice’) provided by Harita14. According to the texts of Prasara and the Mayukha: “the plaintiff should be nonsuited if the defendant avers, there was litigation between him and the defendant previously, and it is found that the plaintiff lost his case.”15 Hindu law texts such as the Mitkashara embodied the spirit of res judicata, by mentioning that if a person was defeated at law he should be answered: “You were defeated formerly,” also known as the plea of former judgment.16
Under Roman law, a defendant had the right to repel a plaintiff’s claim by means of ‘exceptio rei judicatoe” or plea of former judgment. Roman jurists toyed with the idea considerably and the principle was recognized that “one suit and one decision was enough for any single dispute” and that “a matter once brought to trial should not be tried except by way of appeal,17 a core attribute if the doctrine. The doctrine was introduced in India from where it exists today by Section 16 of the Bengal Regulation III of 1973 that prevented the Zilla (District) and City Courts from entertaining any cause, which appears to have been heard and determined by any Judge or any Superintendent or a Court having competent jurisdiction. Section 2 of the 1859 Civil Procedure Code, barred every Court from taking cognizance of suits which had been decided by Courts of competent jurisdiction.18 The “cause of action” would mean the substance rather than the
form of action, and in Gregory v. Molesworth,19
Lord Hardwicke expressed when
deciding between parties to a suit that ‘parties could not raise the same question as between in any other suit in any form.’
After the Code was revised in 1877, operation of res judicata was extended to Section
14 M.Nagabhushana vs State Of Karnataka & Ors on 2 February, 2011 “, who is believed by some Orientalists to have flourished in the 9th Century B.C. and whose Smriti is now extant only in fragments. ”
The plaintiff should be non-suited if the defendant avers: `in this very affair, there was litigation between
him and myself previously,’ and it is found that the plaintiff had lost his case”.
There are texts of Prasara (Bengal Asiatic Society Edition, page 56) and of the Mayukha (Kane’s Edition, page 15) to the same effect.”
15 Texts of Prasara (Bengal Asiatic Society Edition, page 56) and Mayukha (Kane’s Edition, page 15). as cited by
Justice Chand in Lachhmi v. Bhulli, which has been mentioned in M Nagabhushana v. State of Karnataka & Others.
16 Supra Note 7, Page 524
17 Roby’s Roman Private Law (Vol.II, page 338,391-392) as cited by Justice Chand in Lachhmi v. Bhulli, which has been mentioned in M Nagabhushana v. State of Karnataka & Others.
18 Section 2 of 1859 Civil Procedure Code: “The civil courts shall not take cognizance of any suit brought on a cause
of action which shall have been heard and determined by court of competent jurisdiction, in a former suit between the same parties, or between the parties under whom they claimed.”
19 3 Atk. 627.
13. From then onwards, bar was no longer just on the retrial of a dispute relating to the same cause of action, but prohibition was extended against re-agitating an issue which had been heard and finally decided between same parties in a former suit by a competent court.20
Res Judicata Through Common Law
In common law systems, the doctrine of res judicata takes two main forms: issue estoppel and cause of action estoppel (seen in jurisdictions such as England and Canada).21 In the United States, the two are collectively referred to as “issue preclusion” and “claim preclusion” respectively.22 In Arnold v. National Westminster Bank,23 the House of Lords differentiated between these two forms, in which cause of action estoppel was defined as ‘arising where the cause of action in the later proceedings is identical to that in the earlier proceedings.’ Issue preclusion was defined as ‘where a particular issue forming a necessary ingredient in a cause of action had been litigated and decided and in subsequent proceedings between the same parties involving a different cause of action to which the same issue is relevant one of the parties wishes to re-litigate that issue.’24 In English law, the estoppel is not only applicable to claims that have actually been decided but also to claims which ought to be litigated and which the parties, with reasonable diligence should have been able to bring forward at the time of the earlier suit.25 In the words of Zuckerman, “the bar to advancing an identical cause of action is absolute.”26
The laws governing cause of action estoppel in Canadian courts are similar to the English ones, since even in Canada the plaintiffs are required to present the subject matter of the entire case once and for all and the remedies are based on that subject matter (applying to defendants as well.)27 Canadian courts too based res judicata upon
20 Justice Chand in Lachhmi v. Bhulli, which has been mentioned in M Nagabhushana v. State of Karnataka & Others.
21 Neil Andrews, “Principles of Civil Procedure 501-12” and Donald Lange, The Doctrine of Res Judicata in Canada
as cited by Yuval Sinai in his paper called Reconsidering Res Judicata: A Comparative Perspective.
22 Allen D. Vestal Res Judicata/Preclusion as cited by Yuval Sinai in his paper called Reconsidering Res Judicata: A Comparative Perspective.
23 (1991) 2 A.C. 93 (H.L) (104-05) (appeal taken from Eng.).
24 Ibid, at 105.
25 Henderson v. Henderson, (1843) 3 Hare 100, 115; 67 E.R. 313, 320.
26 Adrian Zuckerman, Zuckerman on Civil Procedure ch.24 (2006) as mentioned by Yuval Sinai in his paper called Reconsidering Res Judicata: A Comparative Perspective.
27 Key principles mentioned in Laufer v. Canadian Investment Protection Fund (2004) O.J. No. 4016, para.
7(S.C.J.).
policy considerations, which was seen by the Supreme Court of Canada’s judgment in which res judicata must be applied because of the following public policy reasons: “That judgment must conclude the parties and negative the defense here as well upon the ground of public policy.”28 In the United States, claim preclusion refers to the effects post a former judgment on a second action, especially when the second action proceeds on all or part of the claim that was the subject of the first action.29 The judgment would then, ‘bar’or annul the entire cause of action or claim, including items that were not even thought of in the first action if the court that they ought to have been necessarily brought
on board. The U.S. Supreme Court in Allen v. McCurry,30
have formulated the concept
of claim preclusion as a final judgment on the merits that they were or could have been raised, in the previous suit. The present trend regarding the “claim” regarding res judicata31 is to think of claim as something that coincides with a transaction, irrespective of what theories or relief may be available to the plaintiff. Also, this is irrelevant to what or how many primary rights may have been infringed upon; and irrespective of how different the evidence needed to support the theories or rights may be.32 As per the modern, transitional view of res judicata, the plaintiff should fully litigate all grievances or causes of action arising from a transaction in a single lawsuit.33 As James puts it,34 the defendant extinguishes the entire cause of action or claim, which would include items of the claim that were not in fact raised in the former action.35 The plaintiff is prevented from suing on the original cause of action or any item of it even if that item was omitted from the original action. The second effect of res judicata, which has been referred to in the United States as “issue preclusion,” is that an issue adjudicated in a prior action cannot be re-litigated if it arises in a later action based on different cause of action.36 However, Rules 59 and Rules 60 of the U.S. Federal Courts of Civil Procedure describe circumstances in which an American court can reopen a case to correct a judgment.37
28 Clark v. Phinney (1896) S.C.R. 633, 642-44 (Can.).
29 Fleming James, et.al, Civil Procedure 673 (5th ed.2001) as mentioned by Yuval Sinai in his paper called Reconsidering Res Judicata: A Comparative Perspective.
30 449 U.S. 90,94 (1980).
31 Casad and Clermont, Res Judicata: A Handbook on its Theory, Doctrine and Practice (2001) as mentioned by Yuval Sinai in his paper called Reconsidering Res Judicata: A Comparative Perspective.
32 Restatement (Second) of Judgments S.24 (1982).
33 Casad and Clermont, Res Judicata: A Handbook on its Theory, Doctrine and Practice (2001) as mentioned by Yuval Sinai in his paper called Reconsidering Res Judicata: A Comparative Perspective.
34 Fleming James, et.al, Civil Procedure 673 (5th ed.2001) as mentioned by Yuval Sinai in his paper called
Reconsidering Res Judicata: A Comparative Perspective.
35 Restatement (Second) of Judgements Sec. 17 cmt, b, 19 (1982).
36 Fleming James, et.al, Civil Procedure 673 (5th ed.2001) as mentioned by Yuval Sinai in his paper called Reconsidering Res Judicata: A Comparative Perspective.
37 Fed.R. CIV. P. 60(b); JAMES et AL.
Foreign Judgments Under Section 13
Under Section 13, a foreign judgment is conclusive and will operate as res judicata between the parties, but when a foreign judgment is not conclusive as to any matter directly adjudicated upon, and if one of the conditions specified in clauses a) to f),38 the judgment will be “open to collateral attack.”39 If there is competent jurisdiction, then the judgment or order passed by a foreign court on the matter would operate as res judicata. Thus, if Himanshu sues Samarth in a court outside India, and if the suit is dismissed, the decision will operate as a bar to a fresh suit on the same issue or cause of action. If Himanshu was successful in his dispute against Samarth, Samarth will be prevented from putting forward the issue towards as Indian court in a similar matter that was directly and substantially the same.
The case of Gurdayal Singh v. Rajah of Faridkot,40 is a good example where A filed a suit against B in the state of Faridkot in 1879, and claimed Rs.60,000 which B misappropriated while he was at A’s service at Fardikot. On B’s not appearing, an ex par tee decree was passed against him in Faridkot – B was a native of Jhind. B neither resided nor was he domiciled there since in 1869 he had left A’s service and returned to Jhind. The Faridkot court had no jurisdiction to entertain a suit against B on a mere personal claim against him and the decree passed against B was a nullity. Even the fact that embezzlement had taken place in Faridkot was not enough to give jurisdiction to Faridkot court. However, even though a judgment that is declared res judicata and not impeachable from within, it might be possible that a court has been “misled.”41 Thus, even with the concept of res judicata, it becomes important to decipher between mistake and trickery. Thus, an action to set aside a judgment cannot be brought on the grounds of an incorrect decision, but it can be set aside if it is proven that the court was tricked into making its final decision. Thus in Satya v. Teja Singh, when the court felt the American courts had been misled in granting divorce to a gentleman, who had tricked them into believing he was a resident of America, the Supreme Court held that the decree was without jurisdiction and therefore a nullity.42 Also, in the case of Lalji Raja & Sons v. Firm Hansraj Nathuram,43 the court noted that if res judicata would be non-operative in case of foreign.
38 a) to f): not by competent court, not on merits, foreign judgment against Indian law, opposed to natural justice, judgment by fraud, judgment on breach of Indian law.
39 Satya v. Teja Singh (1975) 1 SCC 120.
40 (1895) 22 cal 222 (PC): 21 1A 171.
41 Duchess of Kingston: Smith’s Leading Cases, 13th Edn., p. 644(651).
42 (1975) 1 SCC 120.
43 AIR 1974 SC 1764 at. 1768
Criticism of Section 13 of Civil Procedure Code
However, the Courts often by using terms like ‘principles of natural justice’ and ‘merits of the case’simply
end up expanding the discussions on interpretation and thereby extend litigation. In relation to child
custody issues, the courts do not just look at the merits of the decree, but also rather to arbitrary standards of
which place will benefit the spouses and the children of the marriage most. It can be debatable as to what in
Section 13 of the CPC gives an Indian court the authority to reject an ex parte decree by
the New Mexico
Court, such as that in Y.Narasimha Rao v. Y. Venkatalakshmi.44 The decision should have applied as a
res judicata to the suit brought in India, but it was seen as conflicting with Indian law,
and was thus
deemed unenforceable.
Even if this is seen as a conflict, the Supreme Court has made the analysis of Section 13 more difficult by granting an exception (as pointed out by the Supreme Court in Y.Narasimha Rao) for defendants who have consented to the grant of relief although the jurisdiction of the forum is not in accordance with Indian law. Apart from the difficulties in defining consent, an allegation of fraud (as seen in the Satya v. Teja Singh case) involves reopening merits of the cases, which have already been determined by that particular court. Thus, the idea of res judicata that prevents claim from being litigated twice suffers a setback.
Additionally, res judicata is further eroded by the common law principle, which mentions that despite local judgments being immune from being impeached for fraud in absence of fresh evidence, foreign judgments can be investigated for fraud even without evidence. Lord Bridge in a recent House of Lords decision has defended the illogical common law rule but Section 13(e) of the CPC actually makes a mockery of the Doctrine of Comity45 that has been a product of impartiality and objectivity of the legal
44 (1991) 3 SCC 451.
45 Definition of Comity is that it is a legal principle that political entities (such as states, nations, or courts from different jurisdictions) will mutually recognize each other’s legislative, executive, and judicial acts. The underlying notion is that different jurisdictions will reciprocate each other’s judgments out of deference, mutuality, and respect.(Legal Information Institute, Cornell University Law School – http://www.law.cornell.edu/wex/comity)
systems of the civilized world. Justice Sawant in the case of Y. Narasimha Rao did acknowledge the archaic law (still adopted by foreign courts) that a wife’s domicile follows her husband’s but the judgment overall confuses the procedural issue of which court has jurisdiction and the substantive issue of granting relief. It is for the lex fori (laws of jurisdiction where action is brought) to determine in accordance with conflict of laws, that a grant of matrimonial relief has to be in accordance with Hindu law. Justice Sawant might have missed the fact that the issue of granting relief was governable only under Hindu law.
Res Judicata and Foreign Arbitral Awards
While a local judgment or arbitral award vis-à-vis a foreign judgment or a foreign arbitral award is that, whereas a local judgment or arbitral award operates as res judicata, the same is not the case with a foreign arbitral award. If it is a foreign judgment, it would be dependent on receiving confirmation for a judiciary since that may be the requirement of the procedural law in that country. Whether it be a foreign judgment or a foreign arbitral award, in order for enforcement of the award given in other than the country in which the judgment was given, a separate suit may have to be instituted for its recognition and enforcement. However, from a legal standpoint in the case of a foreign judgment, it merely requires an institution of a suit in the concerned country by the successful party. In the case of an award, though, the parties in dispute can sue on the basis of the foreign award or the on the original cause of action that arose. There is some confusion as to whether the foreign award is worth less than a foreign judgment, but that is not the case.46
In Badat & Co. v. East India Trading Co,47
the East India Trading Company,
incorporated in New York, entered into a contract with a partnership firm who were dealing with imports and exports through Bombay. The plaintiff was East India, and the firm, were the defendants. The contract was based on the terms of the American Spice Trade Association, and one of the terms was that if there would be any dispute between the parties, this would be settled by arbitration and the award would be final and binding on the parties. Eventually, a dispute did arise and as per the contract, they were referred to arbitration, and lead to two ex-parte awards. These were confirmed by the Supreme Court of New York in accordance with the procedural law of New York so as to facilitate
46 As mentioned on pg. 216 of V.C. Govindaraj’s, “The Conflict of Laws in India: Inter-Territorial and Inter- Personal Conflict”, Oxford University Press 2011.
47 (1964) AIR 538 as cited in V.C. Govindaraj’s, “The Conflict of Laws in India: Inter-Territorial and Inter-Personal
Conflict”, Oxford University Press 2011.
their enforcement in a foreign court. The East India Trading Company filed a suit against the firm on the basis of the judgment or on the basis of the awards themselves.
The Supreme Court allowed this appeal,48 on the basis that the idea of cause of action for the East India Company (as far as it rests on the judgment of the New York Supreme Court), should be presumed to have arisen outside the original jurisdiction of the Bombay High Court and the suit based upon that judgment to the exclusion of the original cause of action must be held to be beyond the jurisdiction of the High Court of Bombay. In addition, it was decided that the arbitral awards lack finality or conclusiveness as per the law of New York.
But as V.C. Govindaraj points out in his book, the ratios adopted by the Supreme Court were a bit outdated.49 The first contradiction comes through the High Court does not arise, especially if Section 13 (a) and 13 (b)50 of the Indian Civil Procedure Code incorporating the doctrine of obligation is understood. The judgment would become res judicata. In addition, the technical procedure rule of nexus between jurisdiction and cause of action has no relevance with respect to actions before courts and enforcing of foreign judgments.51
Govindaraj further critiques that it is a bit difficult to digest why the foreign arbitral award was given an inferior legal status as compared to foreign judgments. It is equivalent to a foreign judgment and does establish a valid cause of action for a suit. The procedural formality was just a further ratification by the Supreme Court of New York. This should neither have increased its validity any more nor should have it been made less binding. Ideally the Bombay High Court should have looked it at with the lens of res judicata.
Conclusiveness of a foreign arbitral award must be assumed irrespective of the formality of the ratification. All three elements required of awards (submission of the
48 Ibid.
49 Pg 218 of V.C. Govindaraj’s, “The Conflict of Laws in India: Inter-Territorial and Inter-Personal Conflict”, Oxford University Press 2011.
50 Section13 of CPC – When foreign judgment not conclusive.
A foreign judgment shall be conclusive as to any matter thereby directly adjudicated upon between the same parties or between parties under whom they or any of them claim litigating under the same title except-
(a) where it has not been pronounced by a Court of competent jurisdiction;
(b) where it has not been given on the merits of the case;
51 Ibid.
parties to arbitration, conduct of arbitration in accordance with submission, its validity by the law of the forum are present in the award in this case. However, India is a party to both the Geneva Convention of 1937 as well the New York Arbitration Convention of 1958, and the latter has substituted for the phrase ‘the award has become final’ in the country in which it was made the phrase ‘the award has not yet become binding’ on the parties. This change has overcome difficulties (since New York is an improvement to the Geneva Convention) with respect to the ‘finality and conclusiveness’ of an award rendered by an arbitration but it does require that if the proper law happens to be in a country which is a party to the New York Convention, an award does not become final unless it is ratified by the Supreme Court of New York.
In the case of ONGC v. Western Co. of North America,52 the Supreme Court of India employed the ratio they used from the Badat case through their interpretation of Article V(1)(e) of the New York (Arbitration) Convention (1958)53, which is namely that the enforce-ability must be determined as per the law applicable to the award. Eventually, French, German and Indian courts have taken that enforce-ability as per the law of the country is essential precondition for asserting that it has become binding under Article V (1) (e).54
Res Judicata and Public Policy
Awards and decrees need to qualify the test laid down in S. 13 of the CPC on the basis of res judicata as it is a principle that needs utmost affinity with Public Policy. Specifically while considering res-judicata, it needs to be kept in mind that the diversity of questions that might arise and complexity may vary with the number of sovereign jurisdiction involved, reciprocation ties between them, judicial recognition on the status of foreign legal person (Incorporation’s Theory or First Seat Theory), nature of dispute and other factors like political outlook, international relation and understanding between the nation and availability and applicability of dispute resolution mechanisms.
‘Public Policy’ is a term related to culture and general mind set. A plaint can be rejected in India if the Bench considers it to be in contravention to public policy. India has already
52 (1987) 1 SCC 496 p. 514.
53 New York Arbitration Convention (1958)
Recognition and enforcement of the award may be refused, at the request of the party against whom it is invoked, only if that party furnishes to the competent authority where the recognition and enforcement is sought, proof that:
(e)The award has not yet become binding on the parties, or has been set aside or suspended by a competent
authority of the country in which, or under the law of which, that award was made.
54 Ibid
seen the havoc of ambiguities when it was made law that arbitration awards can become unbinding and be brought to the court if found against public policy55, a term whose concise definition is absconding. More situations can arise, despite here being a reciprocation agreement between two countries, if one accepts the doctrine and another partner does not. A Constitutional Bench of the Court in Devilal Modi v. Sales Tax Officer56 explained the principle as to whether a citizen can be allowed to challenge the validity of the same order by successive petitions under Article 226, since such a question cannot just be seen in terms of citizens’ fundamental rights. Ultimately, res judicata is based on consideration of public policy. Public policy as explanation by Lord Somervell in Greenhalgh v. Mallard57 that was mentioned in State of Karnataka and Anr. Vs. All India Manufacturers Association and Anr.58 is particularly useful. He writes how res judicata is not confined to the issues which the court is actually asked to decide, but rather that it covers issues or facts that are part of the subject-matter of litigation and ought to have been raised and that it would be an abuse of process of the Court to allow a new proceeding to be started in respect to them.
As the judicial system has grown over the years, there has been a significant increase in the number and nature of quasi-judicial bodies that have emerged to assist the judicial mind in disposing disputes that could be solved otherwise. There is great debate over whether a bar due to an award should be maintained, especially with respect to arbitrational awards. The picture becomes further interesting when it is a case of international arbitration and the enforcement of the award has incidence in multiple national jurisdiction.
On a prima facie level, res judicata appears to be a safe doctrine (by that we mean that it should not have many negatives to its application) that is an integral part of civil legal systems and serves (though arguably) as one of the pillars on which judicial institutions stand. The arguments for its side are voluminous and little can be found to the contrary. However, much of this bias can be attributed to the analytical lens that is applied whilst analyzing legal doctrines. Generally while commenting upon legal doctrines and principles, it is easy to be overpowered by how common law perceives it to be and the
55 Section 34(2) in THE ARBITRATION AND CONCILIATION ACT, 1996
(2) An arbitral award may be set aside by the Court only if—
(b) the Court finds that—
(ii) the arbitral award is in conflict with the public policy of India.
56 AIR 1965 SC 1150
57 (1947) 2 All ER 255 (CA).
58 (2006) 4 SCC 683.
efficiency quotient that is overwhelmingly attributed to it in case laws. The problem with this approach of understanding and criticizing is that the pattern of analysis goes into the vertical of present past back and forth only. Another reason of this phenomenon is the overpowering effect that common law has left on all legal traditions due to its strong historical-colonial influence throughout the world. So to say, the context is narrowed down.
A ‘comparative analyses’ across legal culture vertices can be enlightening in this regard. The advantage of a comparative lens is that it facilitates the analysis to go beyond traditional dimensions of perceiving the matter. Also, contrast brings makes the desirable alterations more apparent as one is enabled to get a view of the opportunities that exist beyond available imagination.
One such magnificent attempt has been done by Yuval Sinai59 in his research titled – Reconsidering Res Judicata: A Comparative Perspective.60 In this paper Sinai brings into notice mainly the application and rationale behind res judicata in Anglo-American, Rabbinical (Jewish Courts in Israel that adjudicate family matters) and German law:
“maintain(s) that the traditional justifications presented…are not the major reason for accepting res judicata in its broad scope. A legal system that favors a broad-scope res judicata, such as the common law, reflects an approach that in principle emphasizes such values as public interest, consistency, stability, and efficiency over revealing the truth.”61
In Metaphysics of Morals, Emmanuel Kant famously quotes – “Justice ceases to be justice if it can be bought at a price.”62 We want to deliberate an inference out of it that it would be an embarrassment to justice if cost benefits override the pursuit of truth and justice, which ought to be the core philosophy behind judicial decision-making. Even
59 Ph.D; L.L.B; Senior Lecturer of Civil Procedure and Jewish Law, Director of the Center for the Application of Jewish Law (ISMA), Law School, Netanya Academic College, and also teaches in the Law Faculty of Bar-Ilan University (Israel); Visiting Professor at McGill University, Canada (2007- 2008).
60 Yuval Sinai, Reconsidering Res Judicata: A Comparative Perspective, 21 Duke Journal of Comparative &
International Law 353-400 (2011), http://scholarship.law.duke.edu/djcil/vol21/iss2/3
61 Ibid.
62 Immanuel Kant, Metaphysical Elements of Justice: Part 1 of the Metaphysics of Morals. Page 332, Accessed o n l i n e : h t t p : / / b o o k s . g o o g l e . c o . i n / b o o k s ? i d = O h N R – x I k S Vo C & p g = PA 1 3 8 & l p g = PA138&dq=immanuel+kant+metaphysics+of+morals+justice+ceases+to+be+justice&source=bl&ots=VsE1f P9bos&sig=6Z8SqjDNY8HBMsXj5Mf8Y9jO0bA&hl=en&sa=X&ei=1UJhU9a_LsO0uASzq4Jo&ved=0CC 4Q6AEwAQ#v=onepage&q=immanuel%20kant%20metaphysics%20of%20morals%20justice%20ceases%2 0to%20be%20justice&f=false
from practical purview, it should be kept on the highest pedestrian. This is a typical Kant
v. Bentham situation of utility pitched against righteousness. To the contention that res judicata provides efficient application to the judicial mind and national resources, Sinai rebuts with counter argument given by Edward W. Cleary:
Courts exist for the purpose of trying lawsuits. If the courts are too busy to decide cases fairly and on the merits, something is wrong. Decision solely in terms of the convenience of the court approaches the theory that the individual exists for the state. Maintenance of the judicial system is a very minor portion of the cost of government. If the judges are too few to be able to decide cases fairly and on the merits, the public probably can afford to have more judges.63
In a country like India where average pendency of suit is a nightmare figure of about 15 years,64 the efficiency argument can be more aggressively asserted. But the fact remains that these argument holds no ground as a judicial decision that prefers settlement over justice and righteousness will have lesser hesitation in committing moral turpitude.
It is easy to indict this thought as a Utopian statement but judicial ambition cannot be structured with mediocrity. It is not just any institution but also the force behind societal harmony and faith of the people in the system to which they subordinate themselves. A compromising attitude towards immediate settlements might give a cost-benefit advantage but when such compromises become reoccurring regulated trends, it indicates decadence in the quality of the judicial thought. Thought is what exists in the mind and that too the judicial mind.
The argument that res judicata is good in public policy will still find a lingering affinity in a settlement minded universe which is more utility and delivery based. But then it would be ideal to look into the case from multiple sides of practical and more specific return based angles.
It remains true that evidence can generally be admitted at the trial level with only narrow exceptions provided under special circumstances as provided through the route narrow route prescribed in Section 107(1) (d) of the Indian CPC65 whose elaborations are
63 E d w a r d W. C l e a r y, R e s J u d i c a t a R e e x a m i n e d , 5 7 YA L E L . J . 3 3 9 ( 1 9 4 8 ) P g . 3 4 8 http://heinonline.org/HOL/Page?handle=hein.journals/ylr57&div=30&g_sent=1&collection=journals#351
64 National Litigation Policy Document- 23-June, 2010; http://pib.nic.in/newsite/erelease.aspx?relid=62745
65 Section 107 (1) Sbject to such conditions and limitations as may be prescribed, an Appellate Court shall have power-
(d) to take additional evidence or to require such evidence to be taken.
provided in Order 41 Rule 2766. High Courts and Supreme Courts are not courts of fact but that of law.67 This means that if there is lapse on the account of party or the counsel in submitting some relevant fact or evidence, there is little scope for such submissions. When this fact is realized in the Indian context where legal literacy, quality of search and investigation and lawyerly skills especially at the trial level leaves much to be desired, one can understand the dire need of flexibility in the procedures. Due to a lapse in procedure, the remedy can become erroneous. If one of the logic for res judicata is reducing litigation costs, then it would be traumatic to think how much a litigant will have to strive with cost and time at the appellate level with a comparatively weaker case than what it could have been, had reasonable submissions of evidence been allowed.
Now compare this with German procedural norms. In Germany, submission of evidence is allowed at any time during the trial. As Sinai quotes in his work:
In the German civil system, only a judgment that is not “subject to further appeal (formelle Rechtskraft) stands as the conclusive adjudication” and is subject to res judicata. The rationale for this system is simple. Wherever there is a multilevel apparatus of justice, as in the continental system in general and the German civil justice system in particular, original decisions can be treated as tentative and decision stability is needed only after the highest authority has spoken.68
He further quotes from German rules as provided in Peter L.Murray & Rolf Stürner, German Civil Justice:69
66 Order 41 Rule 27: Production of additional evidence in Appellate Court—
(1) The parties to an appeal shall not be entitled to produce additional evidence, whether oral or documentary, in the Appellate Court, But if—
(a) the Court from whose decree the appeal is preferred has refused to admit evidence which ought to have been
admitted, or
[414] [(aa) the party seeking to produce additional evidence, establishes that notwithstanding the exercise of due diligence, such evidence was not within his knowledge or could not, after the exercise of due diligence, be produced by him at the time when the decree appealed against was passed, or](b) the Appellate Court requires any document to be produced or any witness to be examined to enable it to
pronounce judgment, or for any other substantial cause, the Appellate Court may allow such evidence or document to be produced, or witness to be examined.
(2) Wherever additional evidence is allowed to be produced by an Appellate Court, the Court shall record the
reason for its admission.
67 Jatindra Kumar Das, “Code of Civil Procedure,” p. 673.
68 Supra Note 60
69 Ibid; Peter L.Murray & Rolf Stürner, German Civil Justice 355-66 (2004).
“German civil procedure does not recognize the concept of claim preclusion in the broad sense as is the case in common law countries.” The basic rule is that a judgment binds the parties with respect to the subject matter of claims actually asserted and decided, but parties are not bound in actual or potential claims not submitted for adjudication.70
Though Sinai raises questions of the cost efficiency of this system, but still admits that nevertheless, it is better than that of jurisdictions where such flexibility is not present.71 Also such privileges are only available during the life of the suit only.
There are some other crucial questions that can be hypothetically construed around these ambiguities. For the sake of understanding if we imagine that there is a claim of heredity and it requires conclusive proof of inheritance. There is a suit filed in an era where the facility of DNA fingerprinting and other technologies are unavailable and the only proof is access or non-access between the parents (which is reflected in Section 112 of the Indian Evidence Act till date as use of genetic technology is considered akin to breach of privacy). Now say the decision that came out was wrong and the inherited property passes to a wrongful pretender after being heard in the Apex Court. In case at some point of during the lifetime of the parties technologies such as DNA fingerprinting become available and they would like to conclusively determine their rights by challenging such a decree, will the rights be granted in the presence and prevalence of the doctrine of res judicata. Then in turn will not res judicata be elemental in disregarding the opportunities created by innovation in technology and newer inventions in cases analogous to this hypothesis.
The rule of res judicata forbids the re-litigation of a cause of action once litigated and even of matters not litigated at all if they are part of a cause of action, which once was litigated in part.72 Edward Cleary in Res Judicata Re-examined further bifurcates rules determining the suits to be barred by res judicata into two divisions to make the issues more apparent. First part deals with what was determined in the former action this portion poses no practical or theoretical difficulty. It is the second part that he suggests that is more problematic as it deals with what might have been litigated in the former action.73 He has had his day in court, even though the subject matter of the second proceeding was not even mentioned in the first one.74
70 Supra Note 60
71 Ibid.
72 E d w a r d W. C l e a r y, R e s J u d i c a t a R e e x a m i n e d , 5 7 YA L E L . J . 3 3 9 ( 1 9 4 8 ) P g . 3 4 8 http://heinonline.org/HOL/Page?handle=hein.journals/ylr57&div=30&g_sent=1&collection=journals#351
73 Ibid
74 Ibid
Exception to Res Judicata: Habeus Corpus
Much like the courts of the US and the UK, Indian courts have taken the view that res judicata is not applicable to a writ of habeus corpus. Thus, the writ of habeus corpus is an exception to the rule of res judicata. Thus, a plaintiff may file a petition for the same writ under Article 32 of the Constitution, even where a writ of habeus corpus has been refused by a High Court. In fact, the rule of constructive res judicata also does not apply in such cases.75 In State of Punjab v. Davinder Pal Singh Bhullar,76 the Supreme Court observed that there may be certain exceptions to the rule that a person was not aware of certain material facts while filing the first petition. Also it may be possible that events may have arisen subsequent to the making of the first application. Thus, in such circumstances the courts have to bear in mind that res judicata cannot apply, and is confined to civil actions. It is inapplicable to illegal action or fundamentally lawless orders. A subsequent petition of habeus corpus on fresh grounds, which were not taken in the earlier petition for the same relief may be permissible.
Similarly in Lallubhai Jogibhai Patel v. Union of India,77 the petitioner was detained and the petition filed against the said order was dismissed by the Supreme Court by an order dated May 9, 1980, but the reasons given on August 4, 1980. The petitioner filed additional grounds on July 21, 1980 post the order of dismissal but before the reasons were recorded. However on July 30, 1980, he was informed that he may file on additional grounds and the question before the Supreme Court was whether res judicata could apply to a writ of habeas corpus. Justice Sarkaria eventually concluded that res judicata was confined to civil actions, and the principle of public policy was inapplicable to illegal detention and does not bar a subsequent petition for a writ of habeus corpus under Article 32 of the Constitution on fresh grounds, which were not taken in the earlier petition for the same relief.
However, in T.P.Moideen Koya v. Govt of Kerala,78 the Supreme Court held that the bar of res judicata would apply to a petition filed under Article 32 of the Constitution. This would be when a similar petition, seeking a similar petition under Article 226 before the High Court and the decision has become final without an appeal to the Supreme Court.
75 Srikant v. District Magistrate, 2006(12) SCALE 270: (2007) 1 SCC 486; T.P. Moideen Koya v. Government of Kerala, 2004 (8) SCALE 364: (2004) 8 SCC 106; A.R. Antulay v. R.S. Nayak, AIR 1988 SC 1531: (1988) 2 SCC 602: Sunil Dutt v. Union of India, (1982) 3 SCC 405: AIR 1982 SC 53; Ghulam Sarwar v. Union of India, AIR 1967 SC 1335: (1967) 2 SCR 271 as cited in Jatindra Kumar Das, Code of Civil Procedure, pg 173.
76 JT 2011 (14) SC 213: 2011 (3) SCALE 394 as cited in Jatindra Kumar Das, Code of Civil Procedure, pg 173.
77 AIR 1981 SC 728: (1981) 2 SCC 427 in Jatindra Kumar Das, Code of Civil Procedure, pg 173.
78 (2004) 8 SCC 106: AIR 2004 SC 4733 in Jatindra Kumar Das, Code of Civil Procedure, pg 174.
However, this principle would not apply to a writ of habeus corpus, in which the petitioner has prayed for liberty. If a person under detention files a writ of habeus corpus under Article 226 before the High Court and the writ petition is dismissed (whether by a detailed order after considering the case on merits by a non-speaking order) and the decision is unchallenged by preferring a special leave petition under Article 136 and is allowed to become final, it would still be open to him to file an independent petition under Article 32 seeking a writ of habeus corpus. In Srikant v. District Magistrate,79 the Supreme Court set out exactly that res judicata does not apply to habeus corpus proceedings. They acknowledged that it was a principle accepted by both English and American law, but differed on one key point. In India, unlike in England, the person detained can file original petition for enforcement of fundamental right to liberty before a Court other than the High Court (e.g. Supreme Court). Thus, in that situation the High Court’s order will not be res judicata as it would be under English or American law. This because, according to the Supreme Court, the principle of res judicata is not applicable to a lawless order.
Constructive Res Judicata and Writ Petition
In Amalgamated Coalfields Ltd v. Janapada Sabha,80 the Supreme Court opined that constructive res judicata was a special and an artificial form of res judicata. They believed that this was coming through Section 11 of the CPC, and should not be applied to writ petitions under Article 32 or Article 226. However, at the same time there is also case law to suggest that res judicata could be applied to writ petitions. In Devilal v. Sales Tax Officer,81 the Supreme Court ruled that if a plea could have been taken by a party in proceeding between him and his opponent, a person would not be permitted to take that plea against the same party in a subsequent proceeding which is based on the same cause of action. But this view stems from the same public policy consideration (argued for earlier in the paper). It would be open to the party to bring new grounds each and every time, and that would be inconsistent with the grounds of public policy.
Conclusion
A common justification given for res judicata is the need to end litigation, and bring down costs, and boost economic efficiency of the courts and expedite adjudication of
79 2006 (12) SCALE 270: (2007) 1 SCC 486.
80 AIR 1964 SC 1013: (1963) Supp (1) SCR 172.
81 AIR 1965 SC 1150.
issues. The doctrine of res judicata then becomes a convenient justification for avoiding squandering the courts’resources and imposing additional costs on litigants.82 Litigating the same matter more than once defeats this purpose.83 Res judicata also becomes a
means to reduce controversies, and promote stability,84
which is an important
requirement for the court system.85 It is, as has been argued earlier, in the public interest to prevent, or at least reduce, the possibility of inconsistent judgments.86 This is because inconsistent judgments undermine the courts’ prestige and the respect the courts inspire.87 As per some Anglo-American jurists, res judicata supports the prestige of courts.88 Also, there is this mentality that courts will tend to respect other courts’ decisions. This is a practice that fosters a general attitude that later decisions should be consistent with earlier ones, with Canadian courts agreeing that the doctrine of Res Judicata avoids conflicting decisions and promotes both confidence in courts and predictability.89 The English law jurist Andrews90 has also stressed how the principle of finality is rooted in several policies; if a decision was not final, it would result in a dispute dragging on and on. Also, were it not for res judicata, scarce “judge-time” would be spent on re-hearing matters thus leading to inconsistent matters.
However, as Harmon91 points out, a legal system which favors an approach which in principle emphasizes private interest of the parties rather than the public interest, values
82 Donald Lange, The Doctrine of Res Judicata in Canada (policy considerations have also been expressed by Canadian courts) as cited by Yuval Sinai in his paper called Reconsidering Res Judicata: A Comparative Perspective.
83 Allen D. Vestal Res Judicata/Preclusion as cited by Yuval Sinai in his paper called Reconsidering Res Judicata: A
Comparative Perspective.
84 Fleming James, et.al, Civil Procedure 673 (5th ed.2001) as mentioned by Yuval Sinai in his paper called Reconsidering Res Judicata: A Comparative Perspective.
85 Ibid.
86 Neil Andrews, “Principles of Civil Procedure 501-12” and Donald Lange, The Doctrine of Res Judicata in Canada as cited by Yuval Sinai in his paper called Reconsidering Res Judicata: A Comparative Perspective.
87 State Hosp. v. Consol. Water Co., 267 Pa. 29,38 (1920) (“The doctrine of res judicata produces certainty as to
individual rights and gives dignity and respect to judicial proceedings).
88 Allen D. Vestal Res Judicata/Preclusion, and Eliahu Harnon, Res Judicata and Identity of Actions: Law and Rationale, 1 ISR.L.REV. 539, 539(1966) as cited by Yuval Sinai in his paper called Reconsidering Res Judicata: A Comparative Perspective.
89 Donald Lange, The Doctrine of Res Judicata in Canada (policy considerations have also been expressed by
Canadian courts) as cited by Yuval Sinai in his paper called Reconsidering Res Judicata: A Comparative Perspective.
90 Neil Andrews, “Principles of Civil Procedure 501-12” and Donald Lange, The Doctrine of Res Judicata in Canada
as cited by Yuval Sinai in his paper called Reconsidering Res Judicata: A Comparative Perspective.
91 Eliahu Harnon, Res Judicata and Identity of Actions: Law and Rationale, as cited by Yuval Sinai in his paper called Reconsidering Res Judicata: A Comparative Perspective.
efficiency over revealing the truth. Also, courts expect parties to raise res judicata by themselves because courts will not do so on their own.92 In Anglo-American systems, res judicata fails to be applied according to the main justification of the public interest. Critics have argued that if the main focus of res judicata was the public interest the litigant’s wishes, or convenience would not be relevant to res judicata. The decisive factor driving decisions would be just the fact that there is a former judgment on the same case already exists. Post a judgment’s decision, and the court settling controversy between the parties, further referring to the court on the same matter would be a waste of courts’ time.93 But, in the Anglo-American view, the court can ignore former judgments if nobody complains of being vexed or harassed. The American court system sometimes values procedure over substance, the result of which are not often fair.94 However, the fact that an issue is not re-litigated absent a party’s request, is more a reflection of the adversary system than any reflection of the system’s lack of concern for a just outcome. Some US decisions though have actually deviated from this idea of valuing procedure, and have allowed the courts to initiate res judicata.95
Even though the public interest rationale of res judicata is based on a need to stabilize the system and encourage consistency, in practice modern Anglo-American rules often do not promote these values. The major trend in the development of the modern doctrine of res judicata expands the theoretical applicability of the preclusion rules,96 and also at the same time recognizes and generates more broad exceptions to the doctrine.97 In English law, new evidence unavailable at the time of trial can under certain circumstances, constitute an exception to res judicata.98
92 Restatement of the Law (First) of Judgments $ 1(a) (1942) (“Although the principle is based upon the interest of the public as well as that of the parties, yet if the prior judgment is not relied upon in pleadings or in evidence in the new action, the prior judgment will not preclude the new litigation of matters determined by the judgment. The courts doe not take judicial notice of the existence of defense of res judicata.”)
93 Eliahu Harnon, Res Judicata and Identity of Actions: Law and Rationale, as cited by Yuval Sinai in his paper
called Reconsidering Res Judicata: A Comparative Perspective.
94 Yuval Sinai, Reconsidering Res Judicata: A Comparative Perspective.
95 Alyeska Pipeline Service Co v. United States, 688 F.2d 767, 771(Ct.Cl. Sept. 8, 1982); Walsh v. Int’l Longshoremen’s Ass’n, 630 F, 2d 864, 867 (1st Cir. 1980); Boone v. Kurtz, 617 F.2d 435, 436.
96 Neil Andrews, “Principles of Civil Procedure 501-12” as cited by Yuval Sinai in his paper called Reconsidering
Res Judicata: A Comparative Perspective.
97 Casad and Clermont, Res Judicata: A Handbook on its Theory, Doctrine and Practice (2001) as mentioned by Yuval Sinai in his paper called Reconsidering Res Judicata: A Comparative Perspective.
98 Neil Andrews, “Principles of Civil Procedure 501-12” as cited by Yuval Sinai in his paper called Reconsidering
Res Judicata: A Comparative Perspective.
Some commentators and question the desirability of this trend.99 This trend does not contribute to certainty and consistency, in their minds, since in many cases all the factors of the action appear to support a general rule of preclusion. Also, another factor causing uncertainty and inconsistency are the variety of definitions offered by judges, scholars, and statute-writers regarding the definition of “cause of action.” The broader the definition, the broader the scope of preclusion and despite attempts to find an acceptable definition of a cause of action,100 no consensus has been reached.101 As Harnon criticizes, it is not always easy to justify res judicata on the grounds of the public interests to prevent inconsistent judgments and to contribute the prestige of courts. By granting a right of appeal, the law actually invites possible inconsistencies.102
Thus, as Sihai argues, res judicata is best understood in the Anglo-American systems as a product of competing private interests that are valued in the adversarial system rather than a principle rooted in the traditional proffered jurisdictions that appear to be more rhetorical than an actual basis for res judicata.103 The explanation of the well-known jurist John Salmond also illustrates the idea of a judgment as conclusive evidence and sometimes against the world of the matter adjudicated upon. Salmond believed the Court of Justice could make mistakes, but no one will be heard to say so. For their function is to terminate disputes and their decisions must be accepted as final and beyond question.104 The idea of terminating disputes becomes a justification for res judicata’s operation; a typical feature of the adversarial system. But, it remains to be seen whether this same thinking would be adopted by other legal traditions since res judicata is mostly the product of the adversary system of litigation practiced in English courts.105 Its essence is that as between opposed parties an issue, once litigated should be regarded as forever decided – which is where the problem lies. Bower and Turner have
99 Casad and Clermont, Res Judicata: A Handbook on its Theory, Doctrine and Practice (2001) as mentioned by Yuval Sinai in his paper called Reconsidering Res Judicata: A Comparative Perspective.
100 Fleming James, et.al, Civil Procedure 673 (5th ed.2001) and Edward W. Cleary, Res Judicata Reexamined, 57
YALE L.J. 339 (1948) Pg. 348 http://heinonline.org/HOL/Page?handle=hein.journals/ylr57&div= 30&g_sent=1&collection=journals#351 as mentioned by Yuval Sinai in his paper called Reconsidering Res Judicata: A Comparative Perspective.
101 Eliahu Harnon, Res Judicata and Identity of Actions: Law and Rationale, as cited by Yuval Sinai in his paper
called Reconsidering Res Judicata: A Comparative Perspective.
102 Ibid.
103 Yuval Sinai, Reconsidering Res Judicata: A Comparative Perspective.
104 John Salmond, Jurisprudenee 484 (Williams eds., 10th ed. 1947) (1920).
105 George Spencer Bower & Alexander K. Turner, “The Doctrine of Res Judicata (2d ed. 1969) as mentioned in Yuval Sinai, Reconsidering Res Judicata: A Comparative Perspective.
further critiqued res judicata by mentioning that in a different system of jurisprudence where the court exercise an inquisitorial function, it might be thought unjust or inexpedient that it should be impeded in it search for truth by the principle of res judicata… But this is not the system under which English courts administer justice…”106
Thus, one can see that in a different legal system res judicata would be looked at as hampering the process of administering justice to parties. We agree with Mirjan Damaska’s107 comments on res judicata, in that the doctrine seems to fit the conflict- resolving model of the Anglo-American legal system best. Is there a trade off between trying to achieving stability and consistency and administering justice in its true form? The conflict-resolving style used in the common law is averse to changing decisions, even if they are based on the legal or factual error.108 Thus, this probably does create a disincentive for parties that wish to re-litigate, since the great desire for stability that is typical to common law adversarial systems, produces a broad preclusion effect on future
litigation.109
Also, here additionally the problem of barring re-litigation becomes
complex since reconsideration of decisions can occur, but only on the initiative of parties, and not on the courts’ insistence.110 As Demaska puts it, to outsiders a system of justice such as this one may seem flawed since it can justify substantively erroneous decisions amidst faulty procedures.111
Thus, one can argue that the cart has been put before the horse, but in a system which values the integrity of the contest above the attainment of an accurate outcome, such behavior seems unsurprising.112 The adversarial trial judge is compared to that of a referee in a game where he plays no active part.113 The adjudication of issues has been compared to a competition in which the party breaching rules of the game incurs a loss. This occurs whilst the winner is determined by comparing the parties’ competitive levels at the end of the game.114 Then are we to say that the role of the judge is not to
106 Ibid.
107 Mirjan R. Damaska, The Faces of Justice and State Authority 145-46 (1986) as cited by Yuval Sihai in Reconsidering Res Judicata: A Comparative Perspective.
108 Ibid.
109 Ibid.
110 Ibid.
111 Ibid.
112 Ibid.
113 Jones v. Nat’l Coal Bd., (1957) 2 Q.B. 55 at 63 (Eng).
114 Mirjan Damaska, “Evidentiary Barriers to Conviction and Two Models of Criminal Procedure: A Comparative Study, 121 U.PA. L. REV. 506,581 (1973) as cited by Yuval Sihai in Reconsidering Res Judicata: A Comparative Perspective.
determine the truth but simply to resolve disputes, of which res judicata is a tool to assist him? Does res judicata then favor values other than truth finding? Or could it just be that it is in this particular legal system that courts have to make this choice, this tradeoff between contentions of law and the facts laid before them by litigants.
Sinai in his work forcefully confronts the common assumption that legal systems cannot exist without res judicata and that every legal system has produced a body of res judicata laws.115 The German system uses res judicata in a narrower scope and the Rabbinical Courts’adjudicative machinery takes an even flimsy view of it. Contrary to that, he finds that the primary reason for inculcating res judicata in Anglo-American systems can at best be understood under conceptually “conflict solving adversarial approach whereas the traditional justifications are more of rhetoric in nature.”116
When observed from the standpoint of claims preclusion, the doctrine is highly problematic because of mainly two reasons. One that the plaintiff has to take the entire bulk of issues into a single suit, which aggravates legislative cost.117 Had an option been given to him to break his bulk, it would be far less stressing for the plaintiff because he can choose the issues which are of primary or immediate importance at the time and then decide later plaints more precisely, based on the present judgment. This is a good ground for argument but there is an inherent problem in it to the Indian context. The average pend-ency of cases in India is stretched to about one and a half decade. Given this state of affairs and the multiple number of appeals that arise out of litigation, breaking bulk can be a nightmare because till the issue is finally settled by the concerned appellate authority, the world can be a totally different to be.
The other is the issue is related to evidence and trial level proceedings. The argument here against res judicata is very strong and the best solution that we are able to find is inferred from the German Laws, which allow evidence to be submitted till the Apex Court gives its verdict on the case. It has distinct advantages especially to the Indian scenario. One is that if a piece of evidence can be elemental in expediting justice then that particular piece will not suffer from any hindrance and can be brought to the notice of the court at any point of time. Although reasonable restrictions would be necessary as under any scenario, the present rules are too stringent and counterproductive. Especially in context to re-arguing evidence, res-judicata provides an undue cap that weakens
115 Supra Note 60.
116 Ibid.
117 Ibid.
appreciation of even genuine pieces of evidence and their interpretation because once they get processed at the trial level, the appellate bodies cannot appreciate them at lengths. If the appellate bodies consider this as an additional burden upon them, a short- circuiting mechanism which allows particular pieces of evidence to be examined by the trial court by simple application and then direct consideration of it at the level on which the litigation is going would be a measure worthy of notice.
Re-arguing of evidence is another problematic bar. What happens if the party changes the advocate and the new attorney finds out that some crucial and game changing evidence have been totally left unconsidered or that those which were argued were not put forth in the best possible manner? How much would he be able to do if crucial elements are barred? Further it is totally un-understandable why upper courts should not be re-considering evidence if they observe good enough reason to do so but that is a connected concern and we can put it to rest for another research expedition.
Now it cannot be totally overruled that this would require some quantitative upgrades in
the judiciary but that has to happen if that needs to happen. The existential purpose of courts is justice and they should be overhauled in order to meet its ends. This in itself is an extension of public policy and a constructive and positive one. Over everything, parliamentary mediocrity in not renovating the judicial machinery according to the needs of the present time cannot become a universal answer in the disguise of a compromised bid of public policy.
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Harita, M.Nagabhushana vs. State Of Karnataka & Ors on 2 February, 2011 “, who is believed by some Orientalists to have flourished in the 9th Century B.C. and whose Smriti is now extant only in fragments.
The plaintiff should be non-suited if the defendant avers: `in this very affair, there was litigation between him and myself previously,’ and it is found that the plaintiff had lost his case”.
There are texts of Prasara (Bengal Asiatic Society Edition, page 56) and of the Mayukha (Kane’s Edition, page 15) to the same effect.”
Henderson v. Henderson, (1843) 3 Hare 100, 115; 67 E.R. 313, 320.
Immanuel Kant, Metaphysical Elements of Justice: Part 1 of the Metaphysics of Morals. Page 332, Accessed online: http://books.google.co.in/books?id=OhNR- xIkSVoC&pg=PA138&lpg=PA138&dq=immanuel+kant+metaphysics+of+morals+ju stice+ceases+to+be+justice&source=bl&ots=VsE1fP9bos&sig=6Z8SqjDNY8HBMs Xj5Mf8Y9jO0bA&hl=en&sa=X&ei=1UJhU9a_LsO0uASzq4Jo&ved=0CC4Q6AEw AQ#v=onepage&q=immanuel%20kant%20metaphysics%20of%20morals%20justice
%20ceases%20to%20be%20justice&f=false
Jatindra Kumar Das, “Code of Civil Procedure,” p. 673.
John Salmond, Jurisprudence 484 (Williams eds., 10th ed. 1947) (1920). Jones v. Nat’l Coal Bd., (1957) 2 Q.B. 55 at 63 (Eng)
Justice Chand in Lachhmi v. Bhulli, which has been mentioned in M Nagabhushana v. State of Karnataka & Others.
Justice Mandagadde Rama Jois, “Legal and Constitutional History of India: Ancient legal, judicial, and constitutional system,”Accessed April 5th, 2014:
http://books.google.co.in/books/about/Legal_and_Constitutional_History_of_Indi.ht ml?id=V552bAz5xFAC&redir_esc=y
Lacchmi v. Bhulli, ILR (1927) 8 Lah 384
Lallubhai Jogibhai Patel v. Union of India, AIR 1981 SC 728: (1981) 2 SCC 427 in Jatindra Kumar Das, Code of Civil Procedure, pg. 173.
Laufer v. Canadian Investment Protection Fund (2004) O.J. No. 4016, para. 7(S.C.J.).
Macnaughten and Colebrooke’s translation, page 22 as cited by Justice Chand in Lachhmi v. Bhulli, which has been mentioned in M Nagabhushana v. State of Karnataka & Others.
Mitakshara, Book.II, Chap. 1, Section V, verse 5) as cited by Justice Chand in Lachhmi
v. Bhulli which has been mentioned in M Nagabhushana v. State of Karnataka & Others.
Mirjan Damaska, “Evidentiary Barriers to Conviction and Two Models of Criminal Procedure: A Comparative Study, 121 U.PA. L. REV. 506,581 (1973) as cited by Yuval Sihai in Reconsidering Res Judicata: A Comparative Perspective.
Mirjan R. Damaska, The Faces of Justice and State Authority 145-46 (1986) as cited by Yuval Sihai in Reconsidering Res Judicata: A Comparative Perspective.
M Nagabhushana v. State of Karnataka & Others (2011) 3 SCC 408
Texts of Prasara (Bengal Asiatic Society Edition, page 56) and Mayukha (Kane’s Edition, page 15). as cited by Justice Chand in Lachhmi v. Bhulli, which has been mentioned in M Nagabhushana v. State of Karnataka & Others.
National Litigation Policy Document- 23-June, 2010; http://pib.nic.in/newsite/ erelease.aspx?relid=62745
Neil Andrews, “Principles of Civil Procedure 501-12” as cited by Yuval Sinai in his paper called Reconsidering Res Judicata: A Comparative Perspective.
New York Arbitration Convention (1958): Recognition and enforcement of the award may be refused, at the request of the party against whom it is invoked, only if that party furnishes to the competent authority where the recognition and enforcement is sought, proof that:
(e) The award has not yet become binding on the parties, or has been set aside or suspended by a competent authority of the country in which, or under the law of which, that award was made.
ONGC v. Western Co. of North America, 1987) 1 SCC 496 p. 514. Order 41 Rule 27: Production of additional evidence in Appellate Court-
(1) The parties to an appeal shall not be entitled to produce additional evidence, whether oral or documentary, in the Appellate Court, But if—
(a) the Court from whose decree the appeal is preferred has refused to admit evidence which ought to have
been admitted, or
[414] [(aa) the party seeking to produce additional evidence, establishes that notwithstanding the exercise of due diligence, such evidence was not within his knowledge or could not, after the exercise of due diligence, be produced by him at the time when the decree appealed against was passed, or](b) the Appellate Court requires any document to be produced or any witness to be
examined to enable it to pronounce judgment, or for any other substantial cause, the Appellate Court may allow such evidence or document to be produced, or witness to be examined.
(2) Wherever additional evidence is allowed to be produced by an Appellate Court, the Court shall record the reason for its admission.
Jatindra Kumar Das, “Code of Civil Procedure,” p. 673.
Peter L. Murray & Rolf Stürner, German Civil Justice 355-66 (2004).
Ph.D; L.L.B; Senior Lecturer of Civil Procedure and Jewish Law, Director of the Center for the Application of Jewish Law (ISMA), Law School, Netanya Academic College, and also teaches in the Law Faculty of Bar-Ilan University (Israel); Visiting Professor at
McGill University, Canada (2007- 2008).
Restatement (Second) of Judgments Sec. 17 cmt, b, 19 (1982).
Restatement of the Law (First) of Judgments $ 1(a) (1942) (“Although the principle is based upon the interest of the public as well as that of the parties, yet if the prior judgment is not relied upon in pleadings or in evidence in the new action, the prior judgment will not preclude the new litigation of matters determined by the judgment. The courts doe not take judicial notice of the existence of defense of res judicata.”).
Roby’s Roman Private Law (Vol.II, page 338,391-392) as cited by Justice Chand in Lachhmi v. Bhulli, which has been mentioned in M Nagabhushana v. State of Karnataka & Others.
Section 2 of 1859 Civil Procedure Code: “The civil courts shall not take cognizance of any suit brought on a cause of action which shall have been heard and determined by court of competent jurisdiction, in a former suit between the same parties, or between the parties under whom they claimed.”
Section 107 (1) Subject to such conditions and limitations as may be prescribed, an Appellate Court shall have power-
(d) to take additional evidence or to require such evidence to be taken.
Section 34(2) in THE ARBITRATION AND CONCILIATION ACT, 1996
(2) An arbitral award may be set aside by the Court only if—
(b) the Court finds that—
(ii) the arbitral award is in conflict with the public policy of India.
Section13 of CPC – When foreign judgment not conclusive.
A foreign judgment shall be conclusive as to any matter thereby directly adjudicated upon between the same parties or between parties under whom they or any of them claim litigating under the same title except-
(a) where it has not been pronounced by a Court of competent jurisdiction;
(b) where it has not been given on the merits of the case;
Srikant v. District Magistrate, 2006(12) SCALE 270: (2007) 1 SCC 486
State Hosp. v. Consol. Water Co., 267 Pa. 29,38 (1920) (“The doctrine of res judicata produces certainty as to individual rights and gives dignity and respect to judicial proceedings).
State of Karnataka and Anr. Vs. All India Manufacturers Association and Anr, (2006) 4 SCC 683.
State of Punjab v. Davinder Pal Singh Bhullar, JT 2011 (14) SC 213: 2011 (3) SCALE 394 as cited in Jatindra Kumar Das, Code of Civil Procedure, pg 173.
Smriti Chandrika, Mysore Edition, pages 97-98 as as cited by Justice Chand in Lachhmi
v. Bhulli which has been mentioned in M Nagabhushana v. State of Karnataka & Others. Sunil Dutt v. Union of India, (1982) 3 SCC 405.
T.P.Moideen Koya v. Govt of Kerala, (2004) 8 SCC 106: AIR 2004 SC 4733 in Jatindra Kumar Das, Code of Civil Procedure, pg 174.
The Ampthill Peerage Case (1977) A.C. (H.L) 547 at 575-76 (U.K.).
V.C. Govindaraj’s, “The Conflict of Laws in India: Inter-Territorial and Inter-Personal Conflict”, Oxford University Press 2011.
Virmitrodaya, Vidya-Sagar Edition, page 77 as cited Justice Chand in Lachhmi v. Bhulli which has been mentioned in M Nagabhushana v. State of Karnataka & Others.
Walsh v. Int’l Longshoremen’s Ass’n, 630 F, 2d 864, 867 (1st Cir. 1980).
Y.Narasimha Rao v. Y. Venkatalakshmi, (1991) 3 SCC 451.
Yuval Sinai, Reconsidering Res Judicata: A Comparative Perspective, 21 Duke Journal of Comparative & International Law 353-400 (2011), http://scholarship.law.duke
.edu/djcil/vol21/iss2/3