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Lordships of the Privy Council in Shankar v. Dyashankar,^
that for the identity of the cause of action it is not necessary
that the relief asked in the two suits should be the same.

10, Sec, 2 was therefore very considerably modified on

The enactment iuBri- ^^^ enactment of the Civil Procedure Code

tish India of the of 1877; the rule of the bar by judgment

rule of conclusive- having been replaced by that of conclu-

ness of judgment, ^^^^^^ ^f judgme nt, and the reference to

c Thus it was said by the California Supreme Court in Taylor v. Castle** that
«» the cause of action is aaid to be the same when the same evidence will support both
actions ; or rather the evidence necessary to sustain a judgment for the plamtiff in the
present action would have authorised a judgment for the plaintiff in the former,"



» Hitohin •. Campbell, S W. Bl, 831.
Martin v. Konnedy, 2 Boa. and Pal. 09,
HtMitor, V. Stewart, 4 Da G. F. and J. 16a,
Bronsden, «. Hamphrey, 14 Q. B. D. 141.
ICao. CiT. Proo. 5S.

)9aro Uari v. Anpamabai, J. {4. R. XI Bom.
160(«).
PfY a»Y. v. S»Umbh*i. I, L. R. X, Bom, S7.



.. ^'^^•"S^ •• ft»n»««ni, I. L. B. IX. Miul. «7SU

» 49 Tex. 843.

*o Bilaand v. MoManomy, 82 Ind. 139.

« Nathana o. Hope, 77 S. Y. 420.

*» Qilmer v. Morris. 36 Fed. Rep, 681

*• L. I^. XV L A. 66, ^

« 42 ti^l. 371.



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S. lO*] ENACTMENT OF RULE OF CONCLUSIVENESS OF JUDGMENT. 13

the identity of the cause of action replaced by that of the matter
in issue, which as indicated above is the first essential of the
rule of res judicata.'^ The rule was thus enacted as Sec.
13 in the following form : —

*• No Court shall try any suit or issue in which the mat-
ter, directly and substantially in issue, has been heard and
finally decided by a Court of competent jurisdiction, in a
former suit between the same parties, or between parties under
whom they or any of them claim, litigating under the same
title.

Explanation L — ^The matter above referred to must, in
the former suit, have been alleged by one party, and either
denied ur admitted, expressly or impliedly, by the other.

Explanation II. — Any matter which might and ought to
have been made ground of defence or attack in such former suit
shall be deemed to have been a matter directly and substan-
tially in issue in such suit.

Explanation III. — Any relief claimed in the plaint,
which is not expressly granted by the decree, shall, for the pur-
pose of this section, be deemed to have been refused.

Explanation IV. — A decision is final within the meaning
of this section, when it is such as the Court making it could
not alter (except on review) on the application of either party
or reconsider of its own motion. A decision liable to appeal
may be final within the meaning of this section until the appeal
is made.

Explanation V. — Where persons litigate bond fide in res-
pect of a private right claimed in common for themselves and
others, all persons interested in such right shall, for the purpose
of this section, be deemed to claim under the persons so
litigating.

Explanation VI. — Where a foreign judgment is relied on,
the production of the judgment duly authenticated is presump-
tive evidence that the Court which made it had competent
jurisdiction, unless the contrary appear on the record ; but such
presumption may be removed by proving the want of juris-
diction."

d Mr. Freeman, referring to the identities of subject-matter, of cause of action, and of
porpose or object, says, ** While a concurrence of these identities usually attends when one
case is determined by the decision in another, yet nothing is indispensable to impart a
conclusive effect to a former judgment, as will be manifest by reference to a few of the
reported cases, except identity of issue or issues involved."



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14 GENESIS OF THE RULE. [Sa 11, 12.

11 • Sir Whitley Stokes, who for a long time as Secretary
. in the Legislative Department to the Gov-

Rulf!°'""" ernment of India, and later as the Legal

Member of the said Government, took an im-
portant part in drafting the section, in speaking of its
genesis, has said, ** The principal clause and first Explana-
tion are founded on the definition in Livingstone's Code of
Evidence for the State of Lousiana, Sec. 192. lies judicata is
whatever has been finally decided by a Court of competent
jurisdiction — proceeding according to the forms of law — by a
valid sentence on a matter alleged, and either denied or expressly
or impliedly confessed by the other; and it is conclusive evidence
of that which it decides, between the same parties or those that
represent them, litigating for the same thing, under the same
title and in the same quality. The second, third, fourth and
fifth Explanations rest on decisions of English or Indian Courts.
The sixth is taken from Livingstone's Code just mentioned.
Sec. 198, and should be transferred to the Evidence Act.'*

12. The chief alteration made by Sec. 13 is the statutory
recognition of the principle of bar by ver-
The provision as to jict. The Select Committee in their
dSants. * R^P^r^ presented with Bill IV of the Civil

Procedure Code of 1877, said that they had
'•amended the section by extending it so as to provide for estop-
pels against defendants,'' and that was done apparently by
introducing the word Hssue.' Other alterations in the language
necessitated by that addition, were not made^ but the rule, even
as it stands, is quite clear and unambiguous; and Latham, J.,
observed in Rung Rav v. Sidhi Mahomedf^^ that *' under the
wordsofSec. 13 'suitor issue,' the answer is admissible to estop
a defendant from defence as well as a plaintiff from attack."
In Jamaitunnisa v. LutfunniisaJ^ Mr. Justice Mahmood,
speaking of the Section said, ^* It deals with two matters : first,
the trial of suits, and secondly, the trial of issues. It is founded
on a long course of judicial decisions, and especially on the dicta
of the Privy Council, and has formulated in express terms the
rule, which previously was only expressed in part by legislative
enactment, that the principle of r^^yurfeM^ei applies both to the
trial of suits and to the trial of issues. The distinction between
the two things appears to me to be clear. A suit ends in a
dismissal or a decree, in whole or in part. An issue ends in a

*» I. L. R. VI. Bom. 481. | *• I. L. R. VII All. «15.



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8. IS.] E8T0PPBL AGAINST DEFENDANTS. 15

finding, and the rule contained in Sec. 13 goes the length of
saying that not only is a suit which has once been tried and
determined not again maintainable, but an issue which has
once been directly and substantially raised and decided, shall
not be litigated a second time. The reason of the maxim.
Nemo debet bis vexari pro eadem causa seems to me to
apply as much to the trial of issues as to the trial of suits, for
in either case the harassment to litigants would be similar if
matters could be reagitated after having been once duly
adjudicated upon.''

13. While this provision as to a bar by verdict has met

with general approval, its extension by

'^*l!^n'S^^oT^^^^ Explanation II to the cases of mere con-

by Explanation IL structive verdict has been oft^n condemned

as unsuitable to this country* ; but this

is due, to some extent, to its being forgotten that the said

Explanation has not introduced any novel principle, and is, in

fact, in accordance with the rule as recognized and acted upon in

England and the United States. The Explanation has often

e Thus Sir Richard Garth, C. J., 8i)eaking of a suit on a certain title beinfr barred by a
suit on another title, in Denohundhoo v. Krittomoni *7,said — " I don't believe that the Legis*
lature of this country, nor the Lords of the Privy Council, in interpreting the language of
the Legislature, ever intended to impose upon a people, who ai-e for the most part uneduca-
ted and imperfectly advised, a moi-e stringent rule u|K)n this difficult suDJect than has
obtained for centuries past in civilized Europe." In Bahu Lai v. Uhri Prasad ♦», Sir
Robert Stuart, C J., expresse<l his sympathy with that view, and said : — " I have in several
cases in this court taken occasion to express my regret that the law on this subject as recog-
nized by English Courts should have been so inconsiderately imported, as I conceive it
hM been, into the practice of the CJourts of this country, where there arc few, if any, of
the safe-guards which render this plea a reasonable one in a European Court ; and there
are even judgments of the Privy Council in appeal from the High Courts of India which
carry the principle of this plea so far, that I would hesitate to apply the doctrine they lay
down although approved by so august a tribunal, unless the fact« were precisely the same,
ft should be remembered that there is not here that ropia peritorum^ that resource of skill-
ed appliance afforded by the presence of a thoroughly trained and exi)erienced bar that
there is in England (or rather 1 should say in Great Britain and Ireland, for the legal prac-
tice on this subject is the same in all parts of the United Kingdom), and that to intnxiuce
into the practice of the District Courts of India a legal principle, which, especially as re-
cently developetl and exix>unded. is the result of a high degree of legal refinement, is not
com-iderate towards suitors who form part of such a ^wpulation as w^e have to deal with,
rf it is not tantamount to a denial of justice to them. These poor people avail themselves
of the besjt professional assistance they can get in the zUa, within which their villages are
^itnato ; but that is often poor indeed, if it is not generally unreliable ; and to refuse relief
to a plaintiff who makes an apparently just claim simply beeau«*o his ignorant district
pleader ha*l omitted a particular plea in a previous suit is surely a proceeding of doubtful
wisdom." In Mnkammad Ismail v. Ghattar Sing ft *», Sir Robert Stuart. C.J., again said —
*• I must repeat the opinion, which I have so often expresswl from the Bench in other
cases, that this pica of res judicata is utterly unsuited to the great mass of litigation of
this country ; and that in shutthig the mouth of a plaintiff or defendant because in a former
suit between the same parties, or parties in the same right, the matter of the plea might
therein have been urged and adjudicated upon, but wa^ inadvertently omitted from consi-
deration by, it may Ixj, a poor litigant in ignorance of his rights, or by his local plead<T not
less ignorant of his law, or by a Court not very intelligent as to cither, the policy of this
law is mistaken, and I am convinced often leads to gross injustice.''

♦« I lTb.. n CaL, 17J. I ♦• I.L.B.,nAlL,M6, 1 *• L L. B., IV AlU. 69.



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J6 EXTENSION OF RULK TO CONSTRUCTIVE VERDICTS. [S. IS.



been justified on principles of expediency and public policy.
TliuB Mr. Herman says: '* The plea of res judicata applies to
every point which properly belonged to the subject m litiga-
tion, and which the parties, exercising reasonable diligence,
might have brought forward at the time and determined res-
pecting it. . . .A judgment decides every matter which
pertains to the cause of action or the defence set up, or which
is involved in the measure of relief to which the cause of
action or defence entitles the party, even though such matter
may not be set forth in the pleadings, so as to admit proof
and call for an actual decision upon it. The reason in favour
of this extent of the rule are found in the expediency and
propriety of silencing the contentions of parties, and of ac-
complishing the ends of justice by a single and speedy decision
of all their rights. It is evidently proper to prescribe some
period to controversies of this sort; and what period can be
more fit and proper than that which aflTords a full and fair
opportunity to examine and decide all their claims ? This
rule is founded on sound principle. Suitors are bound to
prepare and present their cases in a proper manner; they
cannot be allowed to allege their own carelessness or ignorance
as a ground for being relieved from its consequences.^^ A
defendant cannot escape from the consequences of an adverse
judgment on the ground that he had a good defence in fact,
and relied inconsiderately on an untenable point of law, and a
plaintifi^ is precluded from repairing his mistakes or omissions
by recourse to another action, unless under rare and peculiar
circumstances.*'*^ In Ewing v. McNairy^^ the Supreme
Court of Ohio said : — "By refusing to relieve parties from the
consequences of their own neglect, it seeks to make them
vigilant and watchful. On any other principle, there would be
no end to an action, and there would be an end to all vigilance
and care in its preparation and trial.'' This was cited with
approval in Covington Bridge Co. v. Sargent^^^ in which
Ashburner, J., further said : — "The rule can impose no hardship.
It requires no more than a reasonable degi'ee of vigilance and
attention; a difierent course might be dangerous and often
oppressive ; it might tend to unsettle all the determinations
of law and open a door for infinite vexation.*'

Mr. Freeman explains the rule still more clearly and says,
" the general expression, found in the ReportSjthat a judgment is
conclusive of every matter which the parties might have litigat-
ed in the action is misleading. What is really meant by this



•0 Dewey «. Peck, 38 Iowa, 912. | »« 20 Ohio, 322.

»i Henn. Oomm. 181, 18S. | '<» 27 Ohio 237.



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8. 18.1 EXTENSION OF RULE TO CONSTRUCTIVE VERDICTS. 17

expression is, that a judgment is conclusive upon the issues
tendered by the plaintiff's complaint. It may be that the
plaintiff might have united other causes of action with that set
out in his complaint, or that the defendant might have inter-
posed counter-claims, cross-billsiand equitable defences^or either
of the parties may have acquired new rights pending the litiga-
tion, which might, by permission of the court, have been pleaded
by supplemental complaint or answer, and therefore might have
been litigated in the action. But as long as these several matters
Hre not tendered as issuesinthe action, they are not affected by it.
Whatever material allegations the plaintiff makes in his plead •
ings he must mainiain, if they are controverted, and failing to
do so, a judgment ac;ainst him is conclusive of their falsity.
The defendant, on his part, must controvert all these allega*
tions which he wishes to gainsay, and failing to do so, their
truth is incontestably established as against him. He cannot by
fiiiling to deny any of them, or if he denies them, by failing to
offer evidence to controvert that offered by plaintiff in sup-
port of any of them, successfully claim that it has not been
litigated and determined against him. In other words, neither
party can decline to meet an issue tendered by the other, and
then maintain that it has not become res judicata. The
plaintiff must support all the issues necessary to maintain
bis cause of action. The defendant must bring forward all the
defences which he has to the cause of action asserted in the
palaintiff's pleadings at the time they were filed. In this
sense is it true that a judgment is conclusive of every matter
which might have been litigated and decided in the action.
But the plaintiff is under no obligation to tender issues not
necessary to support his cause of action, nor is the defendant
required to meet issues not tendered by plaintiff'; and if, after
the defendant has fully met all the issues tendered by plaintiff,
there is any matter not admissible in evidence under the
pleadings, it is generally not concluded by the judgment, though
the parties might by different pleadings have made it an issue
in the action and had it determined."^^

Field, J., in delivering the judgment of the Court in Grom^
wellv. SaCf^ said: **0n principle a point not in litigation
in one action cannot be received as conclusively settled in any
subsequent action upon a different cause, because it might have
been determined in the first action. Various considerations.



»* Ft. Jnd. 441. | «« M U. S., 351.



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18 EXTENSION OP RULE TO FOBKION .TUDGMBNTS. [g. 14.

Other than the actual merits, may govern ft party in hringiBg
forward grounds of recovery or defence, in one action, which
may not exist in another action upon a di&rent demand, such
as the smallness of the amount or the value of the property in
controversy, the difficulty of obtidmng the necessary evidence^
the expense of the litigation, and his own situation at the time.
A party acting upon considerations like these ought not to be
precluded from contesting in a subsequent action other demands
arising out of the same transaction, • • • The language of the
yice-Chancellor in the case of Henderson v. Henderson ^* is
sometimes cited as expressing a different opinion, but upon
examining the facts of that case, it will appear that the language
used in no respect conflicts with the doctrine we have stated.
• • • There is nothing in this language applied to the facts
of the case, which gives support to the doctrine that whenever
in one action a party might have brought forward a particular
ground of recovery or defence, and neglected to do so, he is in
a subsequent suit between the same parties upon a different
cause of action precluded from availing himself of such ground."
Tliere is nothing in these remarks to indicate that a decision in
any matter that not only might, but ought to have been urged
in a former suit will not be res judicata in regard to that matter
in a subsequent suit. The rule as extended by Explanation
II. does not go beyond the above statement of it, and ex-
pressly enacts that it is only the matter that ought to have been
made a ground of attack or defence in the former suit that
i^hall be deemed to have been in issue in that suit.

14. Another material alteration made by Sec. 13 was the

express extension of the doctrine of res

th^^^^^^^Y^^ *°* j^tcato with certain limitations to Foreign

judgments. ^^^^^ judgments, the limitations being enacted hy

Sec. 14 which in the Civil Procedure Code

of 1882 stands as follows :•—

*' No foreign judgment shall operate as a bar to a suit in
British India —
(a) if it has not been given on the merits of the case :
(6) if it appears on the face of the proceedings to be found-
ed on an incorrect view of international law
or of any law in force in British India:
(c) if it is in the opinion of the Court before which it is
produced contrary to natural justice:

' ~ ~ >• 3 Hare, 110.



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Si 1&] AumimMm as to mattib in issra. 19

(d) if it has been obtaiiied by fraud :

(e) if it sustains a claim founded on a breach of any law

in force in British India.

The operation of the rule has since been restricted to only
a few Courts by a proviso added to the section by Act VII of
1889, providing that '* where a suit is instituted in British
India en the judgment of any Foreign Court in Asia or Africa,
except a Court of Record established by Letters Patent of Her
Majesty or any predecessor of Her Majesty or a Supreme Con-
sular Court established by an order of Her Majesty in Council »
the Court in which the suit is instituted shall not be precluded
from inquiry into the merits of the case in which the judgment
was passed." The extension of the doctrine of res judicata^
whicb in strict law applies only to domestic Courts, is from
motives of comity and policy recognised, with some limitations,
in almost every civilized country ; and had been lon^ before
the Code of 1877, accepted and acted upon by the Courts in
British India.

15. In die rale of res judicata as enacted in 1877, only
Amendment ai to '^^ alterations have since been made, and
tire matter in issue ^^^ A^i to a great extent of a verbal cha-
hamtg beenaodinet- racter. The Select Committee in their Report
fy Mid substantidly presented with the Bill, finally enacted as
IB the former smt. ^j^^ ^j^y p^^^cedure Code of 1877 observed,
tJiat they had provided ** that in the former suit the matter in
issue most have been not only substantially but directly in
issue." Grammatioally, however, the words 'directly' and 'sub-
staatially ' could not be read with the * matter in issue ' in the
farmer suit. The Legislature, following up their own intention,
inserted the word * directly' in Explanation II to Qualify
that? expression ia regard to the former suit. By Act XII of
1879, both the words were introduced into the body of the
seetioii' itself so as to refer to the former suit, the Select
Committee observing in their report that they had amended
the seetioBv '^"so aa to make it clear that the Court may not
try any suit in which die matter directly and substantially in
issue, having been- directly and substantially in issue in a former
sdl, was beard and finally decided therein ; but that a decision
on a natter collaterally in question or incidentally cognizable is
not bindkig ^i^aay Court other than that which pronounced
it.**



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20 AMENDMENT AS TO JURISDICTION. [8- 16.

16. The other alteration was made with a view to render it

Amendment as to ^^^^\ *^^ *® Competency of jurisdiction

the jurisdiction of the required for the rule of res judicata in regard

Court tiding the for- to the Oourt trying the former suit was as to

mer suit oyer the the subsequent suit also. This was held to be
Buhsequeot suit. ^^^ j^^ ^^^^^ ^^^ ^^^^ ^^ jggg ^^j jg^^^

The leading case in favour of that view is Edun v, Btchun^^^
in which case Sir Barnes Peacock^ C. J., treated the concurrence
of jurisdiction as an essential part of the rule of res judicata, as
an essential condition of the application of that rule. That de-
cision was approved of and followed in somecases, and has since
the enactment of the Code of 1882, been expressly approved
of by their Lordships of the Privy Council in Raghobar Dial \.
Sheobaksh Singh,^'' and in JRun Bahadur Singh v. Luchoo
KoerJ^ In the former case it was held that a decision
by an Assistant Commissioner as to the existence of the
consideration for a bond, in a previous suit for some
interest due on the bond, did not constitute res judicata
in a subsequent suit for the amount of the bond, which was
beyond the Assistant Commissioner's jurisdiction. Sir Richard
Couch in delivering their Lordships' decision said : — ** If the
decision of the Assistant Commissioner is conclusive, he will,
although he could not have tried the question in a suit on the
bond, have bound the plaintiff as effectually as if he had jurisdic-
tion to try that suit. Their Lordships think this was not in-
tended, and that by Court of competent jurisdiction Act X
of 1877 means a Court which has jurisdiction over the
matter in the subsequent suit in wnich the decision is
used as conclusive, or in other words, a Court of concurrent
jurisdiction.'* In the latter case. Sir R.P. Collier in delivering
their Lordships' decision said, — **If this construction of the
law were not adopted, the Lowest Court in India might de-
termine finally, and without appeal to the High Court, the title
to the greatest estate in the Indian Empire.'' Yet, on account
of the language employed in the section, the contrary had been
held in some cases, among which mention may be made of the
case of Toponidhee Dhirj CHr v. Sreeputty Sahaneeputty^^^
in which White, J., concurred in the decision, with die
observation that he personally shared in the views of Sir Barnes
Peacock» and if unfettered by authority would have held that
the competency required was in respect of the subsequent suit

«• vm w. R. 175. I •• L. R. za I. A. as.

•TL.B.IXX. A.107. I «• I. L. R. V. QO. SSS.



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&. 17.] AMENDMENT AS TO JURISDICTION. 21

also. . On account of this construction, difficulty was first
experienced chiefly in rent suits, and the Courts tried
to avoid it by holding that the question of title to the property
in respect of which rent was claimed would not be directly in
issue in the suit. This was of course not correct, and in 1879
a Select Committee of the Indian Legislative Council, to
remove the difficulty, proposed to add an *^ explanation
declaring in effect that a decision in a suit for arrears of
rent under any local law relating to landlord and tenant, shall



Online LibraryHukm ChandA treatise on the law of res judicata: including the doctrines of ... → online text (page 12 of 107)