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In judicial proceedings many of us come through an expression Res Judicata, which is a strange term for the common man. A legal person knows this term but for a common man it is a mind boggling concept, he does not understand what this term mean. If he tries to understand then people around him would confuse him; available definitions are laden with heavy words which pass over common man’s mind.

Res judicata or res iudicata (RJ), also known as claim preclusion, is the Latin term for “a matter [already] judged”, and may refer to two concepts: in both civil law and common law legal systems, a case in which there has been a final judgment and is no longer subject to appeal;[1] and the legal doctrine meant to bar (or preclude) continued litigation of such cases between the same parties, which is different between the two legal systems. In this latter usage, the term is synonymous with “preclusion“.

In the case of res judicata, the matter cannot be raised again, either in the same court or in a different court. A court will use res judicata to deny reconsideration of a matter.[2]

The legal concept of res judicata arose as a method of preventing injustice to the parties of a case supposedly finished, but perhaps mostly to avoid unnecessary waste of resources in the court system. Res judicata does not merely prevent future judgments from contradicting earlier ones, but also prevents litigants from multiplying judgments, so a prevailing plaintiff could not recover damages from the defendant twice for the same injury.

The U.S. legal systemplaces a high value on allowing a party to litigate a civil lawsuit for money damages only once. U.S. courts employ the rule of res judicata to prevent a dissatisfied party from trying to litigate the issue a second time.

Constructive Res judicata

In a recently reported decision [Ramchandra Dagdu Sonavane (Dead) by L.Rs. v. Vithu Hira Mahar (Dead) by LRs. & Ors., AIR 2010 SC 818], the Supreme Court has explained the doctrine of constructive res judicata as applicable in Indian law. A sub-set of the doctrine of res judicata, emanating from Section 11 of the Code of Civil Procedure, the doctrine of constructive res judicata sets to naught any claims being raised in a subsequent proceeding where in an earlier proceeding such claim should / ought to have been raised and decided. A rule of prudence, thus, the doctrine seeks to bar determination and enforcement of claims which have not been raised at an appropriate juncture in judicial proceedings.

Application of res judicata in writs

This rule of law has been made applicable even to writ proceedings as well. The position, therefore, is that when once a writ petition has been moved in a high court or Supreme Court (SC), and has been rejected there on merits, then a subsequent writ cannot be moved in the same court on the same cause of action (M S M Sharma Vs Sinha, AIR 1960 SC 1186).

If the petitioner seeks to urge some new grounds which he has failed to do before in the earlier petition, the matter cannot be agitated in a subsequent petition because of ‘constructive res judicata’. In case, this rule is not applied to such proceedings, a party can go on filing one writ petition after another urging one or two new grounds each time, thus causing hardship to the opponent. What operates as ‘res judicata’ is the decision and not the reasons advanced by the court in support of its decision. (AIR 1968 SC 1370).

It, however, needs mention that ‘constructive res judicata’ applies to civil proceedings and not to habeas corpus petitions.

A subsequent petition under this writ jurisdiction can be filed on fresh grounds not pleaded earlier for the same relief (AIR 1982 S C 53). Even the Supreme Court can still entertain a petition under Article 32, whether or not new grounds are raised, in view of the importance of personal freedom. But, when a writ petition is withdrawn by the petitioner conceding the futility of the case as a ground for withdrawal and court allows it on the plea, a second petition will be barred by ‘res judicata’ (AIR 1975 Guj 183). A fresh petition is possible onlyif the court gives liberty for doing so

There is some confusion on the point whether ‘res judicata’ applies when a writ petition is dismissed without the court making a speaking order. The apex court has held in a case that this doctrine should not operate in such a case. In Hoshnak Singh Vs India, the SC has ruled clearly that ‘where a petition under Article 226 is dismissed in limine without a speaking order’, such a dismissal would not constitute a bar to a subsequent petition. A high court can only review a decision where some mistake or error apparent on the face of the record is found. But, this power of review may not be exercised on the ground that the earlier decision was erroneous on merits.

If a person goes first to a high court under Article 226 and his petition is dismissed on merits, he cannot approach the SC under Article 32 because of ‘res judicata’. He can reach the SC only by way of appeal. If, however, high court dismisses his or her writ petition not on merits, then ‘res judicata’ does not apply and petitioner can move the SC.

Thus it simply means, a matter which is already decided by the apex court cannot be enertained repeatedly.


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